PROVING THINGS 256: CLAIMANT FAILS TO ESTABLISH LIABILITY AFTER FALLING FROM A HORSE: THE ANIMALS ACT CONSIDERED

This blog has looked at the judgment in Boyd v Hughes [2025] EWHC 435 (KB) several times in relation to procedural issues and assertions of dishonesty.  However the case, ultimately, was about a claimant who was injured when she fell from a horse.  The claimant failed to establish liability.  The judgment on liability contains a detailed review of the Animals Act 1971, the relevant cases and why, on the facts of this case, the claimant did not satisfy the relevant criteria.

“In this case for the reasons which I have set out above the Claimant has failed to discharge the burden of proving the existence and causative effect of the characteristic relied upon; that the shy/jink/sharp movement to the right was due to Foxy having “perceived a threat””

WEBINAR ON CLAIMS INVOLVING ANIMALS:  DOES EVERY DOG DESERVE ONE BITE?  6th JUNE 2025

This webinar looks at recent cases about liability for animals causing injury, booking details are available here. 

It considers why the claimant was, or was not, successful, and the practical implications for litigators who bring a claim for damages.

Matters include:

• Five recent cases in relation to liability for horses
• Recent cases on liability for dogs
• Guidance on procedure – should there be a split trial
• Practical matters to consider when bringing a claim involving animals

THE CASE

The claimant was injured when she was riding a horse in the course of her employment as a rider and stable hand with the defendant.  Her case was that the horse “jinked” this caused her to fall off the horse and suffer a serious injury to her shoulder.

THE ANIMALS ACT

1. 1. Section 2 provides that:

“(2) Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if—

(a) the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and

(b) the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and

(c) those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as that keeper’s servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.

The Act, it has to be said, is unlikely to be anyone’s favourite statute.  The judge observed

1. 1. “Over the last fifty years section 2 has been repeatedly criticised, on occasions in a trenchant manner, by Judges and academics. Lord Scott described it in Mirvahedy v Henley [2003] 2 AC 491 as “judicial excoriation in a number of cases”.

 

1. I confess that like many others I have struggled with how to approach the separate requirements.”

THE ANIMALS ACT CONSIDERED

The judge found that the claimant had failed to establish liability under the Act.

1. 1. “After much careful thought on the issue it is my view the only finding that can properly be justified is that the horse saw or heard something, or thought it saw or heard something in its environment , which included the surface of the gallops, which it thought required it to effectively sidestep or jink/shy sharply to the right and back again. To go further is to clothe the finding with too much certainty. I shall return to this issue in detail in due course.

1. 1. I will consider some further aspects of the facts when considering the specific issues in relation to the matters to be established under section 2 of the Act. However it is helpful to first set out the law.

The Animals Act 1971

1. 1. Section 2 provides that:

“(2) Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if—

(a) the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and

(b) the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and

(c) those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as that keeper’s servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.

1. 1. Over the last fifty years section 2 has been repeatedly criticised, on occasions in a trenchant manner, by Judges and academics. Lord Scott described it in Mirvahedy v Henley [2003] 2 AC 491 as “judicial excoriation in a number of cases”.

1. 1. I confess that like many others I have struggled with how to approach the separate requirements.

1. 1. The leading authority is Mirvahedy. The case turned upon the interpretation of section 2(2)(b) and the meaning of what was normal behaviour for the species in particular circumstances. However it also gave some guidance as to the interpretation of section 2(2)(a).

Section 2(2)(a)

98. There is a general interpretation provision at section 11 in which damage is defined as, including “…death or injury to any person including any disease and any impairment of physical or mental condition.”

1. 1. There has been little judicial consideration of the phrase “unless restrained”. Philips LCJ in Clark v Bowlt [2006] EWCA Civ 978 equated unless restrained with “unless tethered” in a case where the horse was being ridden (and no point was taken in respect of restraint). Otherwise in all cases concerning riders who have fallen from horses there has been no consideration of the term.

1. 1. It is my view that for the purposes of this section to be under restraint means so kept under control as to avoid any reasonably foreseeable risk of damage (e.g. a dog which is on a fixed chain or in a cage/pen cannot bite a person unless they by pass the restraint). I cannot see how ordinary riding equipment used whilst in the process of riding could qualify as restraint. It provides a degree, sometimes a high degree of control, but no morel control as the facts of the numerous authorities to which I have been referred readily testify.

1. 1. In his dissenting Judgment in Mirvahedy Lord Scott considered the meaning of the word “likely” as used in section 2(2)(a). He could not endorse the interpretation of Lord Justice Neill in Smith v Anger (The Times 5^th June 1990); a case which concerned a dog which attacked another dog and in the process injured the Claimant. Lord Scott stated at paragraph 97;

“……Neill LJ directed himself first to the meaning to be given to the word ‘likely’ in section 2(2)(a). He rejected ‘probable’ or ‘more probable than not’ as correct and preferred ‘such as might happen’ or ‘such as might well happen’. I would respectfully agree with the Lord Justice’s rejection of ‘probable’ and ‘more probable than not’ but am unable to agree that ‘such as might happen’ a phrase consistent with no more than a possibility can be right. A mere possibility is not, in my opinion, enough. I have suggested ‘reasonably to be expected’ as conveying the requisite meaning of ‘ likely’ in paragraph (a). But it may be that there is no material difference between ‘reasonably to be expected’ and Neill LJ’s ‘such as might well happen’.”

So he expressly rejected likely as meaning possibly. In subsequent cases before the Court of Appeal, his interpretation has been adopted as the correct one. In Freeman v Higher Park Farm [2008] EWCA Civ 1185, Lord Justice Etherton stated that it was not in dispute that ‘likely’ in section 2(2) bore its natural meaning of ‘reasonably to be expected’. In Turnbull-v- Warrener [2012] EWCA Civ 41. Lord Justice Maurice Kay stated:

“Although there have been semantic debates about the meaning of ‘likely’ in section 2(2)(a) it seems to me that it has now become settled. It means ‘reasonably to be expected’.”

1. 1. The next issue is upon what facts/circumstances is the likelihood of injury and /or severe injury are to be assessed? In Mirvahedy Lord Scott noted that a point of construction arose but concluded that as the issue had not been addressed in the appeal it could be taken no further.

1. 1. The phrases “was likely to cause” and “was likely to be severe” mean that issues must be considered prospectively and simply not assumed with the benefit of hindsight.

1. 1. Neither the likelihood of injury, nor the severity of it, should be assumed from the circumstances of the accident, or the fact that the claimant did, in fact, suffer a severe injury. The causation of injury in the accident provides some relevant evidence within the prospective analysis, but no more than that. So much, in my view, is relatively straightforward. However the question of level of particularity/generality is more problematic.

1. 1. In Turnbull, Lord Justice Lewison stated:

“If you start with severe injuries resulting from the accident itself,…”[as the trial judge in Welsh had done]”…and the particular circumstances in which it took place, then the question of whether the damage is ‘likely to be severe’ answers itself. If the injury was, in fact, severe it would be almost inevitable that, barring some freak, it was likely to be severe. To borrow from Lord Hobhouse in a case of occupier’s liability, Tomlinson v Congleton Borough Council (2004) 1 AC 46, 79, it is a fallacy to say that because drowning is a serious matter there is, therefore, a serious risk of drowning. The problem, as I see it, is the level of generality at which you ask and answer the question. If the question is if you fall off a rearing horse onto a hard surface and the horse falls on top of you, is the injury likely to be severe, you may get one answer. But if the question is if you fall off a horse, is the injury likely to be severe, you may get another. I do not believe that this problem has yet been squarely confronted in the cases.”

1. 1. In Lynch -v-Ed Walker Racing [2017] EWHC 248, after noting the comments of Lord Scott and Lord Justice Lewison, Mr Justice Langstaff stated:

“23. In common with their Lordships, I too consider that the level of particularity or, looking at it from the converse, generality, is important. It cannot be that the circumstances should be defined so particularly that, on the one hand, it is almost impossible to say that any other animal of the same species would behave in precisely the same way, because none can be shown to have faced precisely the same circumstances, and it cannot be known; nor can it be so particularly defined for the purposes of section 2(2)(b) that the circumstances themselves answer whether an injury is likely or that if it is to take place, if it is likely to be severe. Nor can it be reduced to such a level of generality as completely to divorce the question from the facts of the case.

24. Where precisely to place it must permit the sections of statute to have some meaning and effect as has been pointed out in the authorities. If section 2(2)(a) is to be capable of separate answer from 2(2)(b) the fact that, in the circumstances, an animal causes serious injury cannot show that any injury likely to be caused would be serious.”

1. 1. In Dennis -v- Voute & Another [2022] EWHC 2117 Her Honour Judge Howells was faced with a factual dispute as to whether a colt which was being led at Tattersalls spooked and shied away or tripped and stumbled. There was no identifiable event which the Claimant could point to as causing the horse to spook. After a very through and careful analysis the Judge concluded that, on balance, the horse stumbled. She continued on to consider section 2 (2). After a review of the authorities, she concluded that the proper approach was to consider the sections of section 2 (2) separately and sequentially. Judge Howells then stated:

“44.  In terms of the particularity/generality point, it was conceded by Mr Harris that I need to look at this particular horse at this particular place and unrestrained, but I consider the question for me to determine, in looking at the first limb of s.2(2)(a) following the approach in Clark v Bowlt , is: was the damage which this yearling caused damage of a kind that this yearling, unless restrained, was likely to cause. To introduce a wider analysis of the s.2(2)(b) characteristics in specific circumstances at this point in looking at s.2(2)(a) would, in my judgment, be to introduce too great a particularity into s.2(2)(a) . Further, to do so, in my judgment, would render the provisions of s.2(2)(b) largely redundant. I am reinforced in my judgment by para.96 of Mirvahedy.

45.  In respect then of the second limb of s.2(2)(a) where the damage, if caused, was likely to be severe, the defendants accept and have conceded that the level of generality of which the second limb of s.2(2)(a) should be considered cannot be the same as the first. This is a matter which is reflected in the different way the courts, as set out above, have considered the second limb of s.2(2)(a).”

1. 1. When considering section 2(2)(a) on the facts before her she said that she “took out the particular characteristics in 2(2)(b) but recognised that this was a thoroughbred yearling shown at Tattersall;” a large leggy animal. She noted that without a trigger it was not likely to cause injury. Also that had there been a trigger (an example of a chair was given), again it was accepted that there would not be injury and accordingly the first limb of section 2(2)(a) was not satisfied. She then noted that the expert evidence did not support the finding that the damage, if caused, was likely to be severe.

1. 1. On behalf of the Claimant, Ms Read argued that the particular circumstances of the accident and also the relevant characteristic under section 2(2)(b) must be considered when considering the issues under both limbs of section 2(2)(a). She submitted that it would be wrong and artificial to ignore the fact that there was a rider in place also the fact that an injury did in fact occur which must be a relevant consideration within, although she concedes not determinative of, the assessment of the likelihood or injury and/or of severity of injury.

1. 1. Ms Crawford accepted that, given the wording of the section, a degree of particularity must be considered under the second limb of the section. However she argued that was not so with the first; which she argued must be considered without any particularity (so not even with a rider in place).

1. 1. The first limb of section 2(2)(a) obviously cannot be considered with the animal within a factual vacuum. Once it is recognised that at least part of the factual matrix must be applied it then becomes a question of degree. For my part when considering the first limb of section 2(2)(a) in the context of behaviour of a horse when ridden it is difficult to see how the particularity of a person being in the saddle can be sensibly and properly ignored when assessing whether the damage (injury) was of a kind likely to be caused (reasonably to be expected). Otherwise if this factual particularity were stripped away when considering the question under the first limb of section 2(2)(a) one would be left in a case such as the present, with an assessment of the likelihood of damage being caused by a horse standing, walking or canting unridden when it moved. Sensibly this cannot have been intended to be the correct approach if the behaviour was exhibited whilst the horse was being ridden.

1. 1. As for the second limb; the likelihood of injury being severe it is only relevant when injury was not likely. As a result this must require sufficient particularity as to the general method of this unlikely injury to allow severity to be considered (e.g. falling off it is unlikely that a person would fall off).

1. 1. In my view beyond these general observations in a case involving a horse which was being ridden matters the degree of particularity with which the alternative requirement in section 2(2)(a) should be considered must be case specific and intended to reflect the wording of both sections 2(2)(a) and 2(2)(b). I shall return to this issue.

1. 1. Another issue is the extent to which the likelihoods under both limbs of section 2(2)(a) can be taken as obvious or self-evident. This is a central issue in this case.

1. 1. In Welsh-v-Stokes EWCA Civ 796 the Claimant, who had suffered injury after a fall from a horse, made a claim under section 2. The accident on occurred on a road when the horse reared up, the Claimant fell off and the horse fell on her. The trial Judge found that personal injury was likely to be severe as

“anyone falling off a horse that has reared up and falling onto a tarmac road, is likely, in my judgment, to suffer severe injury; still more so is this likely to be the case, in my judgment, if the horse falls backwards on her.”

1. 1. This finding, in my view unsurprisingly, was not challenged on appeal. Dyson LJ said at paragraph 40 that:

“If a horse rears in the particular circumstances and the rider falls from the horse, she is likely to suffer severe damage. That may be because she falls onto a hard surface (which need not be a tarmac road) or because the horse falls on her or some other way.”

1. 1. In my view Welsh which concerned a very different fall from that in this case, and where the appeal largely focussed on section 2(2)(b) provides limited assistance on the extent to which evidence is required as to the likelihood of damage being caused, or if caused, the likelihood of it being severe.

1. 1. In Freeman-v- Higher Park Farm [2008] EWCA Civ 1185 the horse which was supplied by the Defendant for a fee bucked violently as it was beginning to canter during a hack organised by the Defendant on Chobham common. The Claimant (who rode “fairly regularly”) fell off. The trial Judge found that neither limb of section 2 (2)(a) was satisfied. Etherton LJ held that the Judge had failed to approach the section correctly in that he failed to consider the likely severity of injury if the horse had caused physical injury (paragraph 32). He also rejected the need for evidence, stating at paragraph 34;

“…it is obvious that, if a horse bucks on beginning to canter so that the rider falls off, it is reasonably to be expected that severe injury will result. In Welsh-v-Stokes….Dyson LJ, with whom other members of the Court agreed, regarded this as self evident in the case of a rider who falls from a horse that rears. I see no reason why the same approach should not be appropriate in the case of a rider falling from a bucking horse about to canter.”

1. 1. In Goldsmith-v- Patchcott [2012] EWCA Civ 183 the Claimant was riding a horse she was looking after for a friend when “something startled the horse” which reared up and started to buck violently. Section 2(2)(a) had been conceded and was not in issue in the appeal. Whilst reviewing the law Lord Justice Jackson stated;

“33. It can be seen that sub-section (2) (a) catches two types of damage. First, there is damage which the animal is likely to cause, if the animal is not restrained. Secondly, there is damage which the animal is unlikely to cause, but which is likely to be severe if the animal does cause it. It should be noted that this sub-section will only eliminate a small number of cases. Most animal-related damage which someone wishes to sue about will fall into one or other of those two categories.”

1. 1. In my judgment this obiter observation, which was relied upon by Ms Read in this case, is of limited assistance when section 2(2)(a) is in issue on the particular facts of the case.

1. 1. In Turnbull v Warrener [2012] EWCA Civ 142 the Claimant, an experienced horsewoman made an arrangement to ride the Defendant’s horse. The horse developed a sore mouth so a decision was taken to ride it with a bitless bridle (something it had not experienced before). The horse was initially compliant when ridden on the day in question and then set off at a gallop (it did not bolt but was going faster than the Claimant wanted it to go) and suddenly veered to the right and went through a gap in the hedge at which point the Claimant fell off landing on a tarmac area and sustaining injuries. Mr Lane gave evidence on behalf of the Claimant and was cross examined about the likelihood of severe injury. The trial Judge held that if there were damage it was not reasonably to be expected that severe injury would result.

1. 1. Lord Justice Maurice Kay rejected the appeal because the defendant had made out one of the statutory defences in section 5. However he considered whether the Judges finding in relation to section 2 (2)(a) was permissible on the evidence before him. He noted the judgments in Welsh and Freeman and stated:

“14. In the light of this approach, one cannot blame a claimant for failing to adduce expert evidence of the likelihood of severe injury. What, then, is the position if the claimant’s expert gives answers in cross-examination which are helpful to the defendant on this issue? Is it open to the judge to displace what was previously considered to be obvious? Or was it impermissible (that is, perverse) so to conclude in this case?”

He concluded:

“16. Notwithstanding the skill of the cross-examination, I do not consider that its product was sufficient to produce the heterodox finding which eventuated. At most, it discounted a probability. However, that is not the same as a likelihood, with its received meaning of “reasonably to be expected”. Moreover, in the circumstances in which the judge was considering the issue (hurriedly, and without the benefit of oral submissions late on the second day of the trial), it is not clear that he had in mind the “reasonably to be expected” test. In my judgment, the decision on section 2(2)(a) was not a permissible one, either because it was not really supported by the evidence and was contrary to received wisdom or because it resulted from a failure to apply the correct test.”

1. 1. The other two members of the Court disagreed with him on this point. Lord Justice Stanley Burnton said, at paragraph 39:

“39.  First, in my judgment it was open to the judge to find, on the evidence before him, that the requirement in section 2(2)(a) was not satisfied. I agree with paragraphs 8 to 13 of the judgment of Lewison LJ. The judge was bound to consider the application of that paragraph on the evidence before him, rather than on what judges in previous cases had considered to be obvious as a matter of fact. The effect of Mr Lane’s evidence was not wholly clear, but neither side sought to clarify it, and it was left to the judge to assess its effect. It was open to him to make the finding he did.”

1. 1. Lord Justice Lewison considered Welsh -v- Stokes and stated:

“54.  These statements seem to me to be statements of fact rather than rulings on the law. In the present case the judge heard expert evidence on the likelihood of serious injury, which Maurice Kay LJ has quoted. The evidence was that riders fall off horses every day and do not sustain severe injury. I would not characterise the first three questions as controversial. Almost anyone who has ever ridden will have the experience of having fallen off a horse, getting up and remounting the horse. I do not, with respect, regard it as self-evident that a rider who falls off a rearing horse (or for that matter a cantering horse) is likely to suffer severe injury. It has not been suggested that the expert evidence on the likelihood of injury was inadmissible, even though Etherton LJ suggested that expert evidence need not be called. In my judgment the judge was entitled to rely on that evidence and make the finding of fact that he did. In respectful disagreement with Maurice Kay LJ I would uphold the judge’s decision on section 2 (2) (a).”

1. 1. The issue was also before Mr Justice Langstaff in Lynch. The Appellant’s counsel relied on Welsh, Freeman and Goldsmith in support of a submission that if an injury has been caused by a two year old racehorse whipping round, it is probably because the rider will have fallen. If the rider has fallen and suffered personal injury, it is “obvious” that such injury might well be severe. Langstaff J considered the authorities and concluded in respect of Freeman (which he considered provided the most support for the Appellant’s submission:

“32. That decision is not binding upon me nor, in my view, could the question whether an injury was or was not likely, in the sense of reasonably to be expected, sensibly be described as an issue of law. It is, rather, a question of fact. It may be that in some circumstances, such as those before Etherton LJ, in the absence of any other evidence it is open to a court to conclude that any injury would be severe. Although as Lewison LJ’s own personal comments make clear, he would not himself necessarily share that view. But, as a matter of law, this is a question of fact ultimately to be determined by the Court, usually at first instance.”

1. 1. I agree with this analysis. The issue is fact specific and to be determined on the evidence before the Court. It is true that in some cases (Welsh being a paradigm) a fall onto tarmac with the horse then falling on top of the rider may mean that the conclusion as to likelihood can be easily reached. In other cases, and in my judgment the current case is one; matters are very far from so straightforward.

Section 2(2)(b)

1. 1. The much criticised wording of  Section 2(2)(b) is ambiguous. One interpretation of its meaning is that it describes two different categories of damage in respect of which there will liability. Firstly in respect of damage which was likely, or was likely to be severe, because of characteristics not usually found in animals of the same species. Secondly in respect of damage which, while not likely, or likely to be severe, because of the characteristics of the animals of the same species in normal circumstances was likely, or likely to be severe, because of characteristics of animals of the same species at a particular time or in particular circumstances.

1. 1. A different interpretation is that the subsection sets out a single category of damage, specifically damage which was likely, or likely to be severe, because of characteristics not normally found in animals of the same species even if they were found in such animals at particular times or in particular circumstances.

1. 1. The dispute as to the correct interpretation was given its quietus by the majority of their Lordships in Mirvahedy. Three members of the House of Lords held that section 2(2)(b) had the first meaning; two that it had the second meaning. That subsequently senior Judges have expressed considerable concerns about the resulting extent of liability (such as Lewison LJ in Turnbull) does not alter the test to be applied.

1. 1. In the present case it is the Defendant’s submission that the Claimant cannot satisfy subsection 2(2)(b) because the propensity of horses (specifically young racehorses) to shy at “perceived threats” i.e. not at identifiable causes/threats is neither abnormal nor to be found only “at particular times or in particular circumstances.”

Analysis

1. 1. I have approached the sub-sections of section 2 sequentially (such being “important” in the view of Lord Justice Neill in Smith-v-Ainger [1990] WL 754371). However in this case the result would not have been different if the approach had been otherwise.

Section (2)(2)(a)

1. 1. Ms Crawford raised the question of whether Foxy was restrained. I can deal with this issue very shortly on the facts of this case given the analysis set out above. The horse was not restrained applying the meaning of term in section 2.

1. 1. As for the likelihood of injury being caused, or if caused that it would be severe the Defendant’ s pleaded case was:

a…..

b…it is denied that a shy and/or sidestep in canter is likely to cause any damage. On most occasions when a horse side steps/changes direction/decelerates, even in canter, the rider (particularly an experienced rider such as the Claimant) will not fall.

c….

d….regardless of the exact circumstances leading to the Claimant’s fall… it is denied that severe injury was likely. On most occasions when a rider falls from a horse in canter, particularly onto a soft surface such as the gallops in question, they do not suffer severe injury.

1. 1. The submissions of Counsel differed as to;

(i) the level of particularity with which issues are to be addressed ( as set out above)

(ii) the need for, the nature and extent of, relevant evidence given that degree of particularity;

(iii) the conclusion to be reached given the facts as found.

1. 1. As I have already set out in my judgment in a case involving the behaviour of a horse when ridden the extent of particularity beyond that fact i.e. that the horse was being ridden, required for the assessment of either limb of section 2(2)(a) will be case and circumstances specific. As Langstaff J observed the degree of particularity must not be so high as to mandate a conclusion or in my view too general to render the assessment artificial.

1. 1. When considering the first limb that there was a rider on a moving horse are in my view obviously and minimum relevant particulars.

1. 1. As for the second limb, as the trial Judge stated in Welsh the starting point is the accident itself i.e. that although it was an unlikely consequence, the rider has fallen off.

1. 1. As for the need for and/or reliance upon evidence as to likelihood and severity of injury as I have already set out, I agree with the analysis of Mr Justice Langstaff in Lynch.

1. 1. As for the nature and extent of the relevant evidence on these two issues Ms Crawford relied on various aspects which are set out below. Ms Read submitted that much of this evidence was of little, if any assistance and that the answers to the questions posed under section 2(2)(a) were “self evident”.

1. 1. Before considering what can be properly considered when considering the two different likelihoods, it is first necessary to set out the detailed relevant factual background. In no particular order the matters which are potentially relevant to the assessment under section 2(2)(a) as matters of “particularity” are as follows

(a) I have set out the fact of the accident itself; how it occurred and the injury sustained

(b) As agreed by the experts all horses can shy and on most occasions it does not result in a rider falling off.. The likelihood of a rider falling off is a function of a number of factors including the position of the rider and the nature of the movement. The more extreme or violent the deceleration and/or change of direction the more likely it is that any rider will fall off. The experience of the rider is also another obvious factor such matters are common sense. The risk of injury from falling is also function of various factors including the height of the fall and the surface impacted.

(c) The Claimant was an experienced professional rider. Whilst this may ordinarily mean she was less likely to fall off than a non-professional rider it also meant that she rode in a less stable position (out of the saddle and on the stirrups) than many if not most riders would when cantering.

(d) The agreed evidence of the experts that if a rider falls off, “they may well receive minor soft tissue injury such as bruising or similar”.

(e) The evidence of Mr Lane that on most occasions that a rider falls from a cantering horse, they do not suffer severe injury.

(f) The evidence of Ms Taylor that the risk of injury, or if injury occurs of it being severe is dependent on the particular circumstances. Whether severe injury is likely depends on the force of the fall, how the rider lands and the surface the rider lands on.

(g) The surface of the gallops was two feet of ripped carpet pieces; a Jocky club approved surface. The Defendant’s case on this surface lessening impact was clear (and pleaded). The Claimant said that the surface on the canter was not “soft play” and although soft that was “only if you compare it to concrete” and that “you can easily get injured falling on an all weather gallop…you can be pretty much unscathed or you can be badly injured ” and ” you cannot possibly say that it would be surprising if a person was injured falling”. However given the three elements of her evidence to which I have referred, and in particular her exaggeration of Foxy’s propensity to shy, I treat the Claimant’s evidence on this issue with some caution. It was the agreed evidence of the experts that if a rider falls onto the “relatively soft surface” of an all weather gallop, then the risk of severe injury is less than if falling onto a harder surface. I am satisfied that there was a significantly reduced risk of severe injury caused by falling onto this approved surface when compared to ordinary ground (and a very much greater reduction when compared to a road). Beyond that I cannot properly go as I have no more detailed or focussed evidence. I should add that I do not fully understand the relevance/ significance of comment in the Claimant’s statement given (without any detail) that the surface was “patchy”. The Defendant’s unchallenged evidence was that the surface was given a walked inspection every day and also harrowed.

(h) The evidence of the head lad Allan Williams (which I accept as honest and accurate).

“I have ridden plenty of racehorses in my career including on the gallops at Ty Heol Farm where they have jinked or shied without me falling off. I would say that in nine out of ten of those occasions, I have remained in the saddle. When I have fallen off, I have not been injured badly. More often than not, it is just your pride that gets hurt.

He clarified during his oral evidence that when he said not injured badly he meant he had just been bruised.

(i) The evidence of Gemma Stead which I find as both accurate honest as regards her experience at the yard, that;

“Jinking is when a horse diverts off a straight line for a stride as a reaction to something that might have spooked him. This can be a little unbalancing but (would) not generally cause Hazel or me to fall off and I say this having previously watched Hazel stay on a horse that has jinked. Racehorses can be sharp and to be a work rider at a racing yard you should be able to stay on for those type of movements.”

And

“I have ridden on the round gallop as well as the Bottom Gallop at Tyr Heol Farm, almost daily since working for Mark and Debbie Hughes and have experienced cantering a racehorse when it has jinked on many occasions and no differently to how Foxy jinked on the morning of the accident. I have almost always been able to withstand the jink and not fall off.”

She also referred to one other occasion on the gallop when a horse whipped around and she fell off but was not injured.

(j) The evidence of the Defendant which I accept that;

“I would say that all of my recent riders at Ty Heol Farm, namely Keith Bodley, Allan Williams, Gemma Stead and Hazel Boyd, will have all experienced a racehorse jinking or shying on the gallops and have remained in the saddle and not fallen off. In my experience, it is not common for a competent rider to fall off a racehorse when it jinks or shies.”

(k) The evidence that when ridden on the gallops (the number of times is not clear save that it is well in excess of a hundred) Foxy had shied before only on a relatively rare basis when being ridden by either the Claimant or Gemma Stead (five times with the Claimant riding, never when Ms Stead was riding) and without any falls.

(l) The TRL evidence which although it must be treated with appropriate caution, supports Mr Williams evidence. I take into account that in Welsh in 2008 Etherton LJ dismissed the Appellant’s counsel’s suggestion that the Claimant should have produced evidence of injuries throughout the country sustained by riders who fell off horses, with an analysis of the range and degree of severity of injuries sustained as “quite unrealistic and unnecessary”. It is certainly difficult to see how the Claimant could have undertaken such a wide analysis without reliable statistics being recorded (and without obvious bias if the records only considered those who attended hospitals). However in this case Mr Lane was able to produce a report from the TRL British Eventing Falls data base which to his knowledge (as a very experienced expert who has appeared in a number of the reported cases) provides “the only comprehensive statistics concerning rider falls which are available”. In my view they do provide some objective evidence based assistance as to the general picture of falls from horses. The statistics show the risk of severe injury arising from a fall during eventing (so not whilst merely walking or cantering at leisure) and onto what Mr Lane said was likely to be harder ground than the gallops in this case, was less than 3%. Out of 74 falls thankfully only two people sustained severe injuries.

(m) The Claimant’s evidence that “a lad was paralysed falling off a cantering horse onto her gallop” (this being a different gallop but with the same surface). The circumstances in which this accident occurred are not in evidence before me.

1. 1. It bears repetition that the test under either limb of section 2(2)(a) is to be applied prospectively. Because an accident has occurred and the relevant method of injury can be established a greater degree of relevant particularity will ordinarily (but not always) assist a Claimant to establish either requirement

WAS THIS DAMAGE THAT THE HORSE WAS LIKELY TO CAUSE ?

1. 1. The first question is whether the damage was of a kind that the horse was likely to cause.

1. 1. I take a rider on a moving horse as minimum particularity

1. 1. I reject the submission of Ms Read that the answer is self evident. With due respect given the evidence which I have set it is anything but self evident

1. 1. After weighing up the relevant evidence I am not satisfied on balance that the first limb is satisfied. Taking the issue prospectively and with no more particularity a sudden jink/shy/sidestep to the right whilst a horse is moving is not likely to unseat a rider; it would not be a reasonable expectation that a rider would fall off. It was something that might happen; a possibility; but a mere possibility is not enough. Put simply it is not in the same category of severe movement as a bolt, buck or rear (when it some cases the intention of the horse will be to unseat the rider). Unusually perhaps additional particularity would not assist the Claimant. As I have set out above she was a professional and there was a lack of prior falls.

1. 1. Turning to the second limb. The starting point in terms of particularity is a fall; unlikely though that was.

1. 1. Ms Read again submitted that the answer was “self-evident”. She relied upon statements made by Dyson LJ in Welsh and Etherton LJ in Freeman. However as I have already set out in Welsh the accident occurred on a tarmac road when the horse reared up, the Claimant fell off and the horse then fell onto her. The trial Judge’s finding was that personal injury was likely to be severe as “anyone falling off a horse that has reared up and falling onto a tarmac road, is likely, in my judgment, to suffer severe injury; still more so is this likely to be the case, in my judgment, if the horse falls backwards on her”. This finding, in my view unsurprisingly, was not challenged on appeal.

1. 1. In Freeman where injury resulted from a horse bucking there was no evidence at trial on the issue of the likelihood of damage, if caused being severe. LJ Etherton saw no material difference in approach between a house rearing and horse bucking.

1. 1. However every case must turn upon the relevant evidence and findings of fact and neither Welsh nor Freeman concerned a fall as a result of a jink/shy/movement to the right; rather they were concerned with falls arising from a “violent buck” or rear. Also in this case I have the benefit of evidence directly addressing the issue of the likelihood of injury from falls.

1. 1. Apart from the way in which a rider is likely to fall (which is likely to differ with the cause), the speed at which a horse is taken to be moving and the surface onto which the rider falls are obviously important particulars in the assessment of the likelihood of injury from any fall being severe. If the surface is a road the answer may be markedly different to a horse being ridden on other surfaces. In the present case (and again perhaps unusually) particularity does not assist the Claimant to prospectively satisfy the requirement as the surface onto which she fell was specially constructed for purpose and was to a degree shock absorbent. Taken as a broad generality, horses are also not as likely to be ridden at speed on roads/tarmac as on other surfaces.

1. 1. The issue of the degree of particularity and specifically the relevance of the speed at which the Foxy was ridden and the surface upon which the Claimant fell to the prospective assessment under the second limb of section 2(2)(a) is not a straightforward one to answer. Ultimately it has not been necessary to determine it as I am not satisfied on the evidence presented in this case that taken as a generality if a person falls from a moving horse as a result of it shying/jinking/moving suddenly to the right it is likely (reasonably to be expected) that they suffer severe injury. Also in this case additional particularity would not assist the Claimant as it would be wholly artificial to approach the test on the basis of a fall onto tarmac or onto particularly hard ground given that this was not the case. Here the surface further reduced the risk that severe injury would result from a fall.

1. 1. Again if the test has been as formulated by Neill LJ in Smith it would have been satisfied; but that is not the correct test.

1. 1. By reason of the matters set out above the Claimant has failed to satisfy either requirement under section 2(2)(a) and the claim fails.

1. 1. However it is proper that I continue to consider my analysis of sub-section 2(2)(b).

Section 2(2)(b)

1. 1. The question is whether the likelihood of the damage, or of it being severe, was due to characteristics of the animal which are not normally so found except at particular times or in particular circumstances. In this case the Claimant (who bears the burden) sought to establish that;

(a) A shy in reaction to a perceived threat is not something found except “at particular times or in particular circumstances” and

(b) Foxy’s shy was due to that characteristic.

1. 1. Dealing with them in reverse order the first and obvious point to make is that every case turns upon its own facts.

1. 1. In this case for the reasons which I have set out above the Claimant has failed to discharge the burden of proving the existence and causative effect of the characteristic relied upon; that the shy/jink/sharp movement to the right was due to Foxy having “perceived a threat”. I have set out the limit of the finding which can properly be made on the evidence. The horse saw or heard something, or thought it saw or heard something in its environment , which included the surface of the gallops, which it thought required it to effectively sidestep or jink/shy sharply to the right and back again. So the case based on a perceived threat fails on the facts unless the nebulous nature of the characteristic is such that the finding that I have made is still said to equate to a response to a perceived threat. In my view it does not. However I shall consider the position if I were wrong on this i.e. it amounts to a sufficient clear characteristic. It is then necessary to consider my finding against the requirement of the subsection.

1. 1. Section 2(2)(b) refers to the characteristic being not normally found except at particular times and particular places.

1. 1. There is well settled a presumption that every word in an enactment is to be given meaning. As stated in Bennion, Bennion, Bailey and Norbury on Statutory Interpretation Chapter 21.2

“Given the presumption that the legislature does nothing in vain, the court must endeavour to give significance to every word of an enactment. It is presumed that if a word or phrase appears, it was put there for a purpose and must not be disregarded.”

1. 1. It is therefore necessary to be able to identify “particular” times or circumstances when the characteristic is exhibited. It is the Defendant’s case that this is not possible in this case; so there is no relevant characteristic with the result that section 2(2)(b) is not satisfied.

1. 1. It is not in dispute that a horse may shy, buck or rear due to a certain type of identifiable stimulus; such as passing car or agricultural machinery or a loud noise, or being forced to go forward when it does not want to do so. A horse may also react when clearly terrified by an event (in Mirvahedy it was found such an event occurred). Any owner armed with knowledge of these characteristics (as required for liability under section 2(c)) can take appropriate action to avoid or minimise it or at the least evaluate the risk and either decide to insure against it or not to run it.

1. 1. However the characteristic relied on the Claimant in this case is a horse shying as a result of a stimulus which is it perceives as a “threat” even though the nature and extent of such a stimulus cannot be identified and/or predicted

1. 1. As Ms Taylor stated in her report

“All horses shy/jink on occasion. This is very common every-day behaviour, although it does not happen all the time.

Although the Claimant exaggerated when she referred to Foxy potentially shying at a blade of grass; it was common ground that, as is within the normal range of behaviour for a horse of his age, he could perceive very many and varied things as concerning “he could shy at anything” examples being a change in colour of a surface, a shaft of sunlight, a patch of snow, movement of a branch of a tree in the wind, a bird, a rabbit. Often no cause can be identified at all; perhaps because it was fleeting or momentary. The examples I have identified (and they are just examples) are ordinary and regular features of most outdoor rural environments or other places where horses are kept or trained. Given the sheer width of the propensity it is not possible to identify any particularity. Indeed in my view a proper description would be that he could react to something in its environment at most times and in most circumstances.

1. 1. As Ms Read conceded if a perceived threat caused by innocuous elements ordinarily found in the outdoor world is sufficient to satisfy subsection 2(2)(b) then the keeper has to face sections 2(2)(b) and 2(2)(c) always being established if a horse shies/jinks/sidesteps regardless of fact that the cause could not be identified let alone guarded against (as most keepers will be aware of the possibility of a horse shying without apparent reason). Ms Read submitted that this result, which subject to section (a) being satisfied would be strict liability, must be viewed in the light of the defence at paragraph 5(2) of the Act. A person is not liable under section 2 of this Act for any damage suffered by a person who has voluntarily accepted the risk thereof. So a non-employed person would not have a claim under the act. However this defence requires proof of the knowledge of any Claimant rider and in my opinion cannot adequately support the submission that the draughtsman intended the phrase in particular times or circumstances to be interpreted as widely as the Claimant argues that it should be in this case.

1. 1. Ms Crawford submitted that the Claimant had failed to satisfy Section (2)(2)(b) in particular times/circumstances could not be identified.

1. 1. It is necessary to return to the authorities on this issue.

1. 1. In Mirvahedy it was not clear what frightened the three horses which broke out of a field (as no witness was there to observe what happened) but something did which was sufficient to “terrify” them. Lord Nicholls stated at paragraph 2

“something appears to have frightened them very badly, but nobody knows what it was.”

He also stated that the behaviour of the horse was

“usual for horses when sufficiently alarmed by a threat. They attempt to flee, ignoring obstacles in their way, and are apt to continue in their flight for a considerable distance, even beyond the point where the perceived threat was detectable.”

1. 1. The trial Judge stated that he found it very hard to contemplate or define the characteristics that are not normally found in animals ‘except at particular times or in particular circumstances’. He was concerned at the generalness of words which are expressed as a limitation as to time and circumstance “but which can be applied to any case and are therefore no limitation at all” as “all times and all circumstances can be said to be ‘particular’. One can always find particularity attaching to any time or to any circumstance”.

1. 1. At paragraph 43 Lord Nicholls after referring to the trial Judge’s concerns stated:

“43.  In other words, if the tendency of a horse to bolt when sufficiently alarmed is to be regarded as a normal characteristic of horses “in particular circumstances” and, hence, a horse with this characteristic will meet requirement (b), it is not easy to conceive of circumstances where dangerous behaviour which is characteristic of a species will not satisfy requirement (b). A normal but dangerous characteristic of a species will usually be identifiable by reference to particular times or particular circumstances. Thus the Cummings interpretation means that requirement (b) will be met in most cases where damage was caused by dangerous behaviour as described in requirement (a). Requirement (b) will be satisfied whenever the animal’s conduct was not characteristic of the species in the particular circumstances. Requirement (b) will also be satisfied when the animal’s behaviour was characteristic of the species in those circumstances.”

He recognised that this is a cogent argument, however was not persuaded by it.

1. 1. Lord Hobhouse stated at paragraph 69:

“Horses are not normally in a mindless state of panic nor do they normally ignore obstacles in their path. These characteristics are normally only found in horses in circumstances where they have been very seriously frightened. It is only in such circumstances that it becomes likely that, due to these characteristics, the horse will cause severe damage. This case clearly comes within the words of section 2(2)(b). There is no ambiguity either about the facts of this case or about the meaning of paragraph (b).”

1. 1. At paragraph 139 Lord Walker stated:

“138. After these general comments I come to the particular linguistic difficulties presented by section 2(2). One is the meaning of the important term “characteristics” used in paragraphs (b) and (c) of section 2(2), but not defined in the Act. The context makes clear that the expression cannot mean something buried in an animal’s psyche (as Devlin J said in Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1, 18, it is not practical to introduce conceptions of mens rea and malevolence in relation to animals). It must refer to character or disposition as evinced by overt behaviour—for instance, a dog which had the habit of attacking people who were carrying bags: Kite v Napp The Times, 1 June 1982). The distinction between “permanent” and “temporary” characteristics drawn by Stuart-Smith LJ in Curtis v Betts [1990] 1 WLR 459 , 469h, is useful but must be treated with some caution: all dangerous characteristics are likely to be more or less permanent but they may show themselves either frequently and randomly (as with the unreliable horse in Wallace v Newton [1982] 1 WLR 375 ), or under a stimulus peculiar to the particular animal (such as bag-carrying in Kite v Napp), or under some internal or external stimulus (such as the animal’s hormones or a perceived challenge to its territory) which can be expected to produce similar behaviour in most animals of its species.

139.  That is the point to which the words “at particular times or in particular circumstances” are directed, but there is force in the observation made by the trial judge, in his careful judgment, that one can always find particularity attaching to any time or to any circumstance. I consider that Mr Sharp (for the respondent) must be right in suggesting that predictability (of how animals of the same species react to a particular stimulus or situation) is one of the indicia of characteristic behaviour which falls within the second limb of section 2(2)(b).”

1. 1. Their Lordships (who were in the majority) were considering the predictable tendency of a horse to bolt when very seriously frightened by an external stimulus. Lord Nicholls was of the view that a normal but dangerous characteristic of a species will usually be identifiable by reference to particular times or particular circumstances and being very frightened by something is such particular time. It does not appear to me that their Lordships considered the potential for liability to arise when the characteristic is that a horse may or may not perceive a threat that may not exist and/or is posed by a mundane countryside feature that may be present or arise at most times and in most circumstances with little or no possibility of prediction.

1. 1. In Clark-v-Bowlt [2006] EWCA Civ 978 the Claimant was driving a car which came into collision with a horse ridden by the Defendant which (having no sign of panic) suddenly moved from a grass verge into the road in a movement which the Defendant could not control. Lord Justice Sedley observed at paragraph 24

“Section 2(2) is not intended to render the keepers of domesticated animals routinely liable for damage which results from characteristics common to the species. It requires something particular, and there was nothing of the specified kind to render the keeper liable here.”

1. 1. In Welsh the trial Judge found that the horse was capable of rearing up at particular times or in particular circumstances when he did not want to go forward and, in addition, he had a rider on board who was unable to handle him and gave him confidence in that situation. Dyson LJ found these to be particular circumstances (paragraph 39). He described “in the particular circumstances” in Mirhavedy as being “some form of fright or other external stimulus.”

1. 1. In Freeman, Etherton LJ found that the Judge could not be faulted for concluding that the Appellant had not discharged the burden of establishing that the second limb of s.2(2)(b) was satisfied. He stated:

“42. Mr Aldous submitted that, if the characteristic of bucking, including bucking when beginning to canter, is normally found in horses generally, then inevitably the second limb of s.2(2)(b) is satisfied since such a characteristic is only found at particular times or in particular circumstances. He submitted that “particular” in the context means anything that is not continuous.

43…The characteristic which falls within the second limb of s.2(2)(b) must be one that is normally found in animals of the same species but only at particular times or in particular circumstances. The gloss which Mr Aldous seeks to put on the word “particular” would reduce the first limb of s.2(2)(b) to characteristics which are continuous and always present. It would eliminate from normal characteristics in the first limb of s.2(2)(b) any intermittent activity of any kind. It is clear, however, from the Law Commission report and the decided cases that this is not the correct interpretation and that the words “at particular times or in particular circumstances” in the second limb of s.2(2)(b) denote times or circumstances which can be described and predicted.

44. In Mirvahedy at para. [139] Lord Walker said that it must be right to suggest that predictability (of how animals in the same species react to a particular stimulus or situation) is one of the indicia of characteristic behaviour which falls within the second limb of s. 2(2)(b). As Lord Nicholls observed in Mirvahedy at para. [43] “a normal but dangerous characteristic of a species will usually be identifiable by reference to particular times or particular circumstances” [my emphasis]. That must, however, be a matter of evidence in every case. In the present case, there was no evidence whatever that horses generally buck at particular times or in particular circumstances.”

1. 1. In Clark the Court of Appeal held that the Claimant had failed to establish that either section 2(2)(a) or 2(2)(b) was satisfied. The Lord Chief Justice stated:

“13.  Instead of asking the right question the judge identified as the relevant characteristic the propensity of a horse “in particular times and in particular circumstances” to “assert an inclination to move otherwise than as directed”. There are the following difficulties with the judge’s conclusion that this equine propensity satisfied the requirements of (b):

(i)  I doubt whether a propensity occasionally to move otherwise than as directed can be described as a characteristic of an animal.

(ii)  If such a propensity can be described as a characteristic, then I question the judge’s assertion that it is one that is not normally found in horses “except at particular times and in particular circumstances”. The judge failed to identify either the particular times or the particular circumstances when this characteristic manifested itself. Indeed in saying that this was a characteristic of horses generally the judge came close to accepting that the propensity was a normal characteristic of a horse, not one that only arose at a particular time or in particular circumstances.”

1. 1. The Lord Chief continued:

“Where it is a characteristic of an animal only to cause damage at a particular time or in particular circumstances, the animal, if normal, will not have been likely to cause damage save at that particular time or in those particular circumstances. A horse is liable to cause damage of the kind caused by Chance if given a severe fright. Chance was not, however, given such a fright. Can it be said, nonetheless, that Chance was likely to cause the damage which she caused by moving into collision with Mr Clark’s car? On the judge’s findings of fact, it seems to me that the answer is plainly “No.”

1. 1. In Bodey -v Hall [2011] EWHC 2162 David Pittaway QC sitting as a Deputy Judge found at paragraph 37:

“37. The conclusion I have reached is that a predisposition of a horse to behave unpredictably by running away when confronted by an unknown stimulus can properly be identified as a characteristic. I do not see the distinction that Mr Westcott sought to draw between cases involving horses that buck or rear and the present case. The manifestation of the characteristic is to shoot forwards uncontrollably. The stimulus caused the horse to be frightened but the characteristic is that to be found in horses that when frightened they will shoot forwards at speed in an uncontrolled manner.”

1. 1. In Goldsmith-v- Patchcott (see above) “something startled the horse” which reared up and started to buck violently. It was argued that the Judge erred in holding that the requirements of section 2(2) were satisfied. Lord Justice Jackson, who stated that it was not obvious what purpose section 2(2)(b) served stated:

“53 Mr. Browne, relying upon a dictum of Etherton LJ in Freeman, submits that the phrase “at particular times or in particular circumstances” denotes times or circumstances which can be described or predicted. Horses do not only buck when startled or alarmed. Therefore the bucking in this case does not fall within the second limb of section 2 (2) (b)…

54. I do not accept this argument. In the light of the authorities set out in Part 5 above, section 2 (2) (b) should not be given the restrictive interpretation for which Mr. Browne contends. On the evidence the judge found that bucking and rearing were a characteristic of horses in particular circumstances, namely when they were startled or alarmed. In my view, the judge’s conclusion that the requirements of section 2 (2) (b) were satisfied follows logically from that finding.”

1. 1. In Ford-v- Seymour Williams [2021] EWCA Civ 1848 Lady Justice Carr considered the facts in Mirvahedy, Welsh, Freeman, Goldsmith and Turnbull and stated that;

“35.  It can be noted that in every instance where the keeper was held liable the court identified not only the characteristic behaviour such as rearing, but also the particular time or circumstance when the characteristic manifested itself. That time or circumstance was something that could be “described and predicted”. In each case where liability was established, there was a particular event triggering a reaction which caused severe damage in circumstances where the keeper knew that such an event could lead to the reaction in question.”

1. 1. In Ford the Appellant argued that, where expert evidence has identified that a horse will only rear in certain given times or circumstances, it is not necessary for the purpose of s. 2(2)(b) to identify the time or circumstance that was actually engaged; by definition, one of the times or circumstances must have arisen. Lady Justice Carr noted that, as identified in Lord Nicholls in Mirvahedy, a normal but dangerous characteristic of a species will usually be identifiable by reference to particular times or particular circumstances, but also that Lord Nicholls indicated that does not empty s. 2(2)(b) of all content. She concluded that the authorities demonstrate that it is necessary to identify not only the characteristic but also the particular time or circumstance in which it arose. She stated:

“39.  That is the correct approach as a matter of construction and principle, for a number of reasons:

i) First, as the Judge commented, as a matter of language s. 2(2)(b) is focusing on the link between the damage and the characteristic. The damage must be “due” to the characteristics of the animal;

ii) Secondly, the reference to (plural) “times” and “circumstances” reflects the fact that there may be multiple causes of a particular characteristic, not that it is unnecessary to identify what the particular cause (or causes) was on the occasion in question when the damage occurred;

iii)  Thirdly, liability under s. 2(2) for an animal which does not belong to a dangerous species would otherwise be materially the same as the liability arising under s. 2(1) for an animal of a dangerous species. As Lewison LJ identified in Turnbull at [47]:

“…the Law Commission did not proclaim an intention to widen the existing scope of the law to the extent that it would be necessary to catch an ordinary riding accident”.

iv)  Fourthly and fundamentally, s. 2(2)(b) needs to be construed in the context of s. 2 as a whole. Identification of the particular time or circumstance in question is necessary for an assessment of whether or not a keeper has the relevant knowledge for the purpose of s. 2(2)(c) . As the facts of this case themselves demonstrate, it is possible for a keeper to have knowledge of the fact that it is normal for a characteristic (here rearing) to manifest itself as a result of one particular time or circumstance (here disobedience) but not another (here a catastrophic internal failure).”

1. 1. In my view the Claimant in this case has not established a characteristic that is normally found only at particular times or in particular circumstances; rather it is a general, normal characteristic of horses to shy/jink or move sharply (itself comprising a wide range of movement and markedly distinct to the more violent actions e.g. rearing, bucking or bolting) in response to a very wide range of sights or sounds present ( or which the horse believes to be present ) and which can occur at very many times and in very many circumstances which cannot be described or identified in any more detail or predicted.

1. 1. I consider there to be a material difference between a horse that rears, bucks or bolts in response to being startled or frightened by some identifiable external stimulus, or made to move forward when it does not want to do so, and a movement sideways in response to something which a horse sees or hears or believes it sees or hears and which it does not like or perceives to be a threat even when it is a wholly unpredictable response to an unidentifiable, ordinary and everyday part of the environment. I do not consider it a distinction without a difference. In my view it would so waterdown the requirement as to render it nugatory.

1. 1. In my judgment it falls short of the line of adequate particularity. The Claimant would therefore not have satisfied section 2(2)(b) on the basis that my finding equated to a characteristic.

1. For the reasons set out above the claim fails.