Turnbull v Warrener

For liability under section 2(2)(a) of the Animals Act 1971, damage is likely to be severe when it is reasonably to be expected to be severe. The issue remains one of fact. A judge may rely on expert evidence that falls from horses generally have a low incidence of severe injury.

A keeper avoids liability under section 5(2) where the injured person fully appreciated the relevant risk and voluntarily exposed themselves to it. An experienced rider who knowingly tests unfamiliar equipment and proceeds despite the increased risk of losing control may therefore be taken to have accepted that risk.

An experienced rider was injured after losing control of a normally docile horse which was being ridden for the first time in a bitless bridle. The Oxford County Court dismissed her negligence and statutory claims. It found that the requirements of section 2(2) of the Animals Act 1971 were not met and that the section 5(1) defence would in any event apply.

The rider appealed only against the statutory decision. The owner defended the judge’s conclusions and relied additionally on voluntary acceptance of risk under section 5(2). The principal issues concerned the likelihood of severe injury, the relevant characteristics and knowledge requirements, and the two statutory defences.

1. Appeal dismissed. The court unanimously held that the owner had established voluntary acceptance of risk under section 5(2) of the Animals Act 1971. The rider fully appreciated the relevant risk and exposed herself to it. She knew that a horse using a bitless bridle for the first time presented an increased risk of failing to respond to instructions. She nevertheless chose to canter before the horse had been tested at that pace in the bridle.
2. Section 5(2) bears its ordinary meaning. It requires proof that the injured person fully appreciated the risk and voluntarily exposed themselves to it. This does not mean that every competent rider who is injured has accepted the relevant risk. The particular risk and the rider’s knowledge must be identified. Here the parties had equivalent experience and knowledge, which reinforced the conclusion that the rider accepted the risk.
3. By a majority, Stanley Burnton and Lewison LJJ held that the trial judge was entitled to find section 2(2)(a) unsatisfied. Whether severe injury was reasonably to be expected was a factual question. Earlier statements that severe injury from particular riding falls was obvious or self-evident did not prevent the judge from acting on the expert evidence before him. Maurice Kay LJ disagreed, considering the evidence insufficient to displace the received approach.
4. Maurice Kay LJ considered that the findings under sections 2(2)(b) and 2(2)(c) could not stand under the binding authorities. Stanley Burnton LJ and Lewison LJ regarded satisfaction of section 2(2)(b) as questionable. They emphasised the difficulty of treating a rare, unprecedented, one-off action as an animal’s characteristic.
5. The court agreed that section 5(1) did not apply. Given the parties’ equivalent experience, the finding that the rider was wholly at fault could not coexist with the finding that the owner was not negligent in permitting her to proceed. Either both were at fault in the statutory sense or neither was.

1. Court of Appeal (Civil Division): The appeal was dismissed. Although the judges differed about section 2(2), they agreed that the owner succeeded under section 5(2) of the Animals Act 1971.
2. Oxford County Court: HHJ McIntyre dismissed the negligence claim and the claim under section 2(2). He also held that the section 5(1) defence would apply, but rejected the section 5(2) defence.