Freeman v Higher Park Farm

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLord Justice Etherton,Lady Justice Smith,Lord Justice Tuckey
Judgment Date30 Oct 2008
Neutral Citation[2008] EWCA Civ 1185
Docket NumberCase No: B3/2008/0469

[2008] EWCA Civ 1185

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

Mayor's and City of London County Court

His Hon. Judge Birtles

Royal Courts of Justice

Strand, London, WC2A 2LL

Before :

Lord Justice Tuckey

Lady Justice Smith and

Lord Justice Etherton

Case No: B3/2008/0469

Between :
Marian Freeman
Appellant
and
Higher Park Farm
Respondent

Grahame Aldous QC, Giles Mooney (instructed by Russell Jones & Walker) for the Appellant

David Westcott QC (instructed by Robertsons) for the Respondent

Hearing dates : 21st October 2008

Lord Justice Etherton
1

On 12 December 2004, on Chobham Common, the Appellant fell from a horse supplied by the Respondent on a hack organised by the Respondent. She fell when the horse gave two or three large bucks as it was beginning to canter. As a result she suffered a head injury, a fractured clavicle, and soft tissue injury to her left hip.

2

She brought these proceedings against the Respondent claiming damages on the ground that the Respondent was strictly liable for the accident under s.2(2) of the Animals Act 1971 (“the 1971 Act”) and for common law negligence.

3

Following a trial over two days in the Mayor's and City of London Court His Honour Judge Birtles dismissed the claim on 8 February 2008 in a full and careful reserved judgment. The Appellant appeals the Judge's decision so far as it relates to liability under the 1971 Act. There is no appeal from the dismissal of the claim in negligence.

The facts

4

The Judge formed the view, for the reasons he set out in his judgment, that, where the evidence of the Appellant conflicted with that of the Respondent's witnesses, he preferred the evidence of the Respondent's witnesses. The following facts are taken from the Judge's judgment.

5

The Appellant was 50 at the date of the accident, and has been involved in riding horses since approximately 12 years of age. She owned a horse for 15 years, which died in October 2006. She rode fairly regularly.

6

The Respondent had stables at Higher Park Farm Equestrian Centre, Halebourne Lane, Chobham, Surrey. The proprietor was Mrs Kate Matthews. At the time of the trial, the Respondent had 35 horses and employed 5 full-time instructors and 17 part-time freelance instructors. It taught adults and children and escorted hacks from its premises. One of the most popular hacks was to Chobham Common. There was no evidence that this position was materially different in December 2004.

7

Prior to 20 November 2004 the Appellant had been riding at stables other than the Respondent's. She wanted to change. On that date she went with her friend, Mrs Catherine Duggan, to the Respondent's stables. She was assessed there for her riding ability. The assessment was by means of a one hour ride, which including walking, trotting, and a canter. The Appellant rode a horse called Shamrock, which was quite lively and was only hacked out by experienced riders. Miss Ella Roberts, who conducted the assessment, concluded that the Appellant was a good and experienced rider. The Appellant said that she and her friend were experienced, and were looking for an exciting ride with forward going horses.

8

The Appellant and Mrs Duggan returned on 12 December 2004 for a two and a half hour hack on Chobham Common. Mrs Matthews allocated the Appellant a horse called Patty, which was a 15.3 hands high, 7 year old chestnut mare. She had been in the Respondent's stables since the summer. Mrs Mathews said in her witness statement:

“I would describe Patty as a lively forward going horse who occasionally bucks when going to canter but not in a dangerous fashion. Any experienced confident rider had no problems with this.”

9

Mrs. Matthews helped the Appellant to mount Patty, advised her that Patty might buck and was relatively inexperienced and a little green. Mrs. Matthews told her that there were other horses available, but the Appellant said that she was entirely happy to ride Patty. In cross-examination Mrs Matthews said that she told the Appellant that Patty was “a young, forward, lovely ride, can be exuberant, can give a little buck”.

10

Evidence was given, on behalf of the Respondent, by Miss Avril Turner, who is a solicitor, had been riding for many years and escorted hacks for the Respondent. She escorted the hack on this occasion. She described Patty as “a chestnut mare who is quite lively. She is an exciting ride.” Miss Turner had not ridden her, but she had escorted her previously. She did not regard her as a dangerous horse. Her evidence was that Patty had a habit of bucking when going into canter, but previously this had never been a cause of a problem or was dangerous.

11

In her first witness statement, Miss Turner gave the following evidence. When they reached the Common, Miss Turner asked the riders if they were ready to canter. Everybody said they were. They walked and trotted. As they were about to go into a canter, Patty put in a large buck. Miss Turner asked the Appellant if she was okay. The Appellant said that she was, and that she was not worried. Miss Turner then asked the ride to walk and trot on. She then suggested again that they attempt to go into a canter, but only after asking the Appellant specifically if she wanted to canter again and to come up beside her rather than being towards the rear of the ride. As they were about to set off again into canter, Patty gave two or three large bucks, and the Appellant fell off. Miss Turner said the horse just seemed to be particularly excited that day.

12

In her second witness statement Miss Turner said that she chatted with the Appellant on the hack, and it was then that the Appellant indicated to her that she was experienced and very knowledgeable about horses. At no time did the Appellant say she had concerns about Patty. Miss Turner said that she specifically asked the Appellant whether she had any problems with Patty upon reaching the Common and prior to cantering, and the Appellant said she had no problems or concerns. Miss Turner said that, when Patty bucked on the first canter, she immediately stopped the ride. She asked the Appellant if she was all right, and the Appellant said she was and that she was not worried. Miss Turner said that, had the Appellant been concerned, Miss Turner would have continued the ride at walk and trot only, or possibly could have swapped her over onto one of the horses that the men were riding, as they all loved riding Patty. She said they walked on for some time, and she then made sure all the customers were ready and wishing to canter again and, specifically bearing in mind Patty had bucked on the previous canter, asked the Appellant if she wished to continue to canter again.

13

In her oral evidence in chief Miss Turner said that, following the first buck, she checked with the Appellant if she was okay. The Appellant was not nervous and she said “I'm fine”, and she confirmed that she wished to continue.

14

In cross-examination, Miss Turner said that there was no need to make an assessment of the horse as the Appellant told her she was fine and she wanted to continue. She said that, had the Respondent shown any concern at all, she would have taken the ride home.

15

The Judge accepted Miss Turner's evidence, which, he said, was to some extent corroborated by Mr Andrew Swaffield. He rode about once a week and had done so for about one year. His evidence was that he regarded himself as “a novice/intermediate” rider. Once a month he would go on a hack, which would include walk, trot and canter. He said he had always found Miss Turner as an escort to be very competent and cautious. He said he had ridden Patty and that she “can be quite lively on the Common”. He said that, although she had bucked with him, that had not been serious and he had not fallen off. He had not found Patty to be too strong. Indeed, he was impressed with her, and at one time was thinking of purchasing her. He said he believed Patty to be a suitable horse for someone of reasonable riding experience and competency. He said that the Appellant and Mrs Duggan appeared to him to be experts “and a cut above the usual riders who go out”. He said that, following the first “big buck” of Patty, Miss Turner immediately stopped the ride, and asked the Appellant if she was okay, and whether she wanted to stop and swap horses. He said that Miss Turner was concerned, but the Appellant was quite insistent that she remain on Patty. He said that, as the horses went into a canter on the second occasion “Patty viciously bucked”, and on that occasion the Appellant fell off. He repeated the substance of that evidence in his cross-examination.

16

After falling from the horse the Appellant was taken by ambulance to St Peter's Hospital in Chertsey with the injuries I have described.

The 1971 Act

17

The background to the 1971 Act was explained in some detail in the speeches in Mirvahedy v Henley [2003] UKHL 16. It arose out of the report of the Law Commission on Civil Liability for Animals (1967) (Law Com No. 13). It was intended to simplify the common law concerning liability for animals, which was notoriously intricate and complicated. Sections 1 to 6 of the 1971 Act made new provision regarding strict liability for damage by animals. They replace the common law: s1(1). Section 2 of the 1971 Act, with which this appeal is concerned, contains provisions relating to liability for damage done by dangerous animals. In the course of its passage through Parliament, the original wording in the Law Commission draft Bill was changed. In particular, s.2(2), which is central to this appeal, was significantly altered. Its resulting...

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3 cases
  • Turnbull v Warrener
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 3 April 2012
    ...15 (but cf Lord Scott, dissenting, at paragraphs 95–98); Welsh v Stokes [2007] EWCA Civ 796, per Dyson LJ at paragraph 33; Freeman v Higher Park Farm [2008] EWCA Civ 1185, per Etherton LJ, at paragraph 34; Clark v Bowlt [2006] EWCA Civ 978, per Lord Phillips CJ, at paragraph 11; and Goldsmi......
  • Mrs. Kara Goldsmith (Claimant/Appellant) v Mr. Robert Bradley Patchcott First
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    • Court of Appeal (Civil Division)
    • 27 February 2012
    ...by reason of section 5 (2)." In my view, this was a correct application of section 5 (2) to the facts of that case. 49 Freeman v Higher Park Farm [2008] EWCA Civ 1185 concerned a riding accident on Chobham Common. The claimant, an experienced rider, fell when the horse ("Patty&......
  • Lynch (Claimant/Appellant) v ED Walker Racing Ltd
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    ...cases before the Court of Appeal, it has become clear how the test is to be articulated. Thus, in the judgment of Etherton LJ in Freeman v Higher Park Farm (2008) EWCA Civ 1185, at paragraph 33, he said: "It is not in dispute that 'likely' in section 2(2)(b) bears its natural meaning o......

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