Mrs. Kara Goldsmith (Claimant/Appellant) v Mr. Robert Bradley Patchcott First
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Rimer,Lord Justice Longmore |
| Judgment Date | 27 February 2012 |
| Neutral Citation | [2012] EWCA Civ 183 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2011/1725 |
| Date | 27 February 2012 |
[2012] EWCA Civ 183
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE
HIS HONOUR JUDGE WALTON
ONE03519
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Rimer
and
Lord Justice Jackson
Case No: B3/2011/1725
Mr. Richard Stead (instructed by Shaw & Co) for the Claimant/Appellant.
Mr. Benjamin Browne QC and Mr. Stuart Lightwing (instructed by C W Booth & Co) for the First Defendant/Respondent.
Hearing dates : 2nd February 2012
This judgment is in six parts, namely,
Part 1. Introduction,
Part 2. The Facts,
Part 3. The Present Proceedings,
Part 4. The Appeal to the Court of Appeal,
Part 5. The Law,
Part 6. Decision.
The issue in this case is whether a horse rider, who suffered grievous injuries in a fall, can recover damages under the Animals Act 1971. This issue requires the consideration of two questions: first, whether the requirements for establishing strict liability under section 2 (2) of that Act are established; secondly, whether the keeper of the horse has a defence under section 5 (2) of the Act.
In this judgment I shall refer to the Animals Act 1971 as "the Animals Act" or "the Act". Section 2 of the Animals Act provides:
"2 (1) Where any damage is caused by an animal which belongs to a dangerous species, any person who is a keeper of the animal is liable for the damage, except as otherwise provided by this Act.
(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."
It can be seen that section 2 (1) imposes upon the keeper strict liability for damage caused by an animal belonging to a dangerous species. Section 2 (2) imposes strict liability upon the keeper (subject to specified conditions) for damage caused by animals which do not belong to a dangerous species. For the sake of brevity I will refer to animals falling with section 2 (2) as "domesticated animals". It can be seen from the law reports that claims brought under section 2 (2) of the Act often relate to dogs or horses.
Section 5 of the Animals Act provides:
"5 (1) A person is not liable under sections 2 to 4 of this Act for any damage which is due wholly to the fault of the person suffering it.
(2) 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."
Other possible defences are set out in sub-sections (3) – (6) of section 5, but they are not relevant to this appeal.
The claimant in the action and the appellant before this court is Mrs. Kara Goldsmith, who was born in 1972 and was aged 35 at the date of the accident.
The horse from which the claimant sustained her fall was called "Red". The keeper of Red was Mr. Robert Patchcott, who is the first defendant in the action. He is the only defendant who has played any active part in the proceedings. For brevity I shall refer to him as "the defendant".
A lady called Mrs. Cheryl Roach was formerly the owner of Red and may still have been the owner at the time of the accident, although this is not entirely clear. Although joined as second defendant in the action, Mrs. Roach has played no part in the proceedings.
After these introductory remarks I must now turn to the facts.
In March 2008 the defendant was looking after the horse, Red, which either was owned or had been owned by Mrs. Roach. The defendant had looked after the horse for some months and was trying to find someone to whom he could give the horse for no charge.
The defendant was introduced to the claimant on or about the 19 th March 2008. They discussed the horse and the claimant expressed interest in taking it. Over the next few days the claimant and her family visited the defendant at his home three times. The claimant rode the horse in the company of the defendant.
On 24 th March 2008 the claimant went for a ride on Red by herself. During the course of that ride something startled the horse. Red reared up. Then he started to buck violently. The claimant tried to ride it out, but she did not succeed. She was thrown to the ground and then struck by the horse's hoof. The claimant suffered severe facial injuries, which have had a devastating effect upon her life.
In due course the claimant made a claim for damages, which the defendant did not accept. Accordingly she commenced the present proceedings.
By a claim form issued on 23 rd April 2010 the claimant claimed damages for both negligence and breach of statutory duty against Mr. Patchcott as first defendant and Mrs. Roach as second defendant.
Mrs. Roach has taken no part in the proceedings. Although judgment in default of defence has been entered against her, it appears that she is not the principal target of this litigation.
The action duly proceeded against Mr. Patchcott as the only active defendant. Pleadings and witness statements were duly exchanged. The action was listed for trial before His Honour Judge Walton in the Newcastle-upon-Tyne County Court on 30 th and 31 st March 2011.
At the trial there was much conflicting evidence about what the defendant said to the claimant at their various meetings and how the horse behaved when the claimant rode him before the day of the accident. There was also a dispute as to whether the defendant told the claimant not to bring her children because they frightened the horse and whether the defendant told the claimant not to ride Red on 24 th March, because it was too late in the day. I do not need to go into any of that evidence. The judge heard the oral evidence and made findings of facts, which cannot sensibly be challenged. Indeed neither party seeks to challenge them.
In his judgment handed down on 10 th June 2011 the judge made the following findings of fact:
i) When the claimant and the defendant first met the defendant said words to the effect that Red was "on its toes" and would require an experienced rider.
ii) There were no significant incidents when the claimant rode Red on the days before 24 th March. The claimant's riding on those occasions reassured the defendant as to the claimant's abilities as a horsewoman.
iii) The purpose of the claimant's visit on Monday 24 th March was to have some time with the horse on her own and also to see how it behaved in the presence of her children. The defendant did not object to the children coming on that occasion and he permitted the claimant to ride Red unaccompanied.
iv) The horse's behaviour in the stable on 24 th March did not give cause for concern. There was no indication that the claimant would be ill advised to go out for a ride on Red.
v) During the course of the claimant's ride something unknown but out of the ordinary startled the horse. Red reared up and then started bucking violently. The claimant was thrown off the horse during the bucking. She did not fall off or jump off intentionally.
vi) The accident was not wholly or partly the claimant's fault.
vii) Both the claimant and the defendant knew that horses could buck when startled or alarmed. Neither the claimant nor the defendant anticipated that Red would buck as violently as it did on 24 th March. It had not done so before within the defendant's experience.
It is only necessary for me to refer to one passage in the oral evidence before the judge. That is the cross-examination and re-examination of the claimant concerning her state of knowledge. The last part of the claimant's cross-examination and the first part of her re-examination read as follows:
"Q. You rode that horse as an experienced, confident rider, did you? – A. That's correct.
Q. You recognise you've ridden horses which, put it this way, are challenging, the kind of horse they are? – A. Yes.
Q. And with your knowledge of that horse and how it had reacted to you and your background and experience as a rider, you felt safe and confident riding it, did you? – A. I did, yes.
Q. And you, in getting on, accepted that risk, didn't you, because in riding any horse, there is a risk? – A. There is a risk with riding any horse, yes.
Q. And you knew that there was a risk in riding any horse, that it might be spooked at any time? – A. It could, yes.
Q. For nothing that was apparent at all? – A. True.
Q. Which was the case here, wasn't it? – A. It spooked.
Q. Yes, for nothing apparent? – A. Well I wasn't aware of anything.
Q. No, and no one could have guarded against that in that situation, if you were up there on your own at that time of night, something might or might not have spooked it? – A. True, I was the only one there.
Q. So in going up there, you were really accepting the risks that are involved in riding horses, weren't you? – A. Well as I said, you take a risk riding any...
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