Turnbull v Warrener
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Stanley Burnton,Lord Justice Lewison |
| Judgment Date | 03 April 2012 |
| Neutral Citation | [2012] EWCA Civ 412 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2011/1498 |
| Date | 03 April 2012 |
[2012] EWCA Civ 412
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
HHJ McINTYRE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Stanley Burnton
and
Lord Justice Lewison
Case No: B3/2011/1498
Ref: 9NE02533
Mr David Regan (instructed by Shaw & Co) for the Appellant
Mr John Snell (instructed by Eversheds) for the Respondent
Hearing date : 6 February 2012
Nadine Turnbull and Rebecca Warrener are experienced horsewomen. Mrs Warrener was the owner of a horse called Gem. Between 2001 and July 2005 Mrs Warrener regularly rode Gem. She ceased to do so only when she became pregnant. In November 2005 she made an arrangement with Ms Turnbull that Ms Turnbull would ride Gem on a regular basis. This would enable Gem to continue to exercise and would enable Ms Turnbull to have some extra riding. For about four months Ms Turnbull rode Gem most weekends. On 26 March 2006 Ms Turnbull was riding Gem when, in circumstances I shall later describe in more detail, she fell and sustained injuries. Until that day, Gem had never disobeyed his riders' instructions or failed to respond to his riders' attempts to control him. Ms Turnbull commenced proceedings against Mrs Warrener in the Oxford County Court alleging negligence and/or liability pursuant to section 2(2) of the Animals Act 1971. She failed under both heads. As regards negligence, her claim fell apart when the judge rejected her evidence as untruthful in relation to important disputed matters. The statutory cause of action failed because the judge held that Ms Turnbull was unable to satisfy the conditions set out in section 2(2) and that, in any event, Mrs Warrener would have been entitled to succeed on the basis of the statutory defence pursuant to section 5(1) on the basis that the damage was "due wholly to the fault of the person suffering it".
On this appeal, Ms Turnbull does not seek to resurrect her negligence action. Her case is that the conditions prescribed by section 2(2) were satisfied and that the statutory defence pursuant to section 5(1) did not arise. For her part, Mrs Warrener maintains that the judge was correct about section 2(2) and section 5(1). In addition, by a Respondent's Notice, she maintains that she was also entitled to resist the claim by reference to the defence of voluntary acceptance of risk pursuant to section 5(2).
The statutory provisions
Section 2 of the 1971 Act is headed "Liability for damage done by dangerous animals". It distinguishes between animals which belong to a dangerous species and those which do not. As regards the former, section 2(1) provides:
"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."
That is undoubtedly a form of strict, albeit not absolute, liability. Horses are not a dangerous species.
If section 2(1) can be said to be drafted with commendable simplicity, the same cannot be said for section 2(2). The drafting, which has attracted four decades of judicial and academic criticism, is grotesque. The leading authority is Mirvahedy v Henley [2003] 2 AC 491. Even before that case had reached the House of Lords, in the Court of Appeal Hale LJ gathered together the numerous expressions of judicial disapprobation to which it had given rise: [2002] QB 769, at paragraph 18. Section 2(2) provides:
"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."
Plainly liability for an animal which does not belong to a dangerous species was intended to be less strict than that in relation to an animal which belongs to a dangerous species. In order to establish liability under section 2(2), a claimant has to satisfy all three of the prescribed conditions.
Section 5 provides exceptions from liability under section 2 and other provisions. For present purposes I need refer to only two of the exceptions:
1. "A person is not liable under sections 2 – 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."
Thus, for the purposes of section 2, these statutory defences are available whether or not a particular animal belongs to a dangerous species.
The events culminating in the accident
As I have said, Ms Turnbull began to ride Gem in November 2005 and did so regularly until the accident on 26 March 2006. For some weeks prior to the accident, there had been a problem with Gem in that he had tended to pull his head to the right. It was thought that this might be a result of his having a sore mouth and so, a few days before the accident, Gem was taken to the dentist where he had his teeth filed. The dentist advised Miss Warrener that Gem should not be ridden using a bridle with a bit for the following week. As a result Mrs Warrener borrowed a bitless bridle from a friend. On 26 March Ms Turnbull had a discussion with Mrs Warrener about riding Gem with the bit-less bridle. Gem had never experienced a bitless bridle before but Ms Turnbull was content to ride. The two women tacked up Gem together and fitted the bitless bridle. As equally experienced horsewomen, they both knew that it would be prudent for riding to commence in confined conditions. Ms Turnbull rode Gem for about five minutes in the lungeing school before walking and trotting him in circles for 10 – 15 minutes in another enclosed area. They then moved to an outdoor space for 15 -20 minutes. At no stage up to this point did Ms Turnbull indicate that she was having any difficulty with Gem and Mrs Warrener did not observe Gem reacting differently to the bit-less bridle. After Ms Turnbull had ridden Gem in the outdoor space, Ms Warrener suggested that they call it a day. Ms Turnbull replied that she wanted to take Gem for a canter up the field. Ms Warrener said that if Ms Turnbull felt safe cantering up the field, she could do so. When Ms Turnbull set off Gem appeared to be going more quickly than had been expected – more like a gallop than a canter – and Ms Turnbull was visibly trying to restrain him. However, Gem suddenly veered to the right and went through a gap in a hedge. At this point Ms Turnbull fell off, landing on a tarmac area and sustaining her injuries.
The trial and the judgment
The trial took place over two days in Oxford County Court. There were serious factual disputes which, as I have said, were resolved in favour of Mrs Warrener. Experts were called on behalf of both parties: Mr Charlie Lane on behalf of Ms Turnbull and Mr Richard Meade OBE on behalf of Mrs Warrener. Because the disputed evidence took as long as it did, there was no time for oral submissions about the complexities of section 2(2). Having dismissed the claim of negligence, the judge dealt with the statutory cause of action in fairly short order. He said:
"There is no evidence that Gem had ever before behaved in the way he did immediately prior to C's accident, namely by refusing to respond to her attempts to control him. I would find that he was not likely to cause injury unless restrained. He was (and probably still is) an ordinary domesticated horse. He was described by D as being quite lazy and needing 'some encouragement' before he would canter. I would find further that any injury caused by him was not likely to be severe. I base such a finding on the evidence of Mr Lane. I find that he had no abnormal characteristics. There is no evidence that he did. Was he displaying a characteristic normally found in horses at particular times or in particular circumstances? What was the characteristic that he was displaying? … I find that Gem did not 'bolt' in the technical sense of the word, ie he did not take off headlong out of control without regard for his own safety or that of C. Rather, he was going faster than she wanted him to go and she was unable to stop him. I accept Mr Lane's evidence (and I do not think Mr Meade disagreed with this) that the reason why she was unable to stop him was that she was trying to do it by means of a piece of equipment, namely the bitless bridle, to which Gem was unaccustomed. It was not a case of Gem going off faster than C meant him to go because he was fitted with the bitless bridle. Was it 'normal' for horses not to respond to the rider's instructions in these circumstances? I can find no evidence to support such a contention. If that be wrong and there is evidence to support it, there is no evidence to support the proposition that D knew of such a 'characteristic', whether in Gem or in horses generally. Gem had...
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