Animals Act 1971, Section 5(2) - Not A Dangerously High Horse!

As reported in our previous newsletter, defendants are starting to have considerable success in defeating claims brought under the Animals Act 1971 by relying on one of the three statutory defences to strict liability under section 2 of the Act. The recent Court of Appeal decisions in Goldsmith v Patchcott and Turnbull v Warrener continue the trend of success for defendants relying on the statutory defence, whilst also providing some useful guidance as to the manner in which section 5(2) of the Act, and the often criticised section 2(2)(b) of the Act, should be interpreted.

In Goldsmith, the facts were relatively straightforward. The defendant was the keeper of a horse called Red. He was looking to dispose of Red, and hoped to find someone to whom he could give the horse away for no charge.

The claimant was introduced to the defendant in March 2008. They discussed the horse and the claimant expressed some interest in taking it. She visited the defendant at his home on three occasions in short succession and rode the horse in the company of the defendant.

On 24 March 2008 she went for a ride on Red by herself. During that ride, Red reared up then bucked violently. The claimant was thrown to the ground and then struck by the horse's hoof, suffering severe facial injury.

During trial, the claimant agreed that she was an experienced, confident rider and that she knew the horse could be spooked for no apparent reason. She denied that she knew that Red had a tendency to rear and buck violently and claimed that, had she known this fact, she would not have ridden Red. She accepted, however, that she knew that horses could buck when startled or alarmed. The trial judge held that Red's bucking was a normal characteristic of horses in the particular circumstances of being startled or alarmed. The defendant had relevant knowledge of the characteristic and so, subject to the statutory defences, strict liability attached.

However, turning to the statutory defences, the trial judge found that the claimant was aware of the risk that horses would rear and buck if startled or alarmed and therefore had voluntarily accepted the risk of that happening.

The Court of Appeal was asked to consider whether or not the claimant had, in fact, voluntarily accepted the risk of injury for the purpose of section 5(2) of the Animals Act. It also reviewed the effect of section 2(2)(b) of the Act and in particular, considered the submission that the phrase "at particular...