Equine: Likelihood of damage or severe damage - experience matters
With the transcript of the recent judgment in Lynch v Ed Walker Racing Limited  now available, Amy Jeffs, a member of the Equine Group at DWF LLP, looks at the decision in more detail.
In the High Court, Langstaff J upheld on appeal the first instance decision dismissing a claimant stable lad's claim for injury under the Animals Act 1971 s.2(2), after a fall from a race horse. Lynch continues the trend seen in Turnbull v Warrener away from likelihood of injury or severe injury being taken for granted by both judges and the parties. A claimant will need to adduce evidence as to likelihood to succeed under the Act. Any solicitor acting for a claimant injured by a horse should consider whether, at the very least, their client can support his or her own case on likelihood of damage. A potential claimant's own history of dealing with horses may be sufficient on its own to defeat a claim.
The Claimant was a stable lad who in 2014 was riding a horse, Wolfofwallstreet, in a string of nine horses. Something spooked the lead horse resulting in the others spooking and whipping around. Whilst the Claimant was able to stay on the horse as it whipped to the left and right, the horse then fell having lost its footing on a grassy bank causing the Claimant to fall and hit his head. The Claimant's claim was brought under s.2(2) of the Animals Act 1971, which imposes liability for damage caused by animals of a non-dangerous species where certain conditions are met. S.2(2)(a) of the Act provides that a keeper of an animal will be liable for the damage if "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."
The Claimant had approached likelihood of damage on the basis that it was obvious and did not require evidence to be established, referring to previous decisions and the concessions made by defendants in many cases on the point.
At first instance, the judge dismissed the claim holding that likelihood of damage or severe damage were not matters of law which must be followed from case to case but would be determined by a review of the facts in each case. The judge was persuaded by the lay witness accounts of their own experiences. The witnesses all described a low likelihood of suffering injury based on similar past events. The first instance judge heard expert evidence to the effect that injury may occur but was not to be expected.
The appeal concerned the first instance approach to section 2(2)(a) dealing with likelihood of damage or likelihood of severe damage in the event that damage is in fact caused. A claimant must satisfy at least one of the two limbs of 2(2)(a).
The Act relies on the interpretation of "likelihood" for both limbs of 2(2)(a). After much historic judicial debate and following Lord Scott's review in Mirvahedy v Henley  HL, likelihood is equated to "such as might well happen" or "reasonably to be expected" rather than an approach which requires events to be more likely than not to occur.
On appeal, the Claimant argued that the judge had misapplied the test in 2(2) (a). In relation to the first limb, the Claimant argued that the judge had been selective in her examination of the evidence and should not have reached the conclusion that some injury was not "reasonably to be expected". Further, the Claimant argued that the trial judge had failed to address the second of the two limbs – if damage did in fact occur, was it likely to be severe?
Langstaff J found that the evidence from the witnesses, including the Claimant and expert, allowed the trial judge to reach the decision that injury from a falling horse was not likely.
He took the view that although perhaps not fully examined in the judgment, the first instance judge's review of likelihood of damage had also covered the second limb - was severe damage likely? The expert and lay witnesses had given evidence that, for instance, in the case of a horse whipping round, the rider would not normally fall or would be able to jump from the horse. On this basis, injury was unlikely but if it did occur, was then unlikely to be severe.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.