Richard Rowe, Partner and expert in claims involving animals acted on behalf of the successful dog owner in a claim for significant damages brought in the High Court by a horse rider who was seriously injured after the horse he was riding reacted to a dog that had approached it. The case provides useful guidance on the duty of care owed by those who exercise their dogs off the lead and on the provisions of the Animals Act 1971.

The facts

While on holiday in the UK, the claimant booked a beach horse ride with the second defendant stables. The claimant was an experienced horse rider who had competed in dressage, show jumping and cross country in his native country, and after he completed the signing-on process for the ride in question, he was allocated an appropriate horse that was owned by the stables. He was also allocated to the experienced group with three other riders who would be led by a lead rider employed by the stables.

During the signing-on process, each participant completed a form that included confirmation they understood riding at any standard had inherent risks, that horses may act unpredictably and that they could fall off and be injured. This was well known to the claimant given his own experience.

The beach where the ride in question took place was a public beach on which dogs are permitted to be walked off the lead. After the groups rode from the stables and entered the beach, dog walkers were present. This was not unexpected and the stables own risk assessment provided controls that should be applied by lead riders where any dog took an interest in or approached the horses.

The first defendant was on the beach at the time walking his West Highland Terrier named Max. Max was off the lead. He was regularly walked on the beach and he had encountered the horses from the stables previously without incident.

After cantering along the beach, the experienced group, with the claimant riding his horse at the rear of the group and the lead rider at the front, drew level with Max. To this point, Max had not been particularly engaged by the horses but on this occasion, as the group passed him, he took an interest and ran towards the back of the group. Noticing Max's presence, and on the instruction of the lead rider, the experienced group slowed to a stop. Max continued to run towards the back of the group and when he was at the heels of the horse being ridden by the claimant, the horse violently bucked, causing the claimant to be thrown and land on the sand. As a result he suffered serious spinal injuries.

The claimant subsequently pursued a claim for personal injury alleging that both the first and second defendant were negligent. He argued that the first defendant should have been aware of the presence of the cantering group and should have taken action to restrain or control Max. He was close enough to recall Max (who was an obedient dog) but chose to do nothing. As against the second defendant, he argued that the lead rider of the group rode too close to Max and instead should have followed a different line along the beach. He also argued that the second defendant was in breach of section 2(2) Animals Act 1971 ("the Act"). At trial he withdrew allegations that the first defendant was in breach of this and pursued the claim in negligence only against him.

The law

Whippey v Jones [2009] EWCA 452 confirms that when considering a claim based on the actions of a dog that was off the lead, before holding that the person in control of the dog had fallen below the standard of care and had acted negligently, the court must be satisfied that a reasonable person in the position of that person would contemplate that injury is likely to follow from their acts or omissions. The remote possibility of injury is not enough; there must be a sufficient probability of injury to lead a reasonable person in the position of the person in control of the dog to anticipate it.

Section 2(2) of the Act provides that where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable 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; and
• The likelihood of the damage or of it 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 time or in particular circumstances; and
• Those characteristics were known to that keeper.

Section 5(2) of the Act provides that a person is not liable under section 2 for any damage suffered by a person who has voluntarily accepted the risk thereof. Freeman v Higher Park Farm [2009] PIQR P6 confirms that what must be proved in order for someone to have voluntarily accepted the risk is that, (1) they fully appreciated the risk and (2) they exposed themselves to it.

Findings and outcome

HHJ Harrison found that Max had not previously behaved in a way around horses that amounted to a cause for concern and up to the time of the accident he had been minding his own business. There was therefore no reason for the first defendant not to let Max off the lead or to take a different approach. Having regard for Max's temperament and how he appeared to be behaving in proximity to the horses prior to the incident, HHJ Harrison said it was difficult to see how the reasonable person in the first defendant's position would be required to act differently. He could see how some dog owners in this situation would take action by calling their dog or placing them on the lead, particularly where they could see a cantering group of horses were going to pass close to their dog, however, the question in this instance was whether it would be negligent not to do so. HHJ Harrison confirmed that the answer to this question would to some extent depend on what an owner knows of their dog. If, as was the case here, there was no background of similar behaviour and if there was nothing more than a mild interest being displayed to the horses during the walk, then a failure to step in by the dog owner did not amount to a breach of duty. On this basis he was not persuaded that a reasonable person in the first defendant's position would have anticipated injury and, accordingly, the claim against the first defendant was dismissed.

The claim in negligence against the second defendant also failed. The court was not persuaded that the lead rider noticed Max in order to take a different line across the beach or even that had she noticed Max, given he was minding his own business, that she should have taken a different line. HHJ Harrison confirmed that to require lead riders to assume a threat of sufficient magnitude in these circumstances is to make riding at a canter on beaches virtually impossible.

Whilst the claim against the second defendant succeeded under section 2(2) of the Act, it failed given the defence afforded under section 5(2). In short, for the purpose of section 2(2), as a result of a fall from a violent buck, the damage was likely to be severe (for the purpose of section 2(2)(a)) and it was accepted by the second defendant that if the fall was found to be from a violent buck, then (b) and (c) would be satisfied given this resulted from a characteristic of the horse reacting to Max and the second defendant would have knowledge of such a characteristic in horses. However, the claim failed as, pursuant to section 5(2), the second defendant was able to establish that the claimant voluntarily accepted the risk of what occurred. Following a useful review of the case law that has developed on the applicability of section 5(2), the court concluded that there was nothing about the horse in question that the second defendant could have passed on to the claimant that would have heightened his awareness of the risk and here the relevant risk was one of loose dogs, something that was controlled by the actions of the lead rider who it had been found was not negligent. The claimant was an experienced horse rider with at least an equivalent knowledge of the lead rider and he understood that riding horses came with risks; that they may well come across dogs on the ride; and, indeed, he had seen the dogs on the beach when the group arrived on it. Their presence did not make him question proceeding and given his knowledge that any horse might buck in an unpredictable way; a horse could be provoked into that by loose dogs; and if a horse reacted in that way he might fall and suffer serious injury, section 5(2) was engaged. Accordingly, the claim was dismissed.

As an evidential point, the signing on form completed by the claimant before the ride was not conclusive in this respect but it had evidential weight.

Learning points

The judgment provides useful guidance on both the law relating to the standard of care of dog owners who are walking their dogs off the lead and on the applicability of section 2(2) and section 5(2) of the Act.

In relation to negligence against the dog owner, whilst other owners may have stepped in and put their dog back on a lead when faced with cantering horses on the same beach, taking into account the owner's knowledge of this specific dog and the dog's actions in the lead up to the accident, there was not sufficient evidence to prove negligence. As confirmed in Whippey, the court must be satisfied that a reasonable person in the position of that dog walker would contemplate that injury is likely to follow from their acts or omissions and the remote possibility of injury is not enough; there must be a sufficient probability of injury to lead a reasonable person in the position of the person in control of the dog to anticipate it.

The judgment provides a useful reminder (and indeed itself adds to) the growing case law on section 5(2) of the Act, which is particularly relevant when dealing with cases involving those experienced in riding horses who continue to ride where they are aware of a risk of injury.

Our Casualty Injury Team deals with cases like this on a regular basis. For more information or advice, please contact one of our experts.