Equine law: liability when horses escape

Elizabeth Simpson looks at what happens if a horse escapes from temporary stabling at a horse driving trials event and injures someone or damages property.

In considering liability for damage caused by an escaping horse at an event like this, there is more than one potential defendant: the horse's owner, its keeper, the land owner, the event organisers – or all of them!

The Horse Owner

The horse owner may be liable under the Animals Act 1971, in negligence or both.
Under the Animals Act 1971, the "keeper" of the horse is the person who has responsibility for it. This can be the owner or the person in possession or control of the horse, or it could be the head of the household where a member under 16 owns the animal or has it in their possession. To bring a claim, a claimant would first need to prove that he or she had suffered actual damage or injury. The judge would then consider a three stage test in order to decide whether the keeper was liable. First, the judge would consider whether the horse caused damage of a kind which it was likely to cause unless restrained, or which, if so caused, was likely to be severe. This can be thought of as the "likelihood test". What is and is not "likely" is not defined in the Act but has been defined in case law as "such as might happen". Second, the judge would consider whether the likelihood of that damage, or of it being severe, was due to a particular characteristic of the horse not normally found in horses or found only at particular times or in particular circumstances – for example, a horse bolting when frightened. This can be thought of as the "characteristic test". Establishing this might require expert evidence from a vet. Third, the Judge would consider whether the characteristic in question – which has to be the particular one exhibited in that horse in that particular incident – was known to its keeper. In other words, did the keeper know of the fact of the characteristic in horses generally (if not in his or her particular horse)?

This is a very complicated test to apply in practice and has led to some surprising results, each case turning on its own facts.

Whether the horse's escape is the result of the owner's negligence would depend on a number of factors. A judge would first consider whether there was a causal link between the conduct of the owner in allowing the horse to escape and the injury or damage caused. For example, how did the horse manage to escape? Was the stabling of a good quality and construction? Was it properly erected? Was the stable door left open? If so by whom? Was the horse left unattended at the time and if so, should it have been? The judge would then consider whether the injury or damage caused was reasonably foreseeable. If the judge finds a causal link and that the injury or damage was reasonably foreseeable then the owner is likely to be found negligent.

The Land Owner or Event Organisers

Under the Occupier's Liability Act 1957, a person occupying land or having control over it owes a duty to take all reasonable care to see that his or her visitors are reasonably safe whilst using the premises for the purposes for which they are permitted to be there ; this will include such things as being prepared for a child to be less careful than an adult. Either the land owner or the event organisers – or both - , could find themselves liable under the Occupier's Liability Act 1957 for damage caused by an escaping horse in these circumstances and this is likely to be in addition to the liability of the horse's owner and/or keeper.

A claimant wishing to sue under the Occupier's Liability Act 1957 must establish that they were a "visitor" as defined in the Act – and if they were present for the purposes of the carriage driving event then they would normally be. They would then have to establish that the owner and/or event organisers, failed in their duty to see that the claimant was reasonably safe and that the claimant suffered damage or injury as a result.

Warning Notices/Exclusion or limitation of Liability

At many outdoor events, you will routinely see signs seeking to absolve the land owner and/or organisers from any liability for injury or damage caused to those attending and/or competing, or their property.

It is possible to restrict, modify or exclude the duty of care owed to visitors up to a point, either by agreement with the visitors or by warning them of the risks they face in attending, but whether such warnings are successful in their aim will depend upon their particular wording. Any such warning will not be enough on its own, unless sufficient to enable the visitor to be reasonably safe.

It is not possible to exclude liability for death or personal injury caused by negligence. As regards claims for financial loss (not accompanied by physical injury) , whether liability can be excluded will depend upon whether it is fair and reasonable to allow reliance upon the notice, having regard to the circumstances at the time the accident occurred or, but for the notice, would have occurred. In particular, there must be evidence that the exclusion or limitation was drawn to the attention of the visitor. If not, the purported exclusion or limitation is ineffective.

Carriage Driving Magazine [2010-05-31]