Kozlowska v Thurloe (t/a Judi Thurloe Sports Horses) [2012] EWCA Civ 236

Case No B3/2011/0650

[2012] EWCA Civ 236

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM YORK COUNTY COURT

DISTRICT JUDGE HANDLEY

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Date: 1 st.March 2012

Before

LORD JUSTICE MUMMERY

LADY JUSTICE BLACK

DAME JANET SMITH

Between

MARTA KOZLOWSKAAppellant

JUDI THURLOE T/A JUDI THURLOE SPORTS HORSESRespondent

(Transcript of the Handed Down Judgment of

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Georgina CURSHAM (instructed by Fraser Brown Solicitors) for Appellant

Johnathan PAYNE (instructed by Stone Rowe Brewer Llp) for Respondent

Hearing Hearing dates: 28 th February 2012

Judgment

Dame Janet Smith:

[1]This is an appeal from the order made by District Judge Handley on 15 February 2011 following the hearing of a personal injury action brought by Marta Kozlowska against Mrs Judi Thurloe arising from a riding accident which occurred on 11 December 2005 in the course of the claimant’s employment as a groom with Mrs Thurloe. The district judge found in favour of the claimant on liability. Damages were later agreed in the sum of £17,250. Mrs Thurloe now appeals against the decision on liability.

[2]Because I have reached the conclusion that this appeal must be allowed and that the issue of liability will have to be reheard by a different judge, I intend to say only as much as is necessary to explain my reasons for so concluding and I will avoid discussing the merits of the parties’ cases. I would not wish to influence the second trial judge in any way. The appeal turns on whether or not the district judge was entitled to make the findings of fact that he made and whether or not he made sufficient findings of fact to justify his conclusions.

The factual issues

[3]In outline, the respondent alleged that, while exercising a horse called Double, in the course of her employment, she was cantering down a muddy slope in a field some distance from the stables when the horse stumbled. Fearing that Double was about to fall, the respondent jumped down. She landed heavily and broke her ankle. She alleged that the appellant had failed to provide a safe system of work for her and had failed adequately to supervise her work. In particular she, the respondent, should not have been allowed or required to ride Double. Also she should not have been allowed or required to ride in the muddy field.

[4]The appellant has, for many years, run livery stables at Pond Head Farm, Oulston, York. She owns a number of horses which she hires out for hacking and hunting; she accepts horses for livery and also keeps horses which are for sale. At any one time, she will have about 30 to 35 horses on the premises. Most horses have to be exercised every day, mainly by employed groom/riders.

[5]In November 2005, the respondent, who is Polish and her Polish boyfriend applied to the appellant to work as groom/riders and were taken on. Both had some previous experience of riding. The respondent’s riding skills were assessed by the appellant at the start of the employment. She was required to ride at a walk, trot and canter in an outdoor school. When asked to jump the horse over an obstacle, she fell off. Apart from the fact that there was a dispute as to the height of the obstacle, so much was common ground.

[6]The appellant’s case was that the respondent had not been instructed to ride Double. She had been told which horses she was to ride that day (and indeed every working day) and Double was not one of them. The names of the horses each employee was to ride were displayed on a list which was prepared every morning and kept in the tack room. The respondent also knew that she was not allowed to ride any horse without the permission of the appellant or her husband John Thurloe. That rule was displayed on a notice posted in the tack room. The respondent’s boyfriend, known as Mattie, was a more experienced rider than the respondent and was permitted to ride Double. The respondent and Mattie usually rode out together when exercising the horses. The appellant had expressly forbidden the respondent to ride at a canter or to jump any obstacle. That was because she had formed the view that the respondent was not a confident or experienced rider but was sufficiently competent to ride certain named horses which were known to be quiet and reliable. She had formed those views of the respondent’s ability as the result of the initial assessment after which the appellant had accompanied the respondent on exercising rides, during which the appellant had shown her the various routes which were to be followed. Some of those routes included taking one of three tracks across the field where the accident allegedly happened. The precise route taken was left to the riders.

[7]The appellant’s case was that, on the day of the accident, the respondent had been instructed to ride a horse called Tomkin and Mattie was to ride Double. They had left the yard on those mounts. After the accident had happened, both the respondent and Mattie had admitted that the two had changed horses while out on the ride and that the accident had happened while the respondent was riding Double. The respondent had acknowledged that she had disobeyed her instructions.

[8]It was also the appellant’s case that, if the accident had happened while the respondent was cantering (as to which the appellant could rely only on the respondent’s word) that would have been in breach of her specific instructions that she was not to canter. If the accident occurred where the respondent said it did (when giving evidence she marked the position on a photograph) that too would have been in breach of the appellant’s instructions.

[9]The respondent’s evidence was that she knew nothing of any lists which regulated who was to ride which horses. She and the other grooms were left to their own devices as to who they rode. She had not been forbidden to ride Double. She and Mattie had not swapped horses on the day of the accident. She had been riding Double when she left the yard and Mattie had been riding a horse called Lymus. After the accident she had not confessed that she and Mattie had changed horses and she had not acknowledged that she was breaking any rules.

The evidence

[10]The respondent gave evidence. Although an interpreter was present, the respondent gave evidence in English with very little assistance. She was cross-examined by the appellant who was acting in person.

[11]Her written statement began with an account of her experience as a rider. She claimed to have ridden regularly over the previous three years although she did not explain to what extent she had ridden without supervision.

[12]As to the events at the appellant’s stables, the respondent maintained her position as set out above. She accepted that the appellant had accompanied her on exercising rides at the start of the employment but said that this only happened on two occasions. [The appellant maintained that this happened about six times.] The respondent also said that she had fallen from a horse a second time (the first time being during the initial assessment) when the horse she was riding shied in traffic. She was not injured. She reported the incident to the appellant. She claimed that she was still required to ride that horse on later occasions. [I mention now that the appellant did not accept that the horse had shied as she believed it to be very steady. Moreover, she denied that she ever asked or allowed the respondent to ride that horse again.]

[13]The respondent maintained that there were hardly any rules and regulations about who rode which horse. She had never seen a list. She had ridden out on Double on the day of the accident. Mattie had been on Lymus and they had not changed over. She said that she had never been forbidden to canter; on the contrary she had been told that she must exercise each horse at all three paces, walk, trot and canter.

[14]The respondent put in a written statement made by Mattie. He was not called; he was living in Poland. He said that he was never given written instructions about which horses he was to ride; only verbal. On the day in question they were told to ride Double and Lymus but he did not know which one was for whom. He speculated that that might have been because their English was not good. They had been told to walk, trot and canter. They did not change horses during the ride. When the respondent was riding Double at a canter on hilly and muddy ground, the horse stumbled, then seemed to jump forward. The respondent lost her balance and jumped to the ground.

[15]The respondent also relied on a report prepared by Mrs Peta Roberts, an equestrian expert. Although given permission to instruct an expert of her own, the appellant did not do so in the time allowed. She was allowed to ask questions of Mrs Roberts which were answered in writing. Mrs Roberts was not called to give evidence. Mrs Roberts’s evidence was limited to explaining broad principles as she had not been able to assess the respondent’s riding ability; nor had she seen Double or the field where the accident occurred.

[16]In her first report, Mrs Roberts summarised her conclusions with the four following propositions:(i) The employer should have assessed the employee’s riding ability at the start. [It was common ground that that had been done.]

(ii) There should have been clear instructions about which rider was to ride which horses. [That was a matter of dispute for the judge to resolve].

(iii) Employees should have been supervised, especially if there was any doubt about their ability to ride any of the horses. However, in the body of her report, she expanded on that short statement, saying that if an employee were to ride a horse that was unknown to him or her, he or she should be supervised at least for a few minutes at the start of each ride. If that had been done, she said, the respondent could not have been allowed out on Double. So the question of supervision was a matter for the judge to resolve; it appears to have been Mrs Roberts’ view that supervision was only required if the employee were riding a horse with which he or she was unfamiliar. Within the paragraph in which she discussed supervision, Mrs Roberts explained the British Horse Society’s system of examination. At Stage 1, the rider is assessed in an indoor school and is required to walk, trot and canter. Also, the horse must be ridden over trotting poles with the rider in the jumping position. As I understand this (and the point was not clarified for the judge) these poles lie directly on the ground and do not entail the horse jumping. At stage 2, the rider is assessed at all three paces in an indoor school and then taken out into a field where the exercises are repeated. It is not clear to me at any rate how the BHS examinations related to an employer’s assessment of an employee’s abilities and this was not clarified for the judge.

(iv) If the field (where the accident happened) was muddy and uneven, it was not a suitable place for any rider other than a very experienced rider. Mrs Roberts’ discussion in the body of the report expanded upon that, explaining that there was a risk of the horse becoming unbalanced. However, she did not distinguish between the degree of risk at a walk or trot or canter. I think it must be inferred that she was talking about the risk when cantering because she had been told and had recorded that the accident had happened when the respondent was cantering in a hilly, muddy field. Towards the end of her report she said that allowing a rider to ride unsupervised on a strange horse, in a hilly muddy field in December was an accident waiting to happen.

[17]In answer to the written questions put by the appellant, Mrs Roberts acknowledged that if the appellant had assessed the respondent and had given her horses to ride which were suitable to her ability, that would show correct working practice. She said that if the field were only mildly muddy, the route would probably be acceptable. If the respondent had been instructed not to canter but only to walk or trot on reasonable ground, that would also be acceptable. If the respondent had been told to ride Tomkin and had changed so as to ride Double, the appellant could not be held responsible for the fact that the respondent was riding Double.

[18]The appellant gave evidence and was cross-examined by counsel for the respondent, Mr Johnathan Payne, who has also appeared in this court. She maintained the account I have set out above. She produced two examples of the kind of horses and riders list which she claimed was prepared every day. These were not the ones from the time of the accident as those, she said, had been destroyed. She produced the health and safety notice which she said was posted in the tack room. It said, inter alia, that employees were not to ride any horse without permission from either Mr or Mrs Thurloe. She also produced the accident report dated 12 December 2005, that is the day after the accident. Under ‘Description of Accident’ it said:

“MARTA (the respondent) RIDING TOMKIN MATTIE DOUBLE OUT HACKING. CHANGED HORSES AFTER LEAVING YARD. MARTA PANICKED AND JUMPED OFF DOUBLE.”

[19]The Appellant also called three witnesses. Mrs Jane Hindley had been a livery customer for many years and in 2005, at the time of the accident, had been in the habit of visiting the stables about three times a week. She remembered the respondent and Mattie and said that the respondent understood English well. She claimed to be very familiar with the operation of the stables. She said that the respondent was careful to match horses and riders according to their abilities. A list of horses and riders was prepared every morning and was discussed during the tea break in the tack room. She said that the stables were very well run.

[20]Mr Michael Ryan had been the appellant’s ‘head lad’ at the time of the accident. He had not worked for her since 2006. He said that the stables were well run and that the appellant was very experienced in assessing both horses and riders. He said that horses and riders were allocated for exercise rides during the tea break in the tack room and a list was prepared and left for reference later in the day. He said that the respondent was only permitted to ride the three quietest and most experienced horses. She well understood that she was not to ride any of the other horses. The respondent had very good English. Mattie’s was less good. However, they both understood the rules. He said that on the day of the accident (11 December 2011) the respondent was assigned to Tomkin and Mattie was to ride Double. He himself was out riding when he came across Mattie on foot leading both horses. Mattie told him that the respondent had been riding at a canter across the field and when the canter became fast, she had panicked and jumped off. He had not said that the horse had stumbled on muddy ground. He could not remember whether the field was muddy but it was definitely not churned up. Also it was well- drained due to the drainage ponds. He said that Tomkin and Double were both hunters who were used to all under-foot conditions. Tomkin in particular was very sure-footed.

[21]In cross-examination he said that he had actually seen the respondent and Mattie leave the yard on the day of the accident and the respondent had been riding Tomkin and Mattie had been riding Double. In discussion about the respondent’s riding ability, he described her as a novice and not a confident novice. He may also have said that she was not a competent novice but there may have been some confusion on the transcript between the words ‘competent’ and ‘confident’.

[22]Finally John Thurloe, the appellant’s husband, gave evidence. He remembered the respondent well and said she spoke and understood English well. He said that the respondent had only been permitted to ride the quietest horses because of her lack of experience. He said that there was a meeting every morning in the tack room at tea break. Horses were then allocated and the list was prepared. The respondent had always been limited in the horses she was allowed to ride and she was not allowed to ride Double. He had been around the yard that morning and if he had seen the respondent leading Double out of his box, he felt sure he would have noticed. After the accident he had been in the yard when the respondent and Mattie returned. The respondent was sitting on Tomkin and Mattie was leading both horses. He (Mr Thurloe) took the respondent to hospital and she apologised that she and Mattie had decided to change horses.

The judgment

[23]It will be apparent that there were a number of disputes of fact for the judge to resolve. In his judgment, he did not make any general observations as to the credibility or reliability of any witness. He recorded that the respondent had fallen off the horse during her initial assessment when attempting a low level jump. He then observed that notwithstanding that accident, she had been allowed to continue to ride and to exercise horses away from the yard without close supervision or monitoring. He noted the second fall which occurred a short time later saying that this was a further example of the respondent’s limited level of riding skill but that she had been allowed to continue to ride horses away from the yard without close supervision or monitoring. He noted the descriptions of the respondent’s abilities and accepted that a proper description was that she was a novice. From the outset, the judge appears to have been of the view that there had been a culpable failure of supervision.

[24]The judge considered whether the appellant had given the respondent clear instructions each day as to which horses she was to ride. His conclusion was that lists were indeed prepared but that the lists were not ‘as important … as suggested by the Defendant”. He said:

“On the contrary, I feel that the stable hands … were allowed a much freer, if not free, rein on the issue of exercising horses”

. In so saying, the judge was rejecting the evidence of the respondent who had said that she had never seen any lists and was also rejecting the evidence of the appellant, Mrs Hindley, Mr Ryan and Mr Thurloe as to the significance of them. This was an important issue as it went to the question of whether the appellant had laid down a safe system of work. If she had simply allowed the stable hands a free rein as to which horses they rode, that would not have been a safe system. Of course, the judge was entitled to accept or reject the evidence of any witness. However, he did not on this occasion give any reason for his decision. He prefaced his decision with the words:

“On balance and having considered the evidence as a whole…..”

[25]Next, the judge considered which horse the respondent was riding when she left the yard on the day of the accident. He accepted the respondent’s evidence that she had gone out on Double. Here again, he gave no reason for that acceptance. He did not mention the evidence of the appellant or Mr Ryan or Mr Thurloe. He did not mention the allegation that the respondent had admitted changing horses. He did not mention the almost contemporaneous account in the accident book. He said only:

“Having considered the evidence as a whole, …”

[26]The judge considered the route adopted by the respondent and concluded that it was not a route that she had been specifically required not to adopt. He gave no reason at all for that conclusion. He then considered the scene of the accident. He said that he accepted the respondent’s unopposed evidence as to where the accident had happened. The appellant had no means of knowing where the accident had happened other than from the respondent and Mattie. It is not clear to me how the fact that her evidence on this point was unopposed in any way helped to establish the respondent’s reliability. The judge then partially accepted the respondent’s evidence as to the features of the scene. He accepted that the ground was sloping, albeit not as steeply as the respondent had claimed. He said that he relied on the photographs in making that decision, although so far as I can see the photographs are taken so far from the spot identified by the respondent that its features cannot be seen at all clearly. The judge then held that the ground was muddy having noted that Mr Ryan had made a concession to that effect in cross-examination. No complaint is made about that finding.

[27]The judge accepted the respondent’s account of the circumstances of the accident. In doing so he made no reference to the fact that she had been cantering and made no finding of fact as to whether she had been told not to do so. It might be inferred that, having accepted the respondent’s evidence on a number of issues, he must have accepted her evidence on this point too. However, the issue of what instructions the respondent had been given was central to the case and it was incumbent upon the judge to make a finding of fact on that issue and to give a reason for his finding.

[28]The judge then considered the expert evidence of Mrs Roberts. It was, of course, unopposed. He recounted that part of her report where she dealt with Stages 1 and 2 of the BHS examinations. Then having reminded himself that the respondent had fallen off when attempting a jump during the initial assessment and had had another fall some time later, he concluded that the respondent was “not an individual who could have been regarded as riding satisfactorily at Stage 1”. So far as I can see there was no evidence on which he could make that finding. The only witness who had made any assessment of the respondent’s abilities was the appellant. Mrs Roberts had not done so. The judge seems to have thought that by falling off at a jump, the respondent must have failed a Stage 1 test, although Mrs Roberts did not say that jumping was part of the Stage1 test. He also seems to have attached a great deal of significance to falls and there was no evidence to suggest that a rider would fail a test simply on that ground. Moreover, he failed to pay any regard to the fact that the respondent had been riding for about three hours a day six days a week since her employment began and was more experienced than at the time of assessment. I am quite satisfied that the judge’s conclusion that the respondent could not be regarded as having reached Stage 1 competence was unfounded in evidence and perverse.

[29]The judge’s final conclusion was to adopt Mrs Roberts’ opinion that “letting a rider who is lacking experience ride unsupervised on a strange horse in a hilly muddy field in December is an accident waiting to happen”. He said that this accident gave rise to that accident waiting to happen. The respondent, a novice rider, “was riding unsupervised on an unknown horse, down a hill in a muddy field”. He held that all the allegations in the particulars of claim were made out.

Submissions on appeal and discussion

[30]Miss Georgina Cursham who appeared in this court for the appellant submitted that the judge had failed to give any reasons for several of his findings of fact. In particular he had given no reason for his finding that the stable hands were allowed free rein as to which horses they rode. Second, he had given no reason for finding that the respondent had not been forbidden to ride Double or for finding that she had ridden out on Double on the accident day and had not changed horses while out. Judges were required to give such reasons as would enable the losing party to understand why she had lost and would enable an appellate court to judge whether the conclusion was rational: see English v Emery Reimbold

[2002] 1 WLR 2409

. Here, the appellant had no idea why her evidence and that of her supporting witnesses had been rejected. Nor is this court able to assess whether the reasons the judge had were rational.

[31]As will be apparent from the previous section of this judgment, I accept that submission. Indeed, Mr Payne for the respondent did not strenuously seek to argue that adequate reasons had been given for those particular findings. Rather he sought to argue that those findings were peripheral to the judge’s decision. The crux of the decision was the judge’s holding that the respondent was so inexperienced that she should not have been allowed to ride out unsupervised. I will return to that submission in a moment. But in my view these findings of fact were not peripheral. They were central to the issue of whether the appellant had laid down a safe system of work for the respondent. Mrs Roberts, the expert, had said that if the employer had made an assessment of the employee’s ability and had assigned her to suitable horses, that would be a reasonable system. Whether the appellant had assigned the respondent to suitable horses and had made the instructions clear were important issues. So also was the question of whether the respondent had wilfully disobeyed those instructions. I do not say that the judge’s decisions on those issues were necessarily perverse. There was evidence which could support them. But they were not adequately reasoned.

[32]There was also an important issue as to whether the respondent was permitted or even required to canter while out exercising the horses. There was a stark conflict of evidence on this but the judge made no express finding. He seems to have accepted the respondent on this point and, if he did, that would not necessarily be a perverse decision. There was evidence which could support it. But, he certainly gave no reason for such a decision.

[33]Mr Payne submitted that the most crucial issue underlying the judgment was the need for supervision. I agree that the judge did focus on that and I accept that an appropriate degree of supervision was an important component in the safe system of work. What supervision was necessary would depend upon the assessment of the respondent’s riding ability. The appellant had assessed the respondent at the outset and said she had ridden with her on about six occasions. The respondent said they had only ridden together twice. The judge did not resolve that difference. Perhaps it does not matter as it was clear that the appellant had assessed the respondent’s ability. It was not suggested that the appellant was not competent to make that assessment. The appellant assessed the respondent as being capable of riding without supervision provided she rode only a designated group of horses and provided that she did not canter or jump. It seems that the judge must have rejected that assessment, although he did not do so expressly. It may be that he rejected it as dishonestly made or incompetently made or unreasonably made. We simply do not know. Instead of the appellant’s assessment, the judge preferred his own assessment of the respondent’s ability and concluded that she needed constant supervision. That conclusion was certainly insufficiently unreasoned but in my view it was also perverse. He based himself on the belief that the respondent would have failed a BHS Stage 1 examination because she had fallen off twice. No witness had proffered that opinion and it was not a matter on which the judge was entitled to rely on his own knowledge. In my view, there was no evidence upon which the judge could rationally hold that, by the date of the accident, the respondent required constant supervision while out riding on an appropriately selected horse.

[34]Accordingly I would accept Miss Cursham’s submission that this judgment was deficient in that the judge’s decisions on several important matters were not adequately explained. The appellant does not know why her evidence and that of her supporting witnesses was rejected. This court cannot tell whether his reasons were rational. In saying that a judge must give reasons, it is not intended to impose a heavy burden on the judge. Sometimes a very brief reason will suffice. But, where the evidence on a particular issue contains several strands, it may be necessary to mention them and explain why, even though more than one witness or document supports a contention, he himself is rejecting it. The need for explanation will be more obvious where, as here, the judge is accepting parts of a witness’s evidence but rejecting others. Where an account in an apparently contemporaneous document is to be rejected, it will usually be necessary to deal with it. The appellant had recorded on the accident report that the respondent and Mattie had changed horses. That account was supported by Mr Thurloe’s evidence. Yet the judge mentioned neither the evidence nor the document. In accepting that the respondent had not changed horses, he was implicitly finding that Mr and Mrs Thurloe were lying. They were entitled to know why he reached that conclusion.

[35]My conclusion is that the appeal must be allowed and the judgment set aside because of the judge’s failure to give adequate reasons.

[36]Miss Cursham sought to persuade us that not only was the judgment defective in its reasoning but was also clearly wrong. She invited us to reverse the judge’s decision and enter judgment for the appellant. I have already said that I do regard one of the judge’s findings as perverse. I do not think that he was entitled on the evidence to conclude that the respondent was so inexperienced as to require constant supervision. But, even if that finding were overturned, it would not lead to the conclusion that the claim must inevitably fail. Other findings of fact are necessary. It is for example necessary for there to be a reasoned finding as to whether the respondent was given clear instructions as to which horses she was allowed to ride and whether she was allowed to ride at a canter. This court cannot make its own decisions on those issues. For that reason, I feel driven to the conclusion that, unless the parties can reach agreement, this case will have to be retried. I say that with regret because the damages involved are not large, the costs are likely to exceed the damages and there has already been a long delay in bringing this case so far. But I can see no alternative.

[37]I would allow the appeal and remit the claim to the York County Court to be heard by a circuit judge. Lady Justice Black: I agree Lord Justice Mummery: I also agree