“We were roughly 150 yards into the exercise, and I was about in the middle of the gallop, when, without warning, the horse shied. He dropped his right shoulder and jinked sharply to the right. I would say he ended up on the far-right hand side of the gallop. I was standing up in the stirrup irons as normal and I couldn’t keep my balance on the horse. I was effectively left in mid-air, whilst the horse moved away to the right from underneath me. I fell and landed on the ground and was injured. 30. Gemma was a few lengths behind me, and she shouted something at me which I thought was “Go left!”
“Foxy is a typical 3-year-old racehorse, not dangerous at all. If there are geese or sheep in the surrounding fields, he will have a look at them but most horses would. He is also generally fine around farm machinery. I have cantered him on the round gallop on many occasions and I have never experienced any issues doing so. Specifically, Foxy has never jinked with me on the round gallop or dropped his shoulder when riding him but horses can spook or move sharply. This would not generally cause me to fall off. I have never fallen off Foxy in any environment. Hazel and I both regularly rode Foxy. I do not know the exact number of times that she rode him but I would estimate it to be at least over 100 times and on many of those occasions she would have ridden him on the round gallop doing a similar canter exercise to what we were doing on the morning concerned.”
“19. …We began in trot and were soon into a slow medium paced canter. We were travelling along the first straight section of the track when, approximately 200 yards later, the incident occurred. We were not yet at a swinging canter or at a fast pace. 20. I had a good view of what happened as it took place directly in front of me. Foxy jinked to his right whilst in a canter, a movement that I would describe as nothing more than a side step. He did not turn to his right but moved off the straight line to the side and then back in. 21. Jinking is when a horse deters off a straight line for a stride as a reaction to something that might have spooked him. This can be a little unbalancing but not generally cause Hazel or me to fall off and I say this having previously watched Hazel stay on a horse that has jinked. Racehorses can be sharp and to be a work rider at a racing yard you should be able to stay on for those type of movements. 22. I did not see or hear anything that might have caused him to jink. 23. He did not go further to his right than the middle of the track and it was only for one stride. He did not change direction or change pace.”
“Foxy is as sensible as any other three-year old racehorse at that age. He was not immature and whilst racehorses can shy or spook, he was not overly sensitive or difficult to manage. Aside from the incident in question, there have been no other accidents reported to me about Hazel falling off Foxy on the gallops. Nobody has ever reported to me that he is a difficult horse to ride or one that is especially sharp for his age or prone to jink whilst being cantered on the gallops or anywhere else.”
“8 Foxy is a genuine horse, there is nothing nasty about him. Initially, he could be a little skittish so we all knew not to move too quickly around him but as he grew up he improved. He is no sharper or more prone to spooking than any other three-year old racehorse. He is good around traffic as well as farm machinery. 9 We knew that Foxy was not going to be a competitive two-year old due to his physique therefore we decided to give him time to develop as a three-year old. He had his first race as a three-year old in August 2020. 10 Hazel would most certainly have ridden more sharp racehorses than Foxy during her career. We had horses at the Farm such as Frolic who were more advanced rides that Hazel rode regularly.”
“18 I have ridden plenty of racehorses in my career including on the gallops at Ty Heol Farm where they have jinked or shied without me falling off. I would say that in nine out of ten of those occasions, I have remained in the saddle. When I have fallen off, I have not been injured badly. More often than not, it is just your pride that gets hurt.”
“He wasn’t nasty and was a cheeky chappy who was maturing but not yet mature.”
“Although there have been semantic debates about the meaning of 'likely' in section 2(2)(a) it seems to me that it has now become settled. It means 'reasonably to be expected'.”
“If you start with severe injuries resulting from the accident itself,…“[as the trial judge in Welsh had done]”…and the particular circumstances in which it took place, then the question of whether the damage is 'likely to be severe' answers itself. If the injury was, in fact, severe it would be almost inevitable that, barring some freak, it was likely to be severe. To borrow from Lord Hobhouse in a case of occupier's liability, Tomlinson v Congleton Borough Council(2004) 1 AC 46 , 79, it is a fallacy to say that because drowning is a serious matter there is, therefore, a serious risk of drowning. The problem, as I see it, is the level of generality at which you ask and answer the question. If the question is if you fall off a rearing horse onto a hard surface and the horse falls on top of you, is the injury likely to be severe, you may get one answer. But if the question is if you fall off a horse, is the injury likely to be severe, you may get another. I do not believe that this problem has yet been squarely confronted in the cases.”
“23. In common with their Lordships, I too consider that the level of particularity or, looking at it from the converse, generality, is important. It cannot be that the circumstances should be defined so particularly that, on the one hand, it is almost impossible to say that any other animal of the same species would behave in precisely the same way, because none can be shown to have faced precisely the same circumstances, and it cannot be known; nor can it be so particularly defined for the purposes of section 2(2)(b) that the circumstances themselves answer whether an injury is likely or that if it is to take place, if it is likely to be severe. Nor can it be reduced to such a level of generality as completely to divorce the question from the facts of the case. 24. Where precisely to place it must permit the sections of statute to have some meaning and effect as has been pointed out in the authorities. If section 2(2)(a) is to be capable of separate answer from 2(2)(b) the fact that, in the circumstances, an animal causes serious injury cannot show that any injury likely to be caused would be serious.”
“44. In terms of the particularity/generality point, it was conceded by Mr Harris that I need to look at this particular horse at this particular place and unrestrained, but I consider the question for me to determine, in looking at the first limb of s.2(2)(a) following the approach in Clark v Bowlt , is: was the damage which this yearling caused damage of a kind that this yearling, unless restrained, was likely to cause. To introduce a wider analysis of the s.2(2)(b) characteristics in specific circumstances at this point in looking at s.2(2)(a) would, in my judgment, be to introduce too great a particularity into s.2(2)(a) . Further, to do so, in my judgment, would render the provisions of s.2(2)(b) largely redundant. I am reinforced in my judgment by para.96 of Mirvahedy. 45. In respect then of the second limb of s.2(2)(a) where the damage, if caused, was likely to be severe, the defendants accept and have conceded that the level of generality of which the second limb of s.2(2)(a) should be considered cannot be the same as the first.
“If a horse rears in the particular circumstances and the rider falls from the horse, she is likely to suffer severe damage. That may be because she falls onto a hard surface (which need not be a tarmac road) or because the horse falls on her or some other way.”
“14. In the light of this approach, one cannot blame a claimant for failing to adduce expert evidence of the likelihood of severe injury. What, then, is the position if the claimant’s expert gives answers in cross-examination which are helpful to the defendant on this issue? Is it open to the judge to displace what was previously considered to be obvious? Or was it impermissible (that is, perverse) so to conclude in this case?”
“16. Notwithstanding the skill of the cross-examination, I do not consider that its product was sufficient to produce the heterodox finding which eventuated. At most, it discounted a probability. However, that is not the same as a likelihood, with its received meaning of “reasonably to be expected”
“39. First, in my judgment it was open to the judge to find, on the evidence before him, that the requirement in section 2(2)(a) was not satisfied. I agree with paragraphs 8 to 13 of the judgment of Lewison LJ. The judge was bound to consider the application of that paragraph on the evidence before him, rather than on what judges in previous cases had considered to be obvious as a matter of fact. The effect of Mr Lane's evidence was not wholly clear, but neither side sought to clarify it, and it was left to the judge to assess its effect. It was open to him to make the finding he did.”
“54. These statements seem to me to be statements of fact rather than rulings on the law. In the present case the judge heard expert evidence on the likelihood of serious injury, which Maurice Kay LJ has quoted. The evidence was that riders fall off horses every day and do not sustain severe injury. I would not characterise the first three questions as controversial. Almost anyone who has ever ridden will have the experience of having fallen off a horse, getting up and remounting the horse. I do not, with respect, regard it as self-evident that a rider who falls off a rearing horse (or for that matter a cantering horse) is likely to suffer severe injury. It has not been suggested that the expert evidence on the likelihood of injury was inadmissible, even though Etherton LJ suggested that expert evidence need not be called. In my judgment the judge was entitled to rely on that evidence and make the finding of fact that he did.
“32. That decision is not binding upon me nor, in my view, could the question whether an injury was or was not likely, in the sense of reasonably to be expected, sensibly be described as an issue of law. It is, rather, a question of fact. It may be that in some circumstances, such as those before Etherton LJ, in the absence of any other evidence it is open to a court to conclude that any injury would be severe. Although as Lewison LJ's own personal comments make clear, he would not himself necessarily share that view. But, as a matter of law, this is a question of fact ultimately to be determined by the Court, usually at first instance.”
“43. In other words, if the tendency of a horse to bolt when sufficiently alarmed is to be regarded as a normal characteristic of horses "in particular circumstances" and, hence, a horse with this characteristic will meet requirement (b), it is not easy to conceive of circumstances where dangerous behaviour which is characteristic of a species will not satisfy requirement (b). A normal but dangerous characteristic of a species will usually be identifiable by reference to particular times or particular circumstances. Thus the Cummings interpretation means that requirement (b) will be met in most cases where damage was caused by dangerous behaviour as described in requirement (a). Requirement (b) will be satisfied whenever the animal's conduct was not characteristic of the species in the particular circumstances. Requirement (b) will also be satisfied when the animal's behaviour was characteristic of the species in those circumstances.”
“Horses are not normally in a mindless state of panic nor do they normally ignore obstacles in their path. These characteristics are normally only found in horses in circumstances where they have been very seriously frightened. It is only in such circumstances that it becomes likely that, due to these characteristics, the horse will cause severe damage. This case clearly comes within the words of section 2(2)(b).
“138. After these general comments I come to the particular linguistic difficulties presented by section 2(2). One is the meaning of the important term "characteristics" used in paragraphs (b) and (c) of section 2(2), but not defined in the Act. The context makes clear that the expression cannot mean something buried in an animal's psyche (as Devlin J said in Behrens v Bertram Mills Circus Ltd[1957] 2 QB 1 , 18, it is not practical to introduce conceptions of mens rea and malevolence in relation to animals). It must refer to character or disposition as evinced by overt behaviour—for instance, a dog which had the habit of attacking people who were carrying bags: Kite v Napp The Times,1 June 1982 ). The distinction between "permanent" and "temporary" characteristics drawn by Stuart-Smith LJ in Curtis v Betts[1990] 1 WLR 459 , 469h, is useful but must be treated with some caution: all dangerous characteristics are likely to be more or less permanent but they may show themselves either frequently and randomly (as with the unreliable horse in Wallace v Newton[1982] 1 WLR 375 ), or under a stimulus peculiar to the particular animal (such as bag-carrying in Kite v Napp), or under some internal or external stimulus (such as the animal's hormones or a perceived challenge to its territory) which can be expected to produce similar behaviour in most animals of its species. 139. That is the point to which the words "at particular times or in particular circumstances" are directed, but there is force in the observation made by the trial judge, in his careful judgment, that one can always find particularity attaching to any time or to any circumstance.
“42. Mr Aldous submitted that, if the characteristic of bucking, including bucking when beginning to canter, is normally found in horses generally, then inevitably the second limb of s.2(2)(b) is satisfied since such a characteristic is only found at particular times or in particular circumstances. He submitted that “particular” in the context means anything that is not continuous. 43…The characteristic which falls within the second limb of s.2(2)(b) must be one that is normally found in animals of the same species but only at particular times or in particular circumstances. The gloss which Mr Aldous seeks to put on the word “particular” would reduce the first limb of s.2(2)(b) to characteristics which are continuous and always present. It would eliminate from normal characteristics in the first limb of s.2(2)(b) any intermittent activity of any kind. It is clear, however, from the Law Commission report and the decided cases that this is not the correct interpretation and that the words “at particular times or in particular circumstances” in the second limb of s.2(2)(b) denote times or circumstances which can be described and predicted. 44. In Mirvahedy at para. [139] Lord Walker said that it must be right to suggest that predictability (of how animals in the same species react to a particular stimulus or situation) is one of the indicia of characteristic behaviour which falls within the second limb of s. 2(2)(b). As Lord Nicholls observed in Mirvahedy at para. [43] “a normal but dangerous characteristic of a species will usually be identifiable by reference to particular times or particular circumstances” [my emphasis]. That must, however, be a matter of evidence in every case. In the present case, there was no evidence whatever that horses generally buck at particular times or in particular circumstances.”
“13. Instead of asking the right question the judge identified as the relevant characteristic the propensity of a horse “in particular times and in particular circumstances” to “assert an inclination to move otherwise than as directed”
“Where it is a characteristic of an animal only to cause damage at a particular time or in particular circumstances, the animal, if normal, will not have been likely to cause damage save at that particular time or in those particular circumstances. A horse is liable to cause damage of the kind caused by Chance if given a severe fright. Chance was not, however, given such a fright. Can it be said, nonetheless, that Chance was likely to cause the damage which she caused by moving into collision with Mr Clark's car? On the judge's findings of fact, it seems to me that the answer is plainly “No.”
“37. The conclusion I have reached is that a predisposition of a horse to behave unpredictably by running away when confronted by an unknown stimulus can properly be identified as a characteristic. I do not see the distinction that Mr Westcott sought to draw between cases involving horses that buck or rear and the present case. The manifestation of the characteristic is to shoot forwards uncontrollably. The stimulus caused the horse to be frightened but the characteristic is that to be found in horses that when frightened they will shoot forwards at speed in an uncontrolled manner.”
“53 Mr. Browne, relying upon a dictum of Etherton LJ in Freeman, submits that the phrase “at particular times or in particular circumstances” denotes times or circumstances which can be described or predicted. Horses do not only buck when startled or alarmed. Therefore the bucking in this case does not fall within the second limb of section 2 (2) (b)… 54. I do not accept this argument. In the light of the authorities set out in Part 5 above, section 2 (2) (b) should not be given the restrictive interpretation for which Mr. Browne contends. On the evidence the judge found that bucking and rearing were a characteristic of horses in particular circumstances, namely when they were startled or alarmed. In my view, the judge’s conclusion that the requirements of section 2 (2) (b) were satisfied follows logically from that finding.”
“39. That is the correct approach as a matter of construction and principle, for a number of reasons: i) First, as the Judge commented, as a matter of language s. 2(2)(b) is focusing on the link between the damage and the characteristic. The damage must be "due" to the characteristics of the animal; ii) Secondly, the reference to (plural) "times" and "circumstances" reflects the fact that there may be multiple causes of a particular characteristic, not that it is unnecessary to identify what the particular cause (or causes) was on the occasion in question when the damage occurred; iii) Thirdly, liability under s. 2(2) for an animal which does not belong to a dangerous species would otherwise be materially the same as the liability arising under s. 2(1) for an animal of a dangerous species. As Lewison LJ identified in Turnbull at [47]: "…the Law Commission did not proclaim an intention to widen the existing scope of the law to the extent that it would be necessary to catch an ordinary riding accident". iv) Fourthly and fundamentally, s. 2(2)(b) needs to be construed in the context of s. 2 as a whole. Identification of the particular time or circumstance in question is necessary for an assessment of whether or not a keeper has the relevant knowledge for the purpose of s. 2(2)(c) . As the facts of this case themselves demonstrate, it is possible for a keeper to have knowledge of the fact that it is normal for a characteristic (here rearing) to manifest itself as a result of one particular time or circumstance (here disobedience) but not another (here a catastrophic internal failure).”
“In regard to the updated Witness Statements, I can only reiterate that the symptoms that are recorded in my report of the12th May 2023 , were the symptoms as stated to me at the time of my examination of the Claimant on the19th September 2022 . I maintain the view expressed in my letter of the5th October 2023 , that the video evidence was at variance with the level of disability as documented to me by the Claimant. This does not, of course, mean that the Claimant does not have any issues affecting her right elbow, simply that the disability stated is evidently less than that which was documented to me at the time of my examination of the Claimant. Accordingly, it is not possible to make an accurate assessment of the true level of the disability that the Claimant experiences as a direct consequence of the right elbow fracture/dislocation.”
“Personal injury claims: cases of fundamental dishonesty (1) This section applies where, in proceedings on a claim for damages in respect of personal injury ("the primary claim") - (a) the court finds that the claimant is entitled to damages in respect of the claim, but (b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim. (2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed. (3) The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest. (4) The court's order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim.”
“45. The corollary term to 'fundamental' would be a word with some such meaning as 'incidental' or 'collateral'. Thus, a claimant should not be exposed to costs liability merely because he is shown to have been dishonest as to some collateral matter or perhaps as to some minor, self-contained head of damage. If, on the other hand, the dishonesty went to the root of either the whole of his claim or a substantial part of his claim, then it appears to me that it would be a fundamentally dishonest claim: a claim which depended as to a substantial or important part of itself upon dishonesty."”
"If there indeed is a serious injury, and a claimant has been honest about that, then a court may readily conclude that a degree of exaggeration may not go to the heart of the claim, but would more appropriately be regarded (to use some of the words used in the authorities) as incidental or collateral or embroidery. By contrast, in a case where a judge dismisses a claim because the injuries have not been proved at all, then a finding of fundamental dishonesty may easily follow in a case where the claimant has asserted the existence of those injuries: see eg Pegg v Webb [2020] Costs LR 1001 (a case dealing withCPR 44.16 rather than s 57 of the Act ) para [20]. The position will likely be similar if there is some injury, but it is not of any great significance, and the Claimant has exaggerated so as to make it appear very serious."
“…I had thought about bar work, house sitting, dog walking or even gardening although aside from house sitting (which is something I would not know where to start with) (they) seemed to require physical abilities -lifting or controlling unruly dogs -I no longer had. They were not very good options”