Harris v Miller [2016] EWHC 2438 (QB)

Case No HQ15P01123

[2016] EWHC 2438 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 4 November 2016

Before

HIS HONOUR JUDGE GRAHAM WOOD QC

(Sitting as a Judge of the High Court)

Between

ASHLEIGH HARRISClaimant

RACHEL MILLERDefendant

David Westcott QC (instructed by New Law Solicitors) for Claimant

Winston Hunter QC (instructed by DWF Solicitors, Liverpool) for Defendant

Hearing Hearing dates: 11,12,13,14 and 18 October 2016

Judgment

HHJ Graham Wood QC :

Introduction

[1]On 22 September 2012, the Claimant, Ashleigh Harris, then just 14 years of age, fell from a horse which she was riding, and sustained paraplegic life changing injuries. The horse belonged to the Defendant, and it is said that responsibility for the Claimant’s accident lay with her. Accordingly, this court has been concerned with a trial of liability only in relation to the claim brought by Ashleigh Harris in negligence, and under the Animals Act 1971.

[2]Although the claim was brought by her father and litigation friend as the Claimant was a child and protected party, as she has now turned 18 years, she is entitled to litigate in her own right, and I approved an order allowing her to take over the claim.

[3]Apart from the Claimant and the Defendant, other lay witnesses have given evidence as to the accident circumstances, and the period leading up to the accident. The court has also heard from two equestrian experts, Mr James Mackie and Charlie Lane. Mr Mackie, the Claimant’s current expert, succeeds the late Mr Richard Meade OBE who sadly passed away in 2015. However, his report has been made available to the court and I shall refer to its potential relevance later in this judgment.

[4]The extent of the dispute between the experts is relatively limited. However, the same could not be said for the factual dispute. The accounts of the Claimant, and the Defendant and her witnesses are diametrically opposed, not only in relation to the circumstances in which the Claimant came to fall, but also the characteristics of the horse, Polly Perks (or Polly as she is generally known), the Claimant’s riding experience, including both her actual experience and that communicated to the Defendant and her family, and the events a week before the accident when the Claimant was present with the Defendant at the purchase of the horse.

[5]Both experts, and counsel, in their respective submissions, subject to a qualification which I shall refer to below, agree that the liability question will turn substantially if not completely upon which factual account I prefer. After further discussion with counsel and to the relief of all concerned, including the court, it was accepted that the Animals Act claim added nothing to the liability question in so far as its consideration was dependent upon a finding of negligence. Accordingly, it has not been pursued, and is not the subject of any consideration in this judgment.

Background

[6]Before I consider the evidence of the various witnesses, it is appropriate to deal with the uncontroversial background.

[7]Whilst there remains an issue about the Defendant’s understanding of the Claimant’s riding experience, and in particular how long she had been able to ride a horse, it is clear that her interest in equestrian matters had been encouraged by her aunt who lived nearby, and stabled her own horses. Whilst never receiving formal lessons as such, her aunt had taught her the rudimentary aspects of caring for horses, and when she was old enough to ride, which the Claimant estimates at about 12 to 18 months before the accident, she used to go hacking with her aunt and her cousin on different ponies, (the definition of which for the purposes of this action has been agreed as a horse less than 14.2 hands in height). At the beginning of 2012, or the end of 2011, she acquired her own horse, a pony named Beauty, who was about 16 years old, and the riding paraphernalia, including tack, clothing etc.

[8]Before the accident she was riding regularly, several times per week, mainly on country hacks and occasional jumping over small jumps. It does not appear to be challenged that she had occasionally ridden her horse bareback, that is without a saddle, and had on at least one occasion been thrown or bucked by Beauty, but without any significant injury, usually when she was trying to jump. Beauty was kept at her aunt’s stables.

[9]The Claimant became acquainted with the Defendant through the Defendant’s son Kieran, who had been her boyfriend for a few months, and her daughter Samantha both of whom were at school with her. Samantha, or Sammy as she appears to have been known, was undertaking an equestrian course at college, and had become interested in horses and riding. For this reason, the Defendant who had previously only ridden briefly as a child, decided to take up the hobby having some lessons with her daughter at the Severn Vale equestrian centre in Chepstow. She had very limited experience at the time of the matters relevant to this claim, but in the weeks leading up to the accident had decided to buy a horse which she and her daughter could use. She wanted a thoroughbred with a calm temperament and looked at a number of different horses before identifying Polly Perks, a thoroughbred owned by Mr Watkins in Abergavenny. On 15th September 2012 the Defendant and her husband, together with their two children Kieran and Sammy, as well as the Claimant travelled to view the horse and to discuss it with Mr Watkins. On this occasion both the Defendant and the Claimant rode the horse briefly, although the Claimant was not wearing any riding gear. There is a significant dispute as to how Polly behaved on this occasion which I shall return to later.

[10]A decision was made to purchase Polly and a deposit paid towards the agreed £550 purchase price. The horse was subsequently conveyed in a horse box without difficulty and taken to the Mathern livery stables. It is not challenged that between the Wednesday of that week and the Saturday when the accident occurred Polly had been ridden at least once by the Defendant.

[11]On Saturday 22nd September it was intended that the Defendant’s daughter Sammy would have an opportunity to ride the horse. The Claimant was also invited. Again, how she became involved and the extent to which she was participating will be explored in the evidence. On this particular day, the Claimant was taken with her riding gear to her boyfriend’s house, and from there she, Kieran, Sammy and Mrs Miller, who did not drive, were taken to the livery stables at Mathern. It was intended that the day should be spent in and around the new horse, and a picnic had been brought.

[12]After mucking out, Polly was fed, and then left in a stable. It was not considered appropriate to ride immediately after a feed. The four of them then went to a local pub for a drink. At some point, the Claimant appears to have broken her orthodontic brace, and the question arose as to whether she should still ride in the afternoon. The Claimant had no concern.

[13]On returning to the stables, the horse was tacked up and ready to ride. The Claimant was the first rider, and mounted the horse by using a plank of wood on a trailer, because of the height of the saddle from the ground. It is an issue as to how the Claimant became the first rider.

[14]The group then proceeded out of the yard in which the stables were situated, and down a series of narrow lanes which led to a field. The court has been provided with a substantial number of photographs of this field, although unfortunately many of them are of little use because they do not cover the extent of the relevant area. It would appear that as the Claimant rode the horse, for the most part walking, the rest of the group proceeded alongside on foot. At the field, the group entered through the gate, and the Claimant with Polly turned left to follow the line of the fence. The field is a substantial cultivated field, but with a public right of way along the fence/hedge-line and away from the bank which rises towards the crops on the higher level. At the time there was corn growing in the field. This flatter section of the field allowed the Claimant to proceed with Polly initially at walking pace. Her route, speed, how far she had travelled and the point at which she came to fall off a horse are hotly disputed. However, what is agreed is that having turned around to head back towards the gate, the Claimant fell off the horse, and landed on her head causing, as it transpired, a serious vertebral fracture. An ambulance was called by the Defendant Mrs Miller, initially unsuccessfully, and after the Claimant’s mother arrived at the scene, which appears to be approaching an hour later, a further call was made for an ambulance which eventually arrived. The paramedics recorded a description of the accident to the effect that the Claimant had been “bucked” from a horse. It was apparent that she was seriously injured, and hospitalisation was necessary.

[15]When the Claimant was recovering in hospital, at some point she was asked by her father to provide an account of the accident. This was set out in a diary which she had been given by a physiotherapist, in handwritten form, annexed to the Claimant’s statement. It is said to be the most contemporaneous account, closest to the day of the accident.

[16]There was no further communication between the parties about how the Claimant came to fall, but following a letter before action at the end of 2012, a potential claim had become crystallised and equestrian experts were involved, addressing the nature and behaviour of Polly, the location and circumstances of the accident, and the issue of application of the Animals Act 1971. As indicated, the late Richard Meade was the Claimant’s original expert, and he was replaced by Mr Mackie, and Mr Charlie Lane reported on behalf of the Defendant. All these experts had an opportunity to attend at the stables, and to ride Polly for themselves. It is fair to say that there were different experiences for the experts, and their evidence will be explored later in this judgment.

[17]Mr Mackie and Mr Lane have provided a memorandum of their joint meeting which sets out the extent of the dispute between the experts.

The evidence on disputed matters

[18]A number of issues and stark factual disputes emerged in the course of the examination and cross-examination of various accounts. It seems to me that they can be summarised as follows(a) the Claimant’s riding experience and how much of that was known to the Defendant;

(b) the Abergavenny trip;

(d) the route taken, the manner in which the Claimant came to fall, and the location of the fall;

(e) the aftermath including the ambulance call and arrival of others;

(f) Polly’s behaviour and temperament generally, and her nature as a horse. This latter question falls to be resolved, for the most part, on the basis of the expert evidence.

The Claimant’s experience

[19]The Claimant’s mother, Mrs Jacqueline Harris, told the court that Ashleigh had ridden Shetland ponies as a young child up to the age of about five or six, but had no real interest until she was eleven, when she was encouraged by Mrs Harris’s sister-in-law to become involved. She disagreed that the Claimant had spent a lot of time around horses and learning to ride. It was a few months before she got Beauty in the early part of 2012 that she was riding ponies, although she had never sat on a horse. When she had Beauty she would go most evenings after school, being picked up by her sister-in-law with a cousin, although she did not believe that Ashleigh was riding every evening. She would ride at the weekends and would go on hacks. She did some jumping, but it was over small jumps. At no time was she ever on her own when she was riding, as this is not something which she would have allowed. She did not agree the description of her daughter as an accomplished horsewoman.

[20]For her part, the Claimant thought that she was riding every evening during the week apart from Wednesdays before the accident and she confirmed that she never rode on her own, nor had she ever sat on a horse as opposed to a pony, prior to the Abergavenny trip. She had been with the Defendant when Beauty had been ridden by her and had never told her that Beauty was a difficult horse, nor had she told the Defendant that she had ridden for “years”. Beauty was not a difficult horse, although she didn’t like hills, and when she had first been acquired she was green and not receptive to commands. She had bucked on one occasion and this was when she had not been ridden for a couple of weeks. The Claimant had been bareback, i.e without a saddle, once or twice but she had not been with Kieran when this happened. On such occasions there had been a lead rein. Although she would always have an adult with her whenever she went riding, she accepted that the single occasion when Kieran rode her horse, there was no other adult present, but she felt that because he was older, he could make his own choice.

[21]She told the court that she had only had one previous professional lesson. The Claimant denied under cross-examination that she was trying to minimise her previous riding experience although she accepted that when she went to view the horse in Abergavenny she was the more experienced of the group. She did ask questions but did not believe that she was dominating the discussion with their enquiries.

[22]The Defendant had formed an impression from conversation with the Claimant that she had been riding for years, and was very experienced. She had been told that her pony, Beauty, which the Defendant had ridden, could be difficult with the potential to buck. She had also heard that the Claimant had started jumping and would go bareback riding. She was certainly much more experienced than either herself or her daughter Sammy. The Defendant told the court that she had no reason to doubt the Claimant’s riding experience from what she said, or witnessing her riding ability, nor did she consider the possibility that she might have been misled, in the sense that Ashleigh was bragging or trying to impress. The Defendant agreed, that prior to Abergavenny, she had not seen the Claimant riding.

[23]Samantha Miller did not know Ashleigh Harris very well before the accident, although she had been told by her that she had been riding for “a few years” and was experienced with horses. Her brother Kieran Miller said that he had been told by Ashleigh that she had been riding for two years “properly” but had lessons before then. He had also been told that she had had Beauty for a long time and would often go riding alone with her and her cousin in the woods near her aunt’s stables. He had been on Beauty once, but did not like horses generally. Contrary to the Claimant’s evidence, he had been with her when she had been bareback riding, and recalls that she was bucked off the horse and kicked in the back. It was only two weeks before the accident. He had also been told that Beauty was prone to buck and rear, but he thought, from his uninformed assessment, that the Claimant was a “pretty accomplished rider”.

[24]Each of the three experts had elicited information about the Claimant’s riding experience. The late Mr Meade had been made aware, as his admitted telephone conversation note dated 8 June 2013 confirms, that the Claimant had been riding for about eighteen months before the accident, and had had one professional lesson. She had been doing some small jumping. This was similar to the information acquired by Mr Mackie who also noted that the Claimant had only ridden ponies up to a maximum height of 14.2 and which were suitable for a beginner or novice rider.

[25]In his evidence to the court, when questioned about the Claimant’s riding experience, he agreed that age was not determinate, although he pointed out that a child was less likely to have experience with horses as opposed to ponies. It was necessary to consider every aspect of a person’s experience, including the nature of the horses previously ridden.

[26]Mr Lane, who was not in a position to question the Claimant about this, analysed the accounts provided in the witness statements, noting the discrepancies, but believed that even on the Claimant’s own evidence she could not be described as “not an experienced rider”. His expert opinion was that the Claimant was at least a competent novice rider capable of riding the average trained riding horse at walk, trot and canter, and quite possibly more competent than this.

[27]In their joint report, Mr Mackie expressed the view that the Claimant was still extremely inexperienced overall notwithstanding her greater experience than the Defendant, and it was significant that the Defendant was unable to recognise the Claimant’s lack of experience. Mr Lane agreed that if the accident happened as the Claimant described, then she was insufficiently experienced to have avoided the accident.

The Abergavenny trip

[28]The Claimant had not brought any riding gear with her and was not intending to ride. She had gone on the trip as Kieran’s girlfriend. She had asked a few questions of Mr Watkins, but did not dominate the questioning as suggested. She was keen to know about the racing saddle and the martingale, noting that the saddle was different to what she was used to, being higher on the shoulder. Mr Watkins had said that Polly was not a particularly powerful horse, although had been on one point to point competition. She was under the impression that the horse had not been ridden for about four months, and prior to that a girl called Becky had been riding her.

[29]During the tacking up procedure, the Claimant thought that the horse was “nippy” and making to bite anybody near to her head, although no contact was actually made. Although she had not put this in her statement, she did mention it to Mr Watkins who said that her unfriendly behaviour was probably because she was unfamiliar with the group.

[30]After Rachel Miller rode the horse, and asked if she wanted to ride, the Claimant agreed without question, and liked the idea of so doing. She mounted by using the back of a trailer, because of the height of the horse. While she was riding, the owner walked along beside her. Apart from the horse wanting to nip at her, the Claimant had no particular difficulty until turning the horse around at the end of the lane, when it wanted to trot. She asked the owner if she could, and was allowed to, with Mr Watkins running alongside her. She felt that the horse was quite strong. At one point Polly had wanted to canter, and she had to pull the reins and sit deep in the saddle to prevent this. The horse felt strong and powerful.

[31]The Claimant denied that she described the horse as “great”. She did not take any part in the discussion about suitability, or the negotiation, although had said previously when looking at horses online that they should consider a cob. She did not think it appropriate that she should take any part in the decision-making, as she was only 13, nor did she believe that her greater experience should have counted.

[32]Between the purchase of the horse and the day of the accident, the Claimant had spoken to Rachel Miller the Defendant, and was under the impression that Polly had only been ridden on one occasion. However, she remembered a conversation relating to Adam Miller, the Defendant’s husband, who had fallen over when Polly was being lunged which seem to cause great family amusement.

[33]The Defendant’s experience of Polly and Abergavenny was a positive one during her riding which took a route where there were cars and dogs. Polly remained responsive and the Defendant felt in complete control. Mr Watkins remained alongside, accelerating when she trotted. Because Polly’s behaviour was “perfect”, she was exactly the sort of horse she was looking for. The Defendant had told Mr Watkins that she was a novice rider, and was looking for a horse suitable for herself and her daughter. She rode for approximately 20 minutes, according to her statement, but accepted on questioning that it was probably much less than this.

[34]When asked about nipping, she denied that there had been any, and Ashleigh had not made any reference to such a problem, and although she could not remember very much about the conversation she remembers a reference to the saddle as an exercise saddle. She liked the look of it, and had not seen one before. According to the Defendant the Claimant had been asking a lot of questions, and appeared very knowledgeable.

[35]Questions were asked about the feed, which was called “Calm and Collected” and the Defendant said that she continued to use the same feed after Polly had been taken to the Mathern livery. The Defendant denied that she had only ridden the horse on one occasion between acquiring it on the Wednesday and the date of the accident. She had taken the horse daily down the lane walking, and on one occasion into a small field by the yard. There had been no problems, and Polly had been easy to manage. She had been alert, but there was nothing else to suggest that there was anything wrong. It was not correct that there had been any incident involving her husband and lunging of Polly.

[36]Samantha Miller gave an account in her evidence which was broadly similar to that of her mother in relation to the Abergavenny experience. She did not ride the horse, but her mum and Ashleigh did. She would have liked to, but did not have the opportunity. Although this had not been suggested by the Defendant, Samantha was under the impression that Ashleigh had been invited along because of her experience, and to give some advice. She thought that Polly behaved well at all times, and was described by Ashleigh as “a good horse” and that they should buy her. She was interested in seeing how Polly would behave at Abergavenny. As far as any recommendation to purchase a cob is concerned, initially she did not believe that there had been any, but on closer questioning accepted that there had, although it was probably not in Mr Watkins yard. She had viewed horses online with Ashleigh. She did not witness any biting or nipping. Samantha had not been able to ride the horse between its arrival on Wednesday and the day of the accident, because she had been at college. However, she was aware that her mother had been riding Polly.

[37]Kieran Miller was not knowledgeable enough to assess the horse at Abergavenny, although he gave evidence that Ashleigh thought Polly was calm and “really lovely”, stroking her a lot, and saying she was “a great horse”. In his limited experience, she seemed to be a gentle horse. Although both her mother and the Claimant said they had trotted the horse in Abergavenny, and Kieran Miller had remained within eyesight at all times, he did not believe that this is what had happened.

[38]Mr Adam Miller, the Defendant’s husband had also been present at Abergavenny. He had been the driver and was aware that his wife had been looking for horses for some time. Previous viewings had been with her father-in-law. Although in his statement he had said that he had remained with the Land Rover at the stable throughout the trial rides, this was wrong, and he had travelled with the horse as it was being ridden, and thus would have been able to judge if it was misbehaving. He did not recall Ashleigh trotting the horse at that time, nor did he witness any nipping. He denied that there had been any lunging incident. Mr Miller also said in his written statement that Mr Watkins had carried a stick in his right hand when escorting horse and rider. He thought that Rachel had ridden the horse on every day between acquisition and the day of the accident.

[39]Finally, on behalf of the Defendant, Mr Watkins gave evidence. He stated that he had acquired Polly as a yearling or a two-year-old, and broken her in himself. He had never experienced any bucking and thought that she was a delightful ride. She had been in one point-to-point, but had been disappointing, pulling up at the third fence. On the day of the trip of the Miller family, Rachel Miller and “a young girl” had ridden her and there was nothing untoward. She would have been pulled up if there had been. He would not have sold the horse, if she had been a bad one. Although his statement said that he had ridden her daily, he appeared to accept that others were riding her, including a girl from the village called Becky. The horse had a racing exercise saddle at the time with a martingale. He did not think that he had been carrying a stick, and that if he had been, it was because he had been anxious about the horse. The horse had never nipped or bitten, and certainly did not do so on the day on which Rachel Miller and the Claimant had been riding her. The events of 22nd September Before the field

The events of 22nd September

[40]There is a conflict on the evidence as to how the Claimant came to be invited or permitted to come along on the Saturday for a ride at the livery stables. Although little may turn on this, it should be noted, and may be relevant to the question of credibility and the efficacy of recollection of the witnesses.

[41]The Claimant’s statement is silent on the point, but in her evidence to the court she said that she had the “opportunity to ride” although there had been no request for permission from her mother. She accepted that she was excited at the prospect of riding. Her mother was aware that she was going to Kieran’s house and thereafter to see the horse, and that she was bringing her riding gear with her. She could not remember any discussion This would be a regular Saturday occurrence. She denied that Mrs Miller attended on any occasion to speak to her mother. Mrs Harris confirmed in her evidence that there had been no such meeting, nor had she spoken to Rachel Miller over the telephone.

[42]The Defendant in her statement referred to “driving” to Ashleigh’s house to pick Kieran up a day or so before the accident, and there had been a specific conversation with her mother in which permission had been given for Ashleigh to ride Polly as long as she wore “all the safety gear”. An arrangement was made for Mrs Harris to drop off Ashleigh at the Defendant’s house on Saturday morning. In cross-examination the Defendant agreed that she did not drive, and that her statement was wrong in this respect. She was driven by her husband, and she did have a discussion with Mrs Harris.

[43]The next dispute related to the tacking up procedure and mounting the horse in the yard at Mathern. The Claimant’s evidence was that she shared this task with the Defendant, who did most of the work. However, Polly was making as if to bite or nip during the process. She did not push herself forward to ride first, but was asked by Rachel to do so. She had put on her riding gear and body armour and riding boots borrowed from the Defendant for this purpose. The Claimant needed a plank of wood on a trailer (shown in the photographs) to mount Polly and when in the saddle Polly felt fidgety, shaking her head and not standing still. Polly wanted to turn round and go back to the stable. She told the Defendant she did not feel safe, but was reassured that it would be okay, and to stay on the horse. The Defendant had proscribed the route which they were to take which involved travelling down a lane past the church and into a field.

[44]For her part, the Defendant denied the nipping or biting during tacking up. There had been no discussion as to who was to ride first, although she had intended to, and she was surprised when Ashleigh got onto the horse using the ramp but did not say anything to make a fuss. It was not correct that Ashleigh was on before she realised what had happened. When asking Ashleigh if she was okay to ride, she was referring to her brace, and had no concerns about the horse. There was no communication by Ashleigh about any problem, and if there had been she would not have let her ride.

[45]Sammy Miller did not notice any biting or nipping. She had assumed that her mother would be riding first, but was irritated when Ashleigh put on the boots and body armour and got on the horse. As far as she was concerned, Ashleigh had pushed herself forward. She did not say anything because she did not want to be rude. When her mother spoke to Ashleigh about being comfortable, it was only because of her dental brace. At no stage had she ever said anything about not feeling safe. Kieran Miller also denied any biting or nipping, nor a complaint about this. In relation to the discussion about what was going to happen at the stables, he stated that his mother had said that they would only walk the horse, and there was no plan to trot, gallop or canter. He stood by his written evidence that Ashleigh had mounted the horse before his mother realised what was going on, and told the court that although there had been wooden steps outside the stable which she could have used, she simply jumped on the horse and had not used not the ramp and trailer shown in the photographs.

[46]It would appear that at some point Mr Lane had been told that the Claimant had mounted the horse without the permission or knowledge of Mrs Miller, and in his advisory report to the underwriters he had expressed surprise and had found it hard to believe.

Events in the field

[47]It appears to be agreed that the party proceeded together, with the Claimant on the horse which was walking, before they arrived at the field. The Claimant’s evidence is that the horse was unresponsive in the mouth and swinging her head a bit, but this was not communicated to the others.

[48]There is a significant conflict of evidence as to what happened once the group arrived in the field, and the circumstances of the accident. The court has been required to scrutinise accounts of witnesses given at different times, including the experts’ understanding and to pore over photographs, which it is accepted are limited in their usefulness. Unfortunately, there is no scale plan of the field, nor is there any independent evidence in relation to the location of the incident, for instance an account from the paramedics.

[49]The Claimant’s evidence is that on entering the field she turned left travelling along the wide strip of flat ground which ran adjacent to the fence with the raised banking to the right on which a crop of corn was being grown. She was heading towards a gate at the far end of the field and started trotting Polly. She had thought that Rachel, Kieran and Sammy would follow the horse, but they had stayed by the entrance gate to the field. Just before the further gate she turned the horse to the right and started heading back towards the gate, still at a trot. She could see the others by the gate, but they were not looking in her direction. On turning round she instructed the horse in a trot, but Polly made as if to canter and gallop as if going mental. Despite pulling on the reins she was unable to control Polly and could not stay in the saddle. Eventually she came out of the saddle and went over Polly’s head, as if the horse had bucked before landing on the ground with half her body on the raised banking. She knew that she was seriously injured but could not get off the ground. She was able to pull off her body armour and helmet as the others came running over.

[50]It is apparent that at an earlier stage a statement had been drafted in the Claimant’s name and made available to the original expert Mr Meade. It is undated and unsigned, but in one material respect purports to give a different account of the accident location. At paragraph 33 there is a description of the Claimant going up “the raised banking continuing along the higher flat section where the corn crops are, before being turned around heading towards the field”. The Claimant disclaims ever having said this, and Mr Meade was invited to participate in a telephone discussion with the Claimant in June 2013 for clarification. Thus the draft and unsigned statement would have been created before then. In the discussion the Claimant repeats the account of remaining on the flat section of the field throughout.

[51]Under cross examination, the Claimant provided some estimations of distances. She thought that the gate at the far end was approximately 250m away, and described the banking as being flatter at this point. It was within a few metres of the far gate that Polly began to play up, and after turning she may have ended up between 150m and 180m into the field when the accident occurred. Polly was going faster she headed back towards the Millers. She emphatically denied the account put to her that she had been walking down the banking having only travelled a short distance into the field in the company of the others, but with Kieran a little ahead of Sammy and Rachel, before turning up the banking to turn around, walking the horse at all times. She was not descending the slope at the time she fell off at a slightly faster walk, nor is it a case of the horse’s head being dipped forward with the reins pulling her over and off the horse. It had taken Kieran approximately 20 seconds to run over to her after she had fallen and he was not right by her at the time. She denied that momentary inattention had caused the accident. She had been quite able to manage a horse which was descending a bank, and knew how to sit back in the saddle with her heels well down in the stirrups.

[52]In her statement, the Defendant, Rachel Miller, said that she had not previously ridden in that field but others from the stable had. She checked on the journey to the field that Ashleigh was okay and she said that she was. Once in the field she was aware of the slope to the right, and thought that it was only 2 to 3 steps distance from the bottom to the top. She recalled Ashleigh turning to the left walking at all times with Kieran alongside her. She and Sammy stayed behind a little. The entire party was relaxed. After approximately 5 to 10 minutes of walking Ashleigh began to walk up the slope to her right and then turned to come back down, which she assumed was to change riders after returning to the stables. She was only 20 feet away, as Polly came down the slope; the horse dipped her head and Ashleigh appeared to lose balance before falling over Polly’s left shoulder and hitting the ground. She emphatically denied that there had been any sudden taking off into a canter or gallop, misbehaviour by the horse. If that had happened, the horse would have collided with them. In her statement, she did not give a precise location for the accident.

[53]Under questioning by her own counsel Mr Hunter QC, the Defendant estimated that it was probably double the width of the court room from the gate to the point at which the accident occurred. However, on being referred to the photographs, she suggested that it might have been adjacent to the large tree where the Claimant fell. This has been agreed at between 90m and 100m from the gate. Under cross examination by Mr Westcott QC the Defendant agreed that the slope disappeared at the far end of the field. She did not accept that the slope where the Claimant fell was only 2 to 3 steps in width, nor did she agree that the Claimant had travelled a fair distance into the field. When she had referred to 5 to 10 minutes in her statement, she was talking about the entire time from the stables. Whilst insisting that the horse had been walking, and at best picking up pace slightly, she did not accept at first any trotting, although her statement had said that Polly had gone into a trot on the path into the field. She could not understand why the horse might not have trotted in the field, if it had trotted on the path, and agreed that if Polly had trotted in the field, she would have covered a far greater distance than that indicated in her evidence. Mrs Miller was taken to the report of her expert, Mr Lane, who appeared to have elicited an account from her that the horse had been walking and trotting in the field, as well as to paragraph 5.2 of the defence, which referred to a smooth transition into a trot, and then agreed that she must be mistaken, although if there had been trotting, it would not have been for any great distance. As far as distances into the field were concerned, she was also referred to the account which had been given to Mr Meade which suggested that Polly had made it “to the foot of the hill for 200 to 300 yards”, whilst walking, before the Claimant fell. She had no recollection of saying this. When referred to the photographs appended to Mr Lane’s report with the superimposed arrow and the suggestion that the accident happened so close to the gate she accepted that this could not be right. However, she was definitely descending the slope at the time.

[54]I have already made reference to an initial report provided to the underwriters which this court has not seen. It was provided by Mr Lane, who was asked about certain features in cross examination, relevant to the question of trotting, and what he had been told. He agreed that he had recorded in the discussion that the Defendant had told Ashleigh that she should put the horse into a steady trot before turning around and returning to the gate.

[55]Samantha Miller gave a similar account to the Defendant in her statement. Ashleigh and Kieran were a little ahead of them in the field, with she and her mother behind, all chatting calmly. Polly was walking at all times. When Ashleigh turned the horse around, they were only about 5m behind, and horse and rider headed up the slope to the top, before heading back down again. Ashleigh appeared to fall forward over the horse’s shoulder, when the head was dipped. On being questioned by counsel she insisted that the horse had never been other than walked and at no stage did she see Ashleigh and Polly trotting. Even if her mother had said this at some point in time, it did not alter her recollection. If the horse had been trotted, she accepted that she would not have been able to keep up. She believed that it had been necessary for the Claimant to go up the slope, on a wide circle to avoid her brother, and she did not pirouette the horse.

[56]Kieran Miller also insisted that at no stage did Polly trot in the field. He had remained with Ashleigh and the horse all times, as they were walking together. He could not estimate distances, and was unable to say how far away one hundred metres was, but believed that the fall happened at the point approximately level with the big tree. He marked the location on a photograph.

[57]Insofar as it is relevant to the accident location, it should be noted that Mrs Harris, who attended afterwards, also marked the same photograph. Whilst believing that it was a substantial way into the field, and closer to the far gate, the position which she marked was very close to that marked by Kieran Miller.

The aftermath

[58]There has been some scrutiny of the events immediately after the Claimant had fallen, up to the involvement of the emergency services and aspects of this evidence required to be considered.

[59]Insofar as the Claimant described being “bucked” off the horse she accepted that she was referring to a motion which felt like bucking even though she had been more emphatic in her statement. The Claimant denied that she had stood up to remove her body armour and other riding gear, because she would not have been able to. She was conscious of the horse running all over the field with the straps banging and the reins dragging and being difficult to control, and Kieran had to stand over to protect the horse from trampling. She believed that Rachel and Sammy had returned to the yard get a lead rope, and on coming back to the field, the horse was taken away. She could not recall the horse being tethered at any stage. When she kept saying sorry for what happened, this was not because she had accepted she was at fault, but because she felt guilty for causing inconvenience to the others. She believes that she may have said to her mother, who arrived when Kieran’s father was there and had driven his vehicle into the field, that she had been bucked from the horse.

[60]Mrs Harris was insistent that she arrived at the field before Mr Adam Miller, and that there was no vehicle in the field at the time. She had found it difficult to locate the field, and had been required to ask a couple of local residents for assistance but she had not spoken to Mr Miller over the telephone. As far as she was concerned, her daughter was approximately three quarters of the way into the field when she found her and remembers walking some distance because she had flip-flops on at the time. It was certainly not 40m. Mrs Harris remembered looking through the trees towards the church to get her bearings, which is how she was able to confirm the distance from the gate. At the point where Ashleigh was found, there was only a gradual slope. She had been able to see both Ashleigh and Kieran from the gate when she first turned in to the field, but not the others. She did not remember having a conversation with Mrs Miller about the accident circumstances, but spoke to Ashleigh who told her that she had been bucked off and was in extreme pain. She called the ambulance using her own phone, and not that of Mr Miller. This was confirmed during the course of the trial by the ambulance service when the dialling number was obtained. In any event, Mrs Harris remembers Mr Miller arriving shortly before she contacted the ambulance service, and she was aware that there had been a previous call with no response.

[61]The transcript of the ambulance call was made available. The Claimant places significant reliance upon it. When the operator asked Mrs Harris what happened, she responded by saying “… She got bucked off and she went over the top”.

[62]The Defendant believed that immediately after she fell, the horse appeared to be unfazed, and simply stopped nearby. There was no frantic behaviour, and no running around, and the Defendant was able to tie her up to the nearby gate. Polly was only taken to the stables at a later stage shortly before the ambulance arrived, and had remained calm. She described how immediately after the accident, Ashleigh had tried to stand up at which point she screamed and panicked, saying that she could not breathe. It was impossible to keep her from moving, she tried to get rid of the body armour. She got into a kneeling position after the body armour had been removed, and Kieran was cradling Ashleigh. Mrs Miller used Kieran’s phone to make a call to the ambulance service describing how a child had fallen from a horse and landed on her head. Unfortunately, a transcript of that call is not available. The Defendant had called both her husband and Ashleigh’s mother, and it was the former who arrived at the field first. It was at that point that Polly was taken back to the stables. When Mrs Harris arrived, the Defendant said that she told her how the accident happened, namely that Ashleigh had fallen from the horse. At no stage does she recall any mention being made of the horse bucking, but accepted that if it had been said either by Ashleigh or anybody else she would have heard it, although there were a lot of things going on at the time.

[63]Mr Adam Miller, the Defendant’s husband, told the court that he arrived after receiving a call to say that there had been an accident, and drove straight into the field. He stopped by the injured girl. Polly was tied up, relaxed and grazing at the time. He believes that Mrs Harris might have arrived about 15 minutes after him. He believed that he had been giving Mrs Harris directions over the phone on how to get there, and further stated that when they were in the field, Mrs Harris could not get a signal on her own phone, and made the second call to the ambulance service from his. (It was later accepted by the Defendant’s counsel that he was wrong about this and Mrs Harris had used her own phone.)

[64]Both Samantha and Kieran give similar evidence to their mother about the subsequent events. Sammy believed that the call to the ambulance had been made within a couple of minutes, and she herself had run to a nearby cottage to phone from a landline only to be told that the ambulance service was very busy. There is no transcript available of the land line call. In her statement she did not say whether her father arrived before Mrs Harris, and in her evidence to the court simply described Mrs Harris arriving later on. She recalls Mrs Harris being told what had happened, with no reference to the horse bucking. She did not hear this being said by Ashleigh, and does not know how Mrs Harris had acquired this information. Certainly if Ashleigh had said it, she would have contradicted such an account. She did not hear the ambulance call being made. Although in her statement she might have given the impression that Ashleigh suddenly jumped up after the accident, it was probably better described as standing up quickly. At all times Polly avoided Ashleigh, and did not have to be kept away. Kieran gave evidence that Polly did not react to the fall, and he recalls Ashleigh standing up after the accident. He certainly did not have to stand over Ashleigh to prevent the horse from trampling her. He does not recall Mrs Harris asking anybody, let alone Ashleigh about the circumstances of the accident, and all that she was told was that she had fallen. If Ashleigh had said that she had been bucked, he was sure that he would have heard it and would have protested.

[65]There was a further contemporaneous record in the form of the notes from the paramedic Samantha Hurn. The reference in the narrative section, which appears to be based upon a history provided by the patient is:

“patient fell off horse, bucked over top of head”

Other evidence

[66]When the Claimant was recovering in hospital, her parents were visiting her regularly, and it would appear that her father had spoken to solicitors. An account of the accident in the Claimant’s own words had been requested, and accordingly her father asked her to write it down. She was supplied with a diary by a physiotherapist whilst still at Cardiff hospital which was completed and passed on to her solicitor. The diary contains the most contemporaneous account provided by the Claimant, within about four weeks of the accident, and significant reliance is placed upon it by her counsel.

[67]Evidence was also given about the feed which had been provided at the time Polly had been purchased from Mr Watkins. It was called “Cool and Collected” and the information leaflet appears to suggest that it was ideal for horses and ponies which suffer from feed related behaviour issues. The evidence of Mrs Miller was that she did not change the feed at all. At some stage Mr Lane appears to have been told that a different feed had been provided as soon as the horse was liveried at Mathern, but this was denied by Mrs Miller.

Polly’s behaviour and temperament generally

[68]As indicated above, this falls to be determined largely by reference to the independent evidence of the experts. I have noted in summarising the evidence above, the differing impressions given at both the time of the Abergavenny inspection, and the day of the accident formed by the Claimant and the Defendant and her family. In summary, the Defendant, Samantha and Kieran report that at no time did Polly demonstrate any untoward behaviour which would have caused any concern. She was calm and placid, never nipped or bit during the tacking up procedure and had not been a difficult horse to ride. It was accepted that following the accident the horse was not ridden for a significant period of time (save for a few months at the end of 2013 and on the inspection of Mr Meade) and for personal reasons, including the death of the Defendant’s father, there had been no further riding until after the joint inspection in the middle of 2015. That had been for a relatively limited period of a few months, until October 2015 when the horse became lame. In their evidence, principally written statements upon which they were not challenged by Mr Westcott QC, both Rachel Miller and her daughter stated that they had no problem with the horse in this period, who had a lovely temperament and they had every confidence in her. Clearly the Claimant’s experience of both Abergavenny and in the short time in which she was involved with the horse on 22nd September 2012 is in conflict with this. Mr Watkins’ account of the horse’s behaviour is set out above.

Expert evidence

[69]The court has been provided with the original complete report of the late Mr Richard Meade, as well as extracts upon which specific reliance is placed by both parties. Whilst his professional opinion cannot form part of the case advanced by the Claimant, because it has not been tested, nevertheless his findings on examination of the horse have assumed a degree of importance and need to be considered.

[70]He visited the livery stables in April 2013 and met with the Defendant and Samantha. He was shown Polly, and thought that she was in a poor condition with little muscle. The horse was tacked up by the Defendant who rode the horse at the request of Mr Meade; he understood that Polly had not been ridden since the previous inspection two months earlier by Mr Lane. Mr Meade thought that the Defendant was riding reluctantly, and noted that she needed assistance with the reins which were incorrectly positioned when Polly was mounted. As the horse was walked in the yard, he noticed spooking at some geese, with a jog back towards the stable, and apparent lack of control by the Defendant. There were further episodes of spooking in the field nearby, and the Defendant appeared to be nervous. (As I observed in court, the nervousness of the Defendant may well have been contributed to by being watched by an internationally renowned Olympian Equestrian). Significantly, however, he thought that the Defendant had great difficulty in controlling the horse and stopping her when she decided to head back towards the stables. She had to be told by her daughter Samantha to shorten the reins, and after three aborted attempts at trotting the horse was begging back to the stables for Mr Meade to ride. It is also worth noting, because this forms part of the Claimant’s submission, that in their evidence neither Rachel Miller nor Samantha thought that there was any problem with the ride on this occasion, save that the Defendants foot did slip out of the stirrups at one stage although this would not and could not have been observable by Mr Meade who was on the other side.

[71]Mr Meade described his own riding experience as unpleasant. The horse was unpredictable and unresponsive, with an uneducated mouth and not particularly controllable. She was very green. She avoided puddles and spooked from time to time. Significantly she was shaking her head violently even when being walked. He noted that at no stage did the horse attempt to buck or dislodge either him or the Defendant.

[72]Mr Charlie Lane, the Defendant’s expert, has vast experience in all aspects of equestrian matters and has given evidence on numerous occasions in cases of this nature. His expertise (as indeed that of both Mr Meade and Mr Mackie) is undoubted. He first visited the horse in February 2013, as I have indicated, with a second site visit in August 2015 in the company of Mr Mackie. He had arranged for video clips to be provided of the second inspection which I have had an opportunity to view.

[73]His first report was a very fulsome document with a number of photographs attached. For a large part of his report he has analysed the respective accounts given by both the Claimant and the Defendant making critical observations, although acknowledges that factual determination is a matter entirely for the court. Significantly, as I have indicated already, he accepted that if the accident happened as the Claimant says then she should not have been riding Polly in the field, and it was foreseeable that she might fall. For reasons which will become apparent, resolution of that factual issue may fall short of what is necessary to establish breach of duty, and I shall return to this later when dealing with my findings.

[74]Of more importance is his assessment. He found her to be a “not well schooled horse” by which he meant that she would give a more responsive ride with further training. However, she was calm, quiet and willing, showed no propensity to shake her head, buck or to go too fast. He believed that she was capable of being ridden by a novice and inexperienced rider such as the Defendant, and was also under the impression that at that time she was being ridden regularly by the Defendant despite a long period without any riding. (It is not entirely clear to which time he was referring, because he was not questioned about this.) He was quite satisfied that if the horse had behaved as he had experienced, and as had been described by the Defendant, she did not represent any risk of injury in the hands of a competent novice such as the Claimant.

[75]On 26th August 2015 at the time of the joint inspection he also rode the horse. It would seem that he had a different riding experience on this occasion to that of Mr Mackie the Claimant’s expert. The conditions were far from ideal, because the horse had hardly been ridden over a period of three years, it was very windy, and the horse was clearly missing her stable companion. However, he was able to control the horse completely, and although Polly did shake her head on a few occasions this was not significant.

[76]Before dealing with the joint memorandum, and the evidence of both experts when they were cross-examined in court, it would be appropriate to consider the initial report of Mr Mackie, who, as indicated, carried out his own inspection at the same time as Mr Lane’s second inspection, that is in August 2015. Mr Mackie’s report is dated 1st June 2016. Because of the time between the inspection and the final production of the report, it had obviously passed through various drafts. He set out the respective accounts of the witnesses without specific analysis, but as in the case of Mr Lane it is the conclusions from his inspection which are more important. He found the horse to be entirely compliant on first inspection and when being tacked up. He was aware that Polly had been ridden in the paddock for about 30 minutes, and before any further riding, it was agreed that there should be lunging, which was carried out by Sam and Charlie Lane. During the lunging, Polly appeared to be unsettled, lacked rhythm and was unrelaxed, although this was not particularly significant. He noticed that the horse was constantly neighing to her stable companion and was clearly missing her.

[77]He then observed Mr Lane riding the horse, noting that before she was mounted, Polly made a determined dart to re-enter the stable to re-join her companion. Over 15 minutes the horse was walked and trotted. His assessment of the way the horse was behaving when Mr Lane was riding, was that she was green, unbalanced and unresponsive while fretting and neighing to her stable companion. There were factors which may have disturbed her, such as other horses in the adjacent field, and when Polly returned to the lunging paddock she appeared to settle, although was still unbalanced and unrelaxed. He thought that Mr Lane, who also cantered the horse with both reins as well as walking and trotting, was able to ride by judicious and tactful use of the reins, which may not have been possible for a novice rider.

[78]He himself rode the horse for a shorter period on walk and trot and this confirmed the impression of Mr Lane’s ride and indulged in headshaking, manifesting a strong attachment to the stable companion. He thought that the horse was unaccepting of the bit, and generally unresponsive.

[79]Mr Mackie’s conclusion was that because Polly had been bred and trained as a thoroughbred racehorse, even if unsuccessful in such a project, she would represent a completely different experience for a rider from that of a common pony. Whilst the horse may have been generally well-behaved, it was unlikely to respond to conventional riders’ signals; it is likely to have been trained with a racing or exercise saddle and short stirrups. Thoroughbred racehorses had sharp reactions, were trained to gallop and would have taken the opportunity, with shaking of the head, resisting the bit and being difficult to control in the hands of a rider who had no experience of such a horse. He believed that there was a foreseeable risk of the kind of event which did in fact happen in the case of the Claimant. If the horse had behaved as the Claimant described and was unsettled, the horse should have been kept on a lead rein initially and in a more enclosed area even if she had insisted on riding the horse, bearing in mind the Defendant’s own lack of experience in making an appropriate assessment as to the Claimant’s competence, and the nature of the horse.

[80]The experts then met and provided a joint memorandum, with Mr Lane contributing from his double inspection, the second coinciding with that of Mr Mackie. The memorandum is dated 5th August 2016 and is a helpful document. At the outset they acknowledged the difficult conditions at the joint inspection in August 2015, but note the different experiences of riding Polly. Mr Lane challenged Mr Mackie’s interpretation of Mr Lane’s own riding experience which he believed overstated the difficulties and did not demonstrate any problem with control.

[81]Both experts acknowledged the significant factual dispute between the witnesses which ultimately would determine liability, with Mr Lane accepting that the horse had behaved the way the Claimant described, then only the most experienced rider should have ridden her. Mr Mackie stood by his earlier observation that the previous use of a racing saddle was relevant because this would have involved short stirrups, with different use of hands and legs and something the Claimant was not used to, whereas Mr Lane thought that Mr Mackie was making “something out of nothing” because with racehorses, stirrups would only be shortened on the gallop, and otherwise the stirrups would be longer. There was no difference in use between a racing saddle and a general-purpose saddle. Mr Lane did not think that the previous use of a racing saddle played any causative component in the accident.

[82]Whilst both experts accepted that Polly was not well schooled, there was a disagreement on the interpretation of the phrase in relation to Polly. To Mr Mackie being well schooled meant being quiet, obedient, well mannered and responsive to the rider’s instructions. If not well schooled, a horse will resist the bit. Mr Lane took the view that if a horse was not well schooled it would not mean that it could not give a safe ride, but just that it would become more responsive with further training, and there was no reason why it could not be ridden by a relatively inexperienced rider such as the Defendant, who had in fact been riding her at the time of their inspection.

[83]Other questions were also addressed, including the propensity to buck, the relevance of Polly being a thoroughbred and bred to race, the relevance of headshaking, the attachment to her stable companion and the evidence of nipping. Essentially the experts stood by their respective positions, but both acknowledged, certainly in the context of headshaking and nipping that much will depend upon the findings of the court. In relation to the horse’s behaviour at the time of the joint inspection, Mr Lane invited the court to consider the evidence of the DVD, which did not demonstrate any violent headshaking, or attempt to charge off. Mr Lane believed that if there was a propensity to shake the head, then this was likely to have occurred when the Defendant, with less experience than the Claimant, was riding her.

[84]The experts were subject to detailed questioning on their reports by both counsel Because the experts defer, for the most part, to a determination of the factual dispute, it is unnecessary to deal with the challenges in any great detail. However, I will touch upon certain features which emerged during cross-examination.

[85]Mr Mackie accepted that the circumstances at the time of the inspection in August 2015 were far from ideal, including the infrequency of Polly being ridden. It was possible to pick up temperament from interaction, and he agreed that the horse had no tendency to nip or bite. However, nipping was a sign of anxiety, particularly when a horse was surrounded by a number of people and was getting excited, which if treated correctly could be forgotten.

[86]He accepted that the field in which Mr Lane had ridden Polly would have given the impression of a large field. When asked as to whether or not he agreed that Mr Lane had ridden Polly as naturally as possible, he maintained that he had still been worried about the behaviour of the horse and that he was very experienced in making such an assessment of horses ridden by other people. He thought that Mr Lane had been riding Polly tactfully.

[87]In relation to Polly’s previous use as a racehorse, he accepted that if she had been raced at 10 years of age for the first time in a point-to-point, it is likely that she would have been doing other things. Whilst she may have been hunted, to obtain a hunt master’s certificate which enables participation in a point-to-point requires a little more than simply turning up, as the horse does not have to jump fences, or attend regularly. He accepted that a 14-year-old who galloped on a pony, may well be competent to walk and trot a horse, but every aspect of a person’s experience required consideration. A younger person may lack understanding, even if otherwise competent. He did not think that the Claimant’s ability to restrain the horse from cantering in Abergavenny suggested she had a certain degree of skill which made her capable and competent on a horse, bearing in mind that this was a racing thoroughbred.

[88]In relation to the environment change, Mr Mackie accepted that unsettled behaviour might have occurred prior to the accident but he pointed out that the circumstances on 22nd September were different, including the trotting in the field. Bearing in mind the horse had only previously been walked by Mrs Miller, there would have been a degree of excitement in a new long grass field. If the accident had occurred towards the bottom, the homing instinct, or an attempt to gallop back towards the people that she had left, if the horse had become disorientated, might have been relevant when she was turned around by the Claimant. She had been presented with a big field and open space and thoroughbred racehorses would typically think that it was appropriate to gallop in those circumstances.

[89]There was a different way of riding a horse bred for racing to a conventional well schooled horse, particularly in relation to the use of leg and rein aids. This horse may not necessarily have been used regularly as a racing horse, but may not have had the same experience of conventional aids.

[90]Mr Mackie was asked about the extent of the enquiry which the Defendant Mrs Miller should have taken when purchasing the horse. He thought that the Defendant may have been too inexperienced to appreciate the potential problem with acquiring a thoroughbred racehorse, or to have been alerted to the fact that as a cheap horse there may have been something wrong. He thought that it was naive to buy such a horse without taking knowledgeable advice, or having the horse vetted, and particularly ensuring that it was ridden in a way in which she was likely to use the horse.

[91]Mr Lane was then cross-examined. He had difficulty with Mr Meade’s experience, in that it did not coincide with his own, and he pointed out that the circumstances may have been considerably different. He noted that the horse was being ridden through poultry and chickens on the later inspection, but accepted the unpredictability of horses, demonstrating different behaviour on different days. He was not sure that other aspects of the behaviour described by Mr Meade were particularly troublesome or amounted to misbehaviour. The loss of a stirrup when Mrs Miller the Defendant was riding could have been significant.

[92]He did not accept that a thoroughbred was necessarily sharper and quicker, because some could be quieter than others and it was impossible to generalise. No great significance could be placed by the gallops which were used by Mr Watkins, because this could simply be part of the exercise regime to keep the horse fit. He did not agree with Mr Mackie on the question of stirrup length for a horse that was being used in such circumstances. There would be a number of variables, and it would only be when the horse was being galloped that the stirrup size would be reduced. The height of the rider should also be taken into account He did not accept that the horse would instinctively when turned around be inclined to gallop off at speed. It was important to prevent a horse from getting wound up in such circumstances.

[93]Mr Lane agreed that if the horse’s head was shaking violently, when being ridden by the Claimant, it was blindingly obvious that she should not have been ridden. He accepted that the less that is known about the horse, more care is required, but this did not necessarily mean that the horse should only have been walked in the paddock with a lead rein. It was always good to start slowly.

[94]Insofar as Mr Mackie had believed that Mr Lane was influencing the behaviour of the horse, he had difficulty with such a suggestion. When Mr Mackie was riding, he did not appreciate that the horse was clamping down on the bit, and that in any event did not mean anything.

[95]Mr Lane was asked about the document which he had prepared for the underwriter and accepted that he had been made aware from the Defendant that there was an agreement for the Claimant to go into a steady trot, before turning around and coming back the gate. There were two other discrepancies in that document which he also accepted, namely the circumstances in which the horse was first mounted by the Claimant, and a belief that the feed had been changed.

The respective submissions

[96]Counsel supplemented their oral submissions with the aid of written notes which have been very helpful. There was a substantial measure of agreement on the approach which should be taken by this court to determining the scope of the duty of care owed by the Defendant. Nevertheless, the respective starting points for counsel are different in the sense that Mr Westcott QC on behalf of the Claimant places heavy reliance on the factual matrix which he submits can be established on the evidence which answers the question posed by the experts, namely how did the Claimant come to fall off the horse? This, it is submitted, is determinative of breach of duty, in the sense that if this court were to conclude that the Claimant fell as she described, in the light of the agreement of the experts it must follow that a fall was reasonably foreseeable on the basis of the behaviour manifested by the horse at that point and prior thereto. This is derived from paragraph 10.7 of Mr Lane’s report, and paragraph 16.7 of the memorandum of the experts.

[97]Mr Hunter QC approaches the case from the standpoint that it is insufficient for the Claimant to show that(a) she fell from Polly,

(b) she should not have been riding Polly on the balance of probabilities and

(c) she suffered injury. It is necessary to consider the question of duty in the context of the Defendant’s knowledge of both the horse, and the Claimant’s riding experience. Only then could the standard of care and the reasonable foresight of the Defendant be assessed. The case of Whippey v Jones

[2009] EWCA Civ 452

is relied upon, and in particular paragraph 16 of the judgment of

Lord justice Aikens in the Court of Appeal:

“The question of whether a person has acted negligently is not answered simply by analysing what he did or did not do in the circumstances that prevailed at the time in question and then testing it against an objective standard of “reasonable behaviour”

. Before holding that a person’s standard of care has fallen below the objective standard expected and so finding that he acted negligently, the court must be satisfied that a reasonable person in the position of the Defendant (i.e.the person who caused the incident) would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the Defendant) to anticipate it.”

[98]Both counsel agreed that it was unnecessary for the court to resolve the full extent of the factual disputes between the parties, but referred to a number of aspects in the evidence which supported their respective cases. Specifically, Mr Westcott QC submitted that the key to understanding how the accident happened, was to establish its location in the field, and in this respect relied upon the consistency of the Claimant throughout in the accounts which she had presented, initially in the diary entry notes within a matter of weeks from the date of the accident, in the letter of claim (although this was not specific as to location indicated how the Claimant had entered the field), in the particulars of claim, in her witness statement (excluding the draft statement which had been emphatically rejected by the Claimant), in the attendance note which was provided by Mr Meade the initial expert and in her oral evidence. She was supported by the evidence of her mother who arrived at the scene in the aftermath of the accident and a description provided of three quarters of the way down the field. The photograph marks did not provide specific assistance.

[99]This was to be contrasted with the account of the Defendant initially communicated to Mr Lane, her expert, which placed the accident locus only 40m from the gate, and the change from the evidence provided in her statement which suggested that the Claimant had only ever walked Polly in the field, and had never trotted. The inconsistencies between this, the defence, the initial summary provided by Mr Lane to the underwriters (not seen by the court) and the extent to which the Defendant changed her account when confronted with these various features, it is suggested, is germane, and undermines credibility. It is also relevant to the accident locus, because if the horse had been trotted, as the Claimant has always said, it is far more likely that she would have been substantially into the field. He also submits that the evidence of Kieran and Sammy, to which they have steadfastly adhered, is unreliable, and inconsistent with the concession made by their mother when the various inconsistencies were put to her.

[100]Mr Westcott QC submitted that the events at Abergavenny were more peripheral, but asked the court to exercise caution in accepting Mr Watkins’ evidence at face value bearing in mind his vested interest in achieving a sale, albeit at relatively low cost. There is evidence, though denied, that he carried a stick, he had accompanied Ashleigh and Mrs Miller throughout the ride and there was a likelihood that the horse had not been ridden for several months, perhaps after performing badly at the point to point. He dismissed the evidence of Ashleigh of nipping and biting on that occasion as probably hyperbolic, accepting that if that had happened, on a balance of probabilities the horse would not have been purchased, but referred to the fact that there was sufficient in the nature of the horse to alert the Defendant of the need for significant caution during the riding of the horse.

[101]In relation to the expert evidence, he suggested that more store should be placed by the observations of Polly, rather than opinions as to how she might have behaved. In this regard the observations of Mr Meade could not be ignored. Insofar as Mr Lane’s evidence was to be interpreted as being supportive of the case for the Defendant, Mr Westcott QC submitted that the shifting in position in relation to certain features of the account which he had received, including the extent to which there had been trotting either before or in the field suggested that perhaps he got “a little too close” to the case, despite his extensive experience.

[102]If the court did not accept the Claimant’s version of events, but concluded that Ashleigh had fallen when proceeding downhill, Mr Wescott’s alternative submission was that negligence could still be established, on the basis that she should not have been riding a horse which she was clearly not used to, in an open field, when the horse was likely to be stronger and bigger than her own pony. This would have been an “ill-advised project”. The Defendant’s duty failure should be determined in the context of her own inexperience, which did not enable her to make an appropriate assessment of the Claimant’s riding ability, in circumstances where it would have been wrong for her to ignore the possibility of a 14-year-old, whom she had not seen riding, exaggerating her own experience to impress her boyfriend. As far as the suggested mechanism was concerned, account could be taken of the fact the Claimant agreed that care is required when descending a slope in case the reins were to pull the rider forward, something which an inexperienced rider might allow to happen; if the Claimant had been on a bigger horse, better experience might in those circumstances not have served to save her.

[103]Mr Hunter QC, after setting out his position in relation to the ingredients necessary to establish a breach of duty addressed several features in the evidence which he submitted enabled the court to conclude that there was no negligence. The first of these related to the Defendant’s knowledge about the Claimant’s experience, which was derived from the Claimant herself and from conversations between the Claimant and members of her family. In this respect, he submitted that there was no material difference between the Defendant’s assumption and the Claimant’s true abilities. This was derived from her experience of riding ponies, and the knowledge of horses generally which she would have gained from her aunt, and it was clear that she had been around horses for a long time, even if she had not been riding until more recently. There was a risk that the Claimant had underestimated her riding experience, and account should be taken of the evidence, not disputed, that Ashleigh had been riding Beauty for many months, including galloping and bareback riding, and agreed to assist the Defendant in choosing a suitable horse.

[104]In short, the Defendant’s belief that the Claimant was more experienced than she may in fact have been was reinforced by the express or implied permission of the parents for the Claimant to go to Abergavenny, and on the day of the accident to ride a thoroughbred, bred for racing, in circumstances where the Defendant was a relative novice.

[105]The Claimant has made it sufficiently clear both in the way she handled the horse in Abergavenny, and the questions which she asked, that she had sufficient experience to ride Polly.

[106]Mr Hunter QC submitted that the Defendant’s own knowledge of the horse was also a component part of the duty question. She should not be criticised for not involving a vet in the initial assessment as this would not have provided any information on temperament. She had obtained information from a reasonable and reliable source and there was no reason to question Mr Watkins. Further, the behaviour between the inspection and the day of the accident did not give rise to any concern about Polly’s temperament, taking into account that there had been a change of ownership and environment.

[107]The court, submitted Mr Hunter, was then required to focus on the question as to whether or not the Defendant’s decision to permit the Claimant to ride Polly on 22nd September 2012 was reasonable in all the circumstances. It was not a question which could be approached with hindsight, or from the perspective of the equestrian expert, because the Defendant was to be considered in the position of the ordinary reasonable prudent owner of a horse with either actual knowledge or imputed knowledge from reasonable enquiry.

[108]In relation to the events in the field, and in particular the location of the accident and the circumstances in which the Claimant came to fall, Mr Hunter QC submitted that it did not necessarily resolve the central issue of liability, but was relevant to credibility. He asked the court to take into account the unsigned witness statement, which was inconsistent, and relied upon the evidence of his own witnesses. He urged caution in placing reliance upon the diary, bearing in mind that the Claimant had already been made aware that lawyers were involved, and that her parents appeared to be attributing blame to the Defendant. Discussion Witnesses

Discussion

[109]In a case with such stark conflicts of evidence, the starting point must be my assessment of witness credibility. There is very little common ground on the crucial aspects relevant to liability and one or other side must be wrong in the evidence given. I agree that in such an assessment it is unnecessary to accept or reject an account in its entirety, or to find that a witness who is wrong in one or more respects is untruthful. As counsel point out there is a broad range of reasons why a witness might be incorrect in reporting an incident or describing a situation, from deliberately lying, through poor recollection and subsequently gained perception after speaking to others, to a conviction based upon a favourable interpretation to suit one’s own purpose, including exaggeration or embellishment. In recalling, particularly after the passage of time, a witness may deliberately exclude or subconsciously forget certain features which are unhelpful. These are all factors which I bear in mind. It is also necessary not to place too much emphasis on demeanour, although it is a matter to be taken into account. Experience tells a fact-finding tribunal that there are a host of reasons why a witness may come across poorly in a witness box, and extreme confidence and articulation should not be considered to be a trump card.

[110]I deal first with the Claimant, and bear in mind that at the time of this accident she was 14 years of age. On her part, there would be a motivation to present a favourable account which underplays her own experience, and exaggerates features of the horse’s behaviour. She possesses sufficient intelligence to understand that if her account is accepted she is likely to succeed in the claim, but that without her testimony she has no support on the primary argument advanced, in the light of the evidence that is arrayed against her.

[111]Against this backcloth, I found Ashleigh Harris to be an impressive witness, who maintained for the most part a consistent account with sufficient attention to detail on the more important aspects, whilst understandably vaguer on less significant matters. In particular, she made appropriate concessions against interest when pushed on some aspects. Whilst in her statement she says that she only had a general conversation with Rachel Miller about horses, even on the occasion that the Defendant rode her pony, she accepted that it was possible that she might have discussed her riding experience with her although not recalling it. There were other examples. When questioned about the professional lesson and a discussion with Mr Richard Meade about it, she could not recall telling him that she had been cantering in the arena, but accepted that her recollection in 2013 was more likely to be accurate. Although she did not agree that she had been involved in the Abergavenny visit to provide an opinion as to whether a horse should be bought, she accepted that she had much more knowledge and experience than Rachel Miller. She also conceded that on that occasion she had been excited at the prospect of riding the horse and was keen to do so.

[112]Although on one occasion a conflicting account was set out in a draft statement, which appears to adopt the Defendant’s understanding as to the route taken by the Claimant before she fell in the field, in view of the fact that this has always been disavowed by the Claimant, and was corrected in a discussion with Mr Richard Meade in 2013, and further in the light of the account which she provided within a short period of the accident when recuperating in hospital (the diary notes) I conclude that it is insufficient to undermine previous and subsequent consistency. The diary notes are particularly important. It has not been suggested to the Claimant that they were fabricated, although the implied suggestion is that they are self-serving because the Claimant knew that her parents were blaming Mrs Miller at the time. Nevertheless there is a substantial amount of detail in the diary which in my judgment is unlikely to have been fabricated. This would attribute to the Claimant a sophistication or cunning which simply does not exist. It is a record of an incident created very closely to the time of the accident, when the circumstances are likely to have been uppermost in the Claimant’s recollection.

[113]In the circumstances, in my judgment her evidence generally is imbued with credibility. However, there are some aspects which lack plausibility and it is impossible to accept her account in its entirety. It is significant that the events of Abergavenny were not included in the diary entry. Therefore, she would have been recalling this earlier occasion at a much later point in time. The point is rightly made that a description of nipping and biting by Polly Perks at Abergavenny could not be accurate, because if this had happened it would have been picked up by one of a number of other witnesses who were also there. Whilst those witnesses might have had an interest in denying this aspect of her behaviour on 15th September 2012, it seems unlikely that the inexperienced Defendant who was plainly lacking in broad knowledge as to what to be looking for in a horse, would have gone ahead with the purchase. It is likely, therefore, that the Claimant has recalled features of the horse’s behaviour on a later occasion and transposed them. The dominant recollection of the Abergavenny visit on the part of the Claimant is that when trotting the horse, she found it necessary to exercise a significant degree of restraint to prevent her from breaking into a canter on the return to the stable. Further (and this does not appear to be challenged) she recalls discussion about the unusual riding saddle and martingale.

[114]In the immediate aftermath of the accident, the Claimant’s account is also significantly at odds with that of the Defendant and her witnesses. It does not seem to me necessary to make any definitive factual findings in relation to the events in the field, and in particular the behaviour of the horse, or the timing of arrival of other people, including Mrs Harris and Mr Miller, I am less convinced that reliance can be placed upon the Claimant’s account either as to the horse’s behaviour, how she was removed from the field, or what others were doing. There is no doubt that she was deteriorating in lucidity and ability to communicate, and she appears to have been aware that she was seriously injured. I believe that her preoccupation would have been with her own state, and not with what was going on around her.

[115]The evidence of Mrs Harris the Claimant’s mother was inevitably of a more general nature. It is significant that she had recollection of the manner in which the telephone call had been made to the ambulance, notwithstanding the suggestion that she had in fact used the telephone of Mr Miller, and it was established that she had been correct when the number was verified. Where she could not recall detail, Mrs Harris made this clear in her evidence. However, she remained emphatic in two important respects, first that she had received no visit from Mrs Miller prior to the Saturday in which permission had been requested for the ride, and second that the accident occurred some distance into the field, because that is where she found her daughter. It seems to me less reliance can be placed upon the order in which either she or Mr Miller arrived in the field. Her undoubted preoccupation would have been for the welfare of her daughter.

[116]Whilst a report as to the accident mechanism made initially in the ambulance call, and subsequently in the history given to the paramedics must be viewed cautiously, because it is a second-hand account and to an extent may be self-serving in that it may have been borne out of a perception by the Claimant that she could not have simply fallen from the horse, nevertheless it cannot be ignored altogether as a contemporaneous account. Mrs Harris’ evidence, perhaps unsurprisingly, is vague as to the source of her information, but it seems to me that she would not have said that her daughter had been bucked from the horse, unless this had been said to her. Whether it was actually said by Ashleigh, or by the others is probably immaterial, because any reference to “bucking” would have been heard by all.

[117]In the circumstances the evidence of Mrs Harris is broadly credible and plausible.

[118]I must now address the reliability of the Defendant as a witness. I bear in mind the uncomfortable position in which she found herself as the responsible adult present when a girl riding her newly acquired horse was grievously injured, and having to revisit matters going back several years both before and after the accident. I have also considered the backcloth to her testimony, and that of her family members, namely that the insurance indemnity is on her own admission insufficient to meet the full value of any claim and there would be dire financial consequences if she was found to have been in breach of duty.

[119]Nevertheless, I was significantly less impressed by the evidence of Rachel Miller. Whilst allowance must be made for the fact that lay witnesses are usually poor estimators of both time and distance, in her various accounts the Defendant has been widely inaccurate in several respects. She estimated a 20 minute journey when trying out Polly for the first time in Abergavenny which included both a walk and a trot. This seems highly unlikely, even though subsequently reassessed as 10 minutes out and 10 minutes back. In her statement she made reference to Ashleigh walking the horse for between 5 and 10 minutes once the group was in the field on 22 September 2012, from which it was necessary for her to resile subsequently. At some point she must have told her expert that the fall occurred only a short distance into the field, which of course is wholly inconsistent with the amount of time, even modified, during which the Claimant would have been on the horse. When asked to estimate the distance between her and Sammy, and Kieran, Polly and Ashleigh, she suggested twice the width of the court room which was clearly significantly less than even the closer location which was parallel to the trees, agreed to be about 90 m from the gate. Although this cannot be challenged, it is possible that at some stage she told Mr Meade that the fall occurred over 200m into the field.

[120]There is a concern in relation to these inaccuracies that the Defendant has embellished her account, to create an impression of(a) a greater opportunity to test the horse in Abergavenny and

(b) a longer period of control of Polly by the Claimant without mishap on the day of the accident.

[121]In one of the most crucial aspects of her evidence, namely whether the Claimant was trotting Polly before and in the field, I found the Defendant to be inconsistent in a number of respects, which is surprising, because it might have been expected that she would accurately and consistently recall the moments leading up to the Claimant’s fall from the horse. It is plain that at different times she has said different things, most significantly affirming by her statement of truth the defence, and giving an impression to the expert which was not transferred to her statement, and her oral evidence before cross-examination. She demonstrated significant discomfort when being questioned by Mr Westcott QC about the recollection in relation to the walk/trot and in particular whether she had described it as a fast walk, wishing to be referred to her statement. I formed the impression that it was only when faced with the inevitable, that the Defendant accepted that there was trotting in the field.

[122]The Defendant’s recollection of Mr Meade’s visit also falls to be considered. Her description of the ride, and Polly’s behaviour appears to be entirely at odds with that provided by Mr Meade on the same occasion. However, the fact that both she (and her daughter) are unwilling to attribute any difficult behaviour to Polly on that occasion suggests to me a self-serving recollection.

[123]In all the circumstances I do not regard the Defendant as a reliable witness. In my judgment she has not deliberately misled the court, but has demonstrated an inclination to interpret events, and the behaviour of the horse which she purchased, favourably and has allowed herself to develop misinformed recollections based upon perception rather than actual fact.

[124]Her daughter Sammy did not demonstrate particular inconsistency in her evidence, but at times appeared to express a degree of emphatic confidence about certain aspects which conflicted with the concessions which had been made by her mother. The impression which she conveys of a horse which was lovely and calm, never gave any trouble, and which at no time manifested any traits to cause concern, is obviously at odds with that of Mr Meade and Mr Mackie, and to a lesser extent that of Mr Lane. She is not in my judgment a witness who provides independent and objective support for the Defendant’s account, and in relation to her evidence as to the ground covered in the field, and the manner in which the Claimant came to fall there is a lack of plausibility. I shall refer to this below.

[125]Like his sister, Kieran expressed himself confidently and consistently. However, he was also unwilling to make concessions about trotting in the field, notwithstanding his mother’s evidence and the material which was put to her. He had remained in court throughout and would have been aware of the issue. There is a similar concern as in the case of Sammy that he was reluctant to shift his position and to make any concession which seemingly damaged the family case. When dealing with the manner in which the Claimant mounted the horse in the yard, his evidence is at odds with that of the other witnesses, and plainly wrong, and in my judgment a significant embellishment probably intended to convey an impression that the Claimant was extremely accomplished, and this must also call into question his description of the Claimant’s experience, especially the bareback riding incident.

[126]Mr Miller senior did not add much to the account, because he had not been present when the accident occurred. In two respects his recollection was called into question, which makes his evidence generally unsatisfactory. First, in relation to his assertion in court that he accompanied the group when the horse was being trialled in Abergavenny which conflicted with his statement, and second in relation to the use of a mobile phone to call the ambulance. It is unnecessary to determine precisely where he left his vehicle in the field, but insofar as is evidence is used to derive support for a closer proximity to the gate, in my judgment it is unreliable.

[127]The evidence of Mr Watkins should be approached cautiously. He did not give the impression of a witness who was trying to mislead the court, and was consistent in his oral evidence, recalling the events of four years earlier. It seems to me that he would have a motive for describing the horse which he had sold and which had caused a serious injury to a young rider within a week through rose tinted spectacles. Nevertheless, his account of the trial on 15 September 2012, including the manner in which he accompanied the horse and rider is largely consistent with those of other witnesses.

[128]I turn now to the experts. As indicated above, the scope of the dispute between them is relatively small, and they are agreed that liability will depend entirely upon the court’s determination of the factual issues. However, because they give differing impressions of the horse’s behaviour at the time of their inspections, and this is a matter which the court will have to resolve, it is necessary to make a limited appraisal of them as expert witnesses.

[129]It was suggested in the course of submission that Mr Lane had become “a little too close to the case”. I took this to mean that he had begun to lose objectivity and had allied himself to the cause of the family. There was one particular feature in his lengthy report which I found to be a little unusual and which lends force to this submission. Having undertaken a very detailed analysis of the respective witness accounts, at times he seeks to interpret the evidence in terms of “probability” which has the potential to trespass on the province of the court. It seems to me that he was aware of the narrow dividing line, appreciating that it is always difficult for an expert, which is why he qualifies paragraph 7.7.21, as an opinion provided from an “expert’s perspective”, but the question which he proceeds to answer, having carried out that evidential analysis, purports to usurp the function of the court.

[130]Further, whilst differing impressions are entirely understandable on a single inspection, it is difficult to reconcile those differences (in early 2013 and August 2015) with the inspection by the late Richard Meade which is entirely at odds and not easily explicable by horse unpredictability or difficult testing conditions. Mr Lane appeared to me to be unwilling to make concessions. The most obvious example of this was his qualified definition of “not well-schooled” which seemed to me to be illogical. A horse which may become responsive with further training would suggest that the horse was not sufficiently responsive and could provide a potential problem of control. I preferred Mr Mackie’s definition in this regard. The provision by Mr Lane of a photograph with an arrow indicating an accident location so close to the gate (which in any event turned out to be wrong) leaves a concern that he has preferred one account over another, which has not sufficiently acknowledged the alternative explanation.

[131]On the other hand, Mr Mackie was more willing to make concessions. He acknowledged the poor conditions on testing which could excite some horses, and other factors such as the stable companion attachment. He accepted that age was not determinative of riding experience that every aspect required to be considered. He accepted that Ashleigh had demonstrated sufficient skill to be able to sense the horse wanting to canter at Abergavenny. Generally, aside from the unresponsive and unschooled aspects of the horse’s behaviour which would have made her difficult to control, he accepted that there were no particular unusual behavioural propensities such as biting or bucking, maintaining his standpoint that Polly was normal for a thoroughbred racehorse, but was unsuitable to be ridden and used in the way in which she was on the day of the accident. I found his approach to be measured and objective.

[132]In the light of my assessment of the witnesses, I now make specific findings of fact which will be used to inform the question as to whether or not the Defendant was negligent, and which address the question posed in the expert evidence, and in the submissions of counsel.

Experience

[133]Perhaps of greater relevance than the Claimant’s actual experience which has not been the subject of significant challenge, is the understanding of the Defendant, either directly or as she had been informed by others of the Claimant’s experience. On this issue, I do not agree with Mr Hunter QC that the Defendant could rely upon an apparent reinforcement of her belief in the Claimant’s competence by her parents. Whilst there is a paucity of evidence as to the communication between Mr and Mrs Harris and Mrs Miller about the Claimant’s experience, in my judgment this alleged reliance appears to abrogate responsibility for sufficient enquiry as to the true level of her competence, and seemingly delegates responsibility for ensuring her safety to others. Insofar as the Defendant may have been reliant upon the assessment of Kieran who had seen the Claimant riding more often than others, this is an assessment which should have been viewed with a considerable degree of caution not only because Kieran was in no position to judge competent riding from poor riding, but also because there was an inevitable element of Ashleigh boasting or trying to impress her boyfriend, and of course her boyfriend being easily impressed. It should have been of very little influence.

[134]I accept the evidence of the Claimant that she had had very little discussion about the extent of her experience of riding with the Defendant, although undoubtedly she would have expressed a substantial degree of enthusiasm for all things to do with horses, including Sammy’s equestrian course and her own pony. I do not accept the Defendant’s evidence that she had had any discussion with the Claimant’s mother Mrs Harris at any stage either before the Abergavenny trip, or on the Friday before the day of the accident, whether about the Claimant’s riding experience or permission to ride. It was simply assumed by the Defendant that this had been granted. When Mrs Miller participated in the hack and rode Beauty she had no opportunity to observe the Claimant riding. Nevertheless, the Defendant would have been aware that relatively the Claimant had more experience than either her, or her daughter, and was at the very least a useful reference point when they were looking at a horse purchase.

[135]Accordingly, as to the Defendant’s knowledge of the Claimant’s riding experience, I find that it was relatively limited and did not amount to much more than that she was a 14-year-old who had been riding her own pony for less than a year, although she had probably been riding generally a little longer than that. She did not know, nor did she make an enquiry as to whether the Claimant had ever ridden a horse, let alone a thoroughbred racing horse, as opposed to a pony.

[136]I find that on the balance of probabilities Ashleigh attended on the Abergavenny trip not to provide advice or assistance, but because she was the boyfriend of Kieran. A greater knowledge on her part of horses, as I have said, was a useful bonus.

[137]In relation to the Claimant’s actual riding experience, it seems to me that the label attached by Mr Lane (and unchallenged) is apposite. She was a competent novice able to do most of the things on ponies which a 13 or 14-year-old would have been able to do, including hacking, jumping over logs and other small jumps, and putting her horse from a trot into a canter or gallop. I accept that occasionally she had ridden the horse bareback, but at all times she was in the company of an adult. I reject the evidence of Kieran that he had been present when the Claimant had been bareback riding, and had seen her bucked from Beauty, or kicked when on the ground. However, it is likely that from time to time the Claimant would have fallen from her horse, and I accept that on at least one occasion she was bucked, and thus in a position to understand how it felt.

Abergavenny

[138]I can deal with this briefly, because the dispute is now relatively limited. The Claimant had not intended to ride. She took the opportunity to do so, and found the horse to be stronger and bigger than anything which she had been used to before. Polly was resistant and less responsive than her own horse, and she found her more difficult to control. However, possibly out of pride, or wanting to impress, she did not communicate any problems to the others. As I have already indicated, I do not believe that the horse is likely to have gone to bite or nip on this occasion. Mr Watkins remained alongside at all times, and probably carried a crop if not actually using a lead rein, which demonstrated a degree of caution, and a belief that this was a strong horse required careful handling. He had a vested interest in selling the horse which was of little use to him.

[139]The Claimant did not wax lyrical about the horse, as has been suggested, and in this respect I prefer her evidence to that of Sammy and Kieran. It is likely that she had suggested that a cob would be more suitable, but this was probably on an earlier occasion.

Events of 22nd September

[140]The first matter to consider is the decision as to who was to ride first. Here I accept without equivocation the evidence of the Claimant. It is implausible that the Claimant would have pushed her way forward in the manner described and mounted the horse without any form of objection at worst, or contrary suggestion at best. First of all, the Claimant was wearing the Defendant’s body armour, and she did not have her own. The Defendant would have been aware of this. Second the tacking up was a shared task, and the horse was led out of the stable. All would have participated in this, and the arrangements made as to the safest way to mount. Third, it is inconceivable that there would not have been a discussion about the order of riding. In my judgment the suggestion of the Defendant that any concern about the Claimant’s riding was associated with a potential injury from her orthodontic brace also lacks plausibility. I reject the suggestion, furthermore, of Kieran that the Claimant simply jumped onto the back of the horse.

[141]It seems to me that the most likely explanation is that there had been a discussion. The Defendant probably remained a little apprehensive of the horse, lacking confidence and wanted to see how somebody more experienced handled Polly by trotting her for the first time. There was a positive encouragement, therefore, by her, for the Claimant to be the first rider.

[142]In relation to the Claimant’s initial comments, I prefer her evidence (which was first set out in her diary note a few weeks later) to that of the Defendant and her witnesses, that she communicated a little insecurity when first on the horse. It is unlikely that this amounted to a wish to get off, or was interpreted as the same by the Defendant. The comment of the Defendant that “you will be fine” was most likely to be said provide reassurance, and demonstrated the continuing desire by her to see how the horse would respond with the seat of a more experienced rider.

[143]There is no issue in relation to the early stages of the ride. Once in the field, in my judgment within a short period of time the Claimant had put the horse into a trot. It is unlikely in the extreme, especially as the Claimant had trotted Polly in the roads in Abergavenny, that she would not have done this in an open field, especially as the path at the bottom of the slope was fairly wide. In all probability this would have been after an initial period of walking, when she was accompanied by Kieran, but following the trot she would have distanced herself from the group who remained closer to the gate. Accordingly, a significant gap was opened up. It is unlikely that this was as far as 250 yards, but in all probability it was further than the tree indicated in the photographs. I find that the Claimant did turn the horse around but did not head up the slope as has been suggested. At this point the rest of the group remained much closer to the gate. There was no reason for the Claimant to head up the slope as Kieran was not there to be avoided. As to the horse’s behaviour at this point, I accept the evidence of the Claimant that the trot turned into an uncontrollable canter at the early stages of which the Claimant became unseated, as the horse was resisting the rein. Whilst this may not have been a conventional bucking as such, in the sense that the horse’s rear legs rose up, and the head dipped, demonstrating a desire of the horse to rid herself of the rider, in my judgment the most likely explanation was that the Claimant was suddenly and unexpectedly unseated giving her the impression that she had been bucked, making it likely that she would land very awkwardly.

[144]I reject the account of the Defendant, and her witnesses, which in my judgment is implausible for several reasons. First of all, as I have indicated, is the unlikelihood that the Claimant would have been walking at that point. The suggestion that events unfolded in close proximity to the gate is highly unlikely. Second, there was no reason for the Claimant to ascend the slope because even if Kieran had been close by, the flat section was wide enough for him to be avoided. Third if the rest of the group were as close as they have indicated (a few metres) the Claimant would have been descending the slope heading straight for them. Fourth, as appears to be accepted by the Defendant’s expert Mr Lane, a rider who has some experience (a competent novice) is unlikely to fall off a horse in such circumstances. If the Claimant had been faced with the situation of the horse’s head dipping forwards and the reins pulling her in the same direction, it seems to me that she would still have been able to exercise some degree of control as she would effectively have been slipping off, rather than abruptly thrown.

Aftermath

[145]It seems unlikely that the Claimant would have been standing for several seconds removing her body armour as has been described by the Defendant and her witnesses (Sammy and Kieran). However, there is no medical evidence as to whether this would have been possible in view of the severity of the vertebral fracture and it is difficult to comment. Undoubtedly, in the light of her serious injury, the Claimant would have been disorientated and shocked. For reasons stated above, I find that the Claimant was a little distance from the rest of the group, and probably closer to the trees when she fell from the horse, and the others would have run towards her. It is unnecessary to make a specific finding as to how the Claimant reacted, or how she was in those initial few minutes.

[146]I have little difficulty in coming to the conclusion, on a balance of probabilities, that when the Claimant’s mother eventually arrived, she was made aware that the Claimant had been “bucked” from the horse. Whilst this is unlikely to have come from the Miller family, and was probably elicited as an explanation from Ashleigh, in my judgment it would have been heard by them, even if the description provided over the telephone to the paramedics had been out of earshot. Although it may not have fitted their understanding as to how the Claimant had fallen, it reinforces the conclusion, in my judgment, that they had not been a few metres away watching the Claimant falling as the horse was walking down a slope towards them. The fact that they did not provide any alternative explanation is germane.

Polly’s behaviour

[147]In relation to Polly’s behaviour and characteristics, I accept the evidence of the Claimant’s expert Mr Mackie that she was a green, unresponsive and uneducated horse who by her very nature, as a thoroughbred racehorse, would be strong, potentially wilful, and difficult to control. It is unlikely that she would have been ridden to any great extent as a horse on hacks, at least for many months before her acquisition, and insofar as the Defendant and her witnesses seek to convey an impression that Polly was a gentle, willing and cooperative horse, I reject this. It is at odds with the compelling findings at two separate occasions over a two year period. In my judgment the Defendant has been unwilling to accept or acknowledge the difficulties which she had been experiencing in handling Polly which were manifest at the time of Mr Meade’s inspection. It seems to me that the fact that Polly had hardly been ridden at any stage prior to August 2015 is likely to have had as much to do with the fact that she was a difficult horse to control in other than the most gentle of walks, as much as the personal and family circumstances of the Defendant.

[148]In summary, I make the following findings of fact: i) the Defendant had limited knowledge of the Claimant’s riding experience, although believed her to have been riding ponies for approximately two years and possessed greater understanding of horses than she did; ii) The Claimant’s actual experience was as stated by her, and previously she had never ridden a horse, as opposed to a pony. iii) The horse was not nipping and biting at Abergavenny but was only doing this at Mathern; iv) The Claimant did find that the horse was difficult to handle at Abergavenny but did not communicate this to the Millers. v) On the day of the accident, 22nd September, the Claimant was encouraged by the Defendant to ride first because of her greater experience, and because the Defendant was wanting to see how the horse handled in more open conditions. vi) The Claimant did express a degree of insecurity though not a wish to dismount, and received more encouragement from the Defendant. vii) Once in the field the Claimant began to trot the horse and open a gap between herself and the rest of the group. viii) The Claimant reached a point some distance past the large trees indicated in the photograph, turned round, and lost control of the horse when it proceeded from the trot into a canter. ix) She fell abruptly from the horse at a point parallel to the tree, but still on the flat section. x) Whilst the Claimant may not have been actually bucked she had formed a genuine impression that this is what had happened. xi) She told her mother that she had been bucked from the horse and this was communicated to the paramedics. xii) The diary record completed a few weeks after the accident provides an accurate recollection as to what happened. xiii) Polly was a strong and wilful thoroughbred, difficult to control, uneducated and unresponsive, unlike any horse which the Claimant had previously ridden.

[149]In the light of these findings, I now consider the potential liability of the Defendant, if any, in negligence. In this respect, I agree with Mr Hunter QC that it is insufficient for the Claimant to rely upon the fact of the fall, the causation of injury, and that she probably should not have been riding a horse which was too big or too strong for her. It is necessary to focus on the Defendant’s knowledge, actual or constructive of both horse and rider when considering whether or not in permitting the Claimant to ride Polly she was in breach of the duty of care owed to her as a young person for whom she was responsible.

[150]However, in my judgment the factual matrix which I have found does indeed permit a conclusion that negligence has been established. The Defendant’s standard of care must be assessed by reference to that of the ordinary and reasonably prudent horse owner. Such a person would ensure that he or she is possessed of sufficient information about both horse and rider to be able to assess any risk from what is an inherently dangerous activity.

[151]It is most likely, it seems to me, that the Defendant made a serious error of judgment in acquiring an unsuitable horse at the early stages of her riding hobby. She had undertaken insufficient enquiry and had failed to seek appropriate advice as to the type of horse she was after, a strong thoroughbred horse, trained, even if not successful, in racing. Being committed to this type of horse, and taking the step of acquiring Polly very cheaply, she has convinced herself that there were no problems with the horse, when in fact there were, and it should have been known by her as difficult to manage even for a competent novice rider. This informs both the standard and scope of her duty of care. By positively encouraging (as I have found) Ashleigh Harris to ride the horse, and condoning if not specifically instructing a trot in an open field for the first time, she was exposing the Claimant to a risk of injury from a horse which could not be controlled in other than the most benign of conditions.

[152]In my judgment it was reasonably foreseeable, therefore, that the horse would be strong and difficult to control, and in certain conditions likely to unseat a rider who was not used to managing a horse bred to race and trained to gallop. Whilst the consequence of serious injury may not have been foreseen, that is immaterial. It was foreseeable that a loss of control of such a horse would unseat the rider leading to injury of some sort. (Following the close of submissions, and prior to the circulation of this judgement in draft form, I was provided with an extract from Clerk and Lindsell, chapter 2 at paragraph 52 with the agreement of counsel, which confirmed this simple statement of law.)

[153]If there was any doubt about the nature of this horse, and its potential difficulty for the Claimant, in my judgment it is removed by the remarks made by the Claimant which would or should have communicated insecurity to the Defendant. Regardless of any bravado, which probably existed, it was at that point incumbent on the Defendant to exercise extreme caution which may have meant restricting the riding to walking in the lanes around the stable or similar trotting to that at Abergavenny, and avoiding an open field.

[154]In the circumstances, breach of duty has been established, and the Claimant is entitled to recover from the Defendant damages to be assessed at some future date.