Defending Personal Injury Claims Arising out of Equine Misselling – Practical Steps

August 2, 2022

Helen Rutherford

People buy horses for all sorts of reasons: to compete, as pets, as pleasure horses, breeding horses, investments etc. These horses are sold via different avenues, such as online advertisements, dealers and word of mouth. The value of the horse will depend upon factors such as its age, experience, record, breed, height and safety.

When it goes wrong there can be allegations of equine misselling. And in some such cases, allegations made are that the misselling resulted in personal injury.

In this context, the type of misselling we will be considering is in relation to the description of the horse, rather than misselling relating to the horse’s breeding, competition or racing potential. And we will be looking at claims where injury results from that misselling.

An example of potential misselling would be describing a horse as being suitable for a beginner or novice rider when, in fact, the horse has known behavioural problems which may cause riders to fall off (such as rearing or bucking).

In this brief article we will be looking at the steps to take to successfully defend allegations of misselling.

Conference with the client

Our first step in a case where the misselling of a horse has been alleged will be to speak to our client. As basic as that sounds, the reality is that with busy caseloads it can be easiest to communicate primarily by email. This gives us some idea as to the client’s position, but it doesn’t match the level of nuanced detail one gets from a conversation with a person, even over the phone.

Within this conference or conversation we will want to ascertain:

1. Whether our client is a professional or private seller;
2. How long they had had the horse;
3. What their knowledge of the horse’s history was;
4. How they would describe the horse’s temperament and ridden ability;
5. If they have any experience of the alleged behaviour

Evidencing the horse’s history

Typically, a horse will have several homes in its lifetime. They are not commonly broken in (trained for riding) before the age of 3, and many amateur riders would not consider purchasing a horse that inexperienced. As a competitive horse gets to its late teens it may be moved on to a quieter home, or to a rider starting at the lower levels. Ponies in particular will be moved around as their child riders outgrow them.

While I would not expect a vendor to know in detail the horse’s history before they arrived at their yard, they ought to be able to say if they were given any warnings or description of behaviour before they purchased it. This is particularly of interest if our client hasn’t had the horse for an extended period of time (the horse’s behaviour as a 3 or 4 year old being ridden for the first time will not inform as to its temperament now that it is an experienced horse of 12 years, for example).

Social media searches can be useful, if only from the point of view of “forewarned is forearmed”. If a social media search reveals behavioural issues with a previous owner or rider, I would expect our client to be able to say that it was a problem they believed they had resolved, or otherwise was a problem of which they were unaware and had no experience in their time of ownership.

Another way of considering a horse’s history is looking at their competitive record, if they have one. British Dressage, British Eventing and British Showjumping all maintain databases of registered riders, owners and horses and their competitive entries and results. A search of these databases will reveal (for registered horses), whether they have entered competitions, what their scores were, whether they were eliminated and possibly what they were eliminated for. For example, with British Eventing it will say that a horse was eliminated for having 3 refusals, or for the rider falling off. While this doesn’t give a full picture, if one sees a horse which is competing successfully, with decent scores and no eliminations it is less likely that the horse has a serious behavioural issue.

Veterinary records will also be of assistance in some cases, particularly where the cause of the personal injury was a medical condition (such as narcolepsy or gastric ulcers, the latter of which can cause extreme behaviour in the horse), or where the behavioural issue was sufficiently troubling for the vet to investigate. Vets also tend to note when the horse is difficult to handle, when it has to be sedated for routine examinations or when vaccinations are difficult to administer.

The aim with all of this is to show that whatever behaviour the Claimant alleges caused their injury, that it was not known to us and thus we were not responsible.

Expert Evidence

Expert evidence in cases where the horse’s behaviour is said to have caused injury is often decisive.

Many equine experts will be willing to go out to assess the horse personally, to handle it, lunge and ride before forming a view and writing their report. Often, the very fact that they are willing to mount the horse can be quite persuasive, since they are risking their own safety in doing so.

In some cases, the appropriate expert will be a veterinary expert. For example, if the horse has a medical condition which is alleged to have been the cause of the behaviour which, in turn, caused the Claimant’s injury.

There are a couple of experts in particular who I highly recommend for the quality of their reports.  Please get in touch if you’d like any suggestions.

Likely Arguments

A case of equine misselling involving personal injury may also involve a contractual claim under the Consumer Rights Act 2015 (if the vendor is a business) or in misrepresentation or normal breach of contract. Of course, a breach of contract (including a breach under the Consumer Rights Act 2015) can be pleaded in a personal injury claim as being the cause of the injury.

This is where the description of the horse will be important, as will the information disclosed to the purchaser.

From a personal injury point of view, the likely allegations will be that the horse is unsafe. It may be that the horse rears or bucks under saddle, is “spooky” (prone to being startled) or is difficult to lead, groom or otherwise handle.

Typically, a prospective purchaser will go and ride the horse when it is with the vendor to see if they want to purchase. However, particularly since the Covid 19 pandemic, buying unseen is increasingly common.

In either case, we will want to be arguing that the rider voluntarily accepted the risk of injury. Riding is a risk sport. There have been numerous cases which confirmed that when one mounts a horse one is accepting the risks which come with all horses – the risk of falling, the risks relating to the fact that horses are, by nature, unpredictable (at least to some extent)[see, for example, McGregor v LMRS [2007] CSOH 153 from Scotland and MacClancy v Carenza [2007] EWHC 479 (QB)]. And it is less straightforward than the typical claim, because the owner of the horse at this point is the one who also suffers the injury.

This is why our conference early on is important. We want to know about the horse’s nature and how well it matched with the description in the advert and in any conversation or message with the purchaser. If our vendor has said, for example, that the horse is well behaved but can buck when excited, and the buyer falls off when the horse bucks on their first ride, then we would have a good argument for saying they voluntarily accepted the risk.

If, however, we have concealed the fact that the horse has a deathly fear of tractors, and on the first ride the purchaser meets a tractor, the horse spins and the rider is deposited on the road, then it will be more difficult, because the purchaser does not have knowledge of that particular risk (which is different to the general risks associated with getting on any horse).

We will also potentially be looking at whether the rider caused the problem themselves, or exposed themselves to the risk of injury. Bearing in mind a horse is typically unsettled after moving homes, we can be critical of a purchaser if they chose to ride the horse alone in open fields on their first day. That is where our expert evidence will come into play, to tell the court how circumstances can affect a horse’s temperament or behaviour.

In terms of fitness for purpose or being of satisfactory quality, our previous equine history will be key. If we can show that the horse was performing, was out competing or regularly being ridden, was handled by a child etc. then it is less likely that the Claimant will be able to establish that the horse was not fit for purpose.

You can therefore see how the three big requirements at the start of the case (conference, horse history and expert evidence) will be central to defending the claim.

Ultimately, there will be very few cases where we cannot successfully defend a case for personal injuries following the sale of the horse. The cases will be limited to those where there is a particularly violent trait which is not disclosed to the buyer, or where there is a medical condition which is similarly not disclosed  (although in the latter case there is still the argument that the buyer should have put the horse through a vetting to allow a veterinary professional to assess the horse to see if it is sound/fit to be ridden). And even in those more extreme cases, there will still be arguments regarding the buyer’s decision to ride, whether they ought to have been aware of the risk and whether the cause of the accident was indeed the misselling of the horse.

Our early preparation of these cases will be key to obtaining the best possible outcome.