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Volenti and Animals

If a horse rider foresees the risk of a horse bucking, but does not foresee the risk of violent bucking, does this defeat the defence of volenti as set out in section 5(2) of the Animals Act 1971 ('the Act')? No, as the Court of Appeal recently found in Goldsmith v Patchcott [2012] EWCA Civ 183.

G was interested in buying a horse that was being looked after by P. G rode the horse several times in P’s company, and then subsequently took the horse for a ride by herself. Something startled the horse causing it to rear up and buck violently. G was thrown to the ground, struck by the horse’s hoof and suffered severe facial injuries.

Section 2(2) of the Act imposes strict liability upon the keeper (subject to specified conditions) for damage caused by animals which do not belong to a dangerous species, and under section 5(2) of the Act a person is not liable under section 2 of this Act for any damage suffered by a person who has voluntarily accepted the risk thereof.

The trial judge made a number of findings: G was aware of the risk that the horse would rear and buck if startled or alarmed. Therefore, she had accepted the risk. Since rearing and bucking had caused the accident, P had a defence under section 5(2). It was immaterial that the horse had bucked more violently than G had anticipated. G appealed.

In considering how section 5(2) of the act operates, the CA came to the following view: If the claimant, knowing of the risk which subsequently eventuates, proceeds to engage with the animal, his or her claim under the Act will be defeated.

It is not a prerequisite of the s 5(2) defence that the claimant should foresee the precise degree of energy with which the animal will engage in its characteristic behaviour (which, in the case of horses, includes bucking when startled). Animals may act out of instinct or impulse and their precise behaviour cannot necessarily be predicted.

/ 1st Apr 2012


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