England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th March 2007

The Hon. Mr. Justice Openshaw :

1. On 29^th June 2003, Catherine MacClancy, then aged forty-five, fell from her horse and was injured when taking a 'drop down' obstacle in the course of a riding lesson, when under instruction from the defendant Jill Carenza at her Riding School in Stanton, Gloucestershire. She sustained very serious injuries to her head, with consequential brain damage, and disfiguring injuries to her face, which she quite understandably regards as life changing. She now claims damages, alleging that this terrible accident was caused by the defendant's negligence.
2. The defendant Jill Carenza is now aged fifty-five. A very long time ago, when she was seventeen, she qualified as a British Horse Society Assistant Instructor. For the last thirty-two years she has run her own yard. She now teaches for about thirty to thirty-five hours a week. It is plain from the statements from her loyal clients (to which I shall later refer) that she is generally held in very high regard as a riding instructor. She is herself a very experienced rider, having competed in eventing at an advanced level.
3. As well as having an indoor training school and an outdoor manege, she has an area of open country, which she calls 'the hill', set with obstacles to serve as a basic introduction to cross-country riding.
4. The claimant, Catherine MacClancy is now aged forty-eight. Before the accident, she was physically fit. She accepted the description, applied by Mr Lissack QC for the defendants, that she was 'sporty'; she enjoyed scuba-diving, skiing, and water skiing. She was someone who enjoyed a challenge. She had ridden as a child in the Pony Club, until about the age of twelve. As a teenager she has ridden a little on holiday. Later, when she was in her twenties, she played occasional informal polo chukkas – 'stick and ball' as she called it - riding highly schooled polo ponies, on flat ground. She described herself in her witness statement as 'a competent schooled rider rather than an experienced rider'. She stopped this aged about 30, having sustained some back injury.
5. In about 1998, when the claimant was about forty, she decided to take up riding again and over the next five years or so, she had lessons with the defendant about once a month. She found, as she said in evidence, that Jill Carenza had decent horses, that her teaching was good and that the premises were well run and well maintained. She had been a successful business woman; she considered herself to be 'entrepreneurial' – as she put it; she was highly competent, intelligent and self-assured; if she had found the defendant's establishment to be in any way sub-standard she would have said so and taken her custom elsewhere.
6. Under the defendant's guidance, the claimant's riding progressed. By the spring of 2003, she could walk, trot and canter; she decided that she wanted to learn how to jump, for she had in mind going hunting, the next season. What she hoped to do was to gain sufficient skills and experience to deal with those small hazards which are incidental to following hounds over the open countryside.
7. The claimant had about ten lessons with the defendants between March and April 2003. She successfully jumped three feet high fences in the indoor arena. She moved on to jumping outside on a flat field. She also went hacking, always escorted by someone else, either by friends or by some member of staff from the riding school. Then she had some lessons on the 'hill'. She had been taught the techniques involved in clearing a 'drop jump' in open country; this is a jump where the ground on the landing side is lower than on the approach side. She was told to lean back for the landing and to 'slip' – or loosen - the reins through the fingers, so that the horse could extend its neck ready for landing. The particular jump on which she practised is best shown in photograph 34 (divider 87). It is true that at this fence the approach to the jump was on the flat but she safely managed this jump on a number of occasions, without difficulty and without complaining of difficulty.
8. The same techniques apply to a 'drop down' ('step down'), which is an obstacle where there is a drop down from one level to another, without a jump or fence to get over first. A 'drop down' is technically easier than a 'drop jump'. All this was a sensible progression, as her skills gradually improved. Indeed the experts here agree that 'it is probable that the claimant had jumped sufficient jumps with a drop on the landing side to show that she was capable of negotiating drop jumps and/or step-downs and understood the riding principles involved'. They also agree that if the issue of the overhanging trees, branches or leaves is disregarded 'then the claimant should have been capable of jumping the drop down on the day of her accident without significant difficulty, it should have been within her capability'.
9. In spite of the number of her visits to the defendant's yard, the claimant remained nervous. She said so herself. Her friend Rose Folkes, herself an experienced rider, said that she looked uncomfortable on a horse. Jill Carenza's assessment was that the claimant was 'an intermediate rider, though rather nervous'.
10. I accept the expert evidence that nervous riders can become upset and flustered if suddenly presented with some unfamiliar situation or circumstance; I also accept that this can pre-dispose them to losing concentration, or to making a mistake. So an experienced and competent instructor must be aware of anything which might unexpectedly present such a challenge to a nervous rider; the instructor should foresee and guard against presenting such a rider with such a situation.
11. The defendant was, it seems to me, well aware of this general principle. Her sympathy with - and understanding of - nervous riders is a theme in some of the statements of her pupils, which I have read with care. This is certainly the impression which she gave to me as she gave her evidence.
12. Once in March 2003, the claimant was taken by Mrs. Carenza to another part of the 'hill'. This is important because it was on this precise route that her accident happened. The course is well shown in the photographs. There was a sequence of five fences. The first was a low post and rail fence (which one witness called a box-fence), followed by a low pile of logs, both were on the top of the hill (as shown on photographs 16 and 17). The route then leads down a gradual slope to another fence (as shown in photograph 8) but it has since fallen down and is now only a low log obstacle (as shown in photograph 20). Below that, the ground falls away more sharply, then levelling out for 6 to 8 yards before the drop down, which is in the archway or canopy of trees and branches, clearly shown in photograph 21. After the drop down, there is another low pile of logs 100 yards or so further on (just visible in photograph 25).
13. I accept the submission of Mr Lissack QC for the defendant that it is a very important point that back in March 2003, the claimant did go over this part of the course, seemingly without difficulty or complaint. Naturally, the defendants rely on this: for if she could do it safely in March, they argue that she could safely do it three months later in June. Miss Rodway QC for the claimant argues that the position in March was different; she says that then the claimant was engaged in one-to-one tuition; she says that she then approached the drop down at a very slow speed and she says that the condition of the over-hanging tree was different. All these points now need careful examination.
14. Let me turn then to the day of the accident: it was a Sunday. On the day before, the Saturday, the claimant had been riding at the defendant's with her friend, Rose Folkes. On the Sunday morning, they wanted to go again, this time to ride on the part of the cross-country route with the sequence of five fences, which I have already described. It follows that the claimant knew that she would have to negotiate the drop down, over which she had ridden in March; it must also follow that she was quite willing to do so and that she did not foresee that the drop down would present any particular difficulty. Indeed – as I have already said - the experts agree that, in the absence of the overhanging tree, she was quite capable of taking this drop down.
15. Because their request to ride on the Sunday was made at short notice, the defendant could only accommodate them if they shared a private lesson with another long-standing client of the defendant's, Mrs Lynn Chapman; to which arrangement they all agreed.
16. The horse which the claimant was riding, called Treacle, was a 12 year old mare, experienced at jumping and indeed at jumping this particular fence. She had a placid temperament. The experts agree that Treacle was entirely suitable for a person of the claimant's levels of skill to be riding on this particular part of the course. The claimant herself does not seek to argue otherwise. I need not mention this point again.
17. It may be convenient here to make the point that the horse at the withers (being the highest point on the back, lying just immediately to the front of the saddle) was measured at 16 hands (being 5 feet 4 inches or 160 cms) and a measurement of the claimant's seated position added a further 90 cms to that. The claimant mounted on this horse therefore stood 250 cms (or 8 feet 4 inches tall) when standing still; plainly extra clearance needs to be allowed when the horse is moving or jumping. The claimant was tall for a woman but scarcely taller than the average man's height and not so tall as to present some unusual risk.
18. At first, the lesson went well and there was no difficulty. At about half past ten they moved from one side of the hill to the other, to do the sequence of five jumps. There is some dispute as to the advice or instruction that the defendant then gave. As I have already said, the claimant accepts that she knew that the proper technique to adopt when negotiating a drop down was to lean back and slip the reins. She also accepts that the defendant did tell her to take the drop down slowly and that she understood that instruction.
19. Complaint is made by the claimant that no specific instruction was given that the appearance of the canopy of trees and branches over the drop down would appear differently in full summer foliage than it had done in March, when the trees were bare. It is not suggested that the claimant needed instruction in the effects of the passing seasons but – it is said – she should have been told that there was a low branch, which might appear to be a hazard but that despite appearances she could in fact safely pass underneath it.
20. The claimant says that if she had been told about the branch or if she had been given the chance of walking the course herself, she would have been prepared for it and would not have been suddenly disconcerted; indeed she says that she would – or at least may – have decided to miss the jump out altogether. I very much doubt that she would have pulled out, since the whole point and purpose of them going over to this side of the hill was to go through this sequence of fences.
21. Mrs Jane Goldsmith, the expert called by the claimants is a Fellow of the BHS; this is a most distinguished position in the equestrian world. She has much teaching experience and is well familiar with the problems presented by nervous pupils. She has twice visited the scene. She thought that the overhanging branches, and more particularly the hanging leaves, were sufficiently low to be hazardous to the rider, particularly if the rider had to jump. She made the point, which I accept, that very often jumps may appear to an inexperienced and nervous rider to be more frightening than they really are. She said that she could readily understand that such a rider coming downhill may think that she would need to take some action to avoid the leaves and she would expect a competent instructor to make clear that, in fact, all was well.
22. Mr Lane was the very experienced expert rider and instructor called by the defendants, he is a current member of the British Eventing Rules committee and a former manager of the British Three-day Event Team. His opinion was that the branches presented no danger or hazard even to a nervous rider and that therefore no warning was necessary.
23. Everything therefore turns on the state of the branches on this particular day and their appearance to a nervous rider of the claimant's experience and whether any warning about it should have been given.
24. Mrs. Carenza herself was un-mounted throughout; she drove round by car. No criticism is made of that, indeed Mrs Goldsmith thought that it was better being dismounted. As the riders came to do this sequence of jumps, the defendant drove her car round to the logs, being the last the five jumps in this sequence. I will return to this point later
25. Some criticism was once made of the order in which the defendant told the riders to proceed, which was Lynn Chapman to lead, followed by the claimant, followed by Rose Folkes. It was earlier argued that since the claimant was the least experienced, she should have gone first, so as to eliminate the chance that her horse might dash after the others and, in consequence, approach the fences in general - and the drop down in particular - too fast. In my judgment, the decision to ask Lynn Chapman to go first was entirely reasonable, since she was an experienced rider, she knew the course and she could lead the way so that the claimant could follow her example. Furthermore, she was in the best position to moderate the pace, for the others would take their pace from hers, which was naturally slow. Thus it was reasonable for Lynn Chapman to go first. There can be no possible criticism of the decision to put the claimant second and Rose Folkes at the back. This was the formation in which they approached the sequence of fences. I record that Mrs Goldsmith has now conceded that the order in which they approached the drop down had no bearing at all on the accident.
26. I now turn to the eye-witness evidence. It is convenient to start with Lynn Chapman, because she was leading the group. Although she was experienced, she was herself nervous and lacking in confidence, particularly when riding downhill. As she crossed the log pile at the top of the hill (photograph 19), she sensed that the other two were closing in upon her; she did not want her or her horse to feel under this pressure as she went downhill, with the drop down at the bottom, so – very sensibly – she stopped and turned her horse sideways, so as to suggest to the others that they should stop also. This happened, as I find, only 30 yards or so from the drop down.
27. I accept the evidence of Lynn Chapman that, during that stop, she explained that she had been concerned with their speed at the downhill section which they had just covered; accordingly, she reminded the others that the defendant had told them only to trot slowly or to walk on their approach to the drop down. Mrs Chapman also asked them to wait until she had crossed the fence before starting off themselves. This was tacitly agreed. Lynn Chapman set off. She walked down the incline, and as it flattened out, she went into trot for a few paces only before stepping into and over the drop down. After the drop down, she went into a collected trot (by which the rider restrains the horse by tightening the reins, thereby reducing the speed) and she moved towards the next piles of logs. She heard Jill Carenza shout 'Slow down'; she knew the shout could not have been directed at her, so she inferred – correctly as it turned out - that she was shouting at Rose Folkes. She turned round and saw the claimant fall, although she said she could not see what caused her to go down. It all happened in a split second, she said.
28. My attention has been drawn to a passage in the witness statement of Lynn Chapman (it is in the bundle at divider 30, page 177, paragraph 11); I shall read it in full: 'Contrary to Rosie's [that is Mrs Folkes's] statement, I did not hit my head on the branch, nor was I afraid that I might. I had done the jump before and had never hit my head. I can understand how, looking from above, the branch may seem to be lower than it is and someone who had never jumped the jump before might think from a distance that they were going to hit it, particularly if they were going fast. However, it becomes apparent as one reaches the jump that the branch is not in the way'.
29. Each side relies on this passage. The claimant says that it supports her contention that a nervous rider unfamiliar with the course, might think that she might strike the branch, and – in her inexperience – panic or be flustered and be unseated. Therefore, she says that she should specifically have been warned against this danger or at least of the appearance of an apparent danger. The defendant says that none of these pre-conditions apply: the claimant had been round the course before; the claimant was not approaching fast and as one approaches closer to the fence, it is clear that there is in fact no risk at all of hitting one's head on the branch.
30. I should perhaps also refer to paragraph 20 of her witness statement (page 103): 'Although there is a branch which the rider would be aware of, it does not impede the rider's progress.
31. Lyn Chapman said in terms that she has jumped this fence on several occasions, both alone and accompanied she said that she had never had any problem with leaves or branches. Nor had she been aware of any other person having a problem. She also said that she hit no part of any tree. Quite simply, she said, the trees do not impede the rider's progress.
32. She was an impressive witness; I found her to be sensible and reliable; I accept her evidence in its entirety. In particular I find as a fact that she did not hit a branch at all nor did any branch impede her progress, nor did she think that it might do so, on this or on any other occasion that she had jumped this fence.
33. I turn to Rose Folkes. She saw Lynn Chapman set off down the hill towards the jump at what she described as a 'sensible' trot; she did not see Lynn Chapman take the fence. As she waited for Lynn Chapman to clear the fence below her, Rose Folkes felt that her horse was anxious to be away; it was pulling; thinking that she might not be able to hold the horse any longer, she asked Catherine MacClancy if she would mind if she went next. The claimant had no objection. So Rose Folkes set off at what she called a fast trot; this was no doubt a pace at which she could go safely herself.
34. This is the note which I took of the next part of Rose Folkes's evidence: 'I noticed the tree. The foliage was shaking dramatically; not shimmering as in a breeze but it was moving. It was low. I felt as if I didn't duck I would hit the foliage, which I did. I was firmly sitting in the saddle, as I approached the branch I crouched, and then leant back when under the branch. I felt the foliage rub against the back of my clothing. I had a great sigh of relief; my blood was really racing. I felt I was in danger.' She explained that the movement or agitation of the tree must have resulted from some impact that Lynn Chapman had had with it.
35. Although she has been consistent in this, I have some difficulty with this evidence. First, if – as I find – Lynn Chapman did not hit the trees or branches at all, it is difficult to explain this movement or agitation of the tree. In any event, branches swept aside tend to spring back to position and not be in a state of continued movement. Furthermore, the feeling of danger felt by Rose Folkes and her relief at the safe passage through this simple drop down is entirely at variance with her great experience as a cross country rider and a follower of the Limerick hunt – not noted for their timidity – and the total failure of Lynn Chapman, herself a nervous rider, to have any sense of danger or even unease at passing over the same fence. This point has an added force when I turn – as I do later – briefly to review the evidence of the many other riders who have themselves felt quite safe when crossing this drop down. Although I am not prepared to find that Rose Folkes has lied, I do find that – in her anxiety to do her best for her friend – she has found in retrospect dangers, which were not real or even apparent at the time.
36. She then galloped off towards the last fence. The defendant thought that she was going too fast and called out to her to slow down. This, incidentally, plainly shows that the defendant was paying attention and was quick to identify and to reduce any risks. It was whilst her attention was briefly distracted by this incident that the claimant had approached the fence and fallen. Thus the defendant did not see what happened and neither did the claimant's friend Rose Folkes.
37. I turn to the claimant. She remembered stopping on the slope. She remembered Lynn Chapman saying that she would go first. She said that she did not remember Lynn Chapman reminding her that the defendant had told them to go slowly, which I am sure she did. She also remembers circling her horse before setting off the thirty odd yards before the jump.
38. The claimant gave an account in cross-examination of her approach to the fence. She said that her horse was – as she put it – 'raring' to go. She set off; the pace picked up. She said that she had difficulty in keeping the horse in check. She was going forward at a fast trot, but no one now suggests that this was an inappropriate speed. This is not what she has previously said in answer to the Part 18 request, where she stated that she approached the obstacle at a fast canter; she seeks to attribute this difference of account to her head injury. There does seem to me to be a significant difference between approaching such an obstacle oneself at a fast trot and a fast canter; it does not inspire confidence in her recollection.
39. This then is her account of what happened next, it was given in the course of her examination-in-chief: 'The next few seconds are glaringly clear. I felt the horse wanted to go faster. I was not too concerned. Then I saw the branch; I thought that if I leant back, as I had been told, the branch would have caught me in the throat. I tried to lean back and to drop my head, hoping that the branch would go over my head. By the time I realised that there was a branch, I was only two horse paces out. It was then too late to run out'.
40. She did not remember the actual fall but immediately after the accident she thought that she had hit a branch; she said so to the air ambulance crew and upon reception into hospital (as the contemporaneous notes of both confirm). Although she at first thought that the damage was done by direct impact with the branch, so severe were the fractures that it would seem that the horse must have kicked her or stepped upon her. I do however note that she has sought to blame the branch for her fall right from the beginning.
41. I will consider this evidence after I have reviewed the photographs.
42. As I have already said, the defendant was momentarily distracted by telling Rose Folkes to slow down, she therefore did not see the claimant approaching the drop down, nor did she see her fall. Her evidence therefore does not help as to what caused the claimant to fall.
43. I turn then to the photographs. I am well aware that photographs can be misleading: there is a danger of drawing wrong conclusions from the effects of 'foreshortening' or apparent distortion. I am also aware of the particular dangers of concentrating on one photograph to the exclusion of all others. Miss Rodway has sought to warn me against the dangers of finding that the scene as on the day of the accident was the same as is depicted in the later photographs: she says that branches grow; of course, they do but the appearance of a mature ash tree – as this seems to me to be - will not alter much in the course of a year or two, let alone a month or two. She says that branches may be shed, again this does occasionally happen particularly in aged, diseased or storm damaged trees, but there is no evidence here of any of these conditions. She says that trees can be interfered with, I think she means vandalised by passing walkers (a public footpath passes nearby); again, there is no reason to think that there has been any damage to the tree at all. The defendant herself says that she has done nothing to the tree: I accept this as a fact.
44. I approach the photographs with all these caveats in mind but – to my mind – they really are the most important evidence in the case on the critical issue of whether the branches of this tree were – or could have been thought to be – a hazard.
45. The first group of photographs (in divider 85) were taken by the claimant and her friend Rose Folkes went they went back on 4^th September 2003, that is to say just a little more than two months after the accident. The claimant says that this visit was not made for the purposes of evidence gathering; it was more in the nature of an emotional return to visit the scene of this terrible accident, which she knew had changed the course of her life. It seems a little strange if that is so that she took a camera to record the scene, particularly with the bar in different positions, but nothing turns on her motives for this visit.
46. I think therefore that these photographs are the best evidence of the appearance of the fence as at the day of the accident. But they are close-ups only, they do not show the approach to the fence.
47. Since neither the claimant, nor her friend Rose Folkes remembers whether the cross-bar on the obstacle was up or down, it is important to note that these photographs show that the cross-bar was down on 4^th September (as shown in photographs 2, 3, and 6). It was the claimant who re-placed the cross-bar during the visit that day (see photographs 1, 4 and 5), because she could not remember whether it had been up or down on the day and wanted photographs of the bar in each position.
48. The defendant herself says that the cross-bar had been down for years. I, therefore, confidently find as a fact that the cross-bar was down on the day of the accident.
49. The result of this is that this obstacle is not a ' drop jump' at all but only a 'drop down' – as I have called it throughout this judgment- with a drop measured at somewhere around 2 feet 8 inches (80 – 85 cms). The significance of this is that a horse did not need to jump up to negotiate the obstacle at all: there was no need to gain any extra elevation. If the horse had to jump at all, which I doubt, it would only be a couple of inches.
50. I move on to the other photographs. They fall into two groups. Mr Lane, the expert retained by the defendants visited the site in June 2004,, when the conditions of vegetation and foliage would be the same. The photographer with him took the photographs 7 – 15 (in divider 86) and photographs 110 – 113 (in divider 93). (I observe in passing that if it ever becomes necessary to review this judgment, it is very important that decent copies of these photographs are used; at first we were supplied with very poor quality copies, where these points are not so clear.)
51. The other photographs (in divider 87) were taken in the course of the joint inspection in September 2006 (some of these photographs have no relevance to the real issues in the case).
52. I find the close up shots difficult to interpret. It is here that the dangers of 'fore-shortening' and distortion are the greatest. I here refer to the photographs taken by the claimant herself: that is to say photographs 1 to 6; those of the joint site visit at: 26, 27, 37 and 38; and Mr Lane's photograph 112; I have found it impossible to fix the height of the branches by reference to any of these photographs but I am quite sure that Jane Goldsmith is wrong when she says that the claimant is touching the branch in photograph 37, the claimant herself said that the branch shown was fully four feet behind her.
53. I find the distance shots much more helpful: I refer to Mr Lane's photographs: 8, 9, 10 and – most importantly – 113 and to 20, 21 and 22 taken on the joint inspection (which photographs seem to have been taken from the same spot, possibly with a different focal length) and 25.
54. Rose Folkes was shown all these photographs. She was unable to identify any shot which showed the offending branch. The claimant however did mark the branch which she alleges presented the danger to her; she marked it with an arrow on photographs 3 and 4.
55. In determining the question whether these branches really did present a foreseeable risk of danger to a rider of her experience and nervousness approaching this drop down, I have found it particularly helpful to consider the sequence of photographs approaching the fence.
56. I start with 21 (which I have chosen rather than 20 or 22, which show the same view with less magnification): the canopy of trees and branches is clearly seen and – to my mind -presents no danger or apparent danger at all. The same view is shown in photograph 8, which was taken only a year after the accident: and again – to my mind – it presents no danger or apparent danger at all.
57. The next shot is 25; the scale of the figures makes clear that the trees are in fact well above the rider's head but – taken in isolation - it could perhaps cause a moment's anxiety to anyone approaching at speed. It was perhaps this view which Lynn Chapman had in mind when she wrote the passage in her witness statement, to which I have already referred. I interpose that the claimant was not approaching at speed and had specifically been told to approach slowly.
58. The next photograph in the sequence of shots approaching the fence is Mr Lane's photograph 9. Lastly there is his picture 113, which shows Mr Lane riding Treacle (the horse which the claimant was riding that day) over the drop down. These photographs seem to me to be the most important in the case. It seems to me that the trees are so far above him – and would have been so far above the claimant - as to present neither danger nor the appearance of danger to her. This impression is strongly supported by the evidence of Mr Lane himself, who says (paragraph 18 (d) (ii)): '[his] own experience of riding Treacle over the drop down is that the branch above and in front of the drop is irrelevant. Even a tall rider on Treacle fits underneath it easily, without ducking or taking any other evasive action'. In my judgment the photograph bear out this opinion, which I therefore prefer to the opinion of Mrs Goldsmith to which I have already referred.
59. The result of this analysis is that there simply wasn't any branch low enough to have caught the claimant in the throat. Nor is there any branch which she could possibly have thought could have caught her in the throat, or anywhere else for that matter. Still less was there any branch which anyone could have foreseen that she could have thought could have caught her. Accordingly, I simply do not accept her evidence on this point. Again I do not positively find that she was lying; there may be an element of confabulation but whatever the reason for her giving evidence in these terms, I reject it. That really is the end of her case.
60. Furthermore, the defendant says – and I accept as a fact - that this drop down and the canopy of trees above it has been in this condition for years. It has been successfully negotiated by literally hundreds of riders; as the defendant says, many riders have been taller than the claimant and riding larger horses than Treacle. No one has previously been injured. No one has previously complained about it.
61. I have read with care the numerous witness statements of others who have been taught by the defendant, many of whom are of a similar age to the claimant, some with similar riding experience to the claimant and some with similar degrees of nervousness. It is true that we do not know at what time of the year they negotiated the course but it is idle to think that they rode only in winter when the trees were bare. It is surely relevant that so many riders did not themselves perceive the slightest danger in the drop down; they are not here giving their own expert evidence, they are merely stating their own perceptions that this fence was completely safe; this is admissible and – as I find – helpful.
62. Miss Rodway says in answer to this that it is rare indeed for a defendant in a case of professional negligence to have other than an unimpeachable safety record. I do not entirely accept this, for it is common for defendants to have a history pleaded against them of other accidents and complaints.
63. Of course a long usage without accident is not decisive, but the use of this drop down without accident or complaint by many of the cautious and careful riders who have used this course over the years is a factor which strongly supports the view to which I have come that this fence and the over-hanging canopy of trees and branches was not dangerous nor was it foreseeable that anyone would perceive it as dangerous.
64. I should deal with the other complaints which are made against the defendant.
65. I have already dealt with the order in which they rode, which I have already found was nothing whatsoever to do with the accident. In any event it was changed by the claimant and Rose Folkes themselves without reference to the defendant.
66. Perhaps relying on the claimant's own evidence that she approached the drop down at a 'fast canter', it was once said that the defendant allowed the claimant to approach too fast but now that the claimant says that she approached only at a fast trot, the experts agree that the speed of the approach has nothing to do with the accident either.
67. I accept that the condition of this fence (and other fences) as shown in the photographs is not satisfactory. The cross-bars were down and there was an unguarded upright or the stump of the post standing a foot or eighteen inches high, which was a hazard. It should have been removed. I might add that the English countryside is not carefully manicured so as to be free from hazards; the course would hardly be a preparation for hunting if it was. Furthermore, this stump played no part in the causation of this accident. I need no mention this point further, there is nothing in it.
68. It is said that the track approaching the drop down on the one side and leading away from it on the other was worn and that some small stones were exposed. It is said that it might have been slippery. Stones are a common feature of well worn paths. It was a dry, fine and sunny summer's morning. The claimant has never said that the horse slipped or stumbled. The state of the track was not dangerous; it had nothing to do with the accident. I reject this criticism also.
69. Mrs Goldsmith said that it is good practice, recommended by the BHS, that before each days riding, the course should be inspected. In competitions no doubt this should be done. However the fact is here that nothing at this drop down had changed from one day to the next, from one month to the next nor indeed from one year to the next. A walking inspection would have shown nothing that was not already well known. A daily inspection here would have achieved nothing and the decision not to inspect the course that morning was entirely justified and had nothing whatsoever to do with the accident. I reject this criticism.
70. I turn to the position taken by the defendant. I have already said that the defendant drove round to the last of the five jumps and parked there, where she got out of the car and walked over towards the drop down. She once guessed that she was 150 yards away from the drop down but in fact the next fence is only 105 yards off. She later paced out the distance and found that she was standing only 36 yards away. She says that without measurement, she is a bad judge of distance.
71. It is said that she was too far away to see what was happening or to exercise any effective control over what was going on. Since these jumps were to be taken in sequence, it seems to me to be entirely sensible to be at the end of that sequence. Photograph 1 gives some general idea of the view that she must have had (although she was standing to the photographer's right). In fact, as appears, she was able to intervene to give advice to Rose Folkes, just as soon as she left the drop down. It is said that if she had been closer she might have been able to do more to stop the accident but since there is now no criticism of the speed of approach, or the order of the riders, it is difficult to see what she could have done. Mrs Goldsmith says that the instructor could have told her to 'sit up'. But the expert evidence is that useful advice can be given before and after a ride but that advice given during a ride is unlikely to be heard and less likely to be heeded. By the time that such an observation could have been made, it was far too late to correct any error.
72. In my judgment, where the defendant stood was perfectly sensible. It was not negligent to stand there. It would have made no difference if she stood on the approach to the jump. I reject any criticism of the defendant's position; it had nothing at all to do with this accident.
73. Complaint is made that the defendant did not properly complete the accident book. At least if she did, it has not been kept, as it should have been. There is a scrappy note in her diary for that day (at page 619); that is no substitute for a proper record. Furthermore she did not notify the Health and Safety Executive of this accident until 1^st September 2004, nearly 15 months after the accident and then in terms which did not properly describe what had happened nor did it alert them to the gravity of the injuries (the accident notification is at page 549). These are serious failings: accidents must be promptly reported so that can, if necessary, be investigated.
74. A failure to keep proper records is sometimes an indication that a defendant has a cavalier approach to matters of health and safety but here, these failures –as I find them to be – do not in fact help to determine whether the drop down and the over-hanging branch was dangerous.
75. Riding, particularly riding in open country, is not risk free. Of course, an instructor must take steps to reduce the risk to what is reasonable and acceptable; I find that the defendant had done just that. I am acutely aware of the dreadful effect that this accident has had upon the claimant but I find that it was just that: an accident. Riders do sometimes fall from horses, even during riding lessons, it does not follow that the reason for their fall can always be identified, still less that the riding instructor is to blame. Quite why the claimant fell I cannot say; she must have made some mistake or error of judgment and as a result lost her balance and fallen. For the reasons which I have already given, I am quite sure there was no dangerous over-hanging branch, nor any branch which could have foreseeably led to the perception of danger, nor any foreseeable risk of danger against which she should have been warned. Nor was the accident caused by any other negligent act of the defendant. I regret therefore that this claim therefore must fail.
76. The parties have helpfully agreed many of the heads of damage, subject to liability. General damages are agreed at £48,000 (with interest to be agreed); past care at £6,000, the loss of a modelling contract at £2,000; travel costs at £3,000; miscellaneous loss at £8,000; her contribution to BUPA at £13,866; with interest on past losses to be agreed and future loss at £5000.
77. I must, however, briefly deal with the heads of damage which remain unagreed. I can do so very shortly. I accept that the claimant had it in mind to extend the leasehold on Rosary Gardens and had she managed to do so, she would have obtained something of substantial value. She had put the matter in the hands of agents before the accident. She said that proceeding with this application required a degree of mental agility, which she then just did not have; after the accident she was looking for what she called a stress free life. As a result she sold the remainder of the lease off to another tenant. There is – to my mind – no reason why she could not have instructed the agents to proceed with the matter, which required nothing more than her approval as and when the deal was done and payment on the due date, which she could easily have afforded. I am entirely unpersuaded that she has proved that the accident caused this loss, if loss it be. It was her own decision not to pursue the matter: that would not have been the responsibility of the defendant, even if she had been liable for the accident.
78. It is further claimed that in the aftermath of her accident her ability to engage in various commercial enterprises was diminished. In fact before the accident, she was not gainfully employed. She was in relationship with a man, who preferred her not to work and was prepared to finance their lifestyle on that basis. She had in the past had various commercial interests, principally a jewellery business but she had wound this down and had sold off her stock. If she had not had the accident, I think it in the highest degree unlikely that she would have pursued other commercial interests. I also note the way in which this head of damage appears to have altered three times in three months, without any change in circumstance. This is less than convincing; I am not satisfied that she has lost anything of value and this part of the claim also would have failed.
79. Indeed the unfavourable impression which the claimant made when presenting this part of her claim rather confirms the view about the unreliability of her evidence which I had formed upon the other grounds to which I have already referred.