Scottish Court of Session Decisions

[1] In October 1995 the pursuer, then aged fifty-five, was on holiday with friends at Port Charlotte on the Isle of Islay. Her adult companions were a Mr and Mrs King, then in their early sixties, and a Mr and Mrs Twist, then in their thirties. Also in the party was the Twists' son, Benjamin, then aged four.

[2] The defenders, who are husband and wife, had for some years prior to 1995 owned and lived at Rockside, by Kilchoman, near the west coast of Islay. The principal activity carried on by them there was farming; but in or about 1990 they had diversified to include at Rockside a riding and pony trekking establishment. The second named defender, Mrs French, managed that establishment. As at 1995 it was an establishment approved by the British Horse Society and inspected annually by it. Mrs French was also a member of the Trekking and Riding Society of Scotland. The establishment was licensed by the local authority under the Riding Establishments Acts 1964 and 1970. Mrs French was an experienced horsewoman. She had held since about 1980 the Assistant Instructor's Qualification issued by the British Horse Society.

[3] On 26 October 1995 Mrs Twist suggested that some of the members of the party staying at Port Charlotte might on the following day go pony trekking at Rockside. Mrs Twist had pony trekked on two occasions before. Mr and Mrs King, who had done so on some three or four occasions though many years earlier, agreed to join her. The pursuer, who had never ridden before, was somewhat hesitant but agreed nonetheless to join the party. Arrangements were made that day, probably by a telephone call by Mrs Twist to Rockside, for those four adults to go out on a one hour pony trek the following morning. It was also arranged that the child Benjamin be given a separate pony ride. His father was to accompany him on foot. At the time those arrangements were made general information was passed to the management at Rockside as to the degree of experience of the four adults in pony trekking. They were all regarded, properly, as beginners.

[4] On the following morning the party from Port Charlotte duly arrived at Rockside. They were greeted by Catriona MacLugash, an assistant employed by Mrs French, who had been appointed by her to escort this pony trek. Miss MacLugash was then twenty years of age. She had, as a child, received riding instruction from Mrs French at Rockside and had often ridden there. When she left school at eighteen she had obtained employment at Rockside. Initially she had acted on treks as an assistant to a more experienced escort but from the beginning of the 1995 trekking season, in about April of that year, had taken out treks as the escort in charge. By October she had probably taken out more than 100 treks in that capacity. Mrs French thought highly of her competence and of her sense of responsibility. Miss MacLugash was, as at October 1995, preparing to undergo assessment with a view to obtaining an Assistant Ride Leader's Certificate issued by the Trekking and Riding Society of Scotland. About three weeks after 27 October she attended a course for that purpose on the mainland of Scotland. She was there assessed as suitably qualified to obtain that certificate, subject only to obtaining a British Horse Society Riding and Road Safety Certificate. The latter, which was essentially concerned with competence in managing horses and riders on trafficked roads, she obtained in the following March.

[5] In anticipation of the party's arrival six ponies had been brought in from the field. These had been selected on the basis of the information provided when the arrangements were made the previous day. On one the child Benjamin was to have his pony ride. Four were for the adults who were to go as customers on the pony trek. The sixth was for Miss MacLugash to ride as escort. Mrs French was to lead on foot the pony on which Benjamin was to be mounted.

[6] After the four adult customers had been issued with riding hats they were taken into the yard in which the ponies were tied. The pursuer at about this stage emphasised to Miss MacLugash that she had never ridden before and wished to have a very docile mount. A pony called "Mull" was allocated to her by Miss MacLugash who advised the pursuer, as was the case, that Mull was regularly used as a mount for handicapped persons. The four adult customers were then mounted and after certain preliminaries, which it is unnecessary in the circumstances to discuss, the pony trek set off in single file with Miss MacLugash riding in front. The pursuer's mount was third in the line of five.

[7] After the trek had proceeded at a walking pace over various terrains for about 40-45 minutes, it entered a field, part of Rockside Farm. Having passed along the top or southmost side of that field, it then turned left and began to make its way northwards along the eastmost side of the field at a distance of some yards from the eastmost boundary. Initially the terrain was quite flat but thereafter became a relatively gentle downward slope. Some distance down that slope an incident occurred which resulted in the pursuer coming off her pony and sustaining a serious injury to her right shoulder. In this action she sues the defenders for damages in respect of the consequences of that incident. The grounds of action include one of vicarious liability for alleged negligence on the part of Miss MacLugash. As will appear, certain other grounds of action, either initially pled or subsequently introduced by amendment, were by the conclusion of the proof no longer live issues. The principal issue for determination on the merits of the action is whether Miss MacLugash failed to take reasonable care to prevent the pursuer's mount, Mull, becoming detached from the mounts in front with the result that it suddenly "took off" to catch up. A related issue is whether, if there was such failure, it caused the pursuer to fall off and sustain injury.

[8] The resolution of those issues turns largely on a determination of what happened as the trek made its way down the field. On that matter there was a sharp conflict of evidence between Miss MacLugash on the one hand and, in broad terms, the four customers, including the pursuer, on the other.

[9] Miss MacLugash's account was essentially as follows. Prior to the ponies commencing to negotiate the downward slope she had told the riders that, as they proceeded down, they should lean back, hold on to the front of the saddle if they needed to and hold on to the reins. The ponies then proceeded, essentially in line and almost nose to tail, down the slope. The pursuer's pony was directly and very closely behind that ridden by Mrs King. Miss MacLugash was riding immediately in front of Mrs King. As the trek so proceeded Miss MacLugash kept the mounts and riders under observation. At one point she noticed that the pursuer was not leaning back and told her to do so. The pursuer did not do so. Mull then "took a couple of strides of trot" at which the pursuer called out and slid over Mull's shoulder to the ground. Her (Miss MacLugash's) pony was still moving forwards when Mull so acted but she stopped immediately and had herself dismounted almost before the pursuer hit the ground.

[10] Mrs King's account was essentially as follows. As she was proceeding down the slope Miss MacLugash, who was immediately ahead of her, stopped and said to her that they should wait until the others caught up. Mrs King stopped and on looking back saw that the others were coming down the slope some distance behind (I shall return to her estimate of that distance) still in the same general order as previously but slightly spread out sideways. As she waited for the others she exchanged a word or two with Miss MacLugash, Mrs King having by this time returned her gaze generally to a forward direction. She then suddenly heard the pursuer cry out in alarm and became aware, as she turned her head, of the pursuer's pony, with the pursuer clinging to it, passing at speed behind her (Mrs King) at an angle between the downward direction of the sloping field and its right hand (eastmost) side. The pony travelled some distance at that angle before stopping abruptly near the side of the field, at which point the pursuer fell to the ground. Mrs King heard no instruction given by Miss MacLugash to the pursuer to "sit back" or the like.

[11] The pursuer's account was essentially as follows. As the group proceeded down the field the ponies were no longer directly in line. After she had gone some way she noticed that Miss MacLugash had stopped some distance ahead of her. She did not hear any instruction to sit back given. Suddenly her pony "shot off". She was in a panic and shouted out. The pony kept going at speed for some way with the pursuer still on it. She thought she had tried, as an automatic reaction, to pull the reins back but that did not seem to work. The pony ended up near the side of the field where it suddenly stopped and she was thrown off.

[12] Mr King and Mrs Twist were riding behind the pursuer. There was a dispute in the evidence as to which of Mr King and Mrs Twist was immediately after the pursuer and which was last (all four customers maintaining that Mrs Twist was last, Miss MacLugash being to the contrary). I find it unnecessary to resolve that dispute. Mr King's account was that, as he was negotiating the slope closely behind the pursuer, he became aware that his wife and Miss MacLugash had stopped some distance ahead of the pursuer's pony. As he, the pursuer and Mrs Twist were making their way down and closing the gap, the pursuer's pony suddenly gave a little kick with its hind legs and set off at speed at an angle down the slope ending up towards the edge of the field some distance to the right of Mrs King, where the pursuer fell from it. He had no recollection of Miss MacLugash instructing the pursuer, or anyone else, to "sit back".

[13] Mrs Twist testified that as she proceeded down the slope, concentrating on her own pony's movements, she suddenly heard the pursuer cry out. She looked up and saw the pursuer's pony moving at speed downhill and towards the right with the pursuer clinging on. It went some distance before the pursuer fell from it to the ground.

[14] So far as concerns the general sequence of events in the field where the accident occurred, I prefer the account given by the four customers to that given by Miss MacLugash. The narratives of the former were broadly consistent with each other and were convincing. Mr Brodie on behalf of the defenders did not challenge their credibility, being content to put their reliability in issue. In finding them generally both credible and reliable, I take into account their whole evidence in this case, which covered a much broader range of events than that immediately related to the accident itself. I found nothing in the demeanour of any of them in the witness box to give me any material doubts concerning that assessment, though on some matters (particularly assessments of distances to which I shall come) I found some more reliable than others. I took into account the possibility that mutual reminiscing since the accident might have led to some distortion of true recall but concluded that this was not in the circumstances a serious risk. Although Mrs Twist shares a house with the pursuer, the Kings live in a quite different part of England. The latter have been on further holidays with the pursuer since the accident and have met otherwise, though not frequently. The broad consistency, although with occasional discrepancies among them, seemed to me more to reflect sufficiently reliable recall than the unconscious product of mutual recounting.

[15] Miss MacLugash is a personable young woman but I did not find her version of events convincing, not only because of the conflict with all the other witnesses present at the time of the incident but also because of the manner in which she gave her account in the witness box. She seemed at the same time slightly nervous and yet overly definite about particular matters. While I have no reason to doubt her general honesty I had the strong impression that her narrative of events immediately surrounding the accident was a construct of what she conceived might have happened on a well managed trek rather than a reliable account of what in fact occurred on this occasion. It also appeared in some respects to be inherently improbable. If, as she testified, the pursuer's pony had throughout been very closely behind that ridden by Mrs King and had taken only "a couple of strides of trot" forward, it is unlikely that the pursuer would have fallen off. Miss MacLugash's account is not supported by any other testimony. Although Mrs French spoke of being told by Miss MacLugash what had happened, full detail of that account was not given in evidence nor was it clear when it had been given extrajudicially to Mrs French. Mrs French completed an incident form shortly after the accident but that form was not produced in evidence. In these circumstances no material support for Miss MacLugash's account is available from any extrajudicial statement made by her.

[16] I accordingly reject her account of the material events and find that the accident happened after a gap appreciably larger than a pony length had been allowed to open up between the pony ridden by Mrs King and that ridden by the pursuer. Miss MacLugash, having come to realise that an unacceptable gap had so opened, stopped her pony telling Mrs King who was immediately behind her that they should wait for the others to catch up. As the gap began to narrow but while it remained appreciable the pursuer's mount, probably anxious to catch up with the ponies ahead, broke into a fast trot unbalancing the pursuer and causing her to cry out in alarm. The pony continued to move at speed for some distance at an angle down and across the field, that direction possibly being influenced by the pursuer in a state of panic and imbalance pulling more on the right than on the left rein. As the pony came upon obstructions towards the edge of field it stopped suddenly casting the pursuer to its right side onto the ground where she sustained injury to her right shoulder. I reject the account that Mull, while following closely behind Mrs King's pony, took "a couple of strides of trot" forward to regain its balance.

[17] It is difficult on the evidence to reach a confident view as to precisely how large a gap was allowed to open between the pursuer's pony and the pony in front and as to precisely how large the gap was when the pursuer's pony "took off". Inevitably the estimates given in evidence were vague. They were not always consistent. Events occurred suddenly and were, on any view, over very quickly. No measurements were taken nor could readily have been taken. Estimates of distances in an open field made by reference to distances in the courtroom (as the witnesses were invited to make) are liable to distortion. Of the four customers Mrs King, whom I found in general to be both credible and reliable, may have been best positioned to form an impression of the relevant distances. She had, as I have found, stopped her pony on Miss MacLugash's instruction to allow the others to catch up. She had then looked back and observed the pursuer, Mr King and Mrs Twist making their way down the slope. Although she was looking away when the pursuer's pony "took off", she had some impression by sound and sight of what occurred immediately thereafter. Although there are a number of differences of detail among them, Mrs King's estimate of distances is broadly consistent with that of the pursuer and of Mrs Twist. The evidence of Mr King on matters of distance was, in my view, less satisfactory. I prefer on those matters the evidence of the three female customers.

[18] Making the best that I can of the acceptable evidence, I am satisfied that by the time Mrs King stopped her pony the pursuer's pony had fallen a substantial distance, probably in excess of 36 feet, behind. I am also satisfied that when the pursuer's pony "took off", although that gap had narrowed to some extent, it remained appreciable, probably still in excess of three pony lengths, a pony length being about 7-8 feet.

[19] On these findings there is, on the basis of the expert and other evidence, no real dispute but that Miss MacLugash as escort failed to take due care for the safety of the pursuer. It is accepted on all hands that one thing that can be predicted about ponies, including generally docile animals used for disabled riders, is that their behaviour is to a degree unpredictable. In particular, if on a trek an appreciable gap is allowed to open up between a pony and the pony ahead of it, the former is liable, in accordance with its herding instinct, suddenly to attempt to catch up. This may involve it breaking from a walk into a trot or faster gait. In such circumstances an inexperienced rider is unlikely to be able effectively to control the pony and may well, if this continues for an appreciable distance, lose his or her balance and come off sustaining injury. It is accordingly a cardinal aspect of the responsibility of a person escorting a trek of beginner riders to take reasonable care that the ponies remain generally in line without appreciable gaps developing between them. Given the requirement of the ponies to negotiate what may be uneven terrain with occasional obstacles, some divergence from the direct line and some variance in the distance between ponies are inevitable; but there are limits which the escort exercising reasonable care will not permit to be exceeded. The usual practice at Rockside, with which Miss MacLugash was familiar, was to maintain the ponies generally nose to tail with a maximum distance of about one pony's length between them. There was some divergence between Mr Roberts, the expert led on behalf of the pursuer, and Mr Lane, the expert led on behalf of the defenders, as to the maximum distance adopted among pony trekking establishments generally. Mr Roberts considered that a gap of more than about a pony length was not acceptable. Mr Lane considered that the ideal interval between ponies would be of one pony length but that in practice a gap of between two and three pony lengths was within acceptable limits. With a gap of more than three pony lengths there would be a concern that the pony behind might feel that it was losing touch and might then trot to catch up. Although Mr Roberts' view was consistent with the practice in fact adopted at Rockside, in relation to generally acceptable practice I prefer on this matter the opinion of Mr Lane, whose evidence was careful, measured and convincing. The gap which I have found Miss MacLugash allowed to develop as the party proceeded down the slope was, however, significantly in excess of what Mr Lane regarded as acceptable. The evidence did not disclose any special circumstances which could justify that gap having been allowed to develop. I can only conclude that on this particular part of the trek Miss MacLugash did not pay due attention to the manner in which the ponies behind her were proceeding.

[20] There was no material dispute as to the applicable law. Miss Joughin for the pursuer cited, among other authorities, Brisco v Secretary of State for Scotland 1997 S.C. 14 for the proposition that, when considering whether some precaution should be taken against a foreseeable risk, a court should weigh on the one hand the magnitude of the risk, the likelihood of an accident happening and the possible seriousness of the consequences if an accident did happen and on the other hand the difficulty and expense and any other disadvantage in taking the precaution. In the present case Miss MacLugash was aware from her training with Mrs French of the importance of avoiding appreciable gaps developing between ponies. She was aware or at least ought to have been aware of the risk that a pony, even an ordinarily docile pony, finding itself appreciably behind might break into a trot in order to catch up - the risk of that occurring increasing with the farther, subject to limits, the gap had developed. The risk to a beginner rider should that occur was, as she was aware, substantial having regard to the loss of balance likely to be experienced over a significant distance and the prospect of a fall with potentially serious injury. Riding accidents involving a fall from a horse or pony not infrequently, as she knew or ought to have known, give rise to serious injury. Elaborate precautions were not needed to avoid or at least minimise that risk. The giving of reasonably close attention to the progress of the trek behind her would have allowed Miss MacLugash to slow down before the material gap had developed to the extent that it did. In the whole circumstances I am satisfied that at that stage in the trek Miss MacLugash failed to take reasonable care to avoid the front two ponies becoming detached from those behind (of which the pursuer's pony was the foremost) and so failed to take reasonable care for the safety of the pursuer. The defenders are vicariously liable for the consequences of that failure.

[21] I am also satisfied that Miss MacLugash's failure to take reasonable care was a material cause of the pursuer's fall and of her injury. I have rejected Miss MacLugash's account that Mull trotted when, despite an instruction to the contrary, the pursuer persisted in leaning forward. It is not possible on the evidence to be precise as to the length of the gap which remained when Mull "took off" but I am satisfied that on a balance of probabilities it remained beyond three pony lengths. I am also satisfied that the true explanation for Mull at that point breaking into a trot was its giving effect to its instinct quickly to close the gap. Thus materialisation of the risk which ought to have been guarded against led to the pursuer losing her balance and falling with consequent injury.

[22] The evidence at the proof ranged much more widely than is reflected in this opinion. It is, however, unnecessary in my view to narrate it more fully or to make further findings in fact. Neither of the cases originally pled against the defenders personally (in relation to a lead rein and to instruction prior to departure on the trek) were pressed by Miss Joughin at the hearing on evidence - on the view that, whatever their merits otherwise, it could not be said that any failure in respect of them was causative of the accident. The case introduced by amendment (in relation to the number of escorts) was not pressed by Miss Joughin on Mr Brodie intimating that he was not to submit that Miss MacLugash as sole escort was so placed that she was unable effectively to manage the trek. The cases of sole fault and of contributory negligence pled by the defenders against the pursuer were departed from by Mr Brodie.

[23] As a result of the accident the pursuer sustained a displaced fracture with comminution of the neck of the right humerus. She was treated initially at Bowmore Hospital from where she was transferred to the Western Infirmary, Glasgow. After treatment there she was able to travel home by car to the Wirral where she attended the local hospital as an outpatient on several occasions until about April 1996, undergoing there various procedures. She has been left permanently with a severe deformity of the upper end of the humerus. The mobility of her right shoulder has been significantly and permanently restricted. She is right handed. She has suffered and continues to suffer pain and discomfort. She is no longer able to play badminton and has had to give up flute playing.

[24] Solatium was agreed in the sum of £12,500 inclusive of interest to 26 January 2000. A number of other heads of claim are in issue.

[25] Cost of hairdressing Prior to the accident the pursuer washed, rolled and brushed her own hair. Since the accident she has been unable to do so. She attends a hairdresser twice a week at a weekly cost, since about June 1998, of £14 including gratuities. In the period between the accident and June 1998 the equivalent cost was £12. Although no documentary vouching was produced in support of this claim, the costs claimed seem very modest. Mr Brodie disputed the recoverability of the gratuities but these appear to me to be a normal and reasonable incident of such services and so recoverable against a wrongdoer. The weekly charge is extremely modest. The cost to date inclusive of interest amounts to £3,336. As to the future, Miss Joughin submitted that the claim should be calculated on a multiplier/multiplicand basis using the current annual cost of £728 as a multiplicand and applying a multiplier of 16.5, the latter figure being derived from Table 12 of the Ogden Tables. Mr Brodie, under reference to the observation of Lord Lloyd in Wells v Wells [1999] 1 AC 345 at p.379F-H that a judge should not "be a slave to the tables", submitted that a multiplier/multiplicand was inappropriate for this claim, or indeed for any of the pursuer's other claims. In my view a multiplier/multiplicand approach is appropriate for this head of claim which represents a regular oncost likely to be incurred for the rest of the pursuer's life. However, in recognition of the circumstance that beyond a certain age the pursuer, had there been no accident, would probably have been less able or willing to attend to her own hairdressing, I shall modify the multiplier from 16.5 to 15, giving a future cost of £10,920. A similar discounting from the multiplier indicated by the Tables was made by Lord Reed in Wilson v Pyeroy Limited, 20 August 1999, unreported. The total claim for hairdressing costs I accordingly assess at £14,256.

[26] Costs of window cleaning The pursuer has for some years shared a house with Mr and Mrs Twist. Prior to the accident the pursuer personally washed the windows, both inside and out, of her part of that house. She has been able since the accident to wash only the insides. She testified that she has spent and continues to spend £60 per annum on payment for the outsides. No documentary vouching was produced but again the rate claimed seems reasonable. I allow the past claim of £257.50 plus £44 by way of interest to date. Having regard to the likelihood that the pursuer would in any event in her older years have incurred such costs even if there had been no accident, a restriction on the multiplier is again appropriate. I apply in this instance a multiplier of 12, giving a future cost of £720. The total claim under this head I accordingly assess at £1,021.50.

[27] Costs of decorating The pursuer testified that she had also incurred costs to a tradesman for internal decoration of her part of the house, a type of work which she had done personally before the accident. She claims compensation for the labour costs incurred and to be incurred in that regard. The evidence on this aspect was extremely vague. No documentary material was produced in support of it nor was any explanation afforded for its absence. While I accept that some costs may have been and may yet be incurred in this respect, I am not satisfied that a proper basis has been laid for applying a multiplier/multiplicand approach to this claim. I am prepared to award a round sum under this head of £750.

[28] Loss of earnings The pursuer's husband died several years prior to the accident. Many years earlier the pursuer had performed paid work at a play school but for some years prior to the accident she had been doing unpaid voluntary work at her local church. She had, however, before the accident been considering returning to paid work, should it become available, with a view to supplementing her income from an occupational widow's pension. She had enrolled her name on a list of persons willing to carry out welfare assistance work, on a part time basis, at the local school but by the time of the accident had been asked to do such work only on one occasion (for a period of two or three days). On two occasions after the accident she had been approached with a request to attend for such work but had been unable to do so as a result of her disablement. If she had obtained work as a welfare assistant, it would have been for about 20 hours per week at £4.25 (recently raised to £4.75) per hour. She would probably have had to retire from such work by March 2000 on her attaining the age of 60. In my view the uncertainties inherent in this claim are such that no calculated award can be made. I am prepared, however, to accept that the accident resulted in a loss of earning capacity and, making the best I can of very imprecise materials, I assess this head of claim, including any interest on it, at the equivalent of six months' net earnings, namely £1,700.

[29] The above sums total £30,227.50. Making a small allowance for interest on solatium since 26 January, I assess total damages at £30,300.

[30] I shall accordingly sustain the pursuer's first plea-in-law, repel the defenders' first, second, third, fourth and fifth pleas-in-law and grant decree in the pursuer's favour in the sum of £30,300.