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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 68
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PD713/06
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OPINION OF LORD MACPHAIL
in the cause
CLAYTON ROBERTSON
Pursuer;
against
HORSES IN SCOTLAND
LIMITED
Defenders:
ннннннннннннннннн________________
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Pursuer:
Di Rollo, Q.C., D.B. Ross; Thompsons
Defenders: Jamieson; Simpson & Marwick, W.S.
22 March
2007
Introduction
[1] This
is an action of damages for personal injuries in which the pursuer sues as the
legal representative of his daughter Megan Robertson ("Megan") who was born on 30 July 1995 and is thus now 11 years of age. Megan injured her right arm when she fell
from a horse during a riding lesson at the defenders' riding school. Damages have been agreed at г7,500. There is no suggestion on averment of any
fault on Megan's part. The only issue
for decision is whether the defenders are liable in damages.
The pleadings
[2] It is agreed on record that the accident
happened on Saturday 27 November 2004, when Megan was nine years
old. She was having a riding lesson at
the defenders' riding school at Wester Deanhead Riding School in Dunfermline. These premises were controlled by the
defenders. The lesson was being given by
Mrs Elaine Marshall, an instructor employed by the defenders who was
acting in the course of her employment with them. Megan had previously had lessons at the
riding school, and she was able to trot, canter and jump a pony. At the time of the accident she was riding a
pony named Puzzle which she had ridden before.
There were about five pupils in the class. During the class Mrs Marshall was on foot and
the class were riding in a circle round her.
Just before the accident, Mrs Marshall had asked the class to start
cantering one at a time. That meant that
each rider would walk, trot and canter round the circle.
[3] The
area of factual dispute on record is this.
The pursuer avers that two Jack Russell terriers were in the training
arena during the lesson, and that before Megan's accident, the dogs harried a
horse ridden by another member of the class.
The horse took fright but the rider managed to bring it under
control. Mrs Marshall commented on the
incident saying the horse had over-reacted.
She did not attempt to remove the dogs from the arena. Shortly after that incident, the dogs harried
the horse Megan was riding. Her horse
became upset and reared up, and as a result Megan was thrown to the ground and
sustained injury. Prior to the accident,
dogs were regularly seen in the training arena.
[4] The
defenders, on the other hand, aver that there were no dogs in the arena at the
time. They say that the accident
occurred when Megan started to walk, trot and canter. She turned to her left. "The pony flicked its left heel and whilst
the pony remained level it did turn sharply to the left and at this point the
said Megan Robertson fell off."
[5] The
pursuer's claim is based on the fault of the defenders' employee,
Mrs Marshall. Other claims that
have been averred in the pleadings, one relative to an unsafe system of work
and the other relative to the Animals (Scotland) Act 1987, are no longer
insisted in. The pursuer says that Mrs
Marshall should have had no dogs in the training arena during the lesson, and
should have removed the dogs after the first incident of harrying. The defenders do not dispute that it would
have been dangerous to allow dogs to be in the training arena during a lesson,
but they claim that no dogs were there, and on that basis they deny liability. The issue of liability therefore turns on
whether Megan's accident was caused by the presence of a dog or dogs in the
arena.
[6] Before
turning to the evidence, it will be convenient to notice that there is no
dispute about the location and layout of the training arena where the accident
occurred. The training arena is a fenced
rectangular field which may be seen in the photograph no 6/5/13 of process. It
is entered by a gate at one corner where, in that photograph which was taken on
16 March 2007, there is a small green
hut. (There is a dispute as to whether
any structure was in that position on the date of the accident). The gate is approached from the stables by a
road which is seen in the photograph no 7/2E of process. The road then bifurcates at a mound, seen in
nos 7/2A, B and F, and the right fork leads to the gate.
The evidence
[7] The pursuer's counsel led Megan; her
grandmother Mrs Linda Henderson; her father (the pursuer); her mother Mrs Lynn
Robertson, and a skilled witness, Dr M D Marsden. The witnesses for the defenders were Mrs
Eileen Marshall, the instructor mentioned on record; and Mr Alan Browne.
[8] I
considered Megan to be a credible and generally accurate witness. She impressed me favourably as a serious girl
who answered the questions put to her carefully and articulately, and responded
well in cross-examination. She said that
she had been riding horses since she was five, and she had been to two other
riding schools. On the day of the
accident, two Jack Russells came into the arena during the lesson. She had seen them in the arena on previous
occasions. On this occasion they were
playing with a stick, each holding an end in its mouth. One of them frightened a horse that was being
ridden by another girl. The horse bolted
but the girl managed to control it.
[9] Later
in the lesson, said Megan, the accident took place. Each rider was to go individually around the
arena anticlockwise, walking, then trotting, then cantering. When it was Megan's turn, she trotted to the
top left-hand corner of the arena in no 6/5/13, and was about to canter,
when the two dogs ran underneath her horse.
The horse realised they were there, got a fright and reared, raising its
forefeet in the air, causing Megan to fall off backwards, to the rear of the
horse. The accident happened at the site
of the green and yellow pole on the ground in the photograph. The dogs had been in the middle of the arena
with Elaine Marshall, the instructor. At
the end of her cross-examination Megan mentioned that after she had fallen off
and was lying on the ground, the dogs lay beside her and kept her warm while
she was waiting for the ambulance. There
was no hut by the gate on the day of the accident. I found Megan's evidence to be supported by
other witnesses, and I am satisfied that it was truthful and generally
reliable. My only reservation is that I
doubt whether the two dogs had the stick in their mouths throughout the
episode.
[10] Megan's
grandmother Mrs Henderson was also, in my view, a trustworthy witness. She spoke naturally and clearly. She said that she had taken Megan to the
riding lesson, and after leaving Megan at the stables she had driven up to the
arena and parked her car where the hut is seen in the photograph 6/5/13. There was no hut or building of any kind
there at the date of the accident. She
parked her car parallel to the fence, with the driver's side next to the fence,
and rolled down the window. She had been
to the riding school on previous occasions and had seen dogs there. On the day of the accident, she saw dogs in
the training arena. Before Megan's
accident, one of the dogs frightened one of the other horses: it "danced about"
and the girl riding it brought it under control. Elaine Marshall commented to the horse, "What
a fuss to make about nothing," and made no effort to get the dog out.
[11] Some
ten minutes into the lesson, Megan's accident happened. The class had done various exercises, then
they started individual training. When
it was Megan's turn, one of the dogs was still running backwards and
forwards. It "spooked" Megan's horse,
and the horse was "dancing", lifting up all four feet, then it put its forefeet
up in the air. Mrs Henderson started to
open her car door, and heard a cry and a bump when Megan hit the ground. After the accident, the dog lay beside
Megan. Mrs Henderson referred to one
dog, while Megan had spoken of two dogs.
I consider that on this point the evidence of Megan, who was closer and
probably more attentive to the events in the arena, is to be preferred, but I
do not regard this discrepancy as significant.
Mrs Henderson gave her evidence in a responsible manner and remained
unshaken in cross-examination. She
placed the site of the accident at almost the same spot on the photograph no 6/5/13 as Megan had done.
[12] Megan's
father, the pursuer, was not present at the time of the accident. He spoke to having seen dogs in the training
arena every time he was present while Megan was having a lesson. He had spoken about the dogs to a lady who
was around the school all the time and she had told him that the dogs and the
horses were used to each other. That is
consistent with evidence given later by Mrs Marshall. The pursuer also said that there was no
building at the gate when he visited the school. He was a full-time firefighter by occupation,
and he gave his evidence firmly but fairly.
He convinced me that his evidence was truthful and accurate.
[13] Megan's
mother, Mrs Lynn Robertson, was also not present at the riding school on the
day of the accident, but said that at Megan's previous lessons she had seen
dogs in the training arena. She
positively impressed me as a trustworthy witness. She was not cross-examined.
[14] The
pursuer's expert witness, Dr Marsden, spoke to her report, no 6/4 of process. She has impressive qualifications and much
relevant professional experience. Her
report, like her evidence, is clearly and persuasively expressed. It includes the following passage (on page
12):
"Dogs of any kind,
experience, temperament or manners represent an obvious hazard to riders when
loose in a riding arena during lessons, and are not allowed in the vicinity of
a riding area while anyone is riding in almost every yard I have ever been to."
[15] I was
not persuaded by the evidence of Mrs Elaine Marshall, the instructor. Her demeanour tended to be defensive, and she
was slow to make concessions or give information about certain matters,
including the consequences for her employment if the pursuer's account of the
accident was correct, and her dealings with the defenders' witness Mr Alan
Browne. She was positive that there had
been a structure at the site of the hut in photograph no 6/5/13, and equally
positive that on the day of the accident there had been no incident prior to
Megan's accident involving another rider and a dog, and that no dogs had been
in the arena during the lesson. She said
that Megan fell off while she was doing the individual cantering exercise. Her description of the exercise and the place
where Megan fell was consistent with Megan's evidence. The horse was to be asked to canter as it
approached the corner. As to why Megan
fell off, however, Mrs Marshall said that the horse "veered off the track"
because Megan was leaning forward instead of sitting up, and was not holding
her outside rein. She fell off on the
right hand side and landed on her arm.
This is not the version of the reason for her fall which appears in the
defenders' pleadings.
[16] As to
the dogs, Mrs Marshall said that they knew their boundaries. She admitted, however, that there was nothing
to prevent them getting away from the stables and going to the arena. As far as she was aware, the dogs had been at
the mound shown on photograph no 6/5/15. They had gone up and round the end of the
mound nearest the camera. They sometimes
went up to the field 200 or 300 yards away from the horses. They would have gone back to the yard before
the horses left the arena. They knew to
keep away from the horses without being told.
No dog had come up to Megan after she was injured. Megan's grandmother had not driven her car up
to the arena.
[17] Mrs
Marshall's evidence was seriously at variance with the evidence of other
witnesses whose testimony I am disposed to accept. Her evidence about the presence of a structure
at the site of the hut in the photographs is inconsistent with that of Megan,
her father, Mrs Henderson and Mr Alan Browne, the defenders' witness whose
evidence I am about to discuss. Mrs
Marshall's evidence about there being no incident involving a dog and another
horse before Megan's accident cannot be reconciled with the acceptable evidence
of Megan and Mrs Henderson. Her evidence
about the absence of dogs from the arena during lessons, both generally and on the
day of the accident in particular, appeared to me to be too good to be true,
particularly having regard to her admission that the dogs were not confined and
were as close to the arena as the mound.
Her testimony on the subject of dogs in the arena is in conflict with
that of Megan, her father, Mrs Henderson and Mr Alan Browne. Her evidence about the accident is wholly
different from that of Megan and Mrs Henderson. Her evidence that no dog came up to Megan
when she was lying in the arena after the accident is contradicted by the
evidence of Megan, Mrs Henderson and Mr Browne.
Her evidence that Mrs Henderson did not come up to the arena in her car
is contradicted by Mrs Henderson and Mr Browne.
It is in any event inherently improbable, given Mrs Henderson's physical
condition, that she would have gone to the arena on foot: she finds it
troublesome to get about, and cannot stand for any length of time.
[17] The
last witness, Mr Alan Browne, had been asked to give evidence only two weeks
before the proof. Before then, he had
had no reason to think back to the day of the accident. Mr Browne said that he was present when the
accident happened. It had occurred
during the cantering exercise. Megan had
fallen off when her horse took the turn pretty quickly. Dogs had been around, but not in the
arena. They had come into the arena
after the accident while the other riders were still mounted and
exercising. He did not see anything
wrong with the dogs being around the horses.
In the past there had been odd occasions when the Jack Russells had been
in the arena. There had not been any
prior incident on the day of the accident.
Mrs Henderson had come up to the arena in her car. At one time there had been no building, only
sleepers, on the site of the hut in photograph 6/5/13, but he was sure that had
been after Christmas 2004.
[18] I
consider that Mr Browne was honestly doing his best to tell the truth as he
remembered it. I could not be satisfied,
however, that his memory was accurate in all respects. I accept that he was present at the time of
the accident, and his evidence that it happened during the cantering exercise,
that Mrs Henderson had come up in her car, and that dogs had been in the arena
after the accident, is consistent with the acceptable evidence of other
witnesses. His evidence that dogs had
been in the arena in the past is consistent with the evidence of all the other
witnesses except Mrs Marshall. I am not
satisfied, however, that he had a clear recollection of the details of Megan's
accident. He was speaking of events over
two years before which he had had no reason to recall until two weeks before
the proof. In addition, his evidence
that he saw nothing wrong with the dogs being around the horses in the arena
not only is inconsistent with the views of the other witnesses but also causes
me to doubt whether he would have taken particular note of whether dogs were in
the arena or not during the lesson. I
therefore do not accept his account of the accident or his evidence that there
was no prior incident involving another rider.
[19] There
are two final matters which I should notice in relation to the evidence. First, both parties founded on different
entries in the hospital records. Some
simply give a history that Megan had fallen from a horse, without mentioning
anything about a dog. There is one note
that the horse was startled by a dog and bucked. Another says that the horse reared up. I do not consider any of these entries to be
significant. There is no indication of
who the various authors of the entries were or from whom they obtained the
information they recorded, whether from Megan or from an accompanying
adult. In any event it seems clear that
the authors were primarily interested in noting that Megan had sustained her
injury as a result of falling from a horse, and were not concerned to
investigate the circumstances in which she had fallen.
[20] Secondly,
there was a curious dispute between Megan, her father and grandmother on the
one hand and the defenders' witnesses on the other as to whether there had been
any hut near the gate into the arena at the time of the accident. Mrs Marshall was positive that there had
always been a hut there, apart from a day on which one hut was demolished and
another was erected on the same spot. Mr
Browne said that there had been a period when there were only sleepers there,
but that was after Christmas 2004. I
consider that the pursuer's witnesses are correct and that Mr Browne is
mistaken about the date when there was no hut there. It is very difficult to understand why the pursuer's
witnesses should not have told the truth about this. It seems necessary to postulate that they had
made a joint decision to say on oath that the hut was not there in order to
provide Mrs Henderson with a convenient place to park her car and observe
events in the arena; and that that was a plot designed to support false
evidence from Megan and Mrs Henderson not only about Megan's accident but also
about the prior incident involving a dog and the other rider. Having seen and heard the pursuer's witnesses
being thoroughly tested under stringent and proper cross-examination, I am
unable to accept such a hypothesis.
Findings in
fact
[21] I have
already set out the facts admitted on record.
It follows from my assessment of the witnesses that my findings on the
matters in dispute are as follows. Dogs
were regularly in the training arena during lessons prior to the accident
(Megan, Mrs Henderson, Mr and Mrs Robertson, Mr Browne). During Megan's lesson on 27 November 2004 two Jack Russells were in the training arena. One of them frightened a horse ridden by
another rider, who managed to bring it under control (Megan, Mrs
Henderson). Mrs Marshall made a comment
to the effect that the horse had over-reacted (Mrs Henderson), but she did not
attempt to remove the dogs from the arena (Megan, Mrs Henderson). Shortly afterwards, while Megan was engaged
in an individual cantering exercise, the dogs ran underneath the horse Megan
was riding and caused it to be startled and to rear up on it hind legs. As a result, Megan was thrown off and fell to
the ground sustaining injury to her right arm (Megan, Mrs Henderson).
Liability
[22] Dogs
are an obvious hazard to riders when loose in a training area during
lessons. In other riding schools they
are generally not allowed in the vicinity of a riding arena during
lessons. That is clear from the evidence
of Dr Marsden. Mrs Marshall also
accepted that it would be dangerous and unacceptable for dogs to be present
during a riding lesson, and it was her responsibility to make sure that they
were not present. I find that she failed
to take reasonable care to see that there were no dogs in the arena during
Megan's lesson, or to remove the dogs after they had disturbed the horse ridden
by the other rider. If she had fulfilled
those duties of reasonable care, the accident would not have happened. Accordingly I hold that the defenders are
liable to make reparation for the loss, injury and damage which Megan sustained
as a result of the accident.
Result
[23] It is
agreed by joint minute that in the event that liability is established, the
damages should be г7,500, which includes interest to 20 March 2007, and that interest on the sum of г7,500 should be
awarded at the rate of eight per cent per annum from 21 March 2007. I shall
therefore grant decree in these terms.
The pursuer's counsel has also moved for the certification as skilled
witnesses of Dr Marsden and of Mr A J Espley, a consultant orthopaedic surgeon
whose report on Megan's condition is no 6/1 of process. That motion was not opposed, and I shall
grant it.
