Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT ABERDEEN

A1967/07

JUDGMENT ON LIABILITY

in the cause

VICKY REID, residing at Nest Cluden Mill, Irongray Road, Dumfries, DG2 9UW.

PURSUER

against

EQUIWORLD CLUB LIMITED, a company incorporated under the Companies Acts and having their registered office at Hayfield Equestrian Centre, Hazlehead Park, Aberdeen, Scotland, AB1 8BB.

DEFENDERS

ABERDEEN 23 November, 2010.

The sheriff, having resumed consideration of the cause in relation to liability only:-

(a) finds the following facts to be admitted or proved:-

1. The pursuer was born on 29 April 1985. In February 2005, she was a student at the Robert Gordon University, Aberdeen. She is an experienced horse rider and was a member of their Riding Club, and was captain of the "A" team.

2. The defenders are an incorporated company with a place of business at Hayfield Equestrian Centre, Aberdeen ("Hayfield") and trade under the name "Hayfield."

3. The University Riding Club used Hayfield for their activities and prior to February 2005, the pursuer had been using their premises and horses for practice each week for approximately 18 months. The Club members hired horses from the defenders.

4. The University riding team was preparing for an inter-university show- jumping competition which was scheduled for 23 February 2005. In the 3 months prior to that date, the pursuer and other members of the team had been attending the defenders' premises, and using their horses, at Hayfield approximately 3 times per week. These practice sessions were supervised by the defenders.

5. The pursuer frequently used a horse called Roma which was described in the defenders' literature as a, "16.2 hand high dark bay gelding who has completed all disciplines. Roma is also a very good and honest jumper...and is not fazed by anything. A big scopey jumper. Roma is quite capable of jumping a variety of styles of jumps, he is not going to be put off if he suddenly sees it is much wider than appeared or the poles are at an oblique angle....Roma is also very sweet to handle...in all respects." Roma is therefore 16.2 metres to the shoulder. The literature went on to say that Roma likes nothing better than a good hack or gallop in the field, but he "can lean on a bit" but the rider is advised to use his or her legs strongly to encourage Roma to lift its head up.

6. On 20 January 2005, Roma slipped on ice and suffered superficial cuts to its legs, but these were not serious enough to require the defenders to seek the assistance of a vet. These superficial cuts were cleaned and treated with analgesics, and, partly because of the time of year when there is less demand, and partly to err on the side of caution, the defenders rested Roma from then until 31 January. The defenders' staff did not report any concern and nothing untoward was observed by them about the horse between 20 January and 1 February.

7. The horse returned to work on 1 February. From that time on, the horse was fit and had been ridden on a number of occasions prior to the day of the incident, without any report being made to the defenders about the behaviour of the horse which would have indicated to them that the horse was unfit for work, nor did they observe any such behaviour.

8. An injury of this kind can cause joint, ligament and muscular injury, but an experienced person who observes the horse's behaviour can see subtle changes in that, which may be indicative of injury. The defenders' staff did not observe any indications of serious injury. Their staff would also have drawn their attention to the horse's behaviour if there was any cause for concern, e.g. about the welfare of the horse, and/or the safety of any rider. Furthermore, the horse might resist being saddled or groomed, which is an indictor of back pain.

9. During the period 1 to 18 February, the horse had been used for riding lessons every week, in particular with Martin Dargie, a former employee of the defenders, and no concerns about it were expressed by him, or made known to him or anyone else associated with the defenders.

10. Approximately one week prior to 18 February, Roma was used by the pursuer for a lesson and no report was made by her to the defenders about any concerns which she had about the horse.

11. On 18 February, the pursuer was again riding Roma around a course initially designed by her, but modified, to make it simpler, by Martin Dargie, who was supervising this practice session.

12. The pursuer started on the course, but although the horse was cantering and not galloping, it stopped and refused to take one of the jumps. The pursuer struck the horse hard with her whip at which, the horse bucked, taking only its hind legs off the ground. The pursuer, who did not have a proper hold on the reins, fell off.

13. John Crawford had previously advised those, including the pursuer, who were using the horse, not to use a whip on this horse.

14. Both Astrid Anderson and Catriona Maddigan, who were members of the University Riding Club, fellow contestants, and friends of the pursuer saw that fall. Martin Dargie approached the pursuer, who was unhurt, but he gave her advice about what she had done, namely, approached the jump incorrectly.

15. In order to approach a jump correctly, the horse has to see the jump straight ahead, whereas the pursuer had cut a corner, with the result that the horse was approaching the jump at an angle, something which could cause any horse to refuse to jump.

16. The pursuer was laughing about the fall and was unhurt. She remounted the horse and tried again. Martin Dargie had no concerns about her doing so and neither did the pursuer.

17. On the second occasion, she also approached the jump at an angle. Once again, the horse stopped, and she again struck the horse hard with her whip. Again, it bucked in a similar fashion and again, the pursuer was thrown to the ground.

18. Both Astrid Anderson and Martin Dargie saw the pursuer execute the move and her fall. They saw the pursuer using the whip on that second occasion. Catriona Maddigan heard the whip being used, but she did not see the fall. They were all standing fairly close to each other and both Anderson and Dargie had an uninterrupted view of the pursuer and the horse. All were standing between very close to the pursuer with an uninterrupted view of her and the jump..

19. Immediately after the fall, Astrid Anderson, Catriona Maddigan and Martin Dargie went over to the pursuer to see if she was injured. She had removed her riding hat. At the time, the pursuer had a bleeding lip and was complaining of a sore back and a sore chest.

20. To ascertain whether the pursuer had lost consciousness as a result of the fall, Astrid Anderson asked her what her name was, where she was and how many fingers Astrid Anderson was holding up. She was satisfied that the pursuer had not lost consciousness. The pursuer was also talking normally to Catriona Maddigan, but was taken to the reception area of Hayfield.

21. Initially, the pursuer was reluctant to go to hospital for a check up, as she wanted to go to ASDA where she had a part-time job, but both Martin Dargie and Catriona Maddigan insisted on that course to which the pursuer then agreed. While they were at the reception, the pursuer was complaining of a sore back and her lip was cut, but she made no other complaints.

22. The pursuer was taken to Aberdeen Royal Infirmary by taxi. During the journey, she was laughing and talking normally, but was complaining of a sore back.

23. On arrival at the hospital, Catriona Maddigan told the nursing staff that the pursuer was suffering from concussion, but that was done only to ensure that she was seen as soon as possible. There had not been any sign of concussion prior thereto.

24. While at the hospital, the pursuer seemed to be fine and did not appear to be nauseous or losing consciousness. Her friends were not, however, with her all the time. She was diagnosed at having an anterior wedge fracture of T5. i.e. her 5^th thoracic vertebra. The pursuer remained at Aberdeen Royal Infirmary until 23 February when she was transferred by air ambulance to Dumfries and Galloway Royal Infirmary, from where she was discharged on 25 February.

25. She returned to live at home and was required to wear a thoracic brace for about 4 months, during the early part of which, her mother assisted her in washing and dressing. The pursuer was also advised to rest.

26. As a result of the injuries, the pursuer continues to suffer pain and discomfort in her lumbar spine and that will be permanent.

27. The pursuer underwent a CT scan in February 2006 and an EEG scan in April 2006, neither of which revealed any epileptic abnormality. However, the pursuer continues to have headaches, for which she takes prescribed medication.

28. The pursuer did not suffer any brain injury as a result of the accident.

29. Prior to the accident, the pursuer had embarked on a course in forensic science at the Robert Gordon University, and hoped, thereafter to transfer to read law there.

30. The pursuer failed the academic year prior to the accident (2003/04; stage 1 of her course). In the academic year in which the accident occurred, 2004/05, she passed stage 1 and moved into stage 2, carrying one exam.

31. The following academic year was 2005/06. She passed all her exams. At the end of the academic years 2005/06. 2006/07 and 2007/08 she passed on to the next year's course. It was not until the academic year 2009 that she again had problems passing her exams.

32. Her academic performance was not adversely affected by the accident, except to the extent that she was unable to attend classes.

(b) finds in fact and in law:-

(1) that the defenders owed a duty of care to the pursuer to take reasonable care for her safety when supplying her with a horse for a riding session, and, in particular, the session on 18 February 2005. They were not in breach of that duty.

(2) that the defenders owed a duty of care to the pursuer to take reasonable care to maintain the horse, Roma, in good health. They were not in breach of that duty.

(3) that the defenders did not owe the pursuer a duty to instruct veterinary and physiotherapy treatment for the horse, following upon the slip on 20 January 2005, as the horse was not injured in such a way that a reasonably-competent operator of an equestrian centre, taking reasonable care, would have instructed veterinary assistance.

(4) that the defenders' employee, Martin Dargie, owed the pursuer a duty to take reasonable care to ensure that the horse was fit for the jumping session on 18 February 2005, and to continue to assess its fitness throughout the session. He was not in breach of that duty.

THEREFORE Sustains the defenders' second and third pleas-in-law, and Repels the pursuer's first plea-in-law; Continues consideration of any further procedure and all other matters to the Procedural Roll on Wednesday 15 December 2010 at 2.30pm within the Sheriff Court, Castle Street, Aberdeen,

NOTE.

In this case, the pursuer seeks damages from the defenders in respect of an incident at their premises on 18th February 2005 ("the accident") when she fell from one of their horses, Roma, and sustained a cross fracture of one of the thoracic vertebrae, and according to her, a mild brain injury.

At this juncture, I shall deal with liability only. I have fixed a procedural hearing sufficiently far ahead to allow parties an opportunity to consider what I say on this aspect of the case, and to decide what further procedure, apart from a consideration of the issue of expenses, is required.

Evidence was given on 2^nd, 3^rd, and 4^th November 2009, 12th and 13th of April and 21 June 2010. (Days 1-6, Transcripts) Thereafter, submissions were made on 30 August 2010. The Notes of the evidence were extended. The pursuer was represented by Mr. Skinner, advocate, and the defenders by Mr. Watson, solicitor-advocate.

The pursuer gave evidence and evidence was given on her behalf by Mrs Marion Reid, her mother, Dr. Richard Coleman, a consultant neurologist at Aberdeen Royal Infirmary, Dr. Debbie Marsden, a former Fellow of the Department of Veterinary Clinical Studies at the University of Edinburgh and a director of MDM Equestrian Consultancy Company, Dr. Ruth Gillham, a consultant neuropsychologist at the Southern General Hospital, Glasgow, Laura Graham, an undergraduate team leader at the Robert Gordon University, and Keith Carter, an employment consultant. The defenders led evidence from John Crawford, a director of Hayfield and chairman of Equiworld, Carolyn Martin, the managing director of Hayfield, Martin Dargie a former employee of the defenders, (Marie) Astrid Anderson and Catriona Maddigan, the latter two being former fellow students of the pursuer's and members of the same riding club, Charles W.S. Lane who has experience inter alia in racing, eventing, show-jumping, dressage, hunting, and finally, Dr Lorna Torrens, a neuropsychologist, formerly of the Robert Fergusson Unit, and now head of clinical (health) psychology at the Astley Ainslie Rehabilitation Hospital in Edinburgh.

Both parties provided written submissions for which I am grateful.

1. Submissions for the Pursuer.

The court was invited to uphold the first and second pleas-in-law for the pursuer, and to repel those of the defenders and in terms thereof, to grant decree in the sum after-mentioned. The submissions dealt with liability and quantum of the claim and were based on the alternative hypotheses (a) that mild brain injury was suffered; and (b) that no such injury was suffered.

A. Liability

The pursuer's case is as follows:-

(1)       That prior to the accident on 18^th February 2005, the horse Roma suffered injury, probably when he fell on ice on 20^th January 2005.

(2)       That after the injury was sustained, it was, or ought to have been, known to a reasonably-competent riding school that he had been injured.

(3)       That his injuries were such that as at 18^th February 2005, he was not fit for the purpose for which he was hired out, namely, for use in a show- jumping practice session for a University competition.

(4)       That the fact that he was not fit for that practice session was or ought to have been known to a riding school if they had been exercising reasonable care.

(5)       That it was reasonably foreseeable that if the horse was not fit for the session, this may result in injury to persons riding by him, such as the pursuer.

(6)       That as a result of the horse being unfit due to injury, the horse bucked during the practice session causing the pursuer to be thrown from him and causing her to suffer loss, injury and damage.

It was accepted that a great many of the facts were outwith the direct knowledge of the pursuer, and she had, of necessity, to rely on inferences from the facts she can prove. The court has to draw inferences, aided by the expert evidence given, about the condition of the horse on 18^th February, and in particular whether his condition was such that he was not fit for the tasks for which he was offered for hire, namely, for use in show-jumping practice to university standard. It was not disputed that the defenders had a duty to take reasonable care to see that the horses they hired out were fit for these tasks.

It is admitted that the horse, Roma, suffered injury on 20th January 2005. (see Answer 4) in that he slipped on ice within the defenders' yard and fell sustaining several minor grazes. He was given 10 days off to allow those injuries to heal.

Notwithstanding that this was a matter peculiarly within the defenders' knowledge, and that the precise nature of the fall ought to have been known to them, the defenders did not produce anyone who witnessed the fall, but thate incident was sufficiently serious to be reported to the management of the school. It was submitted that despite considerable bluster, it was perfectly plain that the principal of the riding school, John Crawford, had no clue what had happened to Roma on that day in January 2005. (Day 4, p.109) He had received a report, but could not tell by whom, but said that the horse had slipped and not fallen. A fall can have serious consequences, as was spoken to by Dr Marsden (Day 2 p. 54) and Caroline Martin (Day 5, p.17).

It was submitted that notwithstanding this fact, the attitude of the defenders was cavalier. There was no evidence about any proper examination of the horse. John Crawford clearly had no personal knowledge of how the accident occurred. It was reported to him (Day 4 - pp.109-110). Neither did Caroline Martin know. (Day 5, p.16) John Crawford did not know exactly where the incident happened (Day 4, p.105; pp.109­110). At one point, he started to argue that the horse did not fall notwithstanding the terms of his own pleadings (Day 5, p.110). As for Caroline Martin, she did not see the incident, but had a "quick look" at the horse (Day 5 p. 8). It was "overseen by our yard manager at the time, Lindsay Campbell". She said that Lindsay had assessed the horse and reported to the defenders (Day 5, p.10), but she did not know whether Ms Campbell saw the incident-she was certainly there immediately after it happened. (Day 5, p.17). Ms Martin agreed that she did not know whether anyone saw the fall, but that the fall was highly relevant to assessing how serious the injury was (Day 5, p.17). She then assumed that Lindsay Campbell would have assessed the horse, but did not have any clue about what actually was done (Day, 5 p.17E). She relied on Lindsay Campbell and simply assumed that she had made a proper and adequate assessment. (Lindsay Campbell was never called). There was, it was submitted, a bland assumption that the horse had no underlying injury, as a result of the slip/fall.

It is clear what the defenders should have done. Given that they were to hire this animal out for inter alia show-jumping competitions and practice sessions, they should have instructed the necessary veterinary and physiotherapy treatment, to assess the extent of the injuries and to see that the horse had recovered from its injuries and was safe to ride, particularly where there is no clear evidence of the nature of the fall (Day 5, p.17, Caroline Martin) (Dr Marsden. (Day 2, pp. 62-63)

However, even if the Court was to hold that calling a vet went beyond what required to be done by a reasonably-competent riding school, there was a clear requirement to assess Roma's fitness by means of an appropriately-qualified instructor taking Roma through a jumping session to check there was no injury and the horse was safe to be jumped. That would apply a fortiori where no one had seen the fall. (Dr Marsden Day 2, p. 59).

One has to ask what steps the defenders took to assess the horse's ability to undertake the work. From Mr Crawford's thoroughly-confused performance in the witness box, it seems clear that he did not carry out a check on the horse's condition, nor did he or anyone else call a vet. (Day 4, p.111) He stated that no treatment was given, and even attempted to claim, notwithstanding the terms of his pleadings, that the box-rest was to give the horse a holiday as they were not very busy. He was driven to suggesting that he could tell if Roma was OK by looking at what part of the field in which he was standing (Day 4, p.117) or observing him in his 10ft x 12ft box (Day 4, p.118).

Following Roma's box rest, he was tested by "Darren," (not called as a witness) ridden "over a single fence, but was not jumped over a set of fences." It was submitted that that was not logical. It was conceded (Day 4, p.122) that Roma probably did not carry out any University standard show-jumping prior to 11^th February 2005.

In relation to the evidence of Caroline Martin, it was peppered with comments such as Lindsay Campbell (her manager) "would have done" this or "would have done that." Lindsay Campbell was not a witness, and she did not carry out any serious examination of the horse. Neither Mr Crawford nor Caroline Martin ever took any serious steps to monitor the horse. (Day 5 p. 12.-Box rest.) No one made or was qualified to make a proper assessment of the underlying injury. Such testing as there was consisted of "Darren" (who was not called) taking him over a single jump (Day 4, pp.119­/120).

Martin Dargie (Day 5, p. 28) did not see the fall. (Day 5, p. 30). He was not involved in the care of Roma after the accident. He stated that he did not remember there being a problem with Roma, but his recollection was less than clear.

It was suggested that either the defenders' witnesses were being disingenuous (trying to cover their own backs) or that they paid no real attention to the condition of Roma because they did not realise as they ought to have done, that the incident on 20 January was a significant one.

What the defenders have not produced is any person who rode Roma between 20 January 2005 and the accident. This is despite the fact that it was known to the defenders that Darren was identified as being such a person, and despite the fact that according to them, there must have been a great many people who rode the horse uring this period if he was used as often as they claim.

The defenders make play of fact that if Roma had been injured, this would have been noticed. That said, there was (a) no direct evidence of what work he did - e.g. he may have been doing "easy" lessons (Crawford supra Day 4, p.122). It is clear that he may have been fit for some jobs but not for others; (b) no evidence for the defenders from any party riding Roma who might be able to speak to his behaviour; and (c) no record of his behaviour on 11^th February when, if the pursuer's evidence is accepted, he was displaying uncharacteristic behaviour, typical of a horse carrying an injury. That suggests their efforts to assess him after his injury were insufficient to fulfil their duties. It is of significance that the only person giving evidence in this case who did ride Roma in the period between the fall and the accident was the pursuer.

On 11^th February, the pursuer identified behaviour in the horse (Day 1, pp.12-14) which, if accepted as accurate, is, in the opinion both of the expert witnesses (Dr Marsden Day 2, p.64; Mr Lane, Day 6, p. 32) and indeed Mr Crawford (Day 4 pp. 122- 3) an indication that the horse may have been injured. If the defenders had been doing what they should have, namely properly monitoring the horse for signs of injury after the January incident, they would or should have spotted these signs and called the vet (Dr Marsden, Day 2, p. 64). As it was, the pursuer cut short her session. All of this, according to the pursuer, was seen by Martin Dargie. (Day 1, p.14) If that had been recognised by Mr Dargie (as it ought to have been) then this should have called his mind back to the incident of January 2005 (Conceded by Mr Crawford Day 4, p.124).

Therefore, assuming the evidence of the only person riding the horse, i.e. the pursuer, is accepted, then clear and obvious signs of injury were missed. Further, the pursuer is either accurate in her evidence of what occurred on 11^th February 2005, or she is telling deliberate lies. There is no room for error. Why would she lie? To do so would require a huge amount of foresight.

The day of the accident.

If the evidence for the pursuer is accepted, not only was there the most cursory examination of the horse (in the face of an unidentified injury), but clear evidence that the behaviour of the horse on 11^th February was ignored or its significance was not appreciated as it ought to have been. The issue is, how did the accident occur?

It was accepted that for the pursuer to succeed, her evidence about what occurred on 18^th February must be accepted. It was submitted that she is best placed to know exactly what happened. It was, for her, a particularly traumatic event. She designed the course. She gave a detailed account of what happened, and it was submitted that it was either correct or she is lying. It was conceded that there is no real room for honest error. She stated (Day 1, pp. 21- 22) that she stopped at the third jump called the fan, because the horse stopped suddenly. The pursuer smacked him on his hind quarters, and he performed quite a large buck - a rodeo style buck with all 4 legs off the ground. She somersaulted and hit the ground. Martin Dargie came over.

Given that this behaviour was wholly untypical of the horse as described, who might perform a "cheeky buck," and was indicative of an underlying injury (Dr Marsden Day 2, p. 77 - a typically pain-related buck, that is quite a classic description of that sort of buck), then a reasonably--competent riding school ought to have realised that the behaviour was pain-related and withdrawn the horse from service (Dr. Marsden Day 2, p. 67).

Therefore, in summary, it was submitted that the evidence shows that before the pursuer's accident, (a) an incident had occurred which had at least the potential to be serious which none of the defenders' witnesses had seen and which none was properly qualified to assess; (b) the horse was taken off duty and was treated with 11 days box rest to allow injuries to heal; (c) no proper attempt was made to assess the horse as being fit for duties (apart from Darren taking him over "a single jump"); (d) no attempt was made to assess him for the more vigorous work required to perform at University show-jumping level; (e) there were clear signs of continuing injury on 11^th February when the pursuer rode him; and (f) he behaved in a wholly-untypical way, indicative of pain-related behaviour, when struck by a whip, on 18^th February 2005.

It is interesting to note the behaviour of horse immediately before the accident which is also indicative of an animal in pain. (Day 1, pp.22 et seq). It turned at a left-hand turn on fence 8 (same as in previous failure); when straightening up, the horse did a really huge buck when travelling quite fast. The accident occurred when pursuer thrown off horse. The behaviour of the horse was indicative of a horse suffering an injury (Dr Marsden Day 2, pp. 69 et seq).

By contrast, there are several positions adopted by the defenders. On record, i.e. an earlier record, it was averred that "the pursuer fell off Roma because she did not approach the fence on the right stride and was unbalanced." By the time of proof, that had changed to "She approached the jump incorrectly. The horse refused the jump. She whipped it again. The horse kicked again (i.e. kicked out a leg). She was thrown off. She was not holding the reins at the time." The following are worthy of note. (1) Mr Crawford stated that he thought Roma would have been capable of dealing with an incorrect line, and (2) Martin Dargie felt that as "she seemed to be doing a good enough job with him." (Day 5, p.38)

The accident record (No. 6/20 of process) prepared very shortly after the accident, does not record use of the whip or stick, despite this being the central cause of the accident according to Mr Dargie. He seems to have a very selective memory. He was crystal clear about some matters e.g. that the pursuer was carrying a stick at the time of the accident; but wholly unclear about a more dramatic event, namely the pursuer's earlier fall which occurred a few moments earlier. That, it was suggested, seems to be rationalisation on his part because he says he is sure that the pursuer was carrying a stick because this is the only time he ever bucks as well if somebody is using the stick he will sometimes throw a little buck. (Day 5, p.37) It may be that he confused the first occasion (when admittedly the stick was used) with the second. In any event, his intermittent amnesia is such that he is certainly not reliable. In relation to Astrid Anderson, her reliability (and that of the other witness) is to a large extent undermined by the fact that her evidence was largely based on a joint statement with another witness, Catriona Maddigan. Despite the fact that they were viewing the incident from different vantage points (Day 5, p.78) there was complete unanimity. Maddigan said that the Astrid's mother was a trainee barrister who had told them to put in the facts only, but should have told them to prepare two separate statements.

Astrid Anderson believed that the pursuer cut the corner, but that account can be contrasted with that of Martin Dargie (Day 5, p.38) who said in answer to the question "Was she proceeding properly? Yes, she seemed to be doing a good enough job with him."

It was submitted that she, Anderson, was in error, in that she was rationalising events which of course occurred 5 years before. She believes that a horse bucks when hit with a whip. (Day 5, p. 82). Indeed it was agreed at all hands that he had bucked when hit shortly before. Further, there again is an assumption that he bucked because he was hit with a whip. (Day 5, pp.69-70) "I knew that she had a whip because the horse bucked, I mean why would the horse refuse the fence and then buck there would be no reason to."

It was submitted that she was prepared to make suppositions which are evident in the next few sentences of her evidence where she was
asked whether Roma was galloping as he approached the final fence. "I don't recall, but I wouldn't imagine that he would have done. Roma was a calm mannered horse."

It was submitted that it is inherently unlikely that the pursuer, as an experienced horsewoman, would make the same error as she had made a few moments before.

Turning to the evidence of Catriona Maddigan, she had a different vantage point - she saw the first incident, again blaming rider-error. On the second occasion, she did not see the accident, having her back turned (Day 5, p.97). Nevertheless, she was still prepared to say, "the reason the horse bucked is because she hit it". Again she said that both the instructor and Astrid said she again approached the fence incorrectly and that is what happened (Day 5, p. 98) -cf. Dargie Day 5, p.38). She seemed to dismiss the plan (Day 5, p. 104) but on the next page stated that "the rest of the course I don't remember, it's only the two jumps that I remember". Despite being perfectly sure that the pursuer had used the whip, she apparently did not see the whip when she attended to the pursuer, following the fall.

It was submitted that the pursuer's version should be preferred, and, that being so, on the balance of probabilities, the accident occurred due to the horse being injured. Had the defenders exercised reasonable care, they ought to have realised prior to the fall that the horse was injured and to have withdrawn it from service prior to the accident. The accident therefore occurred as a result of the defenders' negligence.

QUANTUM

It was accepted that the overall quantum of the claim depends entirely on whether or not the court accepts that the pursuer has suffered a mild brain injury. If the evidence of Dr Gillham is accepted, then the claim is a very substantial one. If that of Dr Torrens is preferred, then a smaller, but still substantial claim exists. I was invited to accept the evidence of Dr Gillham, as she gave evidence in a very clear and cogent manner. In the end whether the pursuer had suffered a brain injury is a matter of professional judgment. (Day 3, pp. 43-44). She had said that it was not just using the scores from the various tests in a quantitative way, but also qualitative way. She had clearly given the matter considerable thought, and said that she was prepared to sit on the fence if she was not sure whether there was an injury (Day 3, pp.51- 52).

That evidence had to be contrasted with that of Dr Torrens for the defenders whose report, it was submitted, was a slightly odd one. It is clear that she had formed an adverse view of the pursuer's credibility. Her report, despite her protestations, was partial. She had admitted that she did not warm to the pursuer. She was annoyed at her failure to appear for an earlier appointment. Her report is peppered with comments not appropriate for a clinical expert's report such as, "None of this... (i.e. the pursuer's responses to questions) ... felt very convincing," " wildly inconsistent." Dr Torrens doubted the accuracy of what the pursuer said at several points (see Day 6, p.72) and referred to the fact that certain episodes, "were not witnessed." Dr Torrens made comments such as, "even she... i.e. the pursuer) ... didn't believe what she was saying" (Day 6, p. 75.) However Dr Torrens did accept (Day 6, p.78) that it is important that account is taken of changes in mental ability as seen by close relatives and friends. Factors highlighted by the pursuer's mother e.g. who described the pursuer as having a "mind like a sieve," may indicate a brain injury.

The pursuer's own account of difficulty in studying and remembering, a tendency to burn things when cooking and having difficulty generating words (Day 6, p.81) were accepted by Dr Torrens as at least potentially indicating an impairment to intellect. She further accepted that fact that the pursuer took an HGV out on the road shows a lack of concern for the symptoms she was reporting, which indicated a lack of strategy. That was indicative of a brain injury.

I was than addressed on quantum should the pursuer's position be preferred, and that she did suffer an injury to the frontal lobe of her brain. There would be a number of heads of claim.

(i) Solatium

Physical injuries. These are detailed in the report from Rupert Ferdinand (No. 5/3 of process.) As a result of the accident, the pursuer suffered an anterior wedge fracture of T5. She required to wear a thoracic brace for approximately 4 months. She has been left with a wedge fracture which has healed in this position at the mid-thoracic level. She has not suffered any significant peripheral neurological symptoms. She is unlikely to suffer further spinal injuries and has no neurological symptoms which could deteriorate. It is unlikely that any significant degenerative changes will occur in the foreseeable future. There have been significant improvement in symptoms in the last year (i.e. 2009) and it is likely that she will continue to do so.

During her convalescence, she recalled back pain, forgetfulness and headaches. In a report dated 28^th March 2008, Dr Richard Coleman opined that she had suffered a concussive head injury, post-concussion syndrome with symptoms including headaches which are tending to improve and probably a mild form of post-traumatic stress disorder.

The pursuer's own evidence is that it took her about 18 months before she was feeling better. (Day 1, p.36); Her back is "generally OK. If I do an awful lot of exercise or sitting or standing for long periods it gets achy but other than that it is OK." Running seems to hurt it; she used to row for Dumfries Scottish junior team, but has not been able to go back to it.

Dr Ruth Gillham, a Consultant Neuropsychologist, prepared a report dated 20^th December 2008. In it, she opines that the pursuer had sustained a mild brain injury as was indicated by impairment of spontaneous verbal fluency and of working memory.

Against that background and assuming that there is a subtle brain injury, it was submitted that solatium, properly valued, should be in the region of twenty thousand pounds (£20,000) sterling. Some guidance can be obtained from the following cases and materials viz:- Judicial Studies Board Guidelines JS6B (c); JS2A (d) - minor brain injury; Dickson v Hastings (no 2) 2008 SCLR 194; Dickson v Hastings (no. 3) 2007 SLT (Sh Ct) 58; McCluskey v Lord Advocate 1994 SLT 452; Spink v Lawrie 2006 GWD 19-403; Re Clarke CICB York August 2005, Kemp & Kemp B5-004: S v Islington LBC Clerkenwell County Court, June 2005, Kemp & Kemp B5-005; Hastings v Royal Borough of Kingston-upon-Thames Wandsworth County Court November 2003 Kemp & Kemp F5-027; Lackey v Excel Airways Ltd, Altricham County Court, 27^th April 2007 Kemp & Kemp F5-026.

Of this sum, it would be proper to attribute 2/3rds to the past, on which interest should run at the rate of 4%, bringing out a sum by way of interest to 18^th September 2010 (5 years 7 months i.e. 5.583 years) of about a further £2,977.50 approximately, and giving a total of £23,977.50 in name of solatium i.e. £24,000.

(ii) Wage loss / loss of employability

If the evidence of Dr Gillham is accepted, then the pursuer has suffered a subtle brain injury. "It is more likely than not that she has sustained a mild brain injury ... although she will attain the qualifications she seeks it does seem possible that these will be at a lower level than she would have hoped and that therefore her employment potential will be more limited than she hoped. She may however have to suffer a degree of disappointment and loss of opportunity as a direct result of the accident she no longer has complete access to some brain processes which she would have had before which would have helped her to get there this tool she would have had isn't really working adequately that tool is the bit to make strategic thinking, get things into your head when you don't understand as perfectly as you like, not catch on as quickly as before, so a tool that she really needed now is sticking, not really functioning as well I suppose you can call that losing an edge" (Day 3, pp.50-51, p. 54) "I can make a confident prediction it is not going to be as good as it was before whatever grades she needs to achieve she is less likely to get them. I can say that her likely earnings will probably be less her choices are more limited and if
she is money-orientated or not then her earning potential is more limited."

Of course, in a case such as this, where the pursuer is hoping to embark on a career, as opposed to being in an established job, the exact quantification of damages is difficult, but the court must simply do the best it can on the material available. It is appropriate to employ the multiplier/multiplicand approach with the tables given in the Ogden Tables 6^th edition. As stated by Lord Lloyd of Berwick in Wells v Wells [1991] 1AC 345, the Ogden Tables are a starting point rather than a check.

If we have an injury where there will be life-long prejudice in the area where she will work, there is no real reason to depart from the multiplier/multiplicand approach. Using a multiplier of say 27 before the pursuer is likely to begin earning, the calculation would be 21.86 x (table 8) x .84 (Table C) = 18.36

In relation to the multiplicand, reference was made to the evidence of Keith Carter. Mr Carter was fair to exclude the highest earnings of partners (albeit that it was submitted that it is within judicial knowledge that there are a great many partners in legal firms in Scotland - not an exclusive circle) from the study of legal earnings. That is already a substantial concession.

An appropriate calculation would be to take average net earnings for all solicitors, as shown in appendix 1 at page 14 of Mr Carter's up-to-date Report (No. 5/15 of process, the earlier one being No. 5/11) i.e. £36,960. Because the pursuer has lost the edge, her employment earnings are more limited. If we deduct typical net annual earnings for lawyers working in the public sector, i.e. £26,467 (Model two in the Report), this gives a multiplicand of £10,493. Thus, the claim for loss of earnings over the pursuer's lifetime would be £10,493 x 18.36 i.e. £192,651.48. Alternatively, if we take likely future earnings as that of solicitors at lower end of the wage scale, (Model one) then the multiplicand is £36,960 less £33,710 i.e. £3,250 x 18.36 i.e. £59,670.

However, sometimes in cases with such imponderables, the court will award a lump sum on a very "broad-brush" approach, see e.g. Neil v John Walker & Sons 1993 SCLR 183; Re Clark - Kemp & Kemp B5-004; McGhie v Diageo 2008 GWD 16-288. If that approach is preferred, then given that the pursuer would be likely to be involved at the professional end of the job market, a larger lump sum is appropriate, say £100,000, i.e. somewhere between the two Ogden calculations above.

(iii) Services

There was evidence from the pursuer's mother about the services she rendered. She travelled from Dumfries to Aberdeen daily for 5 days (Day 1, pp.91-2). She then accompanied the pursuer in the air ambulance, looked after her fairly constantly for 4-5 months, until the back brace was off, which included washing her hair. "I had to drive her to hospital appointments to get her teeth fixed, she has had to get new glasses; I had to do everything for her, put her socks on, her pants on. It was quite degrading for her to be quite honest...I was with her all the time." (Day 2, p 93) Cf. the pursuer (Day 1, p. 35) 4-5 hours per day for 4 months or so, seems an underestimation.

It was submitted that, properly valued on a "broad-brush" approach, the sum of about £5,000 would be appropriate, which with interest at 4% from February 2005 to say August 2010 and at 8% thereafter brings out a sum of £7,100 in services.

(iv) Wage Loss.

The pursuer had a part-time job with ASDA. (No. 5/12 of process) from which she was absent for 9-10 months; (Day 1, pp. 82-3). Even allowing her 6 months' loss of wages (at say £300 per month), that amounts to £1,800. If we add interest at 8% from say August 2005 to August 2010, there is a further £720. Therefore, the total wage loss for part-time job would be about £2,520.

SUMMARY

If pursuer's position is preferred, and the opinion of Dr Gillham accepted, damages would be quantified as follows:-

(1)  Solatium c£23,000

(2)  Future loss of earnings/ disadvantage in the labour market (£59,670 -£192,650

(3)  Loss of part time work £2,520

(4)  Services £7,100

If the defenders' position is preferred and there are no permanent sequelae, then the pursuer still had a significant back injury and concussive head injury (see evidence of Dr Coleman which was not disputed). As a result of the accident, the pursuer suffered an anterior wedge fracture of T5. She was required to wear a thoracic brace for approximately 4 months. She has been left with a wedge fracture which has healed in this position at the mid- thoracic level. She has not suffered any significant peripheral neurological symptoms. She is unlikely to suffer further spinal injuries and has no neurological symptoms which could deteriorate. It is unlikely that any significant degenerative changes will occur in the foreseeable future. There has been a significant improvement in symptoms in the last year and it is likely that that will continue.

On the assumption that the pursuer is held to have made a fairly-full recovery, it was submitted that solatium is properly valued as being in the region of twelve thousand pounds (£12,000) sterling. In reaching that view, guidance is obtained from the following cases and materials viz:- Judicial Studies Board Guidelines JS6B (c); Dickson v Hastings (no. 2) 2008 SCLR 194; Dickson v Hastings (no. 3) 2007 SLT (Sh Ct) 58; McCluskey v Lord Advocate 1994 SLT 452; Spink v Lawrie 2006 GWD 19-403; Re Clarke CICB York August 2005 Kemp & Kemp B5-004: S v Islington LBC Clerkenwell County Court, June 2005, Kemp & Kemp B5-005; Hastings v Royal Borough of Kingston-upon- Thames Wandsworth County Court November 2003 Kemp & Kemp F5-027; Lackey v Excel Airways Ltd, Altricham County Court, 27^th April 2007 Kemp & Kemp F5-026.

Of this sum of £12,000, it would be reasonable to attribute 3/4 to the past on which interest should run at the rate of 4%, bringing out a sum for interest of about a further £1,500 and giving a total of £13,500 in name of solatium.

The sum to be awarded for part- time work and services would be the same as above.

SUMMARY, IF DEFENDERS' POSITION PREFERRED

(1)    Solatium £13,500

(2)    Part-time work £2,520

(3)    Services £7,100

2. Submissions for the Defenders.

The defenders moved me to sustain their second and third pleas-in-law, to assoilzie the defenders and to grant decree of dismissal.

The submissions were dealt with as follows:-

A. Liability

(i) Key elements of the pursuer's case

(ii) Credibility and reliability of the pursuer

(ii)              Credibility and reliability of the witnesses to fact

(iii)            Evidence of the expert witnesses

(iv)             Submissions on liability

(v)               Contributory negligence

B. Causation

(i) Blackouts

(ii) Mild brain injury

C. Quantum

(i) solatium

(ii) Loss of earnings

(iii) Services

For ease of reference, the transcripts were referred to by day rather than by date.

1. Liability

The pursuer's case against the defenders is in short compass. It amounts to this. On 11^th February 2005, she rode the horse in question, Roma. The horse was lethargic and carrying an injury. She stopped her session early. She rode Roma again on 18^th February 2005. He was still injured. He refused a jump. The pursuer struck him with her crop. He bucked violently and she was thrown. She remounted and continued the circuit. Roma bucked violently again. The pursuer was thrown from his back. She thereby sustained injury.

It was submitted that there is no factual evidence to support any of the key elements of the pursuer's case. Instead, there is clear, credible and consistent testimony to the contrary. Further, there are significant reasons to find that the pursuer was neither credible nor reliable and her evidence should not be preferred.

(i)                Key elements of the pursuer's case

Roma's injury on 20^th January 2005.

A key element of the pursuer's case - indeed, the crux of the matter for Dr Marsden - is that Roma had sustained an injury on 20 January 2005 sufficient to injure his back. There was simply no evidence to that effect.

The uncontradicted evidence of the events of 20 January came from Caroline Martin. She, in turn, had been told of the injury by the yard manager who was highly experienced (Day 5, p. 9B). Roma had a couple of grazes. He was treated appropriately with first aid (Day 5, p.7D). Martin examined the horse herself (Day 5, p.8B):-

"You made reference to a couple of grazes, when you examined Roma what did you see? ‑ If I remember correctly a couple of grazes I think on his forearm, if it had been a major incident I would remember much more clearly."

The absence of any significant injury tallies precisely with the noted behaviour of Roma in the days and weeks which followed. In short, this was a minor graze with no other injury manifest at the time or subsequently.

Roma's behaviour on 11^th February 2005.

The evidence of the pursuer was that on 11^th February 2005 Roma was restless and shaking his head; he tired and laboured easily (Day 1, pp.12-13). That was not supported in evidence by any of the other witnesses. Martin Dargie had no recollection of it (Day 4, pp.31D; 50E - 51B); nor had Catriona Maddigan (Day 5, 91 A - B; It was not put to her in cross).

John Crawford and Caroline Martin were questioned, at length in cross-examination, as to whether they would have seen lethargy in Roma, had he displayed it, from 20 January onwards. Neither could be shaken in their evidence that they would indeed have noted if Roma had been acting abnormally (Crawford, Day 4, from p.116D; Martin, Day 5, p.10D).

Martin Dargie spoke to the absence of evidence problems. (Day 5, from p. 30):

"And again if a horse has a sore back, first of all, how would you be able to know whether a horse has a sore back? ‑ You can tell again just by looking at it, it would be not as kind of willing to walk around and things like that, you know a horse that has maybe got a sore back will maybe have his head carriage quite low when not ridden and when you go to put the saddle on and things like that it would be really sort of sensitive around its back and quite often when you go to put pressure on the horses back, if it has a sore back it will tend to dip down the way from the pressure and things, so yes it is fairly obvious if a horse has back pain.

Is it something you would expect to notice in a horse? ‑ Oh yes easily."

From p.31D:-

"Over the period from the 1st of February through to the 18th of February, the day of the accident, did you receive any complaints about Roma? ‑ No.

Were you aware of any problems with Roma? ‑ No.

What would you have done if you had been aware of any problems? ‑ I would have done whatever I needed to do really you know whatever is in the best interests of the horse really.

Well, would you have allowed Roma to continue doing riding lessons and sessions? ‑ If he wasn't fit for it?

Yes? ‑ No. "

He was equally clear in cross (Day 5. pp 50E and following) and took exception to his professionalism being questioned:

"No but again as a Riding Instructor if there was any doubt that the horse wasn't fit for what I was asking it to do, you know I don't think it is a fair question on my sort of professionalism, obviously I would have been aware when the horse had done enough, and wouldn't have used it otherwise. If the horse wasn't fit for the job then I wouldn't have used the horse."

There had been no other reports of problems with Roma (Caroline Martin, Day 5, p.13E) prior to 18^th February.

The pursuer's falls on 18^th February.

The pursuer's evidence of both falls from Roma on 18^th February 2005 differs starkly from the evidence of Dargie, Anderson and Maddigan. The pursuer maintained that Roma bucked with all four legs off the ground, a rodeo-style buck (Day 1, p. 22D for the first fall; p. 27A-C for the second fall). She said she dropped her whip after the first fall.

This should be contrasted with the evidence of Martin Dargie. He was standing very close, 2 to 4 metres away (Day 5, p. 36D). Roma's back legs came off the ground. Whereas the pursuer maintained that Roma had been galloping, Dargie's evidence was that this was definitely wrong; it was impossible for a horse to gallop in that amount of space (Day 5, p. 38E). He was clear that the pursuer had used the whip prior to the second fall (Day 5, p. 36F). He continued (p. 37B):-

"Where did she hit Roma with the stick? ‑ It would have been behind the rider's leg.

What Miss Reid has told us is that she dropped her stick after the first fall, and she was not using a whip at the time of the second fall, is that your recollection? ‑ No, a rider of her sort of standard they always carry a stick coming to a fence.

Talking about this specific incident on this particular day, do you remember that she was carrying a stick? ‑ Yes.

How sure are you that she hit Roma with the stick prior to her coming of the horse? ‑ Yes 100% because that is the only time he ever bucks as well if somebody is using the stick he will sometimes throw a little buck."

He was pressed on this in cross, with counsel attempting to make much of the fact that he had not mentioned the use of the whip in the accident report. The report was brief in its terms and accurately described the incident. It would be more surprising, it was submitted, if the report had referred to use of the stick, particularly when Dargie did not consider its use to be an error (Day 5, p.52 B). It was submitted that Dargie was very clear as to what he could remember and how well he could remember various aspects. None of his evidence was self-serving.

It was submitted that the evidence of Astrid Anderson and Catriona Maddigan, the pursuer's team-mates. was compelling, wholly without bias or self-interest, and markedly in contrast to the evidence of the pursuer.

Anderson had a clear recollection of the first fall. She was standing perhaps between 2 and 4 metres away from the fence. It was a dog-leg jump; the pursuer had to jump one fence, turn 90° and jump another. She cut the corner. Roma refused the jump. She struck Roma with her whip behind the saddle. When he bucked, his rear legs came off the ground. His front legs stayed where they were. She was clear and definite that it was not a rodeo-buck with all four feet off the ground. Anderson had an equally good view of the pursuer's second circuit. Her evidence was that at the same fence, the pursuer cut the corner. Again she struck the horse with her whip. Again, Roma bucked with the back legs only.

Anderson's evidence was clear, both in chief and when pressed in cross, that the pursuer struck the horse with the whip on both occasions. She recalled that on the second occasion, "she walloped him, she gave him a good crack with the whip." (Day 5, p.69A). If it had been a light tap, she would not have heard it.

Maddigan, too, had a clear view of the fence and the pursuer's first fall. Her evidence, too, was that the pursuer cut the corner. Roma stopped and the pursuer then whipped him. Maddigan did not see the second fall; she had her back to the fence. However, she did hear a smacking noise which she attributed to the pursuer striking the horse with the whip.

In cross-examination, counsel for the pursuer attempted to make much of Maddigan not noting where the whip was after the second fall. However, again, Maddigan's evidence was clear: She heard the sound of the whip; she immediately went over to the pursuer, she was not looking for the whip, but rather was concerned for the pursuer. It was submitted that not only is her evidence credible on this point, but that it would be somewhat incredible if she were to maintain that she had gone looking for the whip at a stage when the pursuer was lying on the ground. As she said in re-examination, "I wasn't looking for a whip because obviously Vicky was my main concern."

It was submitted that on each of the specifics - the approach to the fence, the speed of Roma, the use of the stick; and the description of the buck - the evidence of the pursuer is contradicted by that of Dargie, Anderson and Maddigan. Their evidence should be preferred and the evidence of the pursuer rejected.

(i) Credibility and Reliability of the Pursuer

It was submitted that the pursuer should not be found to be either credible or reliable, for the following reasons. First, and as already noted, her evidence of the crucial elements of the falls is contradicted by the evidence of the other eye witnesses. Secondly, her evidence on the aftermath of the second fall is contradicted by Maddigan and Anderson and does not tally with the medical records. The pursuer's evidence was that she was abusive to the taxi driver who was taking her to Aberdeen Royal Infirmary and she had blackouts at the hospital, both Maddigan and Anderson witnessed her losing consciousness; and they asked staff at Aberdeen Royal Infirmary to see the pursuer as she was starting to lose consciousness. Again, that must be contrasted with the evidence of Maddigan and Anderson. Anderson recalled that the pursuer was laughing and talking normally in the taxi. She was visibly surprised when it was put to her that the pursuer had been shouting and swearing. The pursuer had said nothing to her about losing consciousness. She was laughing and giggling while they were waiting at the hospital (Day 5, pp.72-75).

Maddigan, likewise, had no recollection of the pursuer being concussed. She was fine and chatting in the taxi. She would have recalled if the pursuer had been swearing and shouting; nothing like that happened. Maddigan gave evidence that when they first arrived at hospital, she went to the front desk and said the pursuer might be concussed. She did not think the pursuer was concussed, but she thought this would get her seen more quickly. She was absolutely sure that the pursuer had not lost consciousness at the hospital, nor had she complained of feeling faint (Day 5, pp.102-103).

The evidence of Maddigan and Anderson on this point tallies with the records of Aberdeen Royal Infirmary, (No. 6/6 of process.) The pursuer was examined by Dr West (Day 1, p. 49). She stated that the pursuer had not lost consciousness. There are no references to the pursuer having lost consciousness or to blackouts in the course of her stay at ARI.

Thirdly, there is the pursuer's evidence of her licence to drive and her application for a heavy goods vehicle licence. The pursuer's evidence was that she had suffered a number of blackouts. Her evidence on this was, at the least, inconsistent. The central point is this: despite reporting that she was suffering blackouts, despite being advised to tell the DVLA and insurers, and despite being advised that she should not drive, the pursuer did not tell the DVLA, did not tell insurers and instead applied for a licence to drive a heavy goods vehicle.

It was striking that the pursuer's evidence-in-chief on blackouts was brief in the extreme. She confirmed that she had reported episodes of blackouts. Her totality of the description was this (Day 1, p.39A):-

"Sometimes when I was driving, I am not sure if I completely blacked out I was driving alone everything was like a narrow tunnel like somebody pulling my head backward and I went warm and fuzzy and it lasted a couple of minutes."

In cross-examination, the pursuer attempted to explain the inconsistencies in her reporting of blackouts as follows (Day 1, p.64C):-

"Is it your evidence those commenced later as well? ‑ Yes.

When? ‑ Possibly about 4 or 5 months, I deliberately, I think it was about 12 months after the accident I started reporting them I was afraid I would lose my licence. I understood it is up to 12 months from any blackout episodes, that you aren't allowed to drive."

Subsequently, on 7^th July 2006, the pursuer applied for a licence to drive large goods vehicles (No. 6/30 of process). She signed a declaration that to the best of her knowledge the details were correct. She completed the application, but did not state that she had three episodes of blackout/fainting eighteen months previously. The pursuer's evidence was that it was more important to her to retain her licence (and to obtain an HGV licence) than it was to advise the DVLA. It was submitted this speaks volumes about the pursuer's truthfulness, her reliability and her willingness to advance her own position at any cost. Either she failed to tell the truth to the DVLA - as, in effect, was her evidence - or her evidence of blackouts and loss of consciousness ought to be rejected. This was, it was suggested, another strong indicator that the pursuer's evidence is not reliable.

Fourthly, there was the pursuer's evidence of her academic career, which was that she had to repeat a year as a result of the accident. That was demonstrably false. Counsel for the pursuer attempted to paint this as a complex picture, no doubt because that would suit the pursuer. However, the key elements were clear. Contrary to the pursuer's evidence in chief that she lost the year following the accident and had to repeat it, in fact she had failed the previous academic year. She passed the academic year in which she had the accident. She passed the subsequent years, too, until 2009.

(ii)              Credibility and reliability of the witnesses to fact

There were no witnesses called by the pursuer in support of her version of events. Anderson and Maddigan were on her list of witnesses, but were not called.

Martin Dargie's evidence was clear and consistent. He is independent of the defenders. He left their employment in 2006. He is very experienced in horse- riding and the care of horses, both on a practical level, having ridden from the age of 7, and professionally, through British Horse Society examinations. Importantly, he was clear about those matters with which he could not assist the court - he could not recall Roma's behaviour on 11^th February (although the fact that he could not recall his behaviour could in itself be significant); he could not recall the pursuer having had two falls on 18^th February. His demeanour in the witness box was of a man who was keen to help, to provide explanation, to limit himself to those matters where he could assist and to make it clear where he could not assist. He was straightforward and honest. His evidence ought to be accepted.

Astrid Anderson also has extensive horse-riding experience. She has competed in eventing from the age of 12 or 13. She had a good, clear recollection of the fall. Anderson liked the pursuer, describing her as a nice girl. She had no axe to grind, was in no way beholden to the defenders and had no personal benefit from her evidence. She and Maddigan had prepared a statement following the accident. Her contemporaneous record is all the more likely to be accurate and therefore to assist the accuracy of her evidence to the court. Her evidence, too, should be accepted.

The same was also true of Maddigan. Counsel for the pursuer cross-examined her in detail about the statement she and Anderson had prepared. She was clear that this was simply a statement of the facts, a description of what had happened. On giving her evidence, it seemed almost as if she could not understand where counsel was attempting to lead her. She could not see any difficulty with both witnesses having prepared a statement together - it was, after all, simply a description of what they had seen. At Day 5, p.117:-

"Complete unanimity? ‑ Why wouldn't it be? We just gave the facts."

As with Dargie, Maddigan was clear as to the limitations of her evidence. She had not seen the second fall and gave straightforward evidence as to why she had not seen it. It is submitted that there is no basis upon which the evidence of Anderson or Maddigan can be undermined. The greatest weight should be given to it. It is consistent with the evidence of Dargie.

Turning to the evidence on the physical condition of Roma, the court heard from John Crawford and Caroline Martin. There was no serious attempt to gainsay any of their evidence. Crawford was visibly upset by what he perceived as challenges to his integrity in the course of cross-examination. He was forthright and to the point. Caroline Martin was obviously nervous, not to say overawed, by the process of giving evidence. However that simply added to the ring of truth of her evidence. It was submitted that she came across as entirely straightforward.

(iii)            Evidence of Expert Witnesses

The court also heard from Dr Marsden, instructed on behalf of the pursuer, and Charles Lane on behalf of the defenders.

Dr Marsden's conclusions were entirely dependent upon the evidence of the pursuer being preferred - in particular, the manner in which she had ridden the horse, the assertion that she had not used a stick on the second occasion, and, crucially, that the horse had bucked with all four legs off the ground. Dr Marsden was immensely keen to link the style of buck with a specific type of pain. Her opinion was posited entirely on Roma carrying an injury made manifest to the pursuer on 11^th and 18^th February 2005, despite this being displayed on no other occasion from 20^th January onwards.

The centrality of the type of buck is seen in Dr Marsden's evidence (Day 2, pp. 72B and following):-

"And we have heard from Miss Reid yesterday that as she was coming out of the turn with the horse and before she set off for the fence, that the horse bucked violently with all its four legs off the ground and threw her off. How would you interpret that? - Again that's typical of these pain related bucks, it's typical when they are very sudden and they are very violent, it's typical all the legs come off the ground, depending specifically where in its back and which muscles are affected. They will do it very hollow with the head up and the back legs coming up very high behind them or arched like the rodeo horses you see with the back uppermost, the saddle uppermost and the head well down."

Dr Marsden's evidence on the link between the type of buck and the carrying of an injury was all the more stark in cross examination (Day 3, p. 6B):-

"And the manner of the buck does not determine what the cause of the buck is? - Yes, the manner of the buck is exactly related to the cause."

Dr Marsden made extensive reference to eight papers, (No. 5/14 A to H of process.) None of those vouch her proposition. Indeed, there was a telling slip by Dr Marsden (Day 2, p.50B):-

"These are matters I have to say which would not be obvious to me and perhaps not to his Lordship but should they be obvious in your opinion to those involved in a reasonably competent riding school? - Yes, the Pony Club Manual, which is designed for children from aged 8 upwards specifically mentions back pain as one of the reasons why horses might jump, not jump sorry, have a problem with jumping or rush and so on."

Dr Marsden accepted that there was nothing in the articles that she lodged to support the theory that a particular style of bucking was consistent with a particular injury (Day 3, p.9B). She accepted that it was reasonable to assume that the first buck was a response to the pursuer hitting him with the whip. She elaborates at 10F:-

"It would be quite reasonable to assume that the buck was a response to the pursuer hitting him with the whip? - Yes

It would be quite reasonable for an observer Martin Dargie to reach that conclusion? - It would depend on how he bucked, if he bucked in the usual manner of a cheeky buck... if it was that sort of buck and that was his normal habit then Mr Dargie would not be expected to note that the horse had done what he normally done in that situation, but if it had been a different kind of buck as described by Miss Reid I would have expected him to realise, to notice that it was very different."

She accepted (Day 3, p.16B) that her hypothesis was built on the pursuer's description of how the horse behaved.

A great deal of Dr Marsden's evidence was taken up with establishing what one might have thought was self-evident, that a horse carrying an injury may demonstrate that. That, of course, stands to be contrasted with the un-contradicted evidence that Roma worked normally and behaved normally from 1^st February 2005 onwards. The only exception to that was the pursuer's evidence that Roma had been lethargic on 11^th February, a matter on which she was not supported by any other witnesses.

Counsel attempted to use Dr Marsden's evidence to set up the proposition that during this period, the defenders either ignored the signs of Roma's lethargy or that he was only undertaking light duties. However, Dr Marsden accepted (Day 2, p.93E) that there was a third possibility, namely that he was not showing any such signs. It was submitted that is more consonant with the totality of the evidence.

Counsel for the pursuer also attempted to set up a case that any type of incident involving a horse would require a vet to be called. Dr Marsden's evidence in chief, however, was that this was the ideal (Day 2, p. 62D):-

"So if a horse has had a slip or a fall it is quite common, it would be ideal if a riding school called the vet in the first instance. However, the less good riding schools sometimes try to save money by simply giving the horse a week or two off to see how he goes. Now for small cuts, that sort of a rest is not usually necessary, they can usually be quickly treated with cream to keep them reasonably clean so if the animal doesn't look too badly injured, and that wouldn't usually affect his day to day work, but if for some reason the riding school felt he was lame or sore or looked stiff they may think we will give him a rest for a week or two and see what happens after that. However, after that period of time unless the animal is really looking absolutely the same way as he used to, that would be a very essential time to seek veterinary advice and the earlier in the process the vet was called in the better it would be for the welfare of the horse and the shorter the eventual recovery period is likely to be. A vet can use drugs, painkillers, anti-inflammatory drugs which help the animal return to normal movement and so on."

That, in short, is precisely the course of action adopted by the defenders. Roma had suffered simple grazing. He was rested from work. There were no signs of lameness or stiffness. He was looking the way he used to. Had that not been the case, it would have been appropriate to call a vet. Again, this is an area in which there was really no dispute. John Crawford's evidence was that if Roma had displayed signs of stiffness or lameness, which did not resolve with rest, it would have been entirely appropriate to call a vet. The factual evidence however simply did not vouch the assertion that there was any stiffness, lameness, lethargy or indicator of veterinary attention being required.

After Dr Marsden was taken to guidance from the literature on when to call a vet, it was submitted that her subsequent statement (Day 2, p.106 D-E) - "It also does not say don't call the vet if you don't see specific signs," - is significantly overstating the position.

It was submitted that the evidence of Dr Marsden is of no assistance to the court. It is founded on a factual hypothesis which is simply not made out in the evidence. Her opinion is bound tightly to the description of the buck. It was submitted that the court should prefer the evidence of Dargie, Anderson and Maddigan to that of the pursuer. Dr Marsden's evidence is also periled on the hypothesis that Roma was carrying a back injury after the slip on 20^th January. There was no evidence to that effect. There was evidence that Roma was not displaying any signs of lethargy, lameness or stiffness. That came from Crawford, Martin and Dargie and again the defenders invited the court to prefer that evidence.

Charles Lane gave evidence for the defenders on Day 6. It was submitted that it is difficult to conceive of many individuals more qualified than Mr Lane to assist the court on equestrian management. He has ridden horses over forty years in various equestrian disciplines. He operated his own competition/hunting livery yard. He continues to teach riders using the Pony Club system. He is a British Horse Society intermediate instructor. He was commanding officer of the Kings Troop, Royal Horse Artillery, and the pre-eminent mounted troop in the British army. Mr Lane had no previous contact with, or knowledge of, the defenders. He made no attempt to overplay their operation or expertise, describing them as "average" and "run of the mill." He had ridden Roma. He had hit Roma with a whip. Roma had bucked in resentment, kicking out with a hind leg.

The court was invited to prefer the evidence of Mr Lane about when it would be necessary to call a vet. His evidence was entirely consonant with the extracts from the Pony Club Manual of Horsemanship, (No.6/31 of process) and the RSPCA Guidelines, (No.6/32.) His evidence was that an ordinary, competent stable owner would not call a vet straight away if the horse was lame, unless it was "very very lame, practically unable to bear its weight on one leg". If it was slightly lame, he would wait to see how the horse progressed. It was unrealistic for a yard to call a vet every time a horse fell: "It is just not what happens in the real world" (Day 6, p.14C). Again, at 16E he notes:-

"You wait until you have identified a problem. You don't assume the problem. You don't say, "I can't see a problem, but I'm going to call the vet anyway." It doesn't happen, it isn't the way it works."

Mr Lane also gave evidence about Roma's supposed lethargy on 11^th February 2005. Importantly, he noted that it should have been happening every day: "If he has got a problem that is causing him to behave in this way, it isn't a problem that is going to show itself on just one day and not on another". He volunteered that the behaviour might be slightly different depending on the work the horse was doing.

Mr Lane was content to agree with Dr Marsden's evidence where that was borne out by the other extrinsic evidence, his own experience and published papers. Thus, he agreed that there was a small body of opinion that would say a horse might buck with back pain. He did not agree with that body of opinion, but as he goes on to say (Day 6, p.20F), "You are certainly not in a position to say it does this sort of buck or that's a big open buck. That is just not possible to say and nobody says that."

On the issue of whether a rider should remount after a fall, given Mr Lane's experience in all spheres, his conclusion was that if a rider was happy to remount, they should do so (Day 6, p.22B):-

"What do you expect them to do if a rider wants to remount? - If it had been me, I would be quite happy. I would question them and say, "Are you sure you are okay", and if they said, "Fine, I'm going to get on again", then I would say, "Fine, okay." That's what I do."

Finally, Mr Lane addressed the question whether Roma could have been carrying an injury throughout February and March 2005, manifested only to the pursuer and only on 11^th and 18^th February (Day 6, p.27A): "I can't think of how that could happen. It is almost inconceivable."

It was submitted that the evidence of Mr Lane was, as he put it, grounded in the real world.

(iv)             Submissions on liability

There are no particular niceties arising as to the law to be applied here. As encapsulated by Lord Atkin in Donoghue v Stevenson 1932 SC(HL) 31 at 44, the duty incumbent is to, "take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure one's neighbour."

The defenders were under a duty of care to the pursuer. The pursuer makes specific averments of duty and the defenders respond to each of those in turn:-

Duty to take reasonable care to maintain the horse in good health

The defenders agree that such a duty was incumbent upon them, but it was submitted that there is no credible evidence before the court to the effect that Roma was not in good health. The evidence of the pursuer as to his behaviour on 11^th February stands in isolation - both with reference to his behaviour on all the surrounding dates and with reference to the other available witness evidence. Her evidence of his behaviour on 18^th February is contradicted by Dargie, Anderson and Maddigan and the defenders invited the court to prefer their evidence.

The pursuer also makes reference to a duty, "in all respects to maintain [Roma] in a physically fit condition for the purpose of jumping." It was submitted that if this is intended to import a wider duty of care, no such duty exists. Certainly, there is no such absolute duty. However, if this is meant to be a reflection of the duty to maintain Roma in good health, it was submitted that the defenders duly fulfilled that duty.

Duty to take reasonable care to instruct the necessary veterinary and physiotherapy treatment

It was submitted that the defenders fulfilled this duty. Neither veterinary nor physiotherapy treatment was necessary.

The pursuer goes on to aver that the defenders had a duty, "to take reasonable care to seek professional veterinary and physiotherapy advice and treatment to see the horse recovered from its injuries." It was submitted there was no such duty incumbent upon the defenders. Reference was made to the evidence of Mr Lane. Reference was also made to productions 6/31 and 6/32. It was a matter of professional judgement for the defenders as to whether and when veterinary treatment was required. With reference to the evidence of Crawford and Martin, the defenders did so by assessment of Roma on the day of the injury; subsequent assessment while he was on rest days, and formal assessment as he was reintroduced to riding. There was no duty to seek professional advice in the circumstances.

Further, as a matter of fact, the pursuer has not established that Roma suffered from any injury. He had simple grazes, treated with first aid from which he recovered. Accordingly, a duty to take reasonable care to see that he had recovered from his injuries simply does not arise. The evidence of Caroline Martin on this point was in line with the expert opinion of Mr Lane (and indeed with the evidence of Dr Marsden as to what stables would commonly do):-

"A little bit if you think about categorising yourself, if a child fell you would look at the wound and decide whether it is a clean up job at home, or whether it is an A & E job. Working with horses, you gain quite a lot of practice in it, we would always call a vet if it was anything deep, anything that needed stitches or puncture wound or anything, apparent lameness, none of those was apparent in this case." (Day 5, p.10A)

Duties during the riding session on 18^th February 2005

The pursuer avers that the defenders were under a duty to assess Roma's fitness to jump on 18^th February 2005. With reference to the evidence of Dargie, it was submitted that this duty was fulfilled. All of the defenders' horses were under daily supervision. There was no evidence to the effect that each horse should be the subject of formal assessment prior to each riding session or each day's session. Roma had been assessed prior to resuming his riding sessions and by the date of the accident, it was 17 days (including rest days) since that resumption. The defenders invited the court to accept the evidence of Dargie that he would have noted and intervened, had Roma been displaying any behaviour consistent with an injury.

Likewise, the defenders do not accept that there was a duty to make any formal assessment of Roma's behaviour during the session. That said, it was appropriate to have an employee of the defenders present during the session, as both Dr Marsden and Mr Lane opined. There was nothing about the behaviour of Roma during the session which ought to have led to Dargie intervene. Dr Marsden accepted as much, if the pursuer's evidence as to the rodeo buck was not accepted.

The pursuer avers that it would have been an exercise of that duty to have intervened after the first incident. It is submitted that no such duty arose. The question instead was one of ongoing assessment of Roma and of the pursuer. The pursuer was keen to continue her session. On the evidence, Roma had given a kick with his hind legs, having refused a jump and subsequently been struck with a riding whip. That was an obvious and apparent explanation for his kick and no further assessment was indicated.

(v)               Contributory Negligence

It was submitted that on the evidence of Anderson, the pursuer failed to take reasonable care for her own safety. On each occasion, she approached the jump at too tight an angle. This was the proximate cause of the kick from Roma. If the court were to hold that liability does attach to the defenders, it was submitted that there ought to be a deduction for the pursuer's negligent riding.

1.                 Causation

The pursuer avers that following the accident, she was diagnosed with a spinal injury. The extent of that injury is reflected in the report of Rupert Ferdinand, (No. 5/3 of process.) which is uncontroversial.

However the pursuer also avers that she began to develop headaches, dizziness and nausea and episodes of blackouts. She avers that she has sustained a head injury, has sustained impairments suggestive of a mild injury to the frontal lobes of the brain and has difficulties learning and retaining information. It was submitted that the pursuer has not established that any head injury, still less any mild injury to the frontal lobes of the brain, was caused by the accident.

Blackouts

As with the circumstances of the accident itself, the starting point is the evidence of the pursuer. In chief, she spoke only in the briefest of terms of having suffered blackouts. This was explored further in cross-examination. With reference to the records of Aberdeen Royal Infirmary, (No. 6/6 of process,) the pursuer agreed that the accident and emergency records (from p. 48) made no reference to her having landed on her head. She had told Dr West that she had not lost consciousness (No. 6//6/49; Day 1, p. 56F). At 6/6/51, there is a record of her orthopaedic review and again a note of no loss of consciousness. There is no reference to blackouts or loss of consciousness in the records of the pursuer's in-patient stay at Aberdeen Royal Infirmary from 18^th to 23^rd February 2005.

The pursuer did, however, give evidence of losing consciousness in the waiting room. (Day 1, p.59C-D.) That contrasts with the evidence of Anderson and Maddigan, each of whom described chatting and joking with the pursuer at the hospital. Counsel for the pursuer made much of the fact that they had not been with the pursuer throughout. While that is undoubtedly true, that must be taken in the context of, first, the pursuer's explicit evidence that they had seen her losing consciousness and, second, there being no reference to loss of consciousness in the medical records.

The pursuer's supposed reporting of episodes of loss of consciousness has been wildly erratic. She did not report any such episodes at appointments on 28^th February 2005 (No. 6/7/28 of process) or 19^th April 2005 (6/7/28).The pursuer's evidence was that the blackouts commenced, "possibly about four or five months" (Day 1, p. 64B-C). Her candid explanation was that she was afraid she would lose her licence. In contrast, the neurology clinic records of Aberdeen Royal Infirmary (No. 6/6/27) record her reporting (retrospectively) blackouts within the first month after the headache. Her evidence was that these blackouts were within five weeks of the accident (Day 1, p.65F). In January 2006, she had told Dr Hall that she had had three un-witnessed blackouts within that first month. She told Dr Hall she thought she had been unconscious for around 10 minutes after the first collapse. Her evidence was that one of the other collapses had also resulted in her being unconscious for up to 10 minutes. She had reported none of this to her general practitioner because she thought it was more important she kept her driving licence (Day 1, p.68B). In contrast is the history the pursuer gave to Dr Holden, consultant physician, in January 2006 - eleven months after the accident (No. 5/6/4). She told him the first blackout occurred a few months after the accident.

It was submitted that the pursuer's evidence about the blackouts was wholly inconsistent, as reflected by the stark inconsistencies in the medical records. The episodes are described variously as being all within the first week following the accident; all within the first month; commencing after a month; commencing several months later; all within the first year; or continuing to mid-2006.

It was further submitted that not only are the pursuer's reported episodes not reliable, her evidence on this is not credible. It is submitted that it is not credible that she was suffering episodes of loss of consciousness lasting up to 10 minutes, but yet failing to report these to her general practitioner or to other physicians with whom she had appointments. It is striking that she does not seem to have reported these episodes to Dr Gillham, neuropsychologist, whose report is No. 5/9 of process.

Head injury

The defenders submitted that the pursuer has failed to establish that she has developed any head injury as a result of the accident. Reference was made to the accident and emergency records of Aberdeen Royal Infirmary and the pursuer's contemporaneous reporting of the accident, which make no reference to an injury to her head or loss of consciousness. Indeed Dr Gillham notes this explicitly at paragraph 2 of her report, (No. 5/9 of process.) The pursuer told Dr Gillham that her memory of events following the fall was hazy (para. 19). That should be contrasted with the pursuer's clear evidence at proof. There was no suggestion that her recollection was unclear or hazy.

The formal psychometric testing carried out by Dr Gillham was, at best, equivocal. Notably, the pursuer's performance on memory tests was above average (para.38). There was only one test which gave a suggestion of abnormality (para. 39) which was when she had to repeat a series of seven numbers in reverse. Dr Gilliam concluded in para. 42, "formal neuropsychological testing does not show a picture consistent with the effects of significant head injury." She did, however, consider there was an impairment of verbal fluency and working memory.

That stands to be contrasted with the report and evidence of Dr Lorna Torrens, (No. 6/8 process.) She worked for 7 years at the Robert Fergusson Unit, the Scottish national unit for the assessment of patients with psychiatric or psychological complications following head injury. She is now head of clinical (health) psychology at the Astley Ainslie Rehabilitation Hospital in Edinburgh.

The pursuer reported to Dr Torrens that she had difficulty with revision. This was further explored with Dr Torrens in evidence (Day 5, from p. 53). Memory consists of working memory, short-term memory and long-term memory. Information retained after 30 minutes is in the long-term memory. In contrast to Dr Gillham's suggestion that the pursuer did not have strategies for revision, in fact that was not so: she had chosen to adopt a strategy of revision the night before her exams, albeit that was not a strategy Dr Torrens would recommend.

On formal testing by Dr Torrens, the pursuer's memory scores were in the "high average" range, with no suggestion of difficulty. Executive function tests were normal. In two tests of working memory, she performed poorly on one (a test of digit span), but performed in the "high average" on a similar, but more complex, test. In summary, Dr Torrens found no evidence whatsoever of memory problems or higher level functioning problems.

The supposed mild frontal lobe damage must also be considered in light of the pursuer's post-accident educational attainment. Contrary to the pursuer's initial position in evidence, she accepted that she had in fact failed the academic year prior to the accident (2003/04; stage 1 of her course). In the academic year in which the accident occurred, 2004/05, she passed stage 1 and moved into stage 2, carrying one exam (see the evidence of Lorna Graham, Day 4, p.31A - B). The following academic year was 2005/06. She passed all her exams. At the end of the academic years 2005/06, 2006/07 and 2007/088 she passed to the next year's course. It was not until 2009 that she again had problems. It was submitted that there was no consistent picture of the pursuer having underperformed academically after the accident. Indeed, quite the contrary: while she had failed the academic year concluding 2004, she completed each of the following years until 2009.

It was submitted that the pursuer had entirely failed to make out that she developed any head injury as a result of the accident.

(B) Quantum

The pursuer seeks damages by way of solatium, loss of earnings and services.

(i)                Solatium

The initial injury sustained by the pursuer is reflected in the medical report of Mr Ferdinand, (No. 5/3 of process.) She suffered an anterior wedge fracture of the T5 vertebra. The fracture has healed. No degenerative changes were anticipated. She reported a significant improvement in symptoms. By July 2005, she had minimal tenderness and in January 2006 she was discharged from orthopaedic follow-up. In evidence-in-chief, the pursuer stated that she was feeling better after about eighteen months. She could do most things, but when she ran, it hurt (Day 1, p.36F).

The Judicial Studies Board Guidelines, 9^th Edition, provide a range of up to £5,000 for minor back injuries, including disc prolapses, where a recovery to nuisance level has been made without surgery within about two years. Where recovery to nuisance level is within five years, the range is £5,000 to £8,000. In McCluskey v Lord Advocate 1994 SLT 452, the pursuer sustained a laceration to the back of the skull and a wedge fracture of the T12 and L3 vertebrae. She was in hospital for a month and in a plaster jacket for six weeks. She suffered severe pain for two years and intermittent pain thereafter. Solatium was assessed at £5,500, now approximately £7,800. It was submitted that McCluskey was a substantially more serious injury, particularly given the extent of ongoing severe back pain.

While it is clear that this was initially a painful injury for the pursuer, with a period of bed rest and rehabilitation, equally it is an injury from which the pursuer has made a good, timely and uncomplicated recovery. No surgery was necessary. Within five months of the accident she had only minimal tenderness. It was submitted that solatium should properly be assessed at £5,000. Interest should run at 8% from July 2005.

For the reasons set out above with reference to causation, it was submitted that the pursuer has not developed a mild frontal lobe injury as a result of the accident. However, if the court holds that she developed such an injury, in the defenders' submission, this is at the very lowest end of such injuries. The Judicial Studies Board Guidelines give a range of £1,400 to £8,100 for minor head injuries where brain damage is minimal. The relevant factors are stated to be the severity of the initial injury, the period for recovery, the extent of continuing symptoms, and the presence or absence of headaches.

In Re Clarke, 1996, the claimant was injured in an assault. He suffered pain and stiffness in his back, which settled over a couple of weeks, He had headaches twice a month, which continued. He had nausea. His short term memory was impaired. He had occasional episodes of dizziness. He had lost consciousness for 10 minutes during the attack. General damages of £7,500 were awarded, now approximately £11,000.

Allowing for both the back injury and minor head injury, it was submitted that solatium may reasonably be assessed at £12,000. It was submitted that interest should be added at half the judicial rate, with two-thirds to the past.

(ii)              Loss of earnings

At the time of the accident, the pursuer was working as a part-time store assistant with ASDA. Wage information has been lodged (No. 5/12 of process.) With reference to the pursuer's earnings from November 2004 to February 2005, her pre-accident earnings averaged £304.47 for each four- week period. Following the accident, she earned £364.67 to October 2005. Her loss was therefore £2,071.11.

However, the earnings records also show that the pursuer received no pay from ASDA from June to September 2005. The pursuer confirmed in evidence that she was then in Dumfries (Day 1, p.82E-F). It was submitted that she would, likewise, not have been working in Aberdeen from June to September 2005. It was submitted that in the circumstances, it would be reasonable to allow past loss of earnings of £1,500, with interest at 8% from October 2005.

The pursuer also avers that she had to repeat a year (academic year ending 2005) as a result of the accident. It seems she has also had to repeat academic year ending 2009. In fact, the pursuer did not require to repeat the year of her accident. It was submitted that the necessity to repeat 2009 was wholly unconnected to the accident. Reference was made to her intervening academic performance and the report of Dr Torrens.

Further, the pursuer avers that she has a reduced career trajectory. Again with reference to the submissions above, the defenders submitted that there is no such evidence. Reference was also made to the evidence of Keith Carter. He described the pursuer's pre-accident capability as being "a plodder" and "scraping along."

In all the circumstances, it was submitted that it is inappropriate to approach quantification of the pursuer's future loss of earnings on a differential basis. To the extent that any deficit has been established in evidence, it was submitted that it is appropriate to approach this on a "broad brush" basis. The defenders submitted that, at most, this should be approached by allowing a figure of £25,000 by way of disadvantage in the labour market.

(iii)            Loss of Services

The pursuer gave evidence that following the accident she was assisted by her parents. They helped her dress and put on her back brace. Her mother cooked for her. She considered that she had assistance from her mother for four or five hours a day for four months (Day 1, p.35). Mrs Reid also gave evidence as to the assistance given.

It was submitted that services may reasonably be assessed on a global basis at £2,000. That is roughly equivalent to care at the national minimum wage, less tax and NI. Interest should be allowed at 8% from the end of June 2005.

Conclusion

It was submitted that the pursuer has failed to prove negligence on the part of the defenders. They should be assoilizied. Pleas-in-law 2 and 3 for the defenders should be sustained. Esto negligence is proved, there has been contributory negligence on the part of the pursuer and plea-in-law 5 should be sustained. The pleas-in-law for the pursuer should be repelled. Expenses should be reserved meantime.

DECISION.

Only the pursuer, Martin Dargie and Astrid Anderson saw the accident. Catriona Maddigan did not see the accident, but saw the pursuer on the ground after it. Dr Marsden provided a report (No. 5/13 of process) and gave evidence about horse behaviour, particularly about the effect thereon of injuries. Dr Marsden's report was based, to a significant extent, on information given to her by the pursuer about the horse's behaviour prior to and on the day of the accident. Dr Marsden did not visit Hayfield, nor see the horse, Roma, in action. That is no reflection on her. Mr Lane, who also produced a report (No. 6/9 of process), gave evidence about horse behaviour, and the effect on behaviour of a back injury, but he visited the defenders' premises and rode the horse. Dr Gillham, for the pursuer, and Dr Torrens for the defenders gave evidence and produced reports (respectively Nos. 5/9 and 6/8 of process) about whether the pursuer had suffered a brain injury as a result of the accident.

I shall deal in turn with (a) the horse's fall on 20 January 2005, (b) the period from then until 11 February, (c) the events of 18 February, (the day of the accident), including a comparison of the views of Dr Marsden on the cause of the accident with those of Mr Lane and (d) the immediate post-incident events.. Finally, I compare the opinions of Drs Gillham and Torrens on whether the pursuer suffered a brain injury as a result of the accident.

(a) Roma's fall on 20 January 2005.

Notwithstanding a suggestion in the pursuer's pleadings that Roma had slipped in the week prior to 18 February 2005, it is not in dispute that it was on 20 January 2005, that Roma slipped on ice. Mr. Crawford, Caroline Martin and Martin Dargie were among the defenders' staff who were informed of that. It is accepted that no evidence was led from anyone who had actually witnessed this fall. The pursuer's contention is that the actings of Roma on the day of her accident are consistent with, and explained by, Roma having suffered a severe injury and, in particular, a back injury on 20th January. Because of that, veterinary assistance ought to have been sought, because Roma was not fit for the activities in which the pursuer was engaged on 18 February. Dr Marsden is the source of that view, and she says that the fact that the horse was rested is indicative of the injury being severe. The defenders' witnesses, John Crawford, Caroline Martin and Martin Dargie refute that. The defenders' position is that this was a minor matter, the horse was grazed and was rested for a while. Caroline Martin, the managing director of Hayfield, said that she had examined Roma after the fall and while he had a couple of grazes on his front leg, these were not serious, and did not require calling a vet. The wounds were cleaned and antiseptic was applied to them. Furthermore, the yard manager had told her that Roma was fine. Neither John Crawford, nor Caroline Martin, nor Martin Dargie was told of any problems with the horse, nor did they observe any. Martin Dargie had had lessons with Roma from his return to work until 18 February and neither saw, nor reported, anything of concern about the horse.

None of the three was with Roma at the time that he slipped, but all said that had Roma sustained a serious injury, they would have seen it, or found out about it. Both Caroline Martin and Martin Dargie said that if Roma had suffered a severe injury especially to the back, they would have known because (a) they would have been told by the staff, (b) it would have been obvious looking at Roma, as there can be subtle differences in behaviour in horses that have been injured, and (c) Roma might not have wished to be groomed or be saddled, or been willing to walk about, and might have been keeping its head lower than usual. I am not going to speculate about why no one who was with the horse at the time of the fall was called, but it was reported, and I accept the defenders' account of the nature of the injuries which they had reported to them or saw, or both.

(b) From 21 January to 11 February 2005.

It is not in dispute that Roma was not working from 21 until 31 January which the pursuer and Dr Marsden suggest is indicative of it having sustained a severe injury. The defenders' explanation, by contrast, is that things are quiet at that time of year and because of the fall, it may have been thought that Roma would benefit from rest. It is also not disputed that Roma was involved in a lesson on 1st February, but it is accepted by the defenders that that probably did not involve jumping. The pursuer says she had to cut a lesson short on 11 February, but that is uncorroborated and contrasts with the defenders' position. Roma was also involved in lessons between 5th and 18th February and the defenders say that no adverse comment was made by anyone about its fitness. Martin Dargie was teaching regularly between 5th and 18th February and he remembered Roma being used by the pursuer in the week prior to the competition on 18 February 2005. He said that during that time, there were no problems with, or complaints, about Roma. Had there been any, he would have known of these and any event, he would not have allowed Roma to be used if it was not fully fit. Had Roma not being fully fit, there were other horses available.

(c) 18 February 2005.

The pursuer attempted a jump, was thrown off, remounted, and tried again and was again thrown off. Each of these episodes was spoken to by the pursuer, Martin Dargie, Astrid Anderson and Catriona Maddigan. In relation to the first episode, the pursuer's account differs markedly from those given by Astrid Anderson and Catriona Maddigan, and in relation to the second one, the subject of the action, it differs markedly not only from those given by Astrid Anderson and Catriona Maddigan, but also that given by Martin Dargie. The pursuer's account does not need to be corroborated, but if, as in the present case, there is other evidence, the pursuer's account has to be tested against that.

Before dealing with these accounts, both Astrid Anderson and Catriona Maddigan said that the layout of the course was different from what appears in No. 5/13 of process, App.A. The pursuer's evidence on that was not challenged, but I do not regard the precise nature of the layout as being material, in that two of the three witnesses had a clear view of what the pursuer and Roma did during the second episode, and the other, Maddigan, heard a whip being used and saw the pursuer on the ground. All three witnesses were in close proximity to the pursuer at the times of these falls.

The pursuer's evidence was the Roma was fine while on the flat and on small practice jumps. However, when he began jumping over the competition jumps, he seemed to be carrying his head low, was trying to "go through" the pursuer, and was not really listening to what she was saying, while at the same time shaking his head. That part was not put to either Astrid Anderson, or Catriona Maddigan. However, according to the pursuer, the horse then stopped suddenly at the third jump which was approximately 2 feet 9ins. in height. She smacked him with the whip on the hindquarters which is something which she did not think she had ever done before. He did "quite a large buck" with all four legs off the ground--"rodeo style." As a result of that, the pursuer fell off Roma. According to her, Roma was "clearly unhappy," and Martin Dargie saw this and either he or Astrid Anderson came and held Roma, but Martin Dargie did not do anything to stop the pursuer from remounting. The pursuer said that she decided to leave the whip behind, remounted Roma and continued, but according to her, Roma was dropping his head down and she struggled to slow it down and keep control. The pursuer says that Roma was going fast and was trying to get her to lose control, was consistently pulling and shaking his head, but despite that, he continued to jump. The other eye-witnesses do not speak to this.

As the pursuer approached the eighth jump, a drunken oxer, (so called because the poles are squint, and at different levels so that the horse struggles to judge the height) Roma turned a very tight corner and did a "really huge buck" while travelling quite fast. All four legs came off the ground-- another rodeo buck. The pursuer came off Roma and landed on her head. Martin Dargie, Astrid Anderson and Catriona Maddigan all came over to see if she was all right. I note that Dr. Gillham reported that, "She [the pursuer] feels that her ongoing memory of events following this [the fall] is somewhat hazy." (No.5/9 of process, para. 19) That did not come over during the pursuer's evidence. (e.g. Day, 1 pp. 30-32)

The defenders' position differs significantly from the pursuer's account. Martin Dargie did not see the first fall, notwithstanding that he was relatively close to the pursuer, according to him about 2 to 4 metres away. His position in relation to the incident itself was that Roma was cantering and he added that it was impossible for Roma to gallop in the available time between the previous fence and the one at which the incident took place. He was 100% certain that the pursuer had used a stick because she felt that Roma was not going forward enough to take the jump. He was also certain that only Roma's back legs of came off the ground. I accept his evidence on that point. He filed an accident report shortly after the accident (No. 6/20 of process.) He accepted that there is no mention in it of the use of the whip by the pursuer, explaining that riders lose their balance and it is "no big deal" if a rider uses stick or falls off a horse. I accept that. Of the others present, viz; Astrid Anderson and Catriona Maddigan, the latter gave evidence that Martin Dargie had spoken to the pursuer after the first fall, and assumed that he had advised her about what the pursuer had done wrong.

Astrid Anderson was a member of the Riding Club and was present, but not participating, on 18 February and remembered the incidents well. She has a long history of being involved in horse riding. She had no complaints about the way that Hayfield organised itself or about their horses. She described what happened to the pursuer as "rider error," because the pursuer had gone into the same jump and done exactly the same thing twice. I do not regard it as improbable that someone can make the same mistake twice. The instructor, Martin Dargie, was also present. Astrid Anderson saw both falls as she was only a few feet away from the pursuer and was on an elevated piece of ground. She was directly opposite the fence which the pursuer was jumping. The accident took place because the pursuer had cut the corner and Roma was not straight on to the fence and that is why he refused to jump it. In her view, if a horse cannot see a fence clearly, it may put his feet out or swing to the left or to the right. When the pursuer went to jump, Roma swung to the left, the pursuer put her arms forward as she did not have proper contact with the reins. She hit Roma, he bucked, and she fell off. She described the buck as one where only the rear legs came off the ground about 3 to 4 feet, not a "rodeo" buck. The pursuer laughed, got up straight away, and back on to Roma. Ms Anderson did not recall speaking to the pursuer after the first fall, nor could she not recall whether Martin Dargie had.

After the pursuer remounted, she made a second attempt, but again, the pursuer had cut the corner, and as Roma approached, because he could not see the jump, he refused again and the pursuer was thrown off. Ms Anderson was quite clear that the pursuer had used the whip on that second occasion. She described the strike as a "wallop" which could be heard clearly, whereas a light tap would not be heard. The buck was similar to the previous one, and in her view, Roma did exactly what would have been expected. She could see it all, as it was happening was right in front of her and she did not accept that she was confused. She also confirmed that Roma was not galloping and that from her experience, Roma would do everything which was asked of him.

Catriona Maddigan is a former member of the Riding Club which she had started in 2002. Her parents had horses and she has been show-jumping since she was 12. According to her, Hayfield was chosen, not just because it was the club which was closest to Robert Gordon University, but also because Aberdeen University used it and John Crawford was very helpful. The premises were excellent, the horses were good, and the place was extremely well-run. She too had no complaints about Hayfield, or about the horses.

She was of the opinion that she could tell whether a horse was "OK" and she saw nothing wrong with Roma on 18 February 2005. She could not recall the training session on 11 February, but thought that she would have been there because she was club captain. She did however have a "pretty good memory" of the events of 18 February. Her view was that on the first occasion, the pursuer had approached the fence incorrectly, she had no proper contact with Roma and was bucked off.

Ms. Maddigan was on her horse and the incident took place right in front of her. She confirmed that Martin Dargie and Astrid Anderson were also present. At the time of the first fall, she was with Martin Dargie and Astrid Anderson and was around 15 metres away from the pursuer.

In order to negotiate the jump properly, Roma would have had to be facing the fence straight on, but the pursuer, on the first occasion, had cut the corner, as a result of which Roma refused to jump. The pursuer hit Roma once and he bucked. Although the pursuer came off Roma, she was fine. According to Ms Maddigan, Martin Dargie had pointed out the mistake to the pursuer who seemed to understand.

Ms Maddigan then did the course herself, but at the time of the pursuer's second attempt, Ms Maddigan had her back to her at the time of the second fall. She did, however, hear another smack, at which point Astrid Anderson had said something like, "Oh my God." Ms Maddigan knew that the whip had been used and she described it as "brutal" and loud and that is what made her turn round. She saw the pursuer on the ground.

I accept and prefer the evidence of Martin Dargie, Astrid Anderson and Catriona Maddigan. They all say that the horse was struck on both the first and the second occasion by the pursuer with the whip. It was suggested to Ms Maddigan that she was mistaken in thinking that the pursuer had used the whip on the second occasion, because she admitted that she had not seen the whip immediately after the second fall. Her response, which I accept, is that her concern was for her injured friend and not for any "missing" whip. While Martin Dargie could not remember the first fall and its aftermath, he was clear about the nature of the buck in the second fall, and what had caused it, namely the horse being struck by the whip, and in relation to that, I found him to be credible and reliable. It was submitted that because when asked, "Was she [the pursuer] approaching correctly?" Martin Dargie did say, "Yes she seemed to be doing a good enough job," he was unreliable because both Anderson and Maddigan had said that the pursuer had cut the corner, I do not accept that because he went on immediately to say, "I can't really remember how she came round the turn or anything at the fence." (Day 5, p.38) In any event, what is significant is not how she approached the fence, but whether the horse was unfit for purpose, whether the pursuer used the whip on both occasions and how the horse reacted to that.

I found both Astrid Anderson and Catriona Maddigan, in particular, to be credible and reliable. They were friends of the pursuer and, in some cases, people in that position might "colour" their evidence in order to support a friend. I did not get the impression that they were doing anything other than telling the truth and were reliable in the detail which they gave, and I prefer their accounts to that of the pursuer.

.

Some time after the accident, but within a week, Astrid Anderson and Catriona Maddigan had been asked by the University to prepare a joint statement about the events of 18 February. That was done for insurance purposes. That statement formed the basis of a joint statement provided to the pursuer's solicitors in April or May of 2005. There was a suggestion that they might have colluded, but their position, which I accept, is that they did no more than describe what happened, as they anticipated that the University would require a report. At that point, they could not have known that the pursuer was contemplating a court action. That said, they did revisit their earlier account before submitting it on the second occasion.

The skilled witnesses, Dr Marsden and Mr Lane.

Dr. Debbie Marsden gave evidence about horse behaviour and the conclusions to be drawn from the fact that the horse bucked in the way described by the pursuer.

Dr. Marsden is well qualified, both academically and practically. She is a director of MDM Equestrian Consultancy which gives advice to horse owners and vets on all aspects of horse behaviour, and also provides feasibility studies for riding schools. She has a B.Sc (Hons) in Agricultural Science specialising in animal behaviour and a Ph.D. on the effects of husbandry, housing and management on animal behaviour and welfare, both qualifications from the University of Edinburgh. From 1990 until 1994, she held a post-doctoral research fellowship on the effects of housing and management on behaviour problems in horses at the Royal Dick Veterinary School in Edinburgh and until 2002 was a Fellow of the Department of Veterinary Clinical Studies at the University of Edinburgh. Among other things, she is a member of the Royal College of Veterinary Science sub-committee for the veterinary inspection of riding establishments and her name is on various recognised lists of expert witnesses.

She provided an opinion in the present case (number 5/13 of process) which is based among other things on statements made by the pursuer, a diagram of the course drawn by the pursuer and literature supplied by the defenders which gives a description of their horses, including Roma. Dr. Marsden has not personally seen the premises at neither Hayfield nor the horse.

Her evidence and the report provide helpful summaries. She says (page 11):-

"1. It is not normal for horses to react by bucking when struck with a riding crop or stick. Some socially dominant horses may react here by slowing down and kicking out with one hind leg on this side on which they are struck. The type of bucking described after being struck with a stick indicates back pain which can be caused by all sorts of injuries and/or a poorly fitting saddle.

2. While there are some inconsistencies in the descriptions I have seen, on balance the bucking described appears to be of a nature and pattern that is typical of injury and back pain related bucking.

3. Roma's fall on the 20th January 2005 and time off without veterinary treatment or check ups before returning to work prior to the incident on the 18th February 2005 could easily cause the kinds of physical problems which commonly lead to this kind of bucking in my experience."

On page 16 she says:-

"1 Hayfield had a clear duty to provide a suitable horse for Miss Reid to jump on the 18^th February 2005. A suitable horse would have been one which was healthy, physically fit and obedient enough for a rider of Miss Reid's experience and ability to jump over the course set up. It would seem from Miss Reid's description of events that Roma was not up to this work on that day.

2. If it was Roma's nature to buck violently when he was hit with a stick when healthy and fit, this most unusual characteristic should have been made clear to all who rode him and for the most part riders not allowed to carry a stick on this horse."

On page 17, she says,

"1. With the qualifiers detailed in Section 4.1, and for the reasons outlined in that section of this report, it is most likely that Roma refused and bucked when hit by a stick due to pain and physical problems. Miss Reid's description of the buck after which she fell and was injured is exactly typical of a pain related buck and not consistent with any other types of bucking or reasons for refusing fences that I am aware of."

It is clear from Dr. Marston's report, as one would expect, that her conclusions about the behaviour of the horse on 18 February 2005 are, to a large extent, based on the assumption that the pursuer had fallen off, or was thrown off following a violent, "rodeo style" buck, and that the horse bucked because it was in pain from a previous injury. That, in turn, is based on an assumption that the horse had been more seriously injured in the fall on 20 January than the defenders admit, and that the horse was so seriously injured that a vet ought to have been called out. It is also based on the pursuer's uncorroborated account of the behaviour of the horse on 11 February.

In the course of her evidence, Dr Marsden did say that if a horse is struck by a whip, one would expect it to buck, but if the horse is already in pain (which may be caused by muscle damage, bruising, or the saddle not fitting properly) then if it is struck by a whip, that would cause an acute pain with the result that the horse might well give a violent buck of the kind described by the pursuer. It follows therefore, from that opinion that, assuming that the pursuer did not use the whip on the second occasion, Roma would have to have been in pain for some reason (other than a saddle not fitting properly) not resulting from a strike with a whip for it to buck in the violent way so described.

That scenario was not expressly put to Dr Marsden, but according to Astrid Anderson, a person with a lot of experience of riding horses, the horse would not have bucked if the whip had not been used.

Dr Marsden stated (Day 2, p. 102) that if a horse had fallen over, especially on a surface like ice, the defenders "really should have called a vet and most establishments would do so...." That is based on an assumption that Roma fell over, whereas the evidence was that he slipped, unless Dr Marsden equated the two, In any event, that view does not accord with that of Mr Lane, but, of more significance, it does not accord with the literature, even that which is part of the appendix to her report. For example, the Pony Club Manual 10^th ed. p. 69, No. 5/14(a) of process) says that a vet may be needed if there is lameness, or a back problem. The defenders' production (No. 6/32) to which Dr Marsden was referred is instructive. It is the RSPCA Complete Horse Manual which on p. 40 has a diagram which indicates when the vet should be called. The scenario which best accords with the evidence is "Has your horse got a wound? If the answer is "Yes," the vet should be called but only if the wound is bleeding under pressure, or is more than 1 inch long or is infected. If the horse is slightly lame, the advice is to rest the horse for 24 hours and if there is no improvement call the vet." (p. 140) I accept the defenders' evidence that the horse did not appear to be seriously injured after the fall and that, having rested the horse, and then put it back to work; nothing untoward was noticed or reported. Against that background, the literature would not suggest calling the vet.

The defenders' expert was Charles Lane who has over 40 years' experience of horses, including riding in competitions, managing young and troublesome horses, being an instructor, and racing against professional jockeys. He visited Hayfield and rode Roma. His report is No. 6/9 of Process. His evidence was that it is not uncommon for horses to buck, or kick out if struck hard with a stick, especially if that is done behind the saddle, but such bucks would not be of the "rodeo" type, and he did not accept that violent bucking would be associated solely with a sore back. He had ridden Roma and while he did not attempt to replicate the precise course used by the pursuer, he did put the horse through tasks similar to those undertaken on the day of the accident, including sharp left hand turns. In his opinion, if a horse fell, (as Roma did on 20 January) a responsible riding school would not immediately call out, or seek assistance from, a vet, but would wait to see whether the horse recovered from the fall, by keeping a close eye on it. Only if there was no improvement, or deterioration would veterinary assistance be sought. That accorded with common sense, experience, and the considerable cost involved in seeking assistance on every occasion. He drew an analogy with a young child falling. That approach is consistent with the literature to which I have referred and the other literature referred to in evidence. Dr Marsden's assumption that the horse was rested because of the injury on 20 January does not accord with the defenders' evidence which I accept, viz:- that following upon that rest, the horse's behaviour did not give any cause for concern. In relation to the reason for the horse stopping, Mr Lane said (Day 6, p.23) that the horse might stop because it was not approaching a jump from the right angle, or was too close, or too far way. "There are lots of reasons for horses to stop at jumps and having a bad back is a small one." Later, when told of the pursuer's account that she had not struck Roma on the second occasion, responded by saying "I don't know why he would buck." (Day 6, p24)

Of the two, I prefer the evidence of Mr Lane. He has had more practical experience of horses than Dr Marsden, and in particular, has had practical experience of dealing with problem horses. While it is not a criticism of Dr Marsden that she was unable to ride Roma, Mr Lane did ride the horse and was able to experience for himself its normal behaviour and its reaction to being struck with a stick or whip, in circumstances not dissimilar to those which pertained on the date of the accident. I prefer his evidence on what a riding school would do if a horse had a fall, and reject the view that in every situation a vet ought to be called out, or at least consulted. That also accords with the literature above mentioned. Leaving aside the issue of cost, which is a minor factor when compared with safety, it makes sense to observe a horse which has had a fall, and only if it does not improve to call on a vet for advice. Mr Lane's view which I prefer is that, had the horse been injured and as a result was not fully fit, that would have manifested itself in that interval. Furthermore, it is unlikely, in his view that the horse would be lethargic, etc., one day but not the next. Dr Marsden cannot be criticised for accepting the pursuer's version of what happened on 11 February and on the day of the accident, but the pursuer's account is not the one which I accept.

(d) What happened immediately after the incident.

There are also material differences between the pursuer's account and those of Martin Dargie, Astrid Anderson and Catriona Maddigan in relation to the post-incident actions, and events.

After the fall, the pursuer says that she was in a lot of pain, had a bleeding nose and was struggling to breathe. She told the other three that her back was very sore. After a few minutes, two of the others grabbed her, helped her up and took her to the reception area at Hayfield. Martin Dargie had asked if she was "OK" and gave her a glass of water. The others confirm that. According to the pursuer, while she was at the reception, she was feeling quite sick, but wanted to go to work at ASDA. Ms Maddigan, however, had insisted that she went to the hospital, and there was evidence that Martin Dargie had also played a part in having her go to hospital. A taxi was called for and the pursuer went to hospital with Astrid Anderson and Catriona Maddigan. They confirm that.

According to the pursuer, she was, uncharacteristically, very abusive to the taxi driver. At the hospital, she was seen by a nurse, but had to wait in a hospital reception area for several hours, during which time she says she was blacking-out, and feeling really sick.

According to Astrid Anderson, the pursuer was not misbehaving in the taxi; rather she was laughing and talking normally and was certainly not abusive. While Ms Anderson accepted that she was not the pursuer's company the whole time at the hospital, she did not see the pursuer lose consciousness or being nauseous; indeed she was laughing and giggling.

Catriona Maddigan said that it was Astrid Anderson who had insisted that the pursuer to go to hospital, but she also says that the pursuer was chatting away in the taxi, was not swearing nor being abusive. She too accepted that she was not in the pursuer's company all the time at the hospital, but when they were together, the pursuer was not losing consciousness and she could not recall the pursuer saying that she was feeling faint.

I also found the witnesses Anderson and Maddigan to be both credible and reliable in respect of their accounts of what happened in the taxi and at the hospital. Despite what the pursuer says, there is nothing in the hospital records which discloses that the pursuer had passed out while there, and Dr Coleman's evidence was that, if a patient was suspected of having a head injury and passed out, he would expect that to be recorded. That she did not pass out accords with what Astrid Anderson and Catriona Maddigan say about the pursuer while she was in their company at the hospital. I cannot think of any reason why they would lie about, or exaggerate, this aspect.

The skilled witnesses, Dr Gillham and Dr. Torrens.

In a report dated 28^th March 2008, (No. 5/8 of process) Dr Richard Coleman opined that the pursuer had suffered a concussive head injury, post-concussion syndrome with symptoms including headaches which are tending to improve and probably a mild form of post-traumatic stress disorder. However, he said that he could not find any evidence from a physical neurological examination of permanent injury to the pursuer's brain or nervous system. (Day 2, pp.22/23). The pursuer instructed a report from Dr Ruth Gillham, (No. 5/9 of process) and the defenders instructed one from Dr Lorna Torrens. (No. 6/8 of process).

Before dealing with these, I shall deal with blackouts spoken to by the pursuer. There is a letter among her medical records (No. 5/6 of process) from Dr Gillian Hall, a consultant neurologist at Aberdeen Royal Infirmary (p.26) in which she narrates that the pursuer told her that she began having headaches one week after the accident and they got worse. The pursuer said she had had 3 blackouts within the first month. I note that, at that time, the pursuer would have been at home, but her mother did not speak to these. The pursuer also told Dr Hall that she had had a blackout in March or April 2005, during which she was unconscious for about 10 minutes, but she did not report this to her GP because she was concerned about losing her driving licence. (Day 1, p.68A--B) According to the medical records of her involvement with Dr Holden, a consultant physician in the Department of Medicine for the Elderly Acute Stroke Care and Rehabilitation at Dumfries and Galloway Royal Infirmary, she told him that the blackouts began "a few months later" following the accident (No.5/6 of process, letter dated 2 March 2006 addressed to the pursuer's GP in Dumfries). He concluded that these could be as a result of a head injury, or "indeed it could quite plausibly be due to recurrent syncopal episodes, perhaps brought on by changes in Vicky's fitness level as a result of the accident." The pursuer told Dr Coleman that the blackouts began in the summer of 2005. Dr Gillham's report (No. 5/9 of process para. 2) notes that the pursuer did not report any loss of consciousness to her. The pursuer's own account of the blackouts is not consistent, no one else spoke to them and they were not reported to her GP, nor significantly, in my view, to Dr. Gillham. Furthermore, one might have expected the pursuer to report any blackouts to her mother, at least when she was staying at home. Her mother was not asked about these.

Head Injury.

I turn now to the question whether the pursuer suffered a brain injury as a consequence of the fall. Dr Holden's view has been noted in the above paragraph. Dr Coleman could not find any evidence, from a physical neurological examination, of any permanent injury to the brain, even if the pursuer had suffered blackouts (Day 2, p. 7, 22-23). He also concluded that she had not sustained a severe head injury (Day 2, p.26), but did suggest that a psychological report be obtained. (Day 2, p.27). The pursuer had a 24-hour ECG recording in July 2006 which showed "no significant abnormalities" (No. 5/6 of process, letter from Dr Hall dated 11 July 2006). There was an EEG sleep deprived test in June 2006 which showed, "no epileptic abnormalities," with a follow-up recording on 18 August 2006 which was "normal," (as per letters from Dr Hall dated 26 June and 22 August 2006).

Dr Gillham reported that the pursuer's performance on memory testing was above average. (para.38) The only test which suggested any abnormality was the pursuer's attempt to repeat a series of 7 numbers in reverse order. (para. 39) Dr Torrens also did these tests, but did additional tests. (Day 6, p. 61) In these additional tests, the pursuer's performance was well within the "high average" range. Significantly, in her view, while the pursuer's performance on a digit span test, was "bottom of below average" (p. 15), she was "high average," on a similar but more complex test which was letter sequences. That digit span test is of working memory and that is typically, according to Dr Torrens, most affected by brain injury. Equally the Processing Speed Index was a highly significant strength of the pursuer's and is "the most subject to compromise in brain injury." (p. 14) Dr Torrens pointed out that the pursuer did not seem to be interested in the reasons for the tests which is unusual (Day 6, p. 51) and did not bring along with her anyone who could support what she was saying about her blackouts and difficulties (Day 6, p. 86). Dr. Gillham noted that the pursuer had a boyfriend and flat-mates, (Day 3, p. 30) some of whom might have noticed these problems. Dr Gillham accepted that any brain injury was mild (Day 3, p. 52) and in Dr. Torrens' opinion, one would normally expect that to be cured after a lapse of 2 years (Day 6, p. 77). Dr. Gillham's view that the best indicator of frontal lobe damage is the person's own account was put to Dr. Torrens. (Day 6, p. 78) Dr Torrens accepted that that was important, but had to be considered along with other tests, and evidence from others. While she accepted that the account given by the pursuer's mother of the pursuer having a "mind like a sieve" could be indicative of brain injury, other things also had to be considered. (Day 6, pp. 79-81, again including accounts by others) Dr Gillham was of the view that the pursuer did not have "a suitable strategy" for learning which could be "a product of frontal lobe injury." (No.5/9 of process, para. 43) By contrast, in Dr Torrens' opinion, the pursuer had a strategy of revising the night before her exams, albeit that was not a strategy Dr Torrens would recommend. (Day 6, p. 55, pp. 84-85) While Dr Gillham concluded that the pursuer had suffered a brain injury, she accepted that there was a lack of evidence of that in the early stages of the pursuer's treatment (No. 5/9 of process, para. 44.)

I prefer Dr Torrens' opinion in that she carried out more tests in order to establish whether or not the pursuer had suffered a brain injury, and in the tests in relation to matters which might be more or most susceptible to brain injury, the pursuer performed well, or very well. That opinion is also consonant with the views of Drs Coleman and Holden and the results of the earlier tests as described in the letters from Dr Hall. It was submitted that Dr. Torrens report was influenced because she admitted that she did not warm to the pursuer. (Dr. Gillham also found the pursuer to be "terse" and "reticent," but she thought that was part of her character (Day 3, p. 24).) Dr Torrens stated that her conclusion had not been affected by the pursuer's attitude, her demeanour or the fact that she had difficulty in believing certain things said by the pursuer and I would not be inclined to hold that it was unless there was compelling evidence to that effect, and there is none.

No support for the brain injury can be had from the pursuer's academic results which, in short, disclose that in her first year of study, prior to the accident, she had not done well and while she had to repeat that year, that was not as a result of the accident. Her performance in subsequent years does not show any sign of being affected by any such injury. Indeed, her performance improved, at least until the academic year ending in 2009.

I am not persuaded that the horse was seriously injured on 20 January 2005 nor I am persuaded by the pursuer's account of the accident itself, the aftermath, nor by her accounts which she says are supportive of her view that she sustained a mild brain injury. It is for that reason that I have dealt, at this stage, only with liability.