In the case of Kara Goldsmith v Robert Bradley Patchcott 2012 the Court of Appeal clarified the operation of the Volenti defence provided by the Animals Act 1971 in a helpful decision for defendants.
The background to this case is that the Claimant had been riding a horse named Red, which was being looked after by the Defendant whilst he tried to re-home him. The Claimant was an experienced horsewoman and was considering taking the horse. During the ride the horse reared up and the Claimant was thrown to the ground. She was struck by the horse’s hoof and suffered severe facial injures.
The Claimant claimed damages on the basis of strict liability under section 2 (2) of the Animals Act 1971. That provision imposed strict liability for damage caused by domesticated animals, if certain conditions were satisfied, irrespective of whether the keeper was at fault. The Court of Appeal decided that the requirements of Section 2 (2) were satisfied. However, Section 5 (2) of the Act provides a defence if the damage is suffered by a person who has voluntarily accepted the risk thereof. The Claimant argues that although she was aware Red could be startled and buck she had only accepted the risk of normal bucking rather than the violent bucking which in fact occurred. The Court rejected this narrow interpretation stating that "It was not a prerequisite of the statutory defence to strict liability under the Animals Act 1971 s.5 (2) for injuries caused by dangerous animals that the person injured should foresee the precise degree of energy with which the animal would engage in its characteristic behaviour".
This update has been provided by Kelvin Farmaner of Trethowans LLP Insurance Litigation Team. Kelvin and the team represented the successful party in the Court of Appeal and the House of Lords in the leading equine and animal liability decision of Mirvahedy v Henley (in which the courts defined the responsibilities of keepers of animals under Section 2 of the Animals Act 1971). The team has since gone on to develop a niche practice in this field.