OUTER HOUSE, COURT OF SESSION [2007] CSOH 68
PD713/06	OPINION OF LORD MACPHAIL in the cause CLAYTON ROBERTSON Pursuer; against HORSES IN SCOTLAND LIMITED Defenders: ________________

Pursuer: Di Rollo, Q.C., D.B. Ross; Thompsons

Defenders: Jamieson; Simpson & Marwick, W.S.

22 March 2007

Introduction

[1] This is an action of damages for personal injuries in which the pursuer sues as the legal representative of his daughter Megan Robertson ("Megan") who was born on 30 July 1995 and is thus now 11 years of age. Megan injured her right arm when she fell from a horse during a riding lesson at the defenders' riding school. Damages have been agreed at £7,500. There is no suggestion on averment of any fault on Megan's part. The only issue for decision is whether the defenders are liable in damages.

The pleadings
[2] It is agreed on record that the accident happened on Saturday 27 November 2004, when Megan was nine years old. She was having a riding lesson at the defenders' riding school at Wester Deanhead Riding School in Dunfermline. These premises were controlled by the defenders. The lesson was being given by Mrs Elaine Marshall, an instructor employed by the defenders who was acting in the course of her employment with them. Megan had previously had lessons at the riding school, and she was able to trot, canter and jump a pony. At the time of the accident she was riding a pony named Puzzle which she had ridden before. There were about five pupils in the class. During the class Mrs Marshall was on foot and the class were riding in a circle round her. Just before the accident, Mrs Marshall had asked the class to start cantering one at a time. That meant that each rider would walk, trot and canter round the circle.

[3] The area of factual dispute on record is this. The pursuer avers that two Jack Russell terriers were in the training arena during the lesson, and that before Megan's accident, the dogs harried a horse ridden by another member of the class. The horse took fright but the rider managed to bring it under control. Mrs Marshall commented on the incident saying the horse had over-reacted. She did not attempt to remove the dogs from the arena. Shortly after that incident, the dogs harried the horse Megan was riding. Her horse became upset and reared up, and as a result Megan was thrown to the ground and sustained injury. Prior to the accident, dogs were regularly seen in the training arena.

[4] The defenders, on the other hand, aver that there were no dogs in the arena at the time. They say that the accident occurred when Megan started to walk, trot and canter. She turned to her left. "The pony flicked its left heel and whilst the pony remained level it did turn sharply to the left and at this point the said Megan Robertson fell off."

[5] The pursuer's claim is based on the fault of the defenders' employee, Mrs Marshall. Other claims that have been averred in the pleadings, one relative to an unsafe system of work and the other relative to the Animals (Scotland) Act 1987, are no longer insisted in. The pursuer says that Mrs Marshall should have had no dogs in the training arena during the lesson, and should have removed the dogs after the first incident of harrying. The defenders do not dispute that it would have been dangerous to allow dogs to be in the training arena during a lesson, but they claim that no dogs were there, and on that basis they deny liability. The issue of liability therefore turns on whether Megan's accident was caused by the presence of a dog or dogs in the arena.

[6] Before turning to the evidence, it will be convenient to notice that there is no dispute about the location and layout of the training arena where the accident occurred. The training arena is a fenced rectangular field which may be seen in the photograph no 6/5/13 of process. It is entered by a gate at one corner where, in that photograph which was taken on 16 March 2007, there is a small green hut. (There is a dispute as to whether any structure was in that position on the date of the accident). The gate is approached from the stables by a road which is seen in the photograph no 7/2E of process. The road then bifurcates at a mound, seen in nos 7/2A, B and F, and the right fork leads to the gate.

The evidence
[7] The pursuer's counsel led Megan; her grandmother Mrs Linda Henderson; her father (the pursuer); her mother Mrs Lynn Robertson, and a skilled witness, Dr M D Marsden. The witnesses for the defenders were Mrs Eileen Marshall, the instructor mentioned on record; and Mr Alan Browne.

[8] I considered Megan to be a credible and generally accurate witness. She impressed me favourably as a serious girl who answered the questions put to her carefully and articulately, and responded well in cross-examination. She said that she had been riding horses since she was five, and she had been to two other riding schools. On the day of the accident, two Jack Russells came into the arena during the lesson. She had seen them in the arena on previous occasions. On this occasion they were playing with a stick, each holding an end in its mouth. One of them frightened a horse that was being ridden by another girl. The horse bolted but the girl managed to control it.

[9] Later in the lesson, said Megan, the accident took place. Each rider was to go individually around the arena anticlockwise, walking, then trotting, then cantering. When it was Megan's turn, she trotted to the top left-hand corner of the arena in no 6/5/13, and was about to canter, when the two dogs ran underneath her horse. The horse realised they were there, got a fright and reared, raising its forefeet in the air, causing Megan to fall off backwards, to the rear of the horse. The accident happened at the site of the green and yellow pole on the ground in the photograph. The dogs had been in the middle of the arena with Elaine Marshall, the instructor. At the end of her cross-examination Megan mentioned that after she had fallen off and was lying on the ground, the dogs lay beside her and kept her warm while she was waiting for the ambulance. There was no hut by the gate on the day of the accident. I found Megan's evidence to be supported by other witnesses, and I am satisfied that it was truthful and generally reliable. My only reservation is that I doubt whether the two dogs had the stick in their mouths throughout the episode.

[10] Megan's grandmother Mrs Henderson was also, in my view, a trustworthy witness. She spoke naturally and clearly. She said that she had taken Megan to the riding lesson, and after leaving Megan at the stables she had driven up to the arena and parked her car where the hut is seen in the photograph 6/5/13. There was no hut or building of any kind there at the date of the accident. She parked her car parallel to the fence, with the driver's side next to the fence, and rolled down the window. She had been to the riding school on previous occasions and had seen dogs there. On the day of the accident, she saw dogs in the training arena. Before Megan's accident, one of the dogs frightened one of the other horses: it "danced about" and the girl riding it brought it under control. Elaine Marshall commented to the horse, "What a fuss to make about nothing," and made no effort to get the dog out.

[11] Some ten minutes into the lesson, Megan's accident happened. The class had done various exercises, then they started individual training. When it was Megan's turn, one of the dogs was still running backwards and forwards. It "spooked" Megan's horse, and the horse was "dancing", lifting up all four feet, then it put its forefeet up in the air. Mrs Henderson started to open her car door, and heard a cry and a bump when Megan hit the ground. After the accident, the dog lay beside Megan. Mrs Henderson referred to one dog, while Megan had spoken of two dogs. I consider that on this point the evidence of Megan, who was closer and probably more attentive to the events in the arena, is to be preferred, but I do not regard this discrepancy as significant. Mrs Henderson gave her evidence in a responsible manner and remained unshaken in cross-examination. She placed the site of the accident at almost the same spot on the photograph no 6/5/13 as Megan had done.

[12] Megan's father, the pursuer, was not present at the time of the accident. He spoke to having seen dogs in the training arena every time he was present while Megan was having a lesson. He had spoken about the dogs to a lady who was around the school all the time and she had told him that the dogs and the horses were used to each other. That is consistent with evidence given later by Mrs Marshall. The pursuer also said that there was no building at the gate when he visited the school. He was a full-time firefighter by occupation, and he gave his evidence firmly but fairly. He convinced me that his evidence was truthful and accurate.

[13] Megan's mother, Mrs Lynn Robertson, was also not present at the riding school on the day of the accident, but said that at Megan's previous lessons she had seen dogs in the training arena. She positively impressed me as a trustworthy witness. She was not cross-examined.

[14] The pursuer's expert witness, Dr Marsden, spoke to her report, no 6/4 of process. She has impressive qualifications and much relevant professional experience. Her report, like her evidence, is clearly and persuasively expressed. It includes the following passage (on page 12):

"Dogs of any kind, experience, temperament or manners represent an obvious hazard to riders when loose in a riding arena during lessons, and are not allowed in the vicinity of a riding area while anyone is riding in almost every yard I have ever been to."

[15] I was not persuaded by the evidence of Mrs Elaine Marshall, the instructor. Her demeanour tended to be defensive, and she was slow to make concessions or give information about certain matters, including the consequences for her employment if the pursuer's account of the accident was correct, and her dealings with the defenders' witness Mr Alan Browne. She was positive that there had been a structure at the site of the hut in photograph no 6/5/13, and equally positive that on the day of the accident there had been no incident prior to Megan's accident involving another rider and a dog, and that no dogs had been in the arena during the lesson. She said that Megan fell off while she was doing the individual cantering exercise. Her description of the exercise and the place where Megan fell was consistent with Megan's evidence. The horse was to be asked to canter as it approached the corner. As to why Megan fell off, however, Mrs Marshall said that the horse "veered off the track" because Megan was leaning forward instead of sitting up, and was not holding her outside rein. She fell off on the right hand side and landed on her arm. This is not the version of the reason for her fall which appears in the defenders' pleadings.

[16] As to the dogs, Mrs Marshall said that they knew their boundaries. She admitted, however, that there was nothing to prevent them getting away from the stables and going to the arena. As far as she was aware, the dogs had been at the mound shown on photograph no 6/5/15. They had gone up and round the end of the mound nearest the camera. They sometimes went up to the field 200 or 300 yards away from the horses. They would have gone back to the yard before the horses left the arena. They knew to keep away from the horses without being told. No dog had come up to Megan after she was injured. Megan's grandmother had not driven her car up to the arena.

[17] Mrs Marshall's evidence was seriously at variance with the evidence of other witnesses whose testimony I am disposed to accept. Her evidence about the presence of a structure at the site of the hut in the photographs is inconsistent with that of Megan, her father, Mrs Henderson and Mr Alan Browne, the defenders' witness whose evidence I am about to discuss. Mrs Marshall's evidence about there being no incident involving a dog and another horse before Megan's accident cannot be reconciled with the acceptable evidence of Megan and Mrs Henderson. Her evidence about the absence of dogs from the arena during lessons, both generally and on the day of the accident in particular, appeared to me to be too good to be true, particularly having regard to her admission that the dogs were not confined and were as close to the arena as the mound. Her testimony on the subject of dogs in the arena is in conflict with that of Megan, her father, Mrs Henderson and Mr Alan Browne. Her evidence about the accident is wholly different from that of Megan and Mrs Henderson. Her evidence that no dog came up to Megan when she was lying in the arena after the accident is contradicted by the evidence of Megan, Mrs Henderson and Mr Browne. Her evidence that Mrs Henderson did not come up to the arena in her car is contradicted by Mrs Henderson and Mr Browne. It is in any event inherently improbable, given Mrs Henderson's physical condition, that she would have gone to the arena on foot: she finds it troublesome to get about, and cannot stand for any length of time.

[17] The last witness, Mr Alan Browne, had been asked to give evidence only two weeks before the proof. Before then, he had had no reason to think back to the day of the accident. Mr Browne said that he was present when the accident happened. It had occurred during the cantering exercise. Megan had fallen off when her horse took the turn pretty quickly. Dogs had been around, but not in the arena. They had come into the arena after the accident while the other riders were still mounted and exercising. He did not see anything wrong with the dogs being around the horses. In the past there had been odd occasions when the Jack Russells had been in the arena. There had not been any prior incident on the day of the accident. Mrs Henderson had come up to the arena in her car. At one time there had been no building, only sleepers, on the site of the hut in photograph 6/5/13, but he was sure that had been after Christmas 2004.

[18] I consider that Mr Browne was honestly doing his best to tell the truth as he remembered it. I could not be satisfied, however, that his memory was accurate in all respects. I accept that he was present at the time of the accident, and his evidence that it happened during the cantering exercise, that Mrs Henderson had come up in her car, and that dogs had been in the arena after the accident, is consistent with the acceptable evidence of other witnesses. His evidence that dogs had been in the arena in the past is consistent with the evidence of all the other witnesses except Mrs Marshall. I am not satisfied, however, that he had a clear recollection of the details of Megan's accident. He was speaking of events over two years before which he had had no reason to recall until two weeks before the proof. In addition, his evidence that he saw nothing wrong with the dogs being around the horses in the arena not only is inconsistent with the views of the other witnesses but also causes me to doubt whether he would have taken particular note of whether dogs were in the arena or not during the lesson. I therefore do not accept his account of the accident or his evidence that there was no prior incident involving another rider.

[19] There are two final matters which I should notice in relation to the evidence. First, both parties founded on different entries in the hospital records. Some simply give a history that Megan had fallen from a horse, without mentioning anything about a dog. There is one note that the horse was startled by a dog and bucked. Another says that the horse reared up. I do not consider any of these entries to be significant. There is no indication of who the various authors of the entries were or from whom they obtained the information they recorded, whether from Megan or from an accompanying adult. In any event it seems clear that the authors were primarily interested in noting that Megan had sustained her injury as a result of falling from a horse, and were not concerned to investigate the circumstances in which she had fallen.

[20] Secondly, there was a curious dispute between Megan, her father and grandmother on the one hand and the defenders' witnesses on the other as to whether there had been any hut near the gate into the arena at the time of the accident. Mrs Marshall was positive that there had always been a hut there, apart from a day on which one hut was demolished and another was erected on the same spot. Mr Browne said that there had been a period when there were only sleepers there, but that was after Christmas 2004. I consider that the pursuer's witnesses are correct and that Mr Browne is mistaken about the date when there was no hut there. It is very difficult to understand why the pursuer's witnesses should not have told the truth about this. It seems necessary to postulate that they had made a joint decision to say on oath that the hut was not there in order to provide Mrs Henderson with a convenient place to park her car and observe events in the arena; and that that was a plot designed to support false evidence from Megan and Mrs Henderson not only about Megan's accident but also about the prior incident involving a dog and the other rider. Having seen and heard the pursuer's witnesses being thoroughly tested under stringent and proper cross-examination, I am unable to accept such a hypothesis.

Findings in fact

[21] I have already set out the facts admitted on record. It follows from my assessment of the witnesses that my findings on the matters in dispute are as follows. Dogs were regularly in the training arena during lessons prior to the accident (Megan, Mrs Henderson, Mr and Mrs Robertson, Mr Browne). During Megan's lesson on 27 November 2004 two Jack Russells were in the training arena. One of them frightened a horse ridden by another rider, who managed to bring it under control (Megan, Mrs Henderson). Mrs Marshall made a comment to the effect that the horse had over-reacted (Mrs Henderson), but she did not attempt to remove the dogs from the arena (Megan, Mrs Henderson). Shortly afterwards, while Megan was engaged in an individual cantering exercise, the dogs ran underneath the horse Megan was riding and caused it to be startled and to rear up on it hind legs. As a result, Megan was thrown off and fell to the ground sustaining injury to her right arm (Megan, Mrs Henderson).

Liability

[22] Dogs are an obvious hazard to riders when loose in a training area during lessons. In other riding schools they are generally not allowed in the vicinity of a riding arena during lessons. That is clear from the evidence of Dr Marsden. Mrs Marshall also accepted that it would be dangerous and unacceptable for dogs to be present during a riding lesson, and it was her responsibility to make sure that they were not present. I find that she failed to take reasonable care to see that there were no dogs in the arena during Megan's lesson, or to remove the dogs after they had disturbed the horse ridden by the other rider. If she had fulfilled those duties of reasonable care, the accident would not have happened. Accordingly I hold that the defenders are liable to make reparation for the loss, injury and damage which Megan sustained as a result of the accident.

Result

[23] It is agreed by joint minute that in the event that liability is established, the damages should be £7,500, which includes interest to 20 March 2007, and that interest on the sum of £7,500 should be awarded at the rate of eight per cent per annum from 21 March 2007. I shall therefore grant decree in these terms. The pursuer's counsel has also moved for the certification as skilled witnesses of Dr Marsden and of Mr A J Espley, a consultant orthopaedic surgeon whose report on Megan's condition is no 6/1 of process. That motion was not opposed, and I shall grant it.