Importance of establishing foreseeability – Morrison v Oakden [2021] CSOH 96

A recent Scottish case decided by Lady Carmichael in the Court of Session (High Court equivalent) highlights the importance of proving the foreseeability of a breach of duty of care in order to establish liability in a personal injury claim.

Background

In July 2015, the pursuer (then a 17-year-old stable hand) was asked by her employer (the defender) to exercise a horse who had been on box rest for some time. Box rest is when a horse only has limited exercise due to injury. The first time he was ridden in nearly 7 weeks was by his owner earlier on the same day that the incident occurred.

The defender had told the pursuer not to take the horse along the same track his owner had taken him earlier that day as the horse had, apparently, been a bit excitable. The pursuer did choose a different route, though when returning to the stable, the horse reared. The pursuer decided to dismount, and as she did so, she fell. The horse then reared again and fell on top of the pursuer. The pursuer suffered serious facial, head and spinal injuries.

Key Disputed Facts

1. Whether the pursuer was sufficiently experienced to handle the horse;

2. How the horse had been behaving earlier that day, and the knowledge of the defender about that;

3. Whether the horse should have been ridden a second time on the day of the incident (and, in particular, outside of the yard and without other horses present to calm him down);

4. Whether a horse who had been on reduced exercise was more likely to misbehave on a second ride.

The Pursuer's Position

The pursuer submitted that the defender knew or ought to have known the horse was likely to misbehave, given his instruction not to take the horse along the same track as he had been taken earlier in the day. The accident was, accordingly, reasonably foreseeable. In the pursuer's expert's opinion, it was more likely that the horse would misbehave on his second ride of the day.

The Defender's Position

The defender submitted that the pursuer was very experienced with horses and there was nothing untoward in the horse's behaviour earlier that day. The horse was normally good-natured. The owner had not described a particularly high rear and so the defender's advice to take the horse on a different route was an adequate precaution. In the circumstances, it was not reasonably foreseeable that an accident would have occurred.

Decision

Although Lady Carmichael agreed that the accident occurred as claimed by the pursuer, she did not find that there was a breach of duty by her employer as it was not reasonably foreseeable that an accident would have occurred.

There was no negligence in asking the pursuer to ride the horse, given her substantial experience and the horse normally being obedient and well-trained. The pursuer's expert evidence about the behaviour that might occur when a horse is ridden twice on the same day after restricted exercise was not sufficiently supported by research.

Foreseeability ultimately turned on what the defender knew about the horse's behaviour after he was first ridden that morning. Interestingly, neither party called the owner of the horse as a witness (no doubt for good reason).

It was held that the defender had adequately tried to mitigate any risk by asking the pursuer not to take the horse to the same place as he had been earlier - and the judgment the defender made, that she was an experienced rider who could handle such a horse, was a reasonable one. There was no evidence that the defender should have anticipated the horse's misbehaviour that made it unsafe for the pursuer to ride him. The pursuer's case failed.

Analysis

This case demonstrates the importance of establishing reasonable foreseeability, even where the accident circumstances and causation of injuries is clear.