MILLY MORRISON AGAINST JAMES OAKDEN [2021] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2021] CSOH 96

PD245/18

OPINION OF LADY CARMICHAEL

In the cause

MILLY MORRISON

Pursuer

against

JAMES OAKDEN

Defender

Pursuer: Ennis; DAC Beachcroft LLP

Defender: Shand QC, Thomson (sol adv); BTO

29 September 2021

Introduction

[1]

The pursuer seeks reparation for injuries she sustained in an accident on 21 July 2015,

when she was working in the course of her employment with the defender.

[2]

The following matters are admitted in the pleadings. In July 2015, when she was

17 years of age, the pursuer was employed by the defender as a stable hand at Dunbog Farm

in Newburgh, Fife. On 21 July 2015, at around 4pm, the defender instructed her to exercise a

horse called Macamore. Macamore was a large horse, standing at about 17 hands high. He

was an active and able horse who had competed at a high level with his previous owner. He

was recovering from an injury at the time. On the morning of 21 July his owner, a strong

and experienced rider aged 18 years (Katherine Lindsay), had taken him around the indoor

school, and had ridden him on a short ride along an outdoor track. The defender

specifically instructed the pursuer not to take Macamore along the track that he had been on

earlier that day with his owner.

[3]

Liability is in dispute, as is, in part, the quantification of damages.

[4]

There is no dispute that the pursuer suffered serious maxillofacial injuries, that she

had a head injury and that she had a spinal fracture at S1, which was treated conservatively.

In the course of the proof parties agreed that in the event that the pursuer succeeded in

relation to liability, I should award solatium of £50,000 with three quarters allocated to the

past, and with interest on the past element at four per cent per year from the date of the

accident to the date of decree.

[5]

In the event that I were satisfied that there was a sufficient causal connection

between the pursuer's discontinuing her nursing degree and the back pain caused by the

accident, I should award past wage loss of £61,290, with interest of £7,355, and future wage

loss of £1,877. There was no agreement as to the quantification of the claim for necessary

services rendered by the pursuer's mother, or in relation to the pursuer's claim for loss of

employability.

[6]

A considerable amount of the pursuer's evidence related to quantum, but in the light

of the agreement between parties, I require to mention in detail only that evidence relating

to her decision to discontinue her nursing studies. I discuss that in more detail below. I

otherwise found the evidence that she gave in relation to the injuries she sustained and her

experience of the effect that they had on her to be generally credible and reliable. I mention

this because the defender suggested in submission that she had exaggerated the position in

some respects, and that that should cause me to mistrust her evidence more generally. My

impression was that the pursuer did not seek to overstate the difficulties she experienced

following the accident. I did not consider that she attempted to mislead me as to the extent

to which she had been able to return to her leisure activities, including riding, after the

accident.

[7]

Some time was spent in evidence in asking the pursuer about photographs taken

from social media of equestrian and social events after the accident, and in which she

featured. The purpose was to show that the pursuer was overstating her injuries and was

generally not a credible witness. She was asked about the way in which her hair was styled

in some photographs with a view to discrediting her evidence that she was embarrassed by

visible scar tissue on her scalp. I did not derive any assistance from that exercise. I regarded

nothing in the social media posts as inconsistent with the pursuer's own account of a

gradual and supported return to social activity, with some difficulties along the way. She

was frank about her return to equestrian activities, and about her positive desire to resume

them as soon as practicable.

Allegations of fault and defender's response

[8]

The pursuer avers that the farm had only three tracks: the one already used earlier in

the day, one that required the rider to cross a road, and one with a steep drop down to an

adjacent field. She choose the latter. She rode Macamore at a walk along that track. After

she turned to return, Macamore began to swish his tail, tilt his head and hump his back. He

began jogging. The pursuer attempted to regain control of him. He reared. The pursuer

attempted to make a controlled dismount. She was unable to do so. She slid off Macamore

and down the steep ditch into the field below. He reared again, lost his footing and fell

landing on top of the pursuer.

[9]

The pursuer's case of fault is based on the following. Mac had been on box rest since

3 June and had been prescribed a period of graduated return to physical activity. The

pursuer pleads that it is known in the industry that horses are more challenging in their

behaviour and difficult to manage, following "box rest". The vet had prescribed 6 weeks of

5 minute leg stretches, which had come to an end on 16 July. According to the pursuer, he

should then have begun a period involving increasing periods of walking. He had not been

beyond the stable yard by 21 July. He had been misbehaving and excitable when being

hand-led. The first time he was ridden was by his owner on 21 July. His owner reported to

the defender and others in the yard that Macamore had jogged and reared when she rode

him. It was, the pursuer says, implicit in the defender's instruction that he was alive to the

fact that Mac was misbehaving, and alive to the risk that he was more likely to do so if taken

along the same track as he had been ridden on earlier in the day. It was known in the

industry that recuperating horses were more likely to misbehave on a second outing.

[10]

Macamore should not have been ridden a second time that day. Separately, he

should not have been ridden beyond the stable yard. He should not have been ridden by an

inexperienced rider, or alone. Horses situated as Mac was that afternoon, were less likely to

misbehave if ridden with other horses. The pursuer pleads that the defender knew or ought

to have known that she was, although a competent rider, young, and inexperienced in the

equestrian industry. Mac could have been exercised on a long line in the indoor arena.

[11]

The defender pleads that there had been no issues with Mac's temperament during

his rehabilitation. There was nothing untoward in his behaviour when ridden by his owner

earlier in the day. The pursuer rode him around the indoor arena several times. Mac was

responsive, and the pursuer was in control, and happy to take him out for a ride. The

pursuer was competent and experienced and had a lot of experience of unaffiliated and

pony club level competitions. She had performed well at a British Eventing competition.

Mac was a well-trained and obedient horse. If Mac had been fresh and excitable, the

pursuer had sufficient experience to recognise whether he might become beyond her

control. She ought, as an experienced rider, to have been able to retain control of a fresh and

excitable horse. It was not reasonably foreseeable to the defender, or to an average

competent horseman, in all the circumstances that an accident would occur.

[12]

A central question in relation to liability is what was reasonably to be foreseen by the

defender in relation to the pursuer's ride on Macamore in the afternoon of 21 July 2015.

Relevant, or potentially relevant, to that question is

(a)

what the defender knew about how Macamore had behaved when ridden

earlier in the day;

(b)

the regime to which Macamore was subject when recovering from injury in

the period immediately before 21 July 2015;

(c)

Macamore's characteristics and experience; and

(d)

the pursuer's competence as a rider, and the state of the defender's

knowledge about that.

[13]

Both the pursuer and the defender led evidence from expert witnesses, who

expressed conflicting views as to what the defender ought to have foreseen in the light of

these matters.

The evidence

[14]

There are a number of areas which were not really the subject of much, if any,

dispute in evidence. Despite that, a number of different witnesses gave evidence about

them. I express my conclusions about those first, and relatively briefly, before turning to the

more contentious matters, in respect of which I have narrated the evidence more fully.

Eventing

[15]

There was a good deal of evidence about what is involved in the sport of eventing, as

parties regarded it as potentially relevant to some issues in the case, including the pursuer's

level of competence as a rider. The potentially relevant matters can be summarised as

follows.

[16]

Eventing is a competition involving three different activities: dressage, show

jumping and cross country. The last of these involves jumping over obstacles, although the

obstacles are of a different nature from those involved in show jumping. British Eventing is

the governing body for the sport of eventing in Great Britain. The Fédération Equestre

Internationale ("FEI") is the international governing body. The various activities involved in

the sport test the abilities of the horse and rider in various respects. These include the ability

of the rider to communicate signals to the horse, and the ability of the horse to respond with

accuracy, whether in relation to performing to a set floor plan in dressage, or clearing jumps

in show jumping and cross country. Both horse and rider require a certain degree of

courage (if it is appropriate to use an abstract quality of that sort to describe a non-human

animal).

[17]

BE 90 and BE 100 are both British Eventing classes at a lower level than novice. In

BE 90, the jumps are not more than 90cm high, and in BE 100 not more than 100cm high.

The levels proceed (broadly) through novice, intermediate and advanced. Classes or levels

of competition may be open or subject to particular entry requirements (for example, the

rider may require to be less than 21 years of age, as in one of the records relating to

Ms Lindsay's riding Macamore). There are eligibility requirements based on previous

competition experience for some classes of competition, to ensure that the rider is

sufficiently experienced to participate in them, but it is not necessary to elaborate on that for

the purposes of this case.

Macamore's regime in the weeks before 21 July 2015

[18]

There was a good deal of discussion in the evidence as to what different individuals

meant when they used the expression "box rest". To the defender and Charles Lane it

meant complete, or near-complete, confinement to a stable. To Hugh Somerville, the

veterinary surgeon who cared for Macamore, it comprehended periods of reduced exercise,

when a horse was not turned out in the field, with "strict box rest" being his preferred

expression for a horse confined to a stable. Dr Debbie Marsden did not understand box rest

to involve complete confinement; she described the regime described in the veterinary

records as "typical box rest". What is potentially relevant in this case is what activity

Macamore had actually been undertaking in the days and weeks before the accident, and

not whether it should or should not be called "box rest".

[19]

The pursuer and the defender differed as to the length of time during which

Macamore had been walked in hand before the accident. On the pursuer's account he had

been walked in hand for two or three weeks before the accident for about ten minutes each

day, and on the defender's he had been walked in hand for six weeks before the day of the

accident. I am satisfied that Macamore had not been confined to his stable or nearly

confined to it (ie being removed only for mucking out). The evidence of both the pursuer

and the defender was that Macamore had not been ridden between early June and 21 July.

The only witness to suggest that he had been was Rachel Gordon, who said that Macamore

had been ridden before 21 July. I reject her evidence on this matter as unreliable. She was

unable to provide details of when that had happened, or who the rider had been. Her

evidence is inconsistent with the evidence of both the pursuer and defender, and I accept

their evidence on this point.

[20]

Although nothing turns on the difference between the pursuer and the defender on

this matter, I accept the defender's account that Macamore had been walked in hand du ring

the whole period between 5 June and 21 July, because it is consistent with the veterinary

advice which was provided to the defender by Mr Somerville, whose evidence I set out in a

little more detail below.

[21]

Mr Somerville was called to see Macamore in June 2015. The horse had a low grade

ligamentous injury, comparable to a sprained or twisted ankle in a human patient.

Mr Somerville examined Macamore on 3 June, and carried out an ultrasound scan 2 days

later. The records for 5 June record "advise 6 weeks of gentle 5 mins leg stretch, followed by

6 weeks slow increase in walking program". A programme involving walking in hand for

increasing periods over about a six week period, and then being ridden, would be consistent

with the advice summarised in the records. The expression "leg stretch" meant gentle

walking in hand. The horse could not be turned out into the field at liberty, because he

might aggravate the injury. The injury was a mild one and did not require Mr Somerville's

visiting during the period of rehabilitation.

[22]

Macamore had been on a regime of restricted exercise between 5 June and 21 July

which involved his being walked in hand throughout that period. I am unable on the

evidence to make a finding about the precise duration of the daily or twice daily periods for

which he was walked in hand during this time, but I do not require to do so in order to

determine liability in this case.

Macamore's characteristics and experience

[23]

Macamore was 17 hands in height. The height of a horse is measured at his withers,

that is (roughly translated) the top of his shoulders, or the bottom of his neck. A hand is

four inches. He was a gelding. Geldings are generally likely to have calmer personalities

than male horses who have not been castrated.

[24]

There is no dispute that Macamore was a well-trained horse who was, outwith the

context of a period of restricted exercise, easy to handle. The pursuer described him as

"generally a really nice horse". He was well-schooled before Ms Lindsay acquired him, and

had competed at a high level. Mr Somerville described Macamore as a very kind and easy

horse. He was experienced, well-trained and well-handled. He did not need sedation for

procedures such as ultrasound, and Mr Somerville, an equine specialist, had many patients

that did.

[25]

Macamore's British Eventing records were produced, and were not the subject of

dispute. He was ridden by a number of different riders in competitions from 2008 onwards.

From April 2010 all of the competitions were at novice level or above. He was ridden on a

number of occasions in competitions which were internationally recognised. Those are

denoted in the records by the initials CCI or CIC and varying numbers of stars. Ms Lindsay

had ridden him in novice and intermediate level competitions and a one star event earlier in

2015. His previous owner, Mrs Caroline Powell, rode him in a number of intermediate and

advanced competitions, and a number of two and three star CCI/CIC competitions.

The pursuer's experience and ability as a rider

[26]

The pursuer joined the Pony Club when she was 12. That is a body which

encourages children to join the equestrian world. They may join until they are aged 18, and

if they have joined by that age, can remain members until they are 25. Before that she had

had some lessons on ponies, and weekly riding lessons. Her mother then bought a pony,

and the pursuer joined the Pony Club. She engaged in competitions in the Pony Club,

including show jumping, dressage, and unaffiliated eventing. She engaged in Pony Club

eventing, which she described as easier and less technical than British Eventing.

[27]

The pursuer's British Eventing results for 2015 and 2016 were not the subject of

dispute. Before the accident she competed on one occasion only, at Aske, in Class BE 90.

She came fourteenth in a class that contained probably about 35 competitors. In March 2016

she competed at Burgham International, again in the BE 90 class, and in May 2016 at Floors

Castle in the BE100 class. There was no dispute that her scores on all occasions were

respectable, and there is no need to examine the detail of what each entry on the score sh eet

represents. On all three occasions she rode her own horse, David's Delilah Dances ("Dilly").

Dilly was 15 hands. She returned to riding three months after the accident, which was the

earliest possible date consistent with medical advice. Although what the pursuer did after

the accident is of limited relevance in this context, it supports the proposition that she was

and continued to be a keen and engaged equestrian, who consistently performed respectably

in competition.

[28]

The pursuer was at the time a rider of some experience and competence, and who

had engaged in competitions which test the skills of both rider and horse to a significant

degree, albeit at the lower end of the range of BE competitions. They test the ability of the

rider to direct and control the horse in relation to a variety of different tasks. She had

competed in non-affiliated eventing before that, and continued to do so after the accident. I

am satisfied that in normal circumstances it would be entirely reasonable for the defen der to

conclude that the pursuer was competent to ride Macamore, although he was a large horse,

and she had not ridden him before. The narrower question in this case is whether she was

competent to ride him in the particular circumstances that obtained on 21 July 2015.

British Horse Society qualifications

[29]

Another matter which was traversed on a number of occasions in evidence, but

which can be dealt with briefly, is the qualifications offered by the British Horse Society

("BHS"). Parties made something of this in seeking to compare the qualifications of the

defender, Dr Marsden and Mr Lane.

[30]

According to the evidence of those witnesses the BHS offers qualifications to

equestrian instructors at various levels. These are assistant, intermediate, instructor, and

fellow. One of the certifications necessary to become an assistant is the preliminary teaching

qualification.

Medical evidence regarding the pursuer's back

[31]

There was no material difference between the opinion of Mr Calan Mathieson,

instructed by the pursuer's agents, and Mr Sadaquate Khan, consultant neurosurgeon and

spinal surgeon, instructed by the defender, so far as quantification of the claim is concerned.

Both gave evidence to the same effect. Each had obtained a history that the pursuer had

found her back pain increased when she had practical assignments in her nursing course.

[32]

Mr Mathieson expected the pursuer's back injury to cause her pain for between two

and three years after the accident. It had settled to near normal two years after the accident.

He did not think that her nursing course caused any long term damage to her back. It had

made it sore for a period. The lifting would not damage her back, but would cause it to be

more painful for a period. The time frame for the pain to settle would have been the same

even if the pursuer had not discontinued her nursing studies. The nursing work would

have temporarily increased the pain, but it would have returned to a "baseline" had she

continued her studies. He thought it "reasonable" to pursue other avenues at a time when

work was making the pain temporarily worse. The pain had improved both because she

had stopped nursing, and because of the passage of time, but he did not see nursing work as

likely to have extended the duration of the pain particularly.

[33]

Mr Khan proposed a slightly shorter timescale for resolution of symptoms, but that is

not material. If her symptoms had persisted after 12 months, he would have proposed

physiotherapy and expected resolution by 18 months after the accident. He differed from

Mr Mathieson to the extent that he thought the pain she experienced when on nursing

placements was caused by the combination of the work involved in those placements and

pressure on her spine from horse riding. Seventy per cent of nursing students experienced

back pain. She had not required to give up her studies because of any residual instability

from her back injury. If the pursuer had come to him a year after the accident complaining

of back pain, he would have told her that the accident would not result in a long-term

predisposition to back pain. Her pain was normal for nurses and riders. He was concerned

that she had been badly advised that she should stop her nursing studies.

[34]

It is clear that neither Mr Mathieson nor Mr Khan considered that the accident

resulted in any long-term predisposition to back pain that required the pursuer to stop

pursuing a career in nursing.

Pursuer's case

[35]

The pursuer gave evidence. She led evidence from Mr Calan Mathieson; Mrs Fiona

Morrison; the defender; Mrs Angela Hamilton, and Dr Deborah Marsden .

The pursuer

[36]

The pursuer started her summer job at Dunbog when she left school in 2015. She

had previously worked there part-time cleaning tack and mucking out "a couple of times a

week". She met the Oakdens through Pony Club, where they were teachers. She started

having some lessons with them privately in about 2012. After the pursuer acquired her

horse David's Delilah Dances ("Dilly"), the horse came to be stabled with the Oakdens.

Dilly was smaller than Macamore. An arrangement was made whereby the pursuer would

work for ten hours a week to cover Dilly's livery at the yard. The pursuer paid separately

for lessons. The arrangement for summer 2015 was that she would be a working pupil.

[37]

The pursuer said that she had found that Macamore had been difficult to handle

when being led out in hand on earlier occasions. He was very excited to get out. He was a

big horse, but made himself look bigger, and stood tall, with his head up, trying to look at

everything. He was not focused on the person leading him. She said that Rachel Gordon

had also had problems leading him.

[38]

When Ms Lindsay returned from her ride, the pursuer asked her how she had got on.

The pursuer's evidence was that Ms Lindsay told her that Macamore had not been

particularly well-behaved; that he was very fresh and pleased to be out, and that he had

been jogging, bouncing about and rearing. To the pursuer the expression "fresh" denoted

"excitable, alert and spooky; jumpy at things, and prancing around; beginning to buck and

rearing".

[39]

In evidence in chief, the pursuer merely said that there was not "just us" (ie herself

and Ms Lindsay) in the yard at the time. She was not asked to elaborate as to who else was

there. In cross-examination, however, she was asked who else was there, and she said the

defender was there. It had been he who had asked Ms Lindsay how she had got on. She

was unsure who else was there at the time, and it may just have been the three of them. The

pursuer said that Ms Lindsay had said that Macamore had been strong and fresh and

excitable, and had reared. The pursuer was not able to quote exactly what Ms Lindsay had

said, but her evidence was that Ms Lindsay definitely said "reared" and "jogging and

bouncing about".

[40]

The defender told the pursuer to take Macamore on one of the hack routes out of the

yard. He told her not to go where Macamore had been in the morning, and not to take

Macamore down to the road, which left one route open to her. The defender did not tell her

anything about how Macamore had been in the morning. She did not think she would have

been in a position to decline to carry out an instruction from the defender. As she put it,

"You did what you were told". The pursuer's recollection was that she mounted at the

mounting block just outside the main entrance to the yard and rode off. She thought that

Rachel Gordon might have helped her mount. She did not accept that she was keen to take

Macamore out, and said she was nervous, but trusted the defender's judgment. She said she

was told to do it, so she did it.

[41]

The pursuer's account is that Macamore walked out fine as they were leaving the

yard and walking along the track. She took a track which led past a church towards a point

where the track met another track at a T-junction. She went along almost to the T junction.

[42]

She was not asked by either counsel to specify by reference to the map in

process (6/9) precisely where she turned, or where the accident happened. Macamore

started to misbehave after the turn. She said that as they were walking back he "realised we

were coming home". She "thought he wanted to do something other than walking", so he

started jogging and swishing his tail and throwing his head up. The horses in the adjacent

field started to do the same thing. When she tried to get him to walk he reared. He reared

again, and the pursuer thought that the safest thing to do was to dismount. She took her

feet out of the stirrups. She tried to get off when her feet were on the ground, but he reared

up and the pursuer fell down the ditch. She remembered seeing Macamore coming towards

her. She inferred that he must have reared again, and tipped over so that he also fell down

the ditch. His shoulder hit her, and she remembered watching it falling towards her, and

that she could not get out of the way. She could not think of any other way he could have

come to fall that would have caused his shoulder to come down before his back end. She

then saw Macamore making for the yard at speed, and lay down because she realised she

was bleeding and thought she might pass out.

[43]

The pursuer described the assistance she received from her mother when she was in

hospital. She was in hospital for two weeks, and her mother was there every day. The

pursuer was scared, and was faced with the prospect of major surgery. There was a great

deal she could not do for herself. Her mother helped by syringing juice and energy shakes

into her mouth when she could not move her jaw. She helped the pursuer sit up in bed. The

hospital staff had been very accommodating in letting her mother stay outside of normal

visiting times. Her mother had helped her deal with the impact of her injuries. She found

her first year at university difficult, and her mother supported her. She had not previously

been so reliant on her mother. The pursuer had surgery on her face on three occasions, and

on each occasion her mother took her to hospital, picked her up, and visited every day.

Most of her hospital appointments were in Dundee, about 45 minutes' drive away from her

home.

[44]

When the pursuer came home from hospital initially, her mother and sister moved

furniture around so she could sleep downstairs. For the first three weeks thereafter she

needed assistance.

[45]

The pursuer started her nursing degree at Dundee University. It was a three year

course. She had a bursary for the course. She found the first year difficult. It was difficult

academically because she was not learning as easily as she had done at school. She

nonetheless passed her examinations that year. She experienced pain in her back when she

was doing placements on her course. They were in blocks of four and six weeks. She did

not complete them all. She wore a back brace with which she had been provided. The

pursuer's evidence was that she consulted her general practitioner. He told her that "it had

been long enough" so far as the back pain was concerned, and that it would not get better,

but worse. He said that not many nurses in later life would say that they had "a good back",

and she was starting with a "bad" one.

[46]

The pursuer then consulted her course tutor. The tutor said that if the doctor's

advice was as I have just described, then the pursuer would not cope with nursing. She

advised the pursuer to sit her exams for the year, as that would give her credits if she

wanted to do a different degree, or if she later wanted to come back to nursing. If she did so

she could start as a second year and make up time on practical work.

[47]

The pursuer started a different degree in 2016. She studied geography and

environmental science at Dundee University. She graduated in 2020 with a 2:1 honours

degree. She had a loan from the Student Awards Agency Scotland ("SAAS"). At the point

when she graduated she was on furlough from a part-time job at Lindores Abbey Distillery.

On average she worked about 12 hours a week there from 2017 in a variety of roles in the

shop, kitchen and reception areas. Her employer was a family friend and was flexible in

allowing her to rest if she was in physical pain, and did not allocate her bar work when the

bar was busy, which she would have found difficult to cope with socially. Shortly befo re the

proof she had obtained a graduate post with BEAR, which would finish in August 2022. She

wanted to pursue a master's degree in environmental science. If she was accepted and could

afford to do so, she wanted to start the degree in September 2021, but thought it more likely

she would do so in September 2022.

Fiona Morrison

[48]

Mrs Morrison is the mother of the pursuer. The Scottish Ambulance Service

contacted Mrs Morrison and told her that the pursuer had been involved in an accident. She

went straight to Dunbog farm. When the pursuer was airlifted to Ninewells Hospital she

followed by car. On the first night, when the pursuer was in the intensive care unit,

Mrs Morrison could not stay at the hospital, because the family room there was being

decorated. She stayed with the pursuer most of the following day.

[49]

The pursuer spent two days in intensive care, and then was moved to a ward.

Mrs Morrison was then with her for about twelve hours each day. The pursuer was

frightened, and her face was very swollen. She needed help to take nutrition. Mrs Morrison

bought the sorts of spoons that are used for feeding infants, and which change colour when

in contact with hot food or liquid, so that she could ensure that tea she was feeding the

pursuer was not too hot. She complemented the assistance from nursing staff by assisting

the pursuer with walking, and with taking nutrition via a syringe. She moistened the

pursuer's mouth with a sponge on a stick when the pursuer's mouth was dry and when she

had been sick. She chatted to the pursuer and sought clarification from staff in relation to

proposed treatment with a view to helping the pursuer understand what was planned.

Initially the pursuer was not very aware of what was going on because of the pain relief she

was taking, but she became much more aware as time went on.

[50]

When the pursuer came home Mrs Morrison made a makeshift bed for her

downstairs, and arranged the downstairs shower with a chair in it. She assisted with

personal care for six to eight weeks. The pursuer's walking improved, but she had great

difficulty in washing her hair, and Mrs Morrison washed her hair for her every day. She

had stitches in her head. The pursuer was very tired, and it was when she got home that she

realised the "enormity" of what had happened. The pursuer could not have coped on her

own when she came home. Mrs Morrison took the pursuer to various later medical,

psychology and occupational therapy appointments. She drove her to university for a

period, as the pursuer had been warned to avoid public transport for eight weeks after her

facial operation, which took place at the start of August. There were occasions after the

accident when the pursuer had found herself unable to cope at social events, and

Mrs Morrison had driven to fetch her.

[51]

The defender came to the hospital on the day of the accident, and said to

Mrs Morrison, "I should have ridden that horse myself." He was still "covered" in the

pursuers' blood. Mrs Morrison understood from what he said and his demeanour that he

"knew he had done wrong". About a week later he provided her with a telephone number

for an organisation that assisted equestrians, "for solicitors and things".

[52]

Mrs Morrison said that the pursuer had spoken to the family's general practitioner,

Dr Booth. He had told the pursuer that if she was having pain in her back she should

consider changing career. The pursuer had then investigated further with the university. I

understood Mrs Morrison to be relating what the pursuer had told her, and that she had not

personally been party to any of those discussions.

The defender

[53]

The defender is a very experienced equestrian. He is a farmer and equestrian sports

trainer. He has ridden since he was a child and has spent most of his adult life in the

equestrian industry. He has competed in eventing at Badminton and Burleigh on a total of

five occasions. Those are the two five star (elite) FEI events hosted in the United Kingdom.

He has run his own livery at Dunbog since 2003. He holds an instructor qualification from

the BHS.

[54]

The pursuer was in his view a capable rider. She had been helpful in assisting his

wife to break in a difficult pony and making it rideable.

[55]

In the 6 weeks before the accident Macamore was getting walked in hand exercise

twice every day. The defender had walked him in hand without difficulty, and no difficulty

had been reported to him by anyone else. The day of the accident was the first day he was

ridden. The defender said that he told Ms Lindsay where to go, and how long to go for. He

could not recall exactly what he said to her. He watched her leave, and was there when she

returned. He spoke to her on her return. She said Macamore had been good, and that when

she turned for home he was a little excitable. The defender "queried it". Nothing he heard

in response caused him alarm. He could not recall whether Ms Lindsay had said fresh, or

excitable; there were various terms, and he could not say which one she used. He was not

asked whether the pursuer had been present during this conversation.

[56]

The defender explained that a horse that was a little bit excited would be "fresh".

There was a continuum of horse behaviour, so he "would have asked the follow up

question", and Ms Lindsay said that Macamore turned and walked home fine. The defender

did not recall whether she had used the expression "jogging". When asked if she had used

the expression "rearing" he said that he did not have "the exact specifics" of the

conversation with Ms Lindsay. He did not know whether Macamore had spooked, or been

spooked. He explained that when a horse spooked, that meant that it had been surprised by

something. He had watched Ms Lindsay leave because that was the sensible thing to do

when "you put a person on the horse on its first day of ridden exercise".

[57]

So far as the pursuer was concerned, he had done the following things to assess the

risk associated with the ride that afternoon. He observed her ride around the farm buildings

on the outer track that circled the buildings, and the horse was behaving "absolutely fine".

He did not recall watching her leave the yard. He did not know whether he had related to

the pursuer what Ms Lindsay had told him about her ride on Macamore that morning. He

said that his risk assessment "would be" based on his knowledge of the pursuer's riding

ability, Macamore's own characteristics, and "the specifics of the day", such as, what might

be happening on the farm. He described the assessment as "completely dynamic", based on

his knowledge of the horse and the rider.

[58]

He said that he had told the pursuer not to take the route that Ms Lindsay had taken

because when riding one tried not to ride along linear routes where the horse and rider went

out then turned and came back along the same way. When starting ridden walk work after

a period of reduced exercise there were however time constraints which meant that it was

necessary to take a linear route. With a more difficult horse one would just ride around the

buildings. He considered that his instruction to take a different route would minimise the

risk as the pursuer would not be turning for home at the same place as Ms Lindsay had

done.

[59]

There were three potential routes: that taken by Ms Lindsay; one which came to the

edge of the A913 road; and the one the pursuer took. The defender thought, so far as the

second of these was concerned, that he had told the pursuer not to go down to the road. The

ride would not have involved crossing the road, because of the time constraints. He

accepted that that left one route open to the pursuer, and he said that he thought it was a

suitable route. He gave evidence that he had, at the time of proof, recently ridden a just-

broken 4 year old along the same track; it was the first time that the horse had been ridden

out at the farm. Macamore was at the time of the accident 12 years old and well-trained.

[60]

The defender did not accept that a horse which had been having controlled exercise

walking in hand would generally display the same behaviour on the second occasion when

he was ridden out as he had on the first such occasion. He said that often the second ride of

the day would be easier than the first. He would have expected there to be a possibility that

Macamore would behave in the afternoon as he had in the morning if the pursuer had taken

the same route as Ms Lindsay. By changing the route he was minimising the risk of that

happening.

[61]

One tool for managing equine behaviour was to ride out with one other horse. That

could be employed with a horse that was being difficult, or overexcited. An experienced,

quiet horse could be a calming influence. The defender had considered whether Macamore

should be accompanied by another horse but rejected that possibility because he did not

consider that Macamore had been excitable enough to need it.

[62]

He thought that he had left it to the pursuer and Ms Gordon between them to choose

which one of them should ride Macamore.

[63]

The defender's evidence was that coming off "box rest", which he understood to be

near complete confinement, a horse may be less easy to ride than a horse in full work. When

asked about whether there were any recognised behavioural traits so far as horses who had

been subject to controlled exercise was concerned, he said that normally the next progressive

step would be to put a rider on. Normally the horse would behave when being ridden. He

did not give a direct answer to the question put to him. He did not accept that the horse

would be more unpredictable than when in full exercise.

[64]

In relation to such horses he said that often the second ride of the day would be

easier than the first. He would have expected that there would be a possibility that

Macamore would repeat the behaviour he displayed in the morning if the same route had

been taken. By changing the route he was minimising the risk of that happening. He

considered whether Macamore should be exercised in the yard rather than being ridden out.

He rejected that because in his opinion the pursuer was more than capable of riding

Macamore for the walking exercise in question, and the horse was safe.

[65]

When asked if the use of a saddle and bridle after a period of reduced exercise would

affect the horse's behaviour, the defender said that Macamore was very experienced at

coming off periods of restricted exercise. He said that he had ridden the horse himself

"many times in those situations". When directed to the veterinary records, he accepted that

Macamore had arrived at Dunbog at some point in winter into the spring of 2015. The first

reference to Macamore's exercise being restricted while at Dunbog in the records was the

one in June 2015. He did not know whether the pursuer was experienced in riding a horse

that had just come off six weeks of controlled exercise walking in hand. In cross

examination he said that if a horse were going to react after a period of recuperation to

having a saddle on its back, that would happen as soon as the saddle was put on, and would

be apparent from the horse tensing its back.

[66]

If a horse were difficult or overexcited, one would walk alongside it with an

experienced quiet horse as a calming influence. The defender said he had considered that

possibility and rejected it, because he did not consider that Macamore had been excitable

enough to need it. He did not accept that the use of a saddle for the first time after many

weeks would impact on the horse's behaviour.

[67]

The defender had learned of the accident when travelling by car along with

Mrs Angela Hamilton, and went straight to the scene. The defender did not remember

speaking at the hospital in the terms described by Mrs Morrison. He accepted that he might

have spoken in those terms. If he had his reaction was a human reaction, and not expressive

of guilt on his part. There had been a very bad accident and he was naturally concerned and

regretful. He had given Mrs Morrison information about the Mark Davis Injured Riders'

Fund, a charity that provided assistance and rehabilitation for injured equestrian sports

people.

[68]

In cross examination the defender said that his impression was that the pursuer was

keen to ride Macamore. He would not have asked her to do anything about which she had

expressed concern. He did not recall her riding the indoor arena, and did not think it would

have made sense for her to do so. If he had thought that another horse should accompany

Macamore that afternoon, he would not necessarily have decided that the pursuer should

not ride Macamore, as she was a capable rider. He would not have sent her out alone had

he not thought her competent to ride Macamore alone. Horses were as individual as human

beings, and there was no rule as to how "all horses" would behave after restricted exercise

or after confinement to the stable. The height of a horse was not determinative as to who

should ride it, although it would be odd to put a small child on a large horse rather than a

pony (a horse up to 14 hands and 3 inches). All the qualities of the horse needed to be taken

into account including its type, training, obedience, as did the ability of the rider.

[69]

My impression of the defender was that he was defensive. At times he was notably

adept in identifying any looseness of language in a question which might permit him to

provide the answer he wished to give rather than addressing what was reasonably clearly

the subject or intention of the question. He was impatient in his tone with the pursuer's

counsel in a way that at times came close to discourtesy. While it is reasonable to infer that a

horse with Macamore's history would have had prior periods of rest and recuperation from

injury during his lifetime, the defender was plainly willing to provide inaccurate and

misleading evidence about a matter of potential importance when he claimed to have ridden

Macamore after many such occasions. If he had ridden him in those circumstances, that

would have been relevant to his assessment of how safe Macamore would be to ride on such

an occasion. That causes me to approach with caution his evidence insofar as it bears on

liability.

[70]

I accept that the defender spoke to Mrs Morrison in the hospital as she described. I

attach no weight to that in determining liability. I infer that what he said reflected his

genuine opinion, after the event, that he would have been able to manage the horse more

successfully than the pursuer had been able to. He was speaking at the time with genuine

concern and regret, and probably also a feeling of remorse or guilt, whether or not justified,

in an emotionally charged situation. That is not a reliable indication as to whether he had

acted negligently in instructing the pursuer to ride Macamore. I attach no significance to the

circumstance that the defender provided Mrs Morrison with details of an organisation that

might be able to assist the pursuer in various ways.

Angela Hamilton

[71]

Mrs Hamilton had horses stabled at Dunbog between 2014 and 2019. She is a keen

and experienced equestrian. She has owned a number of competitive eventing horses. She

first got to know the defender in September 2014. She had relied on his experience and

expertise, which was greater than her own, in relation to the purchase of two horses. He

trained her daughter for a period. In 2019 the defender had one of Mrs Hamilton's horses at

the stable, and was riding it, but said that the relationship was not working. It was then

mutually agreed that the horse would no longer be liveried at Dunbog.

[72]

She was at the yard on the day of the accident. She was interested in Macamore

because he belonged to the family that she had bought her daughter's horse from, and he

had formerly been "quite a top class event horse". Her understanding was that he was, or

had been on "box rest", which could encompass being confined and not exercised, or

walked out in a confined space. She said that some horses coped better than others with

that; some become frustrated. As she was getting ready to leave the yard, the defender was

getting ready to leave to collect a combine harvester from storage. She offered him a lift so

he could drive the combine harvester back without leaving a car behind when he did so .

She was waiting for the defender either at the stable or the car parking area. Staff had

mentioned that the pursuer was going to be exercising Macamore. She did not see the

pursuer riding Macamore around the farm building. She thought it was likely she would

have seen her. Most people mounted at the mounting block, and she could see the

mounting block.

[73]

She was in the car with the defender when the defender received a call telling him

about the accident. She thought that Macamore could have been excitable because he had

been on "box rest", and that he would have been less reactive in company with another

horse. She thought the pursuer was a very capable rider, but someone who was obliging

and would tend to do what she was told. Her impression was that it was often perceived as

difficult to say "no" to the defender, as he and his wife were "quite auth oritative" (which I

took from context to mean authoritarian), and she did not think that the staff at Dunbog had

much of a say.

[74]

Mrs Hamilton's evidence was led with a view to discrediting the defender's evidence

that he watched the pursuer riding Macamore. There is a degree of uncertainty as to what

route the pursuer took to leave the stables, and it is entirely possible that she left without

Mrs Hamilton seeing her. As I explain below, I accept that the defender did watch the

pursuer ride Macamore before she took the track on which the accident ultimately occurred.

Had he failed to do so, I would not have regarded that as having caused the accident, as

there is no suggestion that Macamore behaved, at that stage, in any way that would have

caused concern. I accept Mrs Hamilton as a credible and reliable witness, so far as her

evidence went, but it does not assist in resolving any of the issues I need to determine.

Dr Debbie Marsden

[75]

Dr Marsden is a consultant in equine behaviour. She has ridden since childhood.

Since 1999 she has provided services through a limited company, the MDM Equestrian

Consultancy Company. She is the chair of the Society of Equine Behaviour Consultants.

That is an organisation she set up, along with others, with a view to setting standards in the

practice of equine consultancy.

[76]

Her undergraduate degree was a BSc (1984). Her doctoral thesis (1989) had

concerned the design of housing for farm animals (sheep) that was cost efficient, practical

and consistent with the welfare of animals. Her post-doctoral work (1990-1994) concerned

behavioural problems in horses. One of her PhD examiners worked at the veterinary school

in Edinburgh, and invited her, as a specialist in animal behaviour, to join in their research.

They were aware she already had an interest in equestrian matters. She kept a horse at the

vet school and taught there, both academically, and teaching riding. It was then that she

undertook her preliminary teaching qualification, as the vet school had a riding school. At

that time all veterinary students had to learn to ride. She taught them, working pupils, and

also members of the public who came to the riding school for lessons. In order to obtain the

BHS assistant qualification, she would have had to take examinations in horse knowledge

and care and riding, but she did not need the qualification at the time. The examination in

horse knowledge and care was basic by comparison to what she already knew by reason of

her experience and academic education.

[77]

She had a role at the large animal hospital looking at the behaviour of horses brought

in for neurological tests, with a view to determining whether their difficulties were

neurological in origin, or behavioural, and representing learned misbehaviour and rider

error. Between 1994 and 2002 she was a fellow of the University of Edinburgh, lecturing and

consulting in equine behaviour and management. She decided to embark on a private

practice in consultancy regarding equine behaviour.

[78]

She holds the preliminary teaching qualification from the BHS. She is registered

with the BHS as a coach, and that registration requires her to hold other qualifications in

matters such as child protection and first aid, and to undertake continuous professional

development each year. In order to obtain the preliminary teaching qualification she had to

have passed the BHS riding road safety test. She provides training for veterinary inspectors

of riding establishments, and has written scientific articles and contributed articles to books

both for veterinary surgeons and lay readers.

[79]

She did not ride Macamore before preparing her report, as he had died by the time

she prepared her report. She thought it unlikely that riding Macamore at some distance of

time after the accident would have assisted her.

[80]

In her opinion horses tended to be fresh or excitable after a period of restricted

exercise. They were social animals who naturally lived in herds which were hierarchical.

Humans trained them, but when the learning was not reinforced the horse would test the

boundaries again and require to be reminded that the rider was in charge. One of the most

common inquiries she received from owners of horses was as to how to reduce the risk of a

horse being difficult after a period of restricted exercise, or because a horse was being

difficult after such a period. It was a common history. That was her experience over a

period of thirty years. That horses were expected to be difficult after such a period was a

view generally held and understood in the equestrian industry. Although all horses were

individuals, there were generalisations about their behaviour that could legitimately be

made. There could be no expectation that a well-trained horse was less likely to misbehave

after restricted exercise. All horses were "designed" to challenge the authority of the rider.

There was a risk that a horse would misbehave, after even a few days without being ridden,

in such a way as to increase the risk that the rider would fall off.

[81]

Difficulty in handling and riding increased with the duration of restricted exercise

because the horse had less experience of being told what to do, and was less fit and so

would find it harder to do what the rider was asking of it.

[82]

On the first ride after a period of reduced exercise the horse was more likely to

misbehave. The misbehaviour was likely to be more serious on the second ride. If

controlled well on the first two rides out, she would expect its behaviour to improve. A

horse would be more likely to challenge the authority of someone who had not ridden it

before. Misbehaving included any behaviour the rider did not want the horse to display,

and included jogging, rearing, and bucking. When a saddle was fitted for the first time after

reduced exercise, it might not fit so well as before, because of changes in muscle tone. The

horse might or might not show a reaction when the saddle was fitted.

[83]

Dr Marsden would expect the manager of a yard with horses competing in affiliated

BE to be very experienced in the management of horses during and after periods of box rest

and to be very familiar with the behaviour to be expected after any period of box rest. She

was familiar with the levels of knowledge of her own clients in the industry. She referred to

The Horse Rider's Hacking Handbook, Bush and Jenkinson, Crowood Press, 2011 which she

described as the official manual of the Association of British Riding Schools, quoting the

following passage:

"If your horse's exercise is limited ... turn him out as much as possible as this will

help ... as well as reducing ... and the likelihood of over-freshness due to over-

confinement in his stable."

[84]

Riding along a track which required a rider to turn back and return the same way

increased the risk of misbehaviour at the point immediately after turning for home. A route

involving a "round trip" would be preferable, and a route with a simple stop and turning

point would not be ideal for a horse expected to be difficult for other reasons, such as a

period of reduced exercise. This risk was well known in the equestrian industry.

Behavioural scientists were unsure why it occurred, and there were various hypotheses.

The company of another well-behaved horse would encourage the horse to behave. It

would be likely to be inclined to follow the well-behaved horse, and to be less nervous and

less likely to spook. Alternatively a person could accompany the horse and rider on a farm

buggy.

[85]

To mitigate risk the first question was whether the horse required to be ridden at all.

Could it be exercised without being ridden? If it needed to be ridden, then consideration

should be given to who was riding it, and their level of experience with difficult hor ses.

Had they been trained to deal with difficult horses? The route should be considered. Was it

possible to exercise in an indoor school rather than on a track outdoors? If a person were

going to be riding a horse after a period of restricted exercise, it was important that they

understood what behaviour to expect and how to cope. They could be taught techniques to

encourage the horse to behave again, or have already learned them through experience.

[86]

Given a report from Ms Lindsay that Macamore had been a little excitable (which

was an imprecise term), she would have expected Macamore to behave more badly on a

similar ride later the same day. He had shown some excitable behaviour with his usual

rider who knew him well. If taken to the same place she would expect a similar manoeuvre

to result in similar misbehaviour, so it was sensible to choose a different track. When

Ms Lindsay made her report, she would have expected the defender to inquire further, for

example as to whether any rear had been large or small.

[87]

It would take a rider time to become accustomed to riding a horse larger than their

usual horse because of the way the rider's legs and seat would be organised. The behaviour

of the horse was important too, and a badly beh aved small horse would be harder to ride

than a well-behaved larger horse. It would have been important for the pursuer to know

that Macamore had misbehaved on the earlier ride.

[88]

Dr Marsden would not have assessed it as safe for the pursuer to ride Macamore on

the afternoon in question. He had not been ridden for 6 weeks. There had been a report of

his being a bit excitable in the morning. So far as anyone knew the pursuer had no training

or experience in managing difficult horses, and she was going out alone. There was specific

reason why Macamore had to be ridden along a track that afternoon. There was a risk of

injury from falling off, or from being injured in trying to make an emergency dismount.

There were a number of opportunities for being injured around a misbehaving horse.

[89]

The way a horse behaved varied with the competence of the person handling or

riding it. A competent person would have the skills to encourage the horse to behave.

[90]

Jogging is a gait pattern which a horse does of its own volition when it is

"misbehaving". It is not a gait pattern which it is taught to do (unlike walking, trotting and

cantering). Horses use bucking (kicking out with their rear legs) and rearing (raising their

front legs from the ground) to resist riders. Horses sometimes rear so high that they then

fall over. A horse that spooks, or is startled, may try to run away from whatever has startled

it.

[91]

In cross examination she was asked about the basis for her assertion that the

behaviour of a horse manifested its natural urge to show "who was boss". She said that one

element of the social relations of horses, and other social animals, was hierarchical.

Although it was not possible to understand exactly what a horse was thinking, legitimate

inferences could be drawn from observed behaviour. She was asked about passages she had

quoted in her report from the BHS Complete Training Manual for Stage 1 on horse care:

"Q: What is a fresh horse? A: A fresh horse is one who is feeling very full of himself.

... He may have been shut in the stable and not turned out/worked hard for a day or

two ..."

She explained that this was a basic level manual for students training for the first and most

basic test in horse knowledge and care. Another passage in it described such a horse

reacting when a first attempt was made to mount it. She said that that described a situation

in which the horse might react, but was merely one example.

[92]

In relation to the proposition that the horse was more likely to misbehave on a

second ride out, she said that there were reasons connected with learning theory. She

referred to the "first repeat". If a rider managed the horse's misbehaviour successfully on

the first ride out, and the horse therefore had a "learning experience", he would try more

significant misbehaviour on the second ride out, to see whether the rider could handle it. If

the behaviour were handled successfully on both occasions, he would be unlikely to repeat

it thereafter. There was only so much effort that the horse would put into learned

misbehaviour.

[93]

Competition horses were ridden six days a week to maintain their responsiveness,

and if trained behaviour was not rewarded, the animal would stop doing it.

Defender's case

[94]

The defender led evidence from Mr Sadaquate Khan, Hugh Somerville, Rachel

Gordon, and Charles Lane. I deal with the medical evidence regarding the pursuer's back

separately, and with Mr Somerville's evidence so far as it was material. I have already dealt

with Mr Khan's evidence.

Rachel Gordon

[95]

Rachel Gordon is a yard manager at a livery yard. She formerly worked at Dunbog

as a groom and a working pupil. I have already mentioned her account that Macamore had

been ridden before 21 July and my reasons for rejecting it. She said that the pursuer was not

present when Ms Lindsay rode Macamore out, and that she was not at the yard that

morning at all. She said that she and the pursuer had a discussion as to who was to ride

Macamore. She did not hear the pursuer having any discussion with the defender about

riding Macamore. She said she got the pursuer onto the horse in the indoor school. The

pursuer walked Macamore around the indoor arena once and she rode outside through the

doors of the indoor arena. She did not see which way the pursuer went. She saw Macamore

return to the yard. She sent a boy called Scott Coyle to look for the pursuer, but initially sent

him along the wrong track. She then went to look for her herself in a farm buggy, but Mrs

Oakden had already found the pursuer.

[96]

I derived very little assistance from Rachel Gordon's evidence. Although she was

trying to give an honest account, I formed the view that her evidence was unreliable in the

respect I have already mentioned. She was simply wrong, albeit in response to a leading

question, in agreeing that when looking at the church in the photographs, the junction

towards which the pursuer had initially ridden out lay behind the church.

Charles Lane

[97]

Mr Lane is an equine consultant and has ridden since childhood. He studied

agriculture at university, sponsored by the Army. On leaving university he undertook the

advanced military equitation course. The advanced course just mentioned was a course for

instructors. He required to take a horse from being completely unridden to being trained for

ceremonial military duties. He served in the King's Troop, Royal Horse Artillery. He

trained soldiers to ride in displays as second in command in the King's Troop. He was the

commanding officer between 1991 and 1993.

[98]

When he left the Army, he became head of equine business management at the Royal

Agricultural College in Cirencester. The course was aimed at producing managers. In that

role he had been involved in standardising the training and qualifications to be expected of

those in horse management. He is a BHS intermediate level instructor. He rides every day

and undertakes one to one coaching on an ad hoc basis. He has delivered presentations on

health and safety and risk assessment at training events. He is the chair of the panel which

deals with stewards' inquiries at racing events. For a period he had his own livery yard. In

that capacity he trained young horses to be ridden and compete, and younger horses which

were difficult to handle. He continues to compete in eventing.

[99]

In Mr Lane's opinion, riders in BE events wished to ride at the "higher risk" end of

the spectrum. Horses ridden in BE competitions almost all had an "excitable" element to

their behaviours to make them "brave" enough to tackle the jumps involved in that. Such a

horse was "not foreseeably dangerous to ride" but might be more demanding, and require a

competent and experienced rider. He had formed the view from the pursuer's record in BE

competitions that she was competent and reasonably experienced.

[100]

His evidence was that horses would vary as to how they would behave when they

were led out after restricted exercise (or, indeed a regime of near-confinement to the stable).

He did accept that it was understood that a horse might be more excitable in that situation.

He did not consider that the difficulty increased with the length of the period of restriction.

Horses would settle into a restricted regime, and that was more likely in mature and well-

trained horses such as Macamore.

[101]

Mr Lane said that "horsemen" would not agree that a horse who has not been in full

exercise for a period would misbehave because he had grown in confidence, having had no-

one telling him what to do. They would not consider that such a horse would then

challenge the rider or try to assert its authority over the rider, or that the horse would be

"testing" the rider. A horse would try to pull away if it was frightened or startled and

perceived a threat. A well-trained horse would, at any time, be more likely to be obedient to

his rider or handler than a horse that was not well-trained. Mr Lane had ridden Macamore,

and thought that that gave him a better feel for how the horse would behave in other

situations.

[102]

According to Mr Lane, the expression "fresh" would normally be associated with a

lack of exercise, or bringing the horse back into work. It meant that the horse was more

excitable than one would normally expect him to be. On the premise that Macamore had

been on light exercise, he would expect him to be more unpredictable than when in full

exercise. If Macamore had been jogging, or showing signs of being fresh or excited, he

would have expected riding him to be within the pursuer's abilities. Had the defender been

aware of a "small rear" by Macamore, that should not have caused the defender to foresee a

risk of injury to the pursuer. Had there been a very high rear, he would have expected

Ms Lindsay to report that and for the defender to give significant consideration as to

whether the pursuer should ride Macamore.

[103]

Mr Lane would expect the horse to show the same behaviour as when ridden in the

morning, or better behaviour. He did not accept that a horse would behave more badly on a

second ride after a period of restricted exercise than on the first. He had never encountered

that phenomenon, and did not recognise the theory to which Dr Marsden had referred in her

evidence.

[104]

In cross examination he said that if a horse was very volatile and bucked and reared

when walked in hand, he would expect the horse to be ridden in an indoor arena before

being ridden out, to protect both the horse and the rider. If a particular individual had

difficulty leading the horse in hand, that might be a reason to consider whether that person

should ride him, rather than a person who did not experience that difficulty. It would be a

matter of judgment. I did not understand him to differ from Dr Marsden as to most of the

matters that might be capable of mitigating risk (apart from the provision of a person o n a

farm buggy). The difference between them was as to whether any of these measures was

called for in the circumstances with which the defender was faced on the day of the accident.

[105]

Mr Lane considered that it would be important for the defender to have a report

from Ms Lindsay as to how her ride on Macamore had gone. He was her horse. The more

information he had, the better he would be placed to decide whether it was alright for

someone to ride him later in the day. He agreed with Dr Marsden that it was better to avoid

a linear route. He did not agree that that was because the turn could be a flashpoint for

misbehaviour by the horse. He said that if one always turned at the same place, the horse

would start to anticipate a turn at that point and might not easily accept direction to do

other than turn there if that were then required by the rider. He accepted that Ms Lindsay

had competed in more demanding competitions than had the pursuer. He would expect her

to be of a higher standard, as a rider, than the pursuer. The more familiar a person was with

a horse, the better they would be able to anticipate the behaviour of the horse in a particular

situation. Without knowing more about how he had behaved with her, it was impossible to

say whether it was something that any reasonably competent rider would be able to

manage. He would expect the defender to tell the pursuer about Ms Lindsay's report of her

ride.

Conclusions

Liability

[106]

It is unnecessary to rehearse the competing submissions of parties.

[107]

I am satisfied that the accident occurred in the manner the pursuer avers and which

she described in evidence. The accident occurred just after she had turned back towards the

yard. She had turned back at a point shortly before she would have reached the T-junction.

[108]

Although the pursuer did not see Macamore rear just before he fell onto her, I accept

her evidence that he had already reared as she described before she dismounted. No-one

has offered any plausible alternative hypothesis for how h e came to fall and land on her.

The inference she drew was a reasonable one. It fits with her account of what happened to

her, and what she was able to see, which I accept. It is common ground that horses can fall

if they rear to a significant angle from the ground, although the defender's position is that

that was unusual. The pursuer acted in an appropriate way by attempting to dismount

when she got into difficulties. Nobody suggested otherwise.

[109]

There is a clear and sufficient causal connection between Macamore's behaviour, the

pursuer's attempting to dismount and as a result falling, and between Macamore's

behaviour and his landing on her after she had fallen. Her injuries were caused by the

accident.

[110]

The defender instructed the pursuer to ride Macamore and where to ride him. That

is a matter of admission on record. Although there was some reference in the evidence to a

discussion between the pursuer and Rachel Gordon about who should ride Macamore, there

was no attempt to depart from that admission. I am unable to make a finding on the

evidence about which exit the pursuer used when she left the yard. She may have left via

the exit from the indoor school, or she may have ridden out from the front of the main yard.

I am similarly unable to make a finding as to whether or not she rode around the indoor

arena before leaving. Nothing turns on that matter. I accept the pursuer's evidence that if

she did ride around the arena, it was not in the context of being attached to a lunge rein by

Rachel Gordon.

[111]

The question of liability turns on what was reasonably foreseeable so far as

Macamore's behaviour on the afternoon of 21 July 2015 is concerned, in the context of the

regime of limited exercise which applied to him in the preceding weeks. Absent that

context, there was nothing about requiring the pursuer to ride Macamore that would

involve any breach of the defender's duty of reasonable care for her as an employee. The

facts that he was larger than the pursuer's own horse and that he had competed at a high

level would not, given the pursuer's experience as a rider, have given rise to a foreseeable

risk of injury absent that context. Had other things been equal there is nothing to indicate

that it would have been negligent to require the pursuer to ride Macamore or that she was

not competent to ride him.

[112]

There is a recognised risk that a horse will be more difficult to handle after a period

of restricted exercise. That risk may or may not eventuate in particular horses, but it is a risk

that is recognised in the equestrian community and industry. I accept Dr Marsden's

evidence that there is such a recognised risk. It is supported by the passage in the 2011

publication to which she referred. The reference in the Stage 1 manual to a horse being fresh

after even a relatively short period in the stable supports this proposition as well. It is to

some extent supported by the evidence of Mrs Hamilton, an equestrian of long standing.

Mr Lane accepted that there was a recognised risk of fresh or unpredictable behaviour after

a period of restricted exercise. Although the defender at times seemed to be at pains to

avoid conceding that there was such a risk, it is significant that he recognised that there was

a risk of misbehaviour to the extent that he sought to mitigate it by directing the pursuer to

take a different route from the one taken by Ms Lindsay.

[113]

It was reasonably foreseeable that Macamore would behave with the pursuer in a

way similar to that in which he had behaved with Ms Lindsay. Mr Lane did not dispute

this, although in his opinion Macamore might also behave better on the second ride.

[114]

I am not satisfied that there is a risk generally recognised in the industry that a horse

who has had a period of restricted exercised will behave more badly the second time he is

ridden than the first time he is ridden. Dr Marsden explained that her evidence was based

on academic study and understanding of how animals learn. The theory that she advanced

regarding first and second repeats of experiences was not vouched by any publication

produced. I am unable to determine whether it is part of a recognised body of knowledge

within her area of scientific knowledge, so far as equine behaviour is concerned. The

proposition that there is such a risk was a matter in dispute in the case. It is a matter on

which the pursuer relies in the pleadings. In those circumstances I should have expected the

basis for Dr Marsden's opinion, and the extent to which it was based on established

knowledge in her discipline, to be vouched by the production of articles or textbooks. Even

if it is established academic knowledge, there has been nothing produced to show that it has

been received in the equestrian industry. By contrast with the evidence about the

recognised risk of misbehaviour after restricted exercise, it was not vouched by any

reference in work of practical reference for equestrians.

[115]

Although at first sight it appeared that Dr Marsden and Mr Lane differed about a

great deal, the most pronounced difference between their opinions was in respect of the

point I just mentioned. I place no weight on the circumstance that Dr Marsden did not ride

Macamore, but Mr Lane did. There was no dispute relating to his general disposition that

could have been illuminated by her having done so. This case is concerned with what is

said to be the influence on Macamore's behaviour of his regime in the weeks immediately

preceding the accident. Had Dr Marsden ridden him, he would not have been subject to

that influence when she did. I did not consider that Dr Marsden's level of BHS qualification

detracted from her qualification to give expert evidence in the context of this case. She was

qualified by her other professional experience. She has studied and written about equine

behaviour, and provided advice as a consultant over many years.

[116]

I accept the pursuer's evidence that she experienced some difficulty when she was

leading Macamore in hand. There was, however, no evidence that she told the defender

about this, or that he knew or should have known about it for any other reason.

[117]

What was or should have been foreseeable to the defender turns on what he learned

from Ms Lindsay about Macamore's behaviour. I accept as credible and reliable the

pursuer's account of what Katherine Lindsay said to her about how Macamore had behaved

when Ms Lindsay rode him. I am satisfied that the conversation to which the pursuer

referred in her evidence was the same one to which the defender was party. That is what

the pursuer said when she was cross-examined. Accordingly I am satisfied that the

defender was told that Macamore had been fresh and excitable, and had reared. I am

satisfied that Ms Lindsay said that he had reared, and that he had been jogging and

bouncing about. I have no doubt that if she had described a very significant rear, that is

something that the pursuer would have recalled and spoken to in evidence.

[118]

There is very little evidence as to what the defender's response to this was. The

pursuer was not asked whether the defender asked any follow-up questions. The defender's

own recollection in evidence of the conversation was of poor quality. Neither party led

Ms Lindsay in evidence. Although the defender said he would have "queried" what

Ms Lindsay said, there is no evidence as to what he actually asked her, or what she may

have replied, either from the pursuer or the defender. The defender's position was that

nothing he heard caused him concern. While I did not regard him as a particularly

impressive witness, and he may have a motive, as Ms Ennis submitted, to understate the

position, the position is that the evidence about what actually was said goes no further than

what the pursuer was able to recall.

[119]

A person well-placed to assist on this matter would probably have been Ms Lindsay

herself. She was not led as a witness. In the event that it had been established that there had

been any failure on the part of the defender to make an inquiry of Ms Lindsay as to the

nature and extent of Macamore's behaviour, it would also have been necessary to have

evidence as to what, if anything, she would have said in response. There is no evidence

about that.

[120]

Nothing turns on any failure by the defender to tell the pursuer that Macamore had

misbehaved. She had heard Ms Lindsay's report and was aware of the matter. I am

satisfied that the pursuer and defender were present at and parties to a single conversation

with Ms Lindsay. It is irrelevant whether the defender did actually watch the pursuer ride

away from or around the farm buildings. There is no suggestion that Macamore showed

any sign during the initial stages of the ride that he would cause the difficulty that he did. If

the defender watched the pursuer ride away from or around the farm, he would have seen

nothing to cause him to ask her to discontinue the ride.

[121]

This case is brought at common law, and under reference to the defender's duty to

make an assessment of the risk to the pursuer associated with the ride. There was some

debate in the course of submissions as to the relevance or otherwise of the Management of

Health and Safety at Work Regulations 1999. That debate was sterile. The need to assess

risk (whether or not there is a statutory duty to carry out a risk assessment) is logically

anterior to the compliance of an employer with the common law duties of care incumbent on

him. He needs to make the assessment to find out what precautions, reasonably, to take.

That is clearly explained in Kennedy v Cordia (Services) LLP 2016 SC (UKSC) 59 at

paragraphs 110 and 111. The defender required to consider whether the pursuer's ride on

Macamore that afternoon gave rise to a risk to safety, what the extent of that risk was, and

what could and should be done to minimise that risk.

[122]

By his own admission the defender did not know what experience the pursuer had

specifically in riding horses after a period of reduced exercise. He had no personal

experience of Macamore's reaction following periods of reduced exercise, contrary to what

he initially said in evidence. He did, however, have a reasonably extensive period of

working with the pursuer and training her before the accident, and to observe and assess

her general level of competence as a rider. He knew that she had been involved in breaking

in a difficult pony.

[123]

He ought to have been aware that there was a recognised risk that horses would

misbehave following periods of reduced exercise. He knew that Macamore had misbehaved

that morning, with his own rider, who was a more experienced rider than the pursuer. As I

have already said, I do not accept that he knew or ought to have known that Macamore

would behave more badly on a second outing than on a first, or that he was more likely to

misbehave on a second outing than on a first. What he did have was information from

Ms Lindsay that Macamore had misbehaved to some extent on his first outing. It was

reasonably foreseeable that Macamore would behave with the pursuer in a way similar to

the way in which he had behaved with Ms Lindsay. While I do not know precisely what

Macamore did when Ms Lindsay rode him, I infer that it was behaviour she was able to cope

with. She rode him back to the yard.

[124]

He perceived that there was a risk worthy of mitigation, to the extent that he directed

the pursuer to take a different route, with a view to trying to avoid a repeat of the behaviour

described by Ms Lindsay. While I accept that was a reasonable step for him to take, it does

not follow that he should have been satisfied that it would prevent a repeat of the behaviour.

There is nothing in the evidence to indicate that it would. There is no evidence that

anything other than a linear route involving a turn was available or practicable on the day,

given that the exercise required to be of limited duration.

[125]

Essentially the defender required to consider with reasonable care whether the

pursuer was equipped by virtue of her competence as a rider to deal with Macamore's

behaviour while riding him unaccompanied that day. If she was not, he should have

considered whether she should ride Macamore at all; whether she should ride him outside

the confines of the yard; and whether if she were to ride him outside the yard, risk would be

sufficiently mitigated by the presence of another horse and rider.

[126]

In submissions, the defender referred to McGregor v LMRS Farm Ltd

[2007] CSOH 153. While that is a case relating to the selection of a horse for a pupil at a riding

school, and not to the liability of an employer to an employee, I derive assistance from the

approach of the Lord Ordinary. The assessment of risk in this case involved consideration

by the defender of whether the pursuer could, by virtue of her competence as a rider, ride

Macamore in reasonable safety notwithstanding the foreseeable risk that he would behave

as he had done with his owner, earlier in the day. Like the decision criticised in McGregor, it

is a decision about whether a horse and rider are in all the circumstances appropriately

matched. The Lord Ordinary in McGregor took the view that this was a question of

judgment, and an art rather than a science: paragraph 49.

[127]

I consider that the judgment that the defender made was a reasonable one. I accept

Mr Lane's opinion that a rider of the pursuer's experience could be expected to cope with a

horse who was excitable, and who had reared, unless that had been a high rear. There is no

evidence that the defender should reasonably have anticipated misbehaviour by Macamore

of a nature that would have made it unsafe for the pursuer to ride him.

[128]

I accordingly assoilzie the defender.

[129]

If I had been satisfied that there was a reasonably foreseeable risk that the horse

would misbehave to such an extent that the rider would decide reasonably that she required

to dismount, I would have concluded that there was a reasonably foreseeable risk of injury

to the rider. I would not have taken the view that it was necessary that the precise means by

which the accident occurred (the horse rearing then falling on to the pursuer) be reasonably

foreseeable.

Quantum and causation

[130]

Had I found the defender liable, I would have taken the following approach to the

disputed elements of the claim. As I have already indicated, I am not satisfied that it was

medically necessary for the pursuer to give up her nursing studies. Mr Mathieson and

Mr Khan both gave evidence to that effect. I reject the defender's contention, advanced in

oral submissions, that, in essence, the pursuer had been told that bad backs were common

among nurses, decided that "she didn't fancy that", and that was why she ceased nursing.

This is not a fair representation of the pursuer. She presented as someone who had returned

to her studies and to her leisure activities promptly after the accident. I do not consider that

she wanted to stop her nursing studies and sought to use the accident as an excuse to do so,

or that she gave up her course cynically with a view to trying to exact financial

compensation from the defender for her decision. The onus is, however, on the pursuer to

establish a causal connection between the accident and each of the elements of her claim.

[131]

Parties were agreed that the pursuer lost wages of £400 which she would have

received in her employment with the defender during August 2015. The pursuer sought

interest on this sum from August 2015 to date.

[132]

Parties agreed that in the event I found that the pursuer required to discontinue her

nursing degree as a consequence of back pain from injuries arising from the accident, then

her past wage loss amounted to £61,290 with interest of £7,355. Her future wage loss would

be £1,877.

[133]

The pursuer's position was that she had taken advice from those best placed to

provide it, and that it was reasonable for her to discontinue her nursing studies. In the

course of oral submissions Ms Shand accepted that an award in the agreed sum for past

wage loss if I were satisfied that there was a sufficient causal connection between the injuries

sustained in the accident and the pursuer's change of course at university, and did not

maintain that I should interpret the use of the word "required" in the joint minute in any

particular manner.

[134]

The starting point of the process leading to the pursuer's change of course was, she

said, advice she had from her general practitioner. There is no record of this advice in the

general practice notes. There are relatively few references to back pain in the notes during

the pursuer's first year at university. There are records of attendance during this period,

and a number in relation to complications from the pursuer's facial injuries. The references

that do appear are: on 11 September 2015 - "sore back still"; on 8 June 2016 "gets some low

back pain". Both of those notes refer to other matters as well. The note from 8 June 2016, of

a consultation with Dr David Booth, relates mainly to complaints of fatigue and difficulties

with concentration. The note of 8 June 2016 is the first record of a consultation with

Dr Booth after the accident. The next consultation with him is recorded on 17 October 2016,

after the pursuer had changed courses at university.

[135]

Following the October consultation Dr Booth referred the pursuer to Dr Lance Sloan,

a consultant in rehabilitative medicine, in relation to difficulties with tiredness and poor

concentration. In the referral letter, dated 18 October 2016, Dr Booth described the pursuer

as an "18 year old student nurse". He went on to say, "She has made a good physical

recovery and went on to start studying general nursing at Dundee. She is now in second

year."

[136]

These entries appear to indicate that Dr Booth did not know at that point that the

pursuer had changed courses. I accept that the pursuer was trying her best to give truthful

and accurate evidence about what she said her general practitioner told her. Her evidence

about the terms of the conversation was, understandably, imprecise. The pursuer took from

whatever Dr Booth said that she should consider whether, in the light of her back pain, she

should continue with nursing. She made reference to her back being "weak" and "the injury

getting worse". She said that her general practitioner had told her that she was starting with

a "bad" back. Although the note from 8 June 2016 is not extensive, it does record a

complaint of low back pain. I accept that Dr Booth told the pursuer, in the context of a

consultation about the ongoing effects of her injuries, that her back pain would not improve.

He gave her to understand that nursing would exacerbate the problem. That is not the

advice that the two expert neurosurgeons would have offered the pursuer, but I accept on

the balance of probabilities that it is the substance of the advice that Dr Booth offered. It is

very unlikely she would have undertaken the inquiries that she did with university staff if

she had not received advice to that effect from Dr Booth . The account given in evidence by

the pursuer was consistent with Mrs Morrison's recollection of what the pursuer had told

her, and of the course of events that followed from it. My impression of the pursuer was

that she had been keen to study nursing, and tried to the best of her ability to follow through

the plans that she had made before the accident.

[137]

I am satisfied that it was reasonable for the pursuer to take from the exchange with

Dr Booth that she was being told that nursing would make the effects of the injuries

sustained in the accident worse, and that the back pain she was experiencing when carrying

out practical nursing tasks was worse because of the accident than it otherwise would have

been. I accept that university staff provided further advice on the basis of what the pursuer

told them Dr Booth had said. It was reasonable for the pursuer to act on the advice of her

general practitioner and university staff, and to change courses. Had the pursuer succeeded

on liability, I would have awarded the sums agreed in the joint minute as the past wage loss,

interest thereon and future wage loss resulting from her change of course.

[138]

The pursuer also sought £19,000 in respect of the student loans she had had to take

out to meet her expenses during her four year environmental science degree. She had had a

bursary when studying nursing, which she would not have needed to repay. The defenders

said that there was no evidence that the pursuer would have received a bursary after the

first year of her nursing course. My understanding of the pursuer's unchallenged evidence

was that the bursary was attached to her degree course, and not simply to the first year of it.

I would have found the pursuer entitled to this sum. It is a liability she would not have

accrued if she had continued her nursing course, rather than switching to environmental

science.

[139]

I am not satisfied that the pursuer has suffered a loss of employability. Her

contention that I should make an award was based on her having a head injury, and

continuing cognitive deficits. The pursuer has obtained a 2:1 degree, and a graduate

position in her chosen field. She plans to study for a master's degree. I do not doubt in any

way the pursuer's evidence that she experienced difficulties at points during her studies,

particularly in the period closer to the accident. She sought and was given appropriate

support by Dundee University. She has entered employment, albeit later than she would

have done had she completed her nursing degree as planned. Her later start in employment

would be compensated by the agreed figure for past wage loss and the very limited, agreed,

figure for future wage loss. There is no evidence that her earning capacity or her ability to

work is limited by continuing effects of her head injury. Mr Mathieson's view at the time

that he examined the pursuer in 2018 was that she might find absorbing new information

more difficult for up to four years from the accident. He believed she would be able to

undertake a career of her own choosing. When giving evidence he said he was not at all

surprised to learn that she had achieved an upper second degree.

[140]

The pursuer's services claim on record was in the following terms: "The pursuer

required assistance from her mother with personal care and with household chores

following the accident." The defender submitted that that formulation of the claim excluded

the services provided by Mrs Morrison by way of giving the pursuer lifts to university for a

period and to medical appointments at various times. The defender submitted that general

support to the pursuer and assisting in describing what was happening were not properly

described as personal care. Personal care meant only help with essential everyday activities

such as washing, dressing, and meals.

[141]

I accept that Mrs Morrison provided personal care to the pursuer when the pursuer

was in hospital and in the weeks after her discharge. I reject the contention that personal

care requires to be construed as narrowly as the defender suggests. In a situation in which

the pursuer found herself in hospital, injured as she was, what Mrs Morrison did by way of

providing emotional support to the pursuer and helping her to understand what was going

on is properly described as personal care, just as is the assistance she rendered in helping the

pursuer take nutrition and making her comfortable. While I accept that not every moment

of Mrs Morrison's time at the hospital will have been engaged in undertaking personal care

of the pursuer, I have no difficulty in accepting that a great deal of it was. I would allow, on

a broad basis, 10 hours per day for a 2 week period: a total of 140 hours. Thereafter the time

spent on providing care is more difficult to quantify. I accept that the pursuer needed

assistance for about eight further weeks after her discharge from hospital. Accepting that

the needs were more extensive at first, and diminished over the period, I consider that an

average figure of 5 hours per day throughout the period would be reasonable. That

produces a further figure of 280 hours.

[142]

I allow 80 hours in respect of the provision of lifts to and from university, on the

basis that they took about 2 hours each weekday over an 8 week period. I accept that they

were necessary services in a context in which the pursuer had been told to avoid public

transport for a period while her facial injury was healing. In that context I consider that they

can properly be described as an aspect of personal care provided by Mrs Morrison. The

pursuer needed to travel to get to university, and needed to travel to get to her medical

appointments. Travel for those purposes is an essential every day activity. I do not have a

clear picture of the time taken in providing further assistance with attending medical

appointments, and consider 20 hours a reasonable estimate.

[143]

Section 8 allows for "such sum as represents reasonable remuneration for ...

services". Conventionally awards have been made on the basis that a full commercial rate

should be discounted when care has been provided by a relative. As a matter of law the

minimum wage for someone of Mrs Morrison's age was £6.70 in 2015. With that in mind I

would have made an award for services in the sum of £3,000 before calculation of interest.

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