Racehorse trainer injured when horse fell on him has damages claim refused

John McShane would have been awarded more than £270,000 in solatium, loss of earnings, including winnings, and future care and services had the defenders Burnwynd Racing Stables been found liable, but a judge in the Court of Session dismissed the claim after ruling that “the horse fell simply because horses do fall sometimes”.

Lord Glennie heard that the case brought following an accident at the defenders’ racing stables on 25 March 2011.

The pursuer, a former amateur jockey, was employed at the stables by the defenders as trainer and was exercising a horse, “Psalm 23,” on the training gallop.

But at the far end of the gallop his horse fell and landed on him and his left arm was badly injured – leaving him with a “permanent impairment” to his left side.

He sued the defenders on the basis that the gallop was “unsafe” and that that was the “cause of the fall”.

His claim was based on negligence at common law and/or breaches of the Workplace (Health, Safety & Welfare) Regulations 1992 and/or the Work at Height Regulations 2005.

The court heard direct contemporaneous evidence which suggested that the horse fell just before or on entering the third bend, on a line tending towards the inside of the bend.

According to the pursuer, the horse “lost its action” and he thought it was caused by “something on the surface”.

His assistant, stable lad Amanda McCaig, said the horse slid on a section of “exposed underlay”, which was exposed because the woodchip surface was “too thin”.

But Lord Glennie said there were “difficulties” with these explanations for the fall, because there was “no record” of exposed underlay in the accident record, nor any record that the horse lost its action because of exposed underlay or of something unidentified on the surface of the track”.

The judge also pointed out that horses do fall “without there being any obvious external factor causing that fall”.

He explained: “When one talks about horses falling without any obvious cause one is simply noting that it is in the nature of horses, particularly racehorses running at speed, to become unbalanced, to lose their stride, to lose their action, to slip or trip or fail in some other way to remain upright without there necessarily having been any external factor to cause this. This is important.

“Once it is accepted that horses do fall even in the absence of some defect or hazard, then the occurrence of an accident of this sort does not necessarily mean that there was some defect or hazard in the track which caused it, or that it resulted from some failing on the part of those responsible for the course or its management. Nor does it necessarily mean that the rider was at fault.”

Lord Glennie further observed that the only direct evidence in support of the pursuer’s case that the horse slipped on the exposed membrane was that of Ms McCaig, and while she was found to be an honest witness she was not considered reliable – “allowing her dislike of the course…to cause her to speak exaggeratedly of its defects”.

He added that while he found the pursuer also to be an essentially honest witness, he too was “prone to exaggeration”.

Therefore, the judge did not find it proved that the pursuer’s accident was caused by any defect in the gallop.

In a written opinion, Lord Glennie said: “I do not find there to have been a defect of the kind alleged by the pursuer, or indeed any defect in the gallop which caused the pursuer and his horse to fall. I see no reason to doubt that the horse fell simply because horses do fall sometimes. That is fatal to the pursuer’s claim. Riding horses is an activity which involves the risk of falling, and accidents do happen without actionable fault on the part of another party.”