McGregor v. LMRS Farm Ltd [2007] ScotCS CSOH

"Assessments, whether for lessons or hacks, are essential in any well run riding school. Find out what the rider's previous experiences and make sure that you mount the rider well within that experience. Some riders have inflated opinion of what their ability is. Never take a rider for granted, always find out by systematic appraisal of how they handle the horse, have they managed the tack and how they mount, as well as the riding ability in walk, trot and canter."

The suitability of the horse and the nature of the lesson go together. Experience, ability and level of competence all have to be taken into account. The ability of the rider is very important, as are the temperament, nature and athletic ability of the horse which must match the rider's ability and be appropriate for the lesson. The level of confidence of the rider is also relevant. Some are too confident and should be given a steadier horse to reign them in. Some are under-confident and a school might pick a quicker more athletic horse to bring the rider on. It is good practice for people to try more than one horse. It is also important to consider the classes which the horse has been ridden in. Horses learn the exercises and the horse's reaction to someone doing the right or wrong thing will become known to instructors during lessons. For the more novice rider one is looking for a horse who will react to a small part of the correct signal, listen also to the instructor and be coerced into doing the right thing. These horses are ideal for a novice or beginner but as riders gain experience they would be annoying.

[9 ] A horse suitable for an experienced rider might not be so good for a beginner although there are some slower, stoic horses who can come up to the mark for a more experienced rider. Taking a horse used only to more capable riders and putting it in a novice class would present a safety risk as it would react only to the correct signal. A horse ridden by more capable riders is likely to be uncomfortable, upset or react in an unusual way when given to a more novice rider. The natural reaction of the horse would be to run away from such discomfort. The description of the horse taking off and its halt position in the arena as described in precognition was classic of a capable horse reacting naturally to confusing signals from an inexperienced rider.

[10 ] In the accident report 6/13 of process the instructor noted that she felt the pursuer was not "with the horse", which is horsey jargon for being unbalanced. It is good practice to notice that. An unbalanced rider trying to canter will become more unbalanced, and give conflicting and confusing signals to the horse which will feel uncomfortable and will start to run. Learning how to get into a canter and retaining one's balance when cantering are key points in learning to ride. Dr Marsden thought the pursuer had been unable to make the breakthrough to a canter as she was nervous of it. The description of what happened at page 3 of the accident report 6/13 of process makes sense. It would have been reasonable to ask if the pursuer wanted to canter the second time as she might have recovered her balance, become more in control, warmed up more and done more balance exercises so it could be appropriate. If the instructor is used to getting people to canter and encouraging them it is good practice to ask.

[11 ] Dr Marsden had carried out a scrutiny of the stable's diary and noted a pattern of the use to which Suchard was put, primarily for very particular lessons and by a small number of people. She could only find one entry for level 3 class, namely on 1 May and inspection of that suggests that the horse was in fact not being used for that lesson at all.

[12]. In cross-examination Dr Marsden agreed that it was a judgement call regarding which horse should be used. The picture here is not of a horse being spooked, which has a particular meaning and she did not think that Phoebe Kay, in using that term, was referring to such a phenomenon. Asked what it was about the horse which should have caused Dr Anstey to conclude that it was not suitable Dr Marsden referred to the way the horse behaved in more advanced lessons, its sensitivity and obedience. It was a very difficult decision and Dr Anstey might have felt that Suchard was the most suitable horse available but for safety purposes one should not bow to commercial pressure and should only ever choose a horse well within the capability of the rider.

[13 ] Asked what, in advance of the lesson, would have told Dr Anstey not to put the pursuer on Suchard, she repeated her comments about the effect of a beginner on a sensitive and obedient horse. Dr Anstey had to consider all the relevant factors and make a judgement. Where a horse is first being introduced at that level it would be normal to put it on an instructor first. One would not put it with a rider who was moving up a level and only had the pursuer's experience. Putting a rider like that on a different horse which has never worked at that level is not sensible. It is a combination of these things which is the problem. An inexperienced, unconfident rider can be moved up reasonably but not on this horse and vice versa. If the horse as a matter of fact had been ridden by a less confident, unbalanced rider and dealt satisfactorily with that situation, then it might have been reasonable to put Mrs McGregor on it. She added that any horse could be capable of reacting as Suchard did.

[14 ] The defenders' first witness was Natalie Motion, the riding instructor on the day in question. She had taught riding for 15 years and was a part-time instructor at the stables. She knew Suchard before that day and described her as a middle of the road horse, "maybe not ultra quiet but not one you would worry about someone learning to ride on. She was a pretty calm, sensible sort of beast" of about 8-12 years old. A suitable rider for Suchard was someone who could steer, had a reasonable level of balance for the lesson and a reasonable grasp of the basics of riding a horse, nothing too advanced. She was suitable for anyone taking the 11.15 (level 3) class dependent on their size. An adult would not want to be riding something much smaller. Her temperament was much of a muchness with other horses in the lesson. She was not a flighty horse. Suchard would allow mistakes and not penalise too heavily for it. She was the nearest to Third Time, although perhaps slightly bigger.

[15 ] On 2 April she thought there was another rider who had been moved up with the pursuer and in that situation she normally went back to basics in the lesson. On this particular lesson they spent about 45 minutes of exercises walking, trotting, and doing a rising trot, all to establish the degree of control and balance of every rider. She knew that the pursuer usually rode Third Time and had not ridden Suchard. At the start of the lesson the pursuer seemed relatively confident. She did very well in the walk and trot exercises and Miss Motion felt able to assess her riding. At the first cantering exercise she asked the pursuer to do a sitting trot. She wanted her to do it one more time to make sure. If a rider can retain good balance for that, the balance will be good enough for a canter.

[16 ] At the second cantering exercise she asked the pursuer if she felt she would try a canter or not, saying that if she did not feel like doing so she should just repeat what she had done. The pursuer said she felt she would like to have a canter. Miss Motion repeated instructions she had given about how to have one hand on the reins and one on the saddle. At the start of this exercise she was quite impressed with the pursuer's performance but then "I saw her tip forwards, bringing her legs back and she lost balance." The horse accelerated when touched with the pursuer's legs but the pursuer did not put both reins in one hand, which caused the horse to turn left. She then started pulling the right rein to slow the horse and when the horse approached the end of the arena, it was moving across the school rather than round it. It was at this point that the horse stopped abruptly and the pursuer came off.

[17 ] She described Third Time as a very old horse whereas Suchard is much younger. She made the comparison between a 70 year old jogging and a 30 year old jogging. The horses were similar in size and temperament if not in age and athleticism. Suchard was a younger version of Third Time. Both were what is described as a thoroughbred cross, the same saddle fits both and they are about the same dimensions. Third Time was not really suitable for the 11.15 (level 3) lesson because she is too old for jumping. Suchard is a capable horse favoured by anyone wanting to canter, but for an instructor to ride her another horse would have to be lame or there would need to be some other problem. If she had continued to think that the pursuer was "not with the horse" she would not have let her canter because she would not be in balance.

[18 ] During the exercise the pursuer was not asked to do the first canter as Miss Motion wanted her to get as much time to get used to the animal before doing it. She thought she could do with one more time to get familiar with the horse. Initially she said that any lack of familiarity with the horse was not really exhibiting itself. She was then shown 6/13 of process in which she wrote that the pursuer was "not with the horse". When her attention was drawn to that she said that the pursuer must have impressed her as being more with the horse by the second canter. She must have looked better or she would not have allowed her to canter. The pursuer had not appeared unconfident.

[19 ] The information that the pursuer had cantered before came from Dr Anstey and Kelly that morning. A client would not be moved up if she had not cantered before. That is a pre-requisite for that class. Had she thought that the pursuer had never cantered she would not have allowed her in the class.

[20 ] Miss Motion had been unhappy about Third Time being used for the 10 o'clock advanced (level 4) class as she felt that the horse was not up to it. She would have difficulty once round the arena and there would be no jumping in a lesson where she was involved. Her attention was drawn to the absence of Suchard's name against 11.15 lessons and she indicated that she had taught with Suchard at an 11.15 lesson. The diary did not always reflect what had actually happened in practice since changes sometimes had to be made after the bookings had been finalised.

[21 ] The next witness for the defender was Dr Anstey, the then proprietor of the stables who had run the business for 26 years. On 2 April there was a level 4 class at 10 o'clock, a level 3 at 11.15, a half hour trek for complete beginners at 11.15, a complete beginners lesson at 13.45, a level 2 class at 15.00 and an overflow lesson at 16.15 which was in fact for complete beginners. When people are moving from level 2 into level 3 they would be classed as intermediate.

[22 ] The diary was usually compiled by her and contained a combination of bookings and what actually took place - probably a 90% accurate reflection of what had happened. She would fill in the horses on the Friday for the Saturday and then write what did happen so she knew for the future.

[23 ] There is quite an art in making sure every rider is on the right horse as far as possible. She made the decisions but would discuss with instructors as to who should perhaps have a change of horse and so on. She watched a lot of what was going on in the school through a window from her office which looked onto the arena. One had to use judgment about whether to encourage someone to ride a particular horse or whether to discourage it. Sometimes it was necessary for their development. She tried to look at the lessons two or three times during each lesson. She knew all the customers and their abilities. She knew the horses, their size, physical features and temperament. Knowing the temperament of the horse is absolutely essential in fitting riders to horses. The factors to take into account include the standard of the rider, and what they had learned to do; the way they did them - some were subtle, others were more clumsy; and the temperament of the horse. If a horse were too sharp, she would not put it in the beginners' class. By that she meant a horse which responds quickly to the signal. The opposite also happens - sluggish horses where riders use their legs and use their legs and nothing happens. The level of schooling of the horse is also relevant. Size is relevant but not critical. A big horse can be placid and vice versa.

[24 ] On 2 April, her memory is that Suchard had ridden in the 10 o'clock lesson. Third Time was an older horse. In her younger days she was very sharp and quite a fast horse. She was very responsive but now getting stiff. She very much liked riding. She was part Welsh Cob which is more exciting than the usual Cob and half thoroughbred or Arab. She had no faults in the usual sense, meaning she didn't bark or behave badly in other ways. She wasn't put on hacks as she went faster than was good for a horse of her age. She was very popular as she was very forward going but well-behaved. She was now doing less, edging towards retirement. She would not often be in the 10 o'clock class because the work was more intense and she would get tired. She was almost always in the level 3 and level 2 but not generally at level 1 as she tended to go too fast for that.

[25 ] She would use Third Time for bold riders, not nervous ones. Those who wanted her to go when she should - and sometimes when she shouldn't: in the course of a lesson, if she thought it was her turn she would go, but this was not problematic as she would stop to a signal and was very obedient. Suchard was about two inches taller, not a young horse but at 9 years, in her prime, an ideal age for a school horse. She had been out on a 21/2 hour trail several times without putting a foot wrong. Dr Anstey said that if a horse was going to misbehave, that is when it would happen. In her view she was just as well behaved as Third Time and she did not have this "it's my turn" thing. She had been beautifully behaved for anyone not a complete beginner although she did have a beginner on her - her owner once put a friend on and walked her round on a lead rope. Dr Anstey did tend to put the more experienced riders on Suchard as she was fairly new and Dr Anstey liked to play safe. With a new horse she started riding it herself, then staff would ride it, then experienced riders and she would work her way down through the levels.

[26 ] On 2 April it was her decision to give Suchard to the pursuer when Third Time went lame. It occurred to her now that she could have said "would you like to go back to the 3pm class" to the pursuer but felt that would have been babying her. Suchard was suitable as she was the nearest to Third Time. She was not slow, but well-behaved. "In all we had seen, we had never seen her do the wrong thing, never seen her buck, never go too fast." She was a more bouncy horse than Third Time.

[27 ] Asked whether any other horses were considered, she said she probably considered whether there was another she could swap, but all the others were children and although Suchard had been ridden by children, she thought the pursuer as an adult would be a more suitable match. Another option was for the pursuer to have Suchard for the first half hour then to have Hugo who was out on a trek at the time. She did not discuss that with the pursuer. Safety was her first priority. If she thought it were unsafe for the pursuer to go on Suchard she would never have put her on it. She never put anyone on a horse she didn't think they were suitable for. "It would be madness".

[28 ] She thought it easy to suggest in retrospect that it was the wrong decision and to be wise after the event. However, at the time what she knew of Suchard was that she had never done anything remotely like that, never gone off with anyone, never gone too fast. She had been on more exciting rides - trail rides - where the opportunity to misbehave would have existed were she going to do so. In fact, one incident on a trail ride involved another horse going to try to overtake which might have set them all off. A 12 year old was on Suchard and instructed Suchard to stop which she did. It was the fact that Suchard was so obedient that prevented an incident. There was nothing to suggest she was a badly behaved horse. Dr Anstey had seen Mrs McGregor ride a lot. She was very good for her standard. She was confident and sat nicely. Otherwise she would not have let her ride Third Time which was Dr Anstey's own favourite horse. She didn't want her spoiled by a clumsy rider.

[29 ] Suchard had been in the 11.15 class perhaps only a couple of times. She was on it on 20 March, ridden by Karen, a 14 year old who always asked for a steady horse. The fact that Suchard had gone well for Karen in the earlier lesson would have been a factor in her decision. She thought Mrs McGregor probably found the horse bouncy but did not think she could have found her too fast. Mrs McGregor did some wrong things and panicked. A horse will often take its line from the rider and might panic and so to that extent it is predictable. It is a possible reaction. Some horses never panic but they would not be useful for anything other than complete beginners. It is a continuum. Suchard is in the middle or quiet end of that continuum.

[30 ] The proposition that Kelly told the pursuer she should be in the 3pm class for another couple of weeks to master the canter was new to Dr Anstey. She understood that the pursuer was ready and keen to move up and that the school were holding her back. If she had wanted to stay in the 3pm class she would have been kept there. Kelly was the head girl and they were discussing matters all the time. Dr Anstey said "I can't believe I'd have moved her up if that happened. It would be so against my policy." She didn't remember Mrs McGregor mentioning misgivings to her but if she said Dr Anstey consulted Kelly she would have done so but has no recollection of it. [31 ] Dr Anstey had not seen anything to suggest that Suchard was not suitable for the 3pm (level 2) class but had not worked her down to that level yet. Her feeling was that Suchard was the nearest thing to Third Time, with much the same build. She agreed with Natalie Motion that often Third Time wasn't suitable for the level 3 class. It was a harder class and Third Time tired more quickly. However the only thing she would not be able to do in that class was jump.

[32 ] The phrase that "she was not with the horse" suggests that it was the sitting trot which was the trouble. This was not a big problem. It would not be reasonable to say you are having a little difficulty with the sitting trot, take another horse - people would never learn. Shown No. 6/13 where Natalie Motion noted that the purser was not "with the horse" and that she told her not to canter the first time, Dr Anstey said "Fair enough - she was giving her more time with the horse". It was put to Dr Anstey that the pursuer said she had not cantered before. Her reply was "It is this black and white business", by which I took her to mean that it is not simply a matter of being unable to canter one day and able to do so the next. She said that the pursuer wasn't a perfect rider to the canter but people are always learning. The pursuer had in fact cantered Third Time several times and done well.

[33 ] Karen Brown, aged 18, had worked at the stables in 2005, having been a helper there before that. She had taken lessons at the school, starting as a complete beginner and moving on to different levels. She ended up in the 10 o'clock Sunday class (level 5). She had ridden Suchard whenever she was available. There were a lot of people wanting to ride her. "She was a pretty calm horse when I was on her and did not do anything wrong or anything like that." She was not aware of anyone else having difficulty with her apart from the accident. To her knowledge there was no difference between Third Time and Suchard.

[34 ] Charles Lane was led as an expert witness for the defender. He was a BHS Intermediate Instructor and a British Eventing Instructor and had been the team manager for the British 3 Day Eventing Team at the Atlanta Olympics in 1996. He provides health and safety advice to riding schools. He sat through day 1 and day 3 of the evidence. From what he had heard he could see no reason why Suchard should not be used as a riding school horse. Apart from the accident he had heard no criticism of her. Dr Anstey was approaching the question of selection in the right way. She seemed to have considered the horse similar to the horse the pursuer had been riding which was an appropriate way of making the decision. As long as Dr Anstey thought it was suitable, and there was no reason to think otherwise, it was an appropriate decision. He had not heard any evidence to suggest that Suchard was not suitable. The fact that Suchard was almost always in the 10 o'clock class was no reason whatsoever to weigh against the decision. There has to be a reason making the horse unsuitable, a characteristic which made it foreseeable that the pursuer was going to have difficulty. His view was not affected by the evidence of Natalie Motion that Third Time was not really suitable for the 10 o'clock or 11.15 classes. Third Time was suitable for trotting but not jumping and that seemed sensible given her age. Jumping would make her lame. He agreed that the less competent a rider is, the more likely they are to get something wrong, but all horses are unpredictable. The less likely they are to charge off, the better for the rider. However, you have to balance against that the need to have a horse that will go forward, and that will go into a canter reasonably easily, as a rider should not have to struggle to get the horse into canter. A balance has to be struck and it is an imprecise art.

[35 ] Although Dr Anstey was working Suchard down through the levels, Mr Lane thought that she was probably suitable for beginners on a leading rein and so would have been suitable for standard 1 or 2. As to the proposition that it is important to consider the lessons the horse had ridden in before, he said one had to look at the horse and its temperament, not simply the lessons it had ridden in. The fact that the horse might normally be ridden by a more advanced rider is not critical. As for the proposition that horses used to experienced riders can get upset if given to a less experienced rider, it would depend entirely on the temperament of the horse.

Submissions
[36 ] Counsel for the pursuer submitted that the issue was whether Dr Anstey had failed to take reasonable care for the safety of the pursuer. He pointed out that it had been a busy Saturday morning, "a bit chaotic", with a number of classes running. Dr. Anstey was responsible for selection of the horses. It was the pursuer's first Level 3 class and she was expecting to ride Third Time. There was no issue over what actually happened: the horse speeded up then came to an abrupt halt. During that time the rider was not in control and probably did things which were not appropriate.

[37 ] The pursuer's case is that she should not have been on that horse in that class on that date. One must look at the combination of circumstances - a new class, a new instructor and a new horse which had been used almost invariably by more experienced riders. The only time the horse appears to have been ridden in the 11:15 class was with Karen Brown. Evidence from Natalie Motion that the horse had been ridden a few times at 11:15 and not changed in the book was not reliable since Dr. Anstey said there was a high-degree of accuracy in the book. Third Time was accustomed to being ridden by riders at the pursuer's level although counsel accepted that it was also used by more experienced riders. Suchard was not accustomed to the Level 2 Class or the Level 3 Class, and was neither the obvious nor the appropriate choice. Dr Anstey herself did not consider Suchard suitable for Level 2.

[38 ] The pursuer's evidence was that she had not mastered cantering at Level 2 and the instructor had suggested she should have extra time at that level. If the pursuer did achieve cantering, it was not very many times. She had not done it countless times. At best she had limited experience of cantering. There must be a considerable doubt over whether she had mastered the canter and was ready to move up. Her performance that day is consistent with her evidence to the court. One could say that Third Time was a safe choice if the pursuer couldn't canter well. If Dr Anstey was asking on 2 April what might happen, the answer must be she simply didn't know, because Suchard was not a Level 2 horse and was not even accustomed to Level 3 riders. Suchard was not an appropriate substitute and was not similar to Third Time. Third Time was old and arthritic while Suchard was young and athletic, and on the pursuer's evidence, much faster.

[39 ] Moreover, no thought was given to postponing the lesson until Third Time recovered. Dr Anstey hadn't even thought of other possibilities which may speak eloquently of not giving the selection the care and attention it deserved. On the pursuer's evidence that she was not ready to move up, the decision to put her on Suchard is all the more indefensible. The pursuer said that she made Dr Anstey aware of what Kelly said. Dr Anstey had little recall of anything that was said and the pursuer's evidence which was unchallenged. According to the pursuer, Dr Anstey said that she was, perhaps, wrong to put her on Suchard although Dr Anstey could not recollect any discussions with the pursuer. That might suggest an immediate recognition that the decision was not thought out.

[40 ] The factual disagreement over whether the pursuer was going to try to canter or not probably doesn't matter as she should not have been on that horse. Natalie Motion's evidence that she was impressed by the pursuer's balance and that she was comfortable was contrary to what she wrote in the accident report. That is a guide to her reliability and the pursuer should be preferred on the issue of whether she was prepared to canter. It is true to say that the pursuer probably reacted inappropriately. Counsel then referred to Crow v French, Lord Hamilton 29 March 2000 and Clayton, Robertson v Horses in Scotland, Lord McPhail 22 March 2007.

[41 ] For the defenders, Mr McPherson sought absolvitor, submitting that the correct formulation of the question for the court is that the pursuer has to prove that Suchard should not have been selected for her on that particular day. Two critical issues are raised on record. The first is that the horse had only been ridden by advanced riders - this was not established in evidence and there were no other averments regarding Suchard's character history etc. The second matter is foreseeability. It is averred that it was foreseeable that the horse would "bolt" when others cantered in her presence whilst she was restricted to a trot. If the question is the selection of the horse this has to be foreseeable to Dr Anstey at the time of selection. The pursuer has failed to prove anything approaching that averment, particularly not that the horse bolted.

[42 ] However the evidence about whether the pursuer agreed to canter is resolved, it is clear that Suchard at one point went faster than the pursuer expected and she became unbalanced. The evidence of the pursuer and Natalie Motion together was that she was unbalanced at the faster rate. To that extent the dispute is not material. There is an absence of any evidence to support the proposition that this was foreseeable. Natalie Motion treated the class cautiously and there is nothing to say that she should have foreseen that the pursuer would become unbalanced or that Suchard would go faster than expected.

[43 ] Crucially there is nothing to suggest that there was anything about Suchard which ought to have been known to Dr Anstey before the lesson began. The pursuer did not aver that Suchard bolted because she had that nature nor did she prove that. There was no evidence to suggest that any other horse would have behaved differently. As to the factual dispute the accident report is more likely, as a contemporaneous record, to be correct. If memories on both sides have faded over two years it is difficult to see how Natalie Motion would have been wrong at the time.

[44 ] The pursuer has to prove that Dr Anstey's decision was negligent. The solicitor advocate for the defender initially submitted that this was not a straightforward duty of care case and referred to Hunter v Hanley 1955 SC 200 at 206. He submitted there was a usual and normal practice, namely the practice of fitting riders to horses. After further submissions he seemed to accept that this was not a practice but an objective. However, the issue was one of judgement and the overall duty of care had to be assessed in the light of particular considerations in relation to judgement. Where there is a reasonable range of options the pursuer has to say that others would not have taken the decision that was made.

[45] The pursuer relies on Dr Marsden but she made a number of critical concessions which means that the pursuer can not succeed. She recognised that there was no specific evidence that this horse was not suitable for intermediates. She agreed it was reasonable for the school to take account of the history of the horse as known to them. She recognised that her assumptions could be challenged by anyone with direct experience of the horse. She agreed that if Dr Anstey had experience of the horse from which she formed the view that it was suitable for the pursuer, she could not challenge that. Reference was made to Rieley v King's Law 1975 S.C. 28 as an example of what was needed as proof in this sort of situation, namely evidence about how the horse has been known to behave in the past. The pursuer has not even proved that the behaviour of the horse caused the accident. A rider has fallen off in a classic situation and it does not follow from Suchard's appearance in the 10:00 class that the accident was caused by some predisposition or temperamental characteristic of the horse. On the facts, the court has evidence that Suchard was known to the school and Dr Anstey as a steady horse with no history that would cause any concern by putting her with the pursuer in that lesson.

[46 ] The pursuer gave evidence of what Kelly, apparently, thought and the court has to give that the weight it deems appropriate. In the absence of Kelly the court will have to be cautious. It was not put to the pursuer that it was untrue, but the issue does not arise in the pleadings or in Dr Marsden's evidence or the report. Little, if anything, turns on this point. The pursuer says that Kelly spoke to her and she spoke to Dr Anstey. There is no reason to think that anything happened other than that Kelly and Dr Anstey spoke and the issue was resolved. There is no evidence that on 2 April the pursuer held the view that she should not have been attending that class. There can be no criticism of her being in level 3 because Dr Marsden did not criticise it. The pursuer is setting an unreasonable standard for Dr Anstey.

Discussion and Decision
[47 ] It is important to identify exactly what the pursuer's case is and what it is not. Despite some discussion of the subject, the pursuer does not attack the decision to put her into level 3 on 2 April. Rather her criticism is levelled at the choice of horse made for her on that date. Her case is that the horse was unsuitable for someone moving from level 2 to level 3. She did not base this claim on any inherent behavioural characteristic of the horse. Her position was that first, the horse was accustomed to more advanced riders and not to inexperienced riders who might give incomplete or confusing signals to the horse; and second, that if one places a more capable horse of this type with an inexperienced rider, an accident of the type which occurred here was foreseeable. There was some evidence, particularly from Dr Marsden, and to some extent from Dr Anstey that where a more capable horse is faced with contradictory or confusing signals it may become uncomfortable and can react by taking flight. However, this was evidence in the abstract rather than evidence relating to the particular horse in question. There was no evidence that Suchard might be expected to react in this way more than any other horse. Moreover, the evidence of Dr Anstey was that in making her decision she was aware of the need not to put a horse that was "too sharp" with a less experienced rider. The assertion of foreseeability was wholly based on the fact that it was alleged that the horse was used to more experienced riders.

[48 ] Suchard had in fact been ridden at the level 3 class, although not very often. It is fair to say that she was generally used by more experienced riders. The heart of the pursuer's case proceeded on the assertion that where a horse is accustomed to being ridden at a more advanced level it is ipso facto negligence to place it with a rider at a lower level. I do not accept that to be the case. There was ample evidence that horses can vary considerably and a horse accustomed to being ridden at a higher level may nevertheless be suitable for a rider at a lower level. Central to the pursuer's case was the proposition that there was such a thing as a level 2 or level 3 horse. However there was no evidence that there was any such thing. Much depends on the nature and character of the individual horse as well as the ability of the rider. Dr Marsden had no actual knowledge of the horse in question or its temperament, or indeed of the pursuer's riding ability. She proceeded on information relayed to her about the pursuer's ability, and on assumptions made purely on the use to which the horse had been put. However the horse and its temperament were well known to the stables and to Dr Anstey and it was on her assessment of its temperament and character that she based her decision. I do not think that decision can be faulted.

[49 ] The correct matching of rider and horse is clearly an art rather than a science and is a matter which calls for judgement. The proper exercise of that judgement requires that a number of matters be taken into account and one of the most important is the nature of the horse. Dr Marsden acknowledged that if information regarding the horse were known to the school to suggest that she was a suitable mount for the pursuer, she herself could not challenge that decision. Dr Marsden did not know what had been Dr Anstey's professional opinion or on what it had been based. Asked about what should have alerted Dr Anstey to the unsuitability of the horse, she referred to how the horse had behaved in more advanced lessons, its sensitivity and its degree of obedience. These were in fact matters of which Dr Marsden knew precisely nothing, yet were all factors properly taken into account by Dr Anstey. The evidence from Dr Anstey was that Suchard was selected for the pursuer because she was the closest in temperament to Third Time, the horse which the purser normally rode and liked. I accept Dr Anstey's evidence about the comparative temperaments of Third time and Suchard. I also accept the evidence from Natalie Motion that Suchard was "a pretty calm, sensible beast" who "would allow mistakes and not penalise too heavily for it". According to Karen Brown, whose evidence on the point I also accept, Suchard was "a pretty calm horse and did not do anything wrong or anything like that". There is no suggestion that anyone, in the time that the horse had been at the stables, had encountered any problems with the horse.

[50 ] I do not draw any conclusion from the fact that Dr Anstey would not have selected Suchard for a level 2 class, because her reason for that had nothing to do with the temperament of the horse. It was a result of her own cautious way of bringing a horse down "through the ranks" as it were. As Mr Lane pointed out, there was nothing in any of the evidence to suggest that objectively Suchard was a horse who was anything other than perfectly suitable for the level 2 class and for the level 3 class undertaken by the pursuer on the 2 April. Moreover, although not a very significant point, Third Time was not exclusively used for the level 2 classes, she was also used for level 3 classes which in turn weakens the pursuer's argument based on such a horse being more likely to respond only to the correct signals.

[51 ] There was a degree of dispute factually about whether the pursuer had actually managed to canter prior to the 2 April. Her own evidence was that she had "not mastered cantering" but of course it entirely depends on what is meant by that. At one point she said that she had not cantered "properly," at another that she had managed to go from the trot to the start of a canter. This is a learning process and one does not simply go from being unable to canter one day to having "mastered" the canter the next. At some stage a person who has managed the first part of a canter will have to proceed to completing it. It seems to me that the stables would be entitled to take into account not only how far the pursuer had come in learning to canter, but what her other skills in horsemanship were. For example, Dr Anstey felt that the pursuer was very good for her standard. She appeared confident and sat nicely. Natalie Motion said that the pursuer appeared relatively confident and did very well in the walk and trot exercises which were carried out on 2 April. I accept all of that evidence. The pursuer as an inexperienced horsewoman is not in a good position to give evidence on this matter. I am satisfied that she had managed to canter sufficiently for the requirements of a level three class.

[52 ] I am also satisfied that during the class of 2 April the pursuer indicated that she was willing to try a canter. The accident happened two years ago and memories may have been affected by the passage of time. That was clearly so in relation to some parts of Natalie Motion's evidence. However, the accident report prepared by her is a contemporaneous document and it confirms her oral evidence that the pursuer indicated a willingness to attempt a canter the second time. The pursuer disputed this but I am afraid I think that her memory is at fault here. I also think Phoebe Kay's memory is at fault. She was a fairly unforthcoming, although compliant, witness with a demeanour that I can only describe as "detached". I would find it difficult to place any reliance on her evidence but I should point out that she was only fourteen years of age when giving evidence and only twelve at the time of the accident. I accept that at the second cantering exercise Natalie Motion must have been sufficiently satisfied with the pursuer's performance to ask her if she wished to canter. Dr Marsden indicated that this would have been good practice if the instructor were so satisfied. Natalie Motion struck me as a careful instructor and it is clear that she approached the class, in which there were two new members, cautiously. She spent a considerable amount of time on the basics so she could assess the degree of control and balance of each rider and she made a reasonable decision not to ask the pursuer to canter at the first exercise but to see whether she wished to attempt it at the second.

[53 ] In all the circumstances I am satisfied that the decision to place the pursuer on Suchard on 2 April was a reasonable one. I shall accordingly grant decree of absolvitor.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McGregor v. LMRS Farm Ltd [2007] ScotCS CSOH_153 (28 August 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_153.html Cite as: [2007] CSOH 153, [2007] ScotCS CSOH_153

Scottish Court of Session Decisions