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The legal obligations of horse ownership and financial transactions relating to horses may be quite complicated. Some actions in relation to horses are governed by statute. That is, the government has passed a law which dictates what legal obligations exist and thus how a particular legal action is to be carried out. In other instances, common law applies. That is, the way in which a particular legal case may unfold is influenced by other relevant legal cases which have gone before it (the use of 'precedents').

The following sections cover a few general legal principles which are likely to apply to horse ownership and participation in competitions. Unless a particular statute is named, it can be assumed that the principle being discussed arises from established common law. It should be noted, however, that this section does not constitute legal advice and the author of this book does not take any responsibility for the legal information contained within it.

Purchase

Statements made about a horse by a vendor (the seller) may or may not turn out to be true after the horse has been purchased. Whether the buyer can take action to recover money will generally depend on the significance of what was said during the whole course of the negotiation and in the final agreement. For example, subjective comments that a horse is 'good', 'attractive', 'outstanding', or even 'a good jumper' are not a basis for legal liability. However, objective statements made by the vendor, such as 'sound', 'A-grade showjumper', 'in foal', etc, which turn out to be incorrect may in certain circumstances allow the purchaser to return the horse and recover the price.

Horse Hire and Loan

People who borrow a horse from a friend or who hire a horse from a riding school enter into a contract (whether they realise it or not) and legal liabilities arise when accidents. -occur and injuries are suffered by the rider or by the horse, or when, in the case of long term loans, the horse is neglected and its health suffers. This area of law is termed bailment: the owner of the horse is called the bailor and the person who takes possession of it the bailee.

In the hire or loan of a horse both the bailor and bailee have legal responsibilities. For example, in the case of a riding school, the bailor (the owner of the riding school) must ensure that the horse is reasonably fit for the purpose for which it is being hired out. This duty changes according to the circumstance. For instance, the hire of a particular horse to an inexperienced rider is very different to the hire of the same horse to an experienced rider. The bailee (the person hiring the horse) has a duty to disclose accurately their ability and experience, in addition to a duty to take reasonable care of the horse.

In the case of an accident in which the rider is injured, a successful case would depend on the bailee providing evidence that the bailor knew that the horse was dangerous or had a particular vice which was not disclosed to the bailee at the time of hire. In the case of accident in which the horse was injured, the onus of proof rests on the bailee (hirer) to establish that the injury was not a result of some action or negligence by the hirer.

In short, most legal actions in the area of bailment will hinge on whether reasonable care was taken, and can be proved to have been taken, or whether negligence occurred and can be proved to have occurred.

Liens

A lien is a right to retain possession of property (usually a horse) owned by another person when a debt is owed by that person. Whether a right of lien arises depends primarily on whether the person who has possession of the horse has carried out services which have 'improved' the horse. For example, a lien may arise through the failure to pay service fees for mares, training fees for racehorses, or veterinary fees for horses placed at a veterinary surgery.

However, curiously, a common law lien does not arise if an agistee fails to pay fees for agistment or stabling because the horse is not generally 'improved' solely by the action of agistment. However, the right of lien may be given by statute (that is, by a law enacted by a government). For example, Victoria has a Livery and Agistment Act 1958 which established a right of lien for failure to pay agistment. There is no equivalent Act in the ACT. However, most property owners and stabling establishments get around this by writing a clause into their contracts to allow a horse to be sold to recover unpaid agistment or stabling fees.

Injury and Damage Caused by Trespass

If your horse escapes or wanders onto someone else's land it has committed 'trespass' and thus involves you in the consequences of its action. Your horse does not have to completely escape to commit trespass as legally the concept includes an intrusion of any part of a horse into the airspace above another person's land. That is, the simple action of one horse biting another horse over a fence, or kicking through the fence, constitutes a trespass.

The legal liability in a case of trespass attaches to the person who has control of the horse, whether that person is the owner or not, although in some instances the owner may become vicariously liable. For a case of trespass to be successful it is not necessary for negligence to be proved; trespass arises independently of fault. In addition, it is irrelevant that the horse may have behaved quite differently from the way in which it always behaved in the past (a significant factor in the case in bailment). The only person who has a right to sue is the owner of the land onto which the horse trespassed and that owner has the right to keep the horse as security against the damaged caused by the horse until suitable arrangements are made for compensation.

There is one important limitation upon the extent of liability for trespass and this occurs when a horse is being ridden or transported along a public roadway or easement and the horse escapes onto private property. Liability only arises if negligence on the part of the owner, or handier, can be proved. (Note: the legal action of trespass does not apply in NSW.)

Injury and Damage to People and Property - Scienter

Are you legally liability for the actions of your horse. if, through those actions, a person is injured or property is damaged? The answer is - only if you have prior knowledge that your horse is likely to carry out such an action. In other words, if to your knowledge your horse has never kicked out at a person before, then you are probably not liable the first time it does. However, if your horse is known to kick, then you would be liable (even if it had never 'connected' before). This type of legal action is known as 'scienter', a term which derives from the Latin word for 'knowledge'.

A scienter action does not include the concept of negligence and whether you take precautions to protect people or property from the actions of your horse is not relevant. Knowledge that your horse has a vicious habit such as kicking or biting is sufficient (and necessary) to impose legal liability. For example, if your horse is known to kick out at other horses, tying a red ribbon on the horse's tail may serve as a warning to other riders to keep away, but it does not absolve you of liability should your horse kick and injure anyone or any horse. However, for a scienter action to be successful the complainant (the injured party) must prove that the horse had a propensity for hostile or vicious actions and that it was not simply natural playfulness or instinctive behaviour on the part of the horse. (Note: the action of scienter does not apply in NSW.)

Injury and Damage to People and Property - Negligence

Any person in control of a horse must be aware that a failure to take reasonable care of that horse may cause injury to people or damage to property. Failure to exercise reasonable care is termed negligence. Each case of negligence will have individual circumstances and the fact that carelessness may have caused an accident is not sufficient for a negligence action to be successful. What is required is proof that the person who had control of the horse could have reasonably foreseen that a certain outcome was possible if proper care was not taken.

Translated into everyday events this means, for example, that someone who is organising a gymkhana should take reasonable steps to ensure that a loose horse could not easily escape onto a roadway; or that someone who is instructing a group lesson should ensure that horses are not allowed to get too close together; or that someone who is organising a horse event should ensure that spectators are kept a reasonable distance away from the competition area. Thus negligence arises when there has been failure to take reasonable care, by any act or omission, in the control or management of horses in relation to a foreseeable outcome.

Horses and Dogs

Both scienter and negligence may apply to attacks by dogs on horses. In the case of scienter, if a dog has demonstrated an inclination to attack a horse, manifest even so simply as barking at a passing horse or rushing at it, then the person in control of the dog may be held liable for the consequences of the dog's behaviour (for example, if the horse bolts or rears thereby causing injury to the rider). In the case of negligence, a dog owner may be held liable if it is reasonably foreseen that failure to control a dog may result in risk to the horse and rider. (Note: The Dog Control Act 1975 (ACT) requires that dogs must be kept on a leash in a public place.)

Competitions

During the conduct of a horse competition a number of duties arise. Firstly, there is a duty of reasonable care owed by the organisers of the competition to the spectators to ensure their safety. Secondly, there is a duty owed by the organiser to the competitors, and to the owners of horses used in competitions, to ensure that the area or course used for the competition is in a safe and proper condition, and that there is no undue risk to the safety of the competitors. Thirdly, there is a duty owed by competitors to spectators. to ensure that their safety is not at risk. Fourthly, there is a duty owed by competitors to other competitors to comply by the rules and to not engage in any risk taking behaviour beyond that which is accepted as part of fair competition.

Clubs and Associations

Unless a horse club or association is legally incorporated, the mere naming of a group of like-minded riders as a club or association does not give that club any legal status in its own right. It remains a group of individuals who may become liable for legal action as a group, or as individual members. Thus if a rider is injured during a competition organised by an amateur club and legal action is taken, the individual members of that club may be held responsible and may be required to contribute to financial compensation. The only way to avoid individual legal liability is to incorporate the club. The advantages and disadvantages of incorporation, and the process of making an application, are outlined in Appendix 4.

Horses and the Law in NSW

The law in NSW is different in several types of action. The Animal Act 1977(NSM abolished trespass and the right to seize trespassing horses, along with the action of scienter, both having been replaced by the general principles of negligence and nuisance.

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