O'Connell v The Ministry of Defence

Factual and Procedural Background

The Plaintiff was a gunner in a military regiment, having joined in October 2014 and being assigned to a ceremonial unit initially stationed at a first barracks and later transferred in mid‑2015 to a training location. Following an assessment on arrival at the training location, the Plaintiff undertook riding lessons under the instruction of an Instructor. On 4 September 2015 the Plaintiff took part in a recruits' riding lesson at the Defendant's outdoor riding arena alongside two fellow recruits. The Plaintiff began on one horse but was transferred during the lesson to a different mare (referred to in the trial material as "Horse A") which the Plaintiff had not previously ridden. At a point when recruits were ordered to cross the arena and turn right, the Plaintiff turned Horse A and then turned in the opposite direction when she believed she had erred. Horse A bucked and the Plaintiff was thrown off, sustaining a comminuted fracture to her left clavicle and other sequelae that ultimately led to medical discharge from the service.

The Plaintiff sued the Defendant in negligence and under the Animals Act 1971. The Plaintiff alleged, among other things, that she had been provided with ill‑fitting riding boots, that Horse A was unsuitable for a rider of her experience, and that the Instructor failed to heed an earlier unseating/bucking incident in the same lesson. The Plaintiff also relied on s.2(2) of the Animals Act 1971 to assert strict liability for damage caused by an animal with characteristics not normally found in its species.

The Defendant denied negligence and Animals Act liability, contending that the boots and instruction were appropriate, that Horse A was a suitable horse for recruits, that there had been no prior unseating in the lesson, and that bucking is a common equine behaviour which did not engage strict liability. The Defendant also advanced allegations of contributory negligence earlier in the proceedings but did not pursue them at trial.

The Plaintiff underwent orthopaedic surgery soon after the accident and subsequently received pain management and rehabilitation, including care at a rehabilitation facility and further procedures (including excision of a neuroma and later implantation of a spinal cord stimulator). Medical opinion presented to the court diverged: Plaintiff’s treating and instructed experts described ongoing neuropathic pain (with one expert diagnosing CRPS at an earlier stage), whereas experts instructed for the Defendant expressed the view that objective findings did not support the extent of functional loss claimed by the Plaintiff and that recovery to near‑normal use of the limb had occurred by mid‑2019 at the latest.

Proceedings were issued near the expiry of the primary limitation period and, although directions initially envisaged a trial in 2021, the trial occurred almost ten years after the accident. The court heard witness evidence from the Plaintiff, the Plaintiff's grandmother, an officer who had known the Plaintiff in the service, and a friend; it also heard evidence from several fellow soldiers and instructors, as well as multi‑disciplinary expert evidence (equestrian, orthopaedic, pain medicine, psychiatry, care and employment). Counsel for both sides addressed liability, the Animals Act issues and whether the Plaintiff had been fundamentally dishonest, the latter issue engaging both CPR 44.16 (Qualified One‑Way Costs Shifting or QOCS) and s.57 Criminal Justice and Courts Act 2015.

Legal Issues Presented

1. What were the precise circumstances of the accident, in particular whether the Plaintiff had been unseated by Horse A on an earlier occasion during the same lesson?
2. Whether the Defendant breached its common law duties to the Plaintiff by (a) providing unsuitable riding boots, (b) pairing the Plaintiff with an unsuitable horse, or (c) failing properly to train and instruct the Plaintiff.
3. Whether the Defendant, as keeper of Horse A, is strictly liable under s.2(2) Animals Act 1971 (that is, whether the damage was of a kind likely to be severe, whether that likelihood was due to characteristics not normally found in the species except in particular times/circumstances, and whether those characteristics were known to the keeper).
4. Whether the Plaintiff has been fundamentally dishonest in relation to the claim, such that (i) dismissal is required under s.57 Criminal Justice and Courts Act 2015 and/or (ii) the Defendant should be permitted under CPR 44.16 to enforce any costs order to its full extent (removal of QOCS protection).

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff alleged negligence: that she was not provided with properly fitting riding boots, that Horse A was unsuitable for her (including a propensity to buck), and that the Instructor failed to give adequate heed to an earlier bucking/unseating episode during the lesson.
• Under s.2(2) of the Animals Act 1971 the Plaintiff alleged strict liability: (i) the injury was caused by Horse A; (ii) if caused, the damage was of a kind likely to be severe; and (iii) that likelihood arose from characteristics of Horse A (an abnormal propensity to buck or bucking in particular circumstances) which were known to the Defendant.
• In response to the Defendant's allegations of dishonesty, the Plaintiff maintained that she had been honest in her reports, had engaged with medical and other evidence, had continued to seek treatment (including invasive treatments), had worked and competed in adaptive sport (including the Invictus Games), and that any apparent inconsistencies were, at most, the product of the stresses of litigation, evolving clinical history, or episodic ability under treatment (e.g., analgesia or neurostimulation).

Defendant's Arguments

• Denial of negligence: Horse A was suitable, the Plaintiff's boots were appropriate, and the Instructor trained and instructed properly. The Defendant denied any earlier unseating in the lesson.
• Denial of Animals Act liability: the Defendant argued that the damage was not of a kind which was reasonably to be expected to be severe in the circumstances described; bucking is a behaviour all horses may exhibit in particular circumstances and the Plaintiff had not established an abnormal characteristic or particular circumstances attracting s.2(2)(b); and, even if such characteristics existed, the Defendant did not know of them.
• The Defendant advanced a serious contention of fundamental dishonesty: relying principally on surveillance evidence, inconsistencies in the Plaintiff's accounts (including about vehicle adaptations and ownership), evidence about the Plaintiff's responsibility for horses, contemporaneous statements to an employer and to officials, and medical records. The Defendant submitted that the Plaintiff's presentation to experts was inconsistent with observation on surveillance and with other contemporaneous material and that, on the balance of probabilities, the Plaintiff had been dishonest in a way that went to the heart of her claim; the Defendant sought permission under CPR 44.16 to enforce any costs order in full if the court found fundamental dishonesty.

Table of Precedents Cited

All entries in this table reflect the use and description of each authority as it appears in the provided opinion.

Precedent	Rule or Principle Cited For	Application by the Court
Smith v Ainger (Times 16 May 1990)	Sequential approach to s.2(2) Animals Act 1971: consider paragraphs (a), (b) and (c) in turn and make necessary factual findings for each.	The court adopted this sequential method and addressed s.2(2)(a) first, then (b) and (c) in turn.
Dennis v Voute & Another [2022] EWHC 2117	Illustrative authority applying the sequential approach to s.2(2).	Cited as a subsequent instance of the approach in Smith v Ainger; treated as supporting authority for the method of analysis.
Boyd v Hughes [2025] EWHC 435	Emphasis that section 2(2) inquiries are fact specific and that comparisons to other cases may not be straightforward.	Used to underline the court's fact‑specific assessment of whether severe injury was reasonably to be expected.
Mirvahedy v Henly & Anor [2003] UKHL 16	Interpretation of "likely" in s.2(2)(a): Lord Scott's dissent favours "reasonably to be expected".	The court adopted the "reasonably to be expected" formulation when interpreting "likely" under s.2(2)(a).
Freeman v Higher Park Farm [2008] EWCA 1185	Observation that a horse bucking at a canter so that the rider falls may make severe injury reasonably to be expected (an example of fact‑based reasoning).	Relied upon in submissions as an example; the court contrasted the very different facts of Freeman with the present case and treated Freeman as factual illustration rather than a general legal rule.
Lynch v Ed Walker Racing [2017] EWHC 2484	Example of a fall/violent buck case where severity was found to be likely in the circumstances.	Cited by the Plaintiff as a comparative example; the court treated it as persuasive on facts but emphasised differences with the present case.
Koestler v Thomas [2024] PIQR P9	Cited as an authority where a violent buck led to a finding under s.2(2)(a).	Relied upon in submissions; used as a factual comparator rather than as controlling authority.
Welsh v Stokes [2007] EWCA Civ 796	On s.2(2)(c): keeper's knowledge need not be knowledge of the particular animal's previous behaviour; general knowledge of species behaviour in the relevant circumstances can suffice.	The court relied on Welsh to conclude that the keeper's knowledge could be established by general knowledge of equine behaviour in the circumstances relevant to the case.
Turnbull v Warrener [2012] EWCA Civ 412	Observation that statements in earlier cases (e.g., Freeman) may be statements of fact rather than rulings of law; highlights the fact‑sensitive nature of the analysis.	Cited to caution against treating Freeman as a broad legal rule and to reinforce the need for case‑specific analysis.
Ivey v Genting Casinos Ltd [2018] AC 391	Test for dishonesty: ascertain the individual's actual state of knowledge/belief as to the facts (subjective), then apply the objective standards of ordinary decent people.	Applied by the court when assessing allegations that the Plaintiff had been dishonest about her symptoms, activities and related matters.
Howlett and another v Davies and another [2018] 1 WLR 948	Consideration of "fundamental dishonesty" in the context of QOCS: distinction between collateral/insignificant dishonesty and dishonesty that goes to the root of the claim.	Used to frame the court's inquiry into whether any dishonesty was "fundamental" for purposes of CPR 44.16 and s.57 CJA 2015.
Gosling v Hailo (unreported, 29 April 2014)	HHJ Moloney QC's practical distinction between dishonesty that is incidental/collateral and dishonesty that is fundamental to a claim.	Quoted in Howlett and used by the court as part of its approach to deciding whether dishonesty was fundamental.
Denzil v Mohammed [2023] EWHC 2077	Cautions against over‑elaboration and metaphor when construing "fundamental"; advises giving the statutory word its plain meaning and considering whether dishonesty "goes to the root".	The court applied these admonitions in reaching its overall conclusion on fundamental dishonesty.
Brian Muyepa v Ministry of Defence [2022] EWHC 2648	Practical three‑question approach to determine whether dishonesty is fundamental (when started; whether it taints whole claim; relative values of valid vs inflated claim).	The court expressly used these three questions as a framework and answered them in the case's factual context.
Shaw v Wilde [2024] EWHC 1660	On the significance of a statement of truth: the verifier is expected to understand and to vouch for accuracy.	Considered by the court when assessing the weight and significance of signed schedules and statements of truth in the Plaintiff's case.
Ras al Khaimah Investment Authority v Farhad Azima [2021] EWCA Civ 349	Illustrates the approach to late disclosure/admission of evidence and the court's discretionary power to admit such material.	Relied on in the procedural context when the court admitted and allowed time for response to newly produced messages and screenshots during the trial.
Elgamal (per Jacobs J)	Caution against over‑reliance on judicial elaboration and metaphor so as not to supplant statutory language.	Referred to as a cautionary principle in the court's analysis of "fundamental".
LOCOG (referenced in authorities)	Used in authorities as an illustration of assessing the potential impact of dishonesty on damages/valuation of claims.	Quoted in the court's discussion of how to assess whether dishonesty would have materially affected the award (value) and therefore whether it was "fundamental".

Court's Reasoning and Analysis

The court divided its reasoning into three main strands: (A) factual findings about the accident; (B) liability at common law and under the Animals Act 1971; and (C) the allegation of fundamental dishonesty and the consequences under CPR 44.16 and s.57 CJA 2015.

A. Circumstances of the accident

The court first addressed whether the Plaintiff had fallen from Horse A on more than one occasion during the lesson. It accepted the Instructor's contemporaneous casualty report (an MOD Form 510 completed within days of the accident) which recorded a single fall caused by a buck. The Instructor stated that she had completed the report after discussion with the Plaintiff and the court found (for a number of reasons) that the MOD Form 510 was the report the Plaintiff herself had seen. A fellow recruit who had participated in the lesson gave independent evidence that she would have remembered an earlier fall and did not recollect one. The court therefore found, on the balance of probabilities, that the Plaintiff fell only once from Horse A.

B. Breach of duty (negligence) and Animals Act 1971 liability

On negligence the court considered the three pleaded potential breaches: unsuitable boots, improper instruction in stirrup use, and the suitability of Horse A for the Plaintiff's experience.

Boots: the court accepted that the boots used by the Plaintiff were over‑sized, but found that the Plaintiff had not demonstrated to the requisite standard that the size rendered them unsuitable so as to cause the accident. The court noted that the boots had been used for months, that the in‑court demonstration was not like‑for‑like (no socks or riding clothes), and that expert evidence was divided on the issue. Importantly, the Plaintiff's earliest accounts (notably the 2016 compensation application) made no mention of boot problems. For these reasons the court rejected the claimed causal role of the boots.

Instruction and pairing: the Instructor had accepted a duty to provide appropriate equipment and instruction but denied any relevant breach. The equestrian experts called did not impugn the Instructor's competence. The court accepted that the Instructor had chosen Horse A as a suitable mount on the day and would have taken further steps if a prior unseating had occurred; the court therefore rejected the allegation that the Instructor negligently permitted the Plaintiff to remount after a prior fall (there was no prior fall) and rejected the broader negligence allegations.

Animals Act 1971 s.2(2): the court adopted the sequential analytical method (Smith v Ainger and related authorities) and addressed subparagraph (a) first. The parties agreed that "likely" in (a) should be read as "reasonably to be expected" (following Mirvahedy), that one must take a prospective view, and that factual context is material. The court identified the relevant contextual features (horse speed, rider preparedness, surface, height of horse, protective equipment, &c) and concluded that severe injury was not reasonably to be expected in the circumstances: the fall occurred while Horse A was trotting (not cantering), the Plaintiff was unprepared, the surface was relatively forgiving, and statistics and subsequent incidents involving Horse A did not suggest severe injury was likely. Accordingly s.2(2)(a) was not made out.

The court nonetheless considered s.2(2)(b) and (c). On (b) the court distinguished (i) an abnormal propensity to buck and (ii) bucking as a characteristic that occurs in particular circumstances. It found no sufficient evidence that Horse A had an abnormal propensity to buck (first limb), but accepted that bucking can be a characteristic relevant under the second limb when it occurs only in particular circumstances (the experts had agreed on a set of circumstances in which a horse might buck if it felt a rider lose balance and the other horses moved away). On (c) the court accepted Welsh v Stokes which permits the keeper's knowledge to be shown by general knowledge of species behaviour in similar circumstances and observed that the equestrian experts would expect a keeper to be aware that a horse might buck in the described circumstances. However, because subparagraph (a) failed, the section 2(2) claim failed in any event.

C. Fundamental dishonesty (CPR 44.16 / s.57 CJA 2015)

The Defendant pleaded that the Plaintiff had been fundamentally dishonest in relation to aspects of her claim and sought either dismissal under s.57 CJA 2015 or, alternatively, permission under CPR 44.16 to enforce a costs order to its full extent. The Defendant's case focused on surveillance evidence (notably footage from March 2022), documentary evidence (including social media messaging and documents concerning the Plaintiff's vehicle), contemporaneous statements to an employer and to officials, and inconsistencies between the Plaintiff's reported disability to experts and her observed activities.

The court reviewed the medical and lay background: significant orthopaedic injury in 2015, subsequent surgery and pain clinic and rehabilitation input, ongoing pain management and invasive treatments including spinal cord stimulation, and sporting achievements (including participation in adaptive sport competitions). Medical experts differed: some (instructed by the Plaintiff) diagnosed ongoing neuropathic pain and earlier CRPS; others (instructed by the Defendant) found objective findings inconsistent with claimed inability to use the limb.

The surveillance footage showed the Plaintiff driving a hired manual vehicle (a horsebox) on a sustained cross‑county journey and using the left upper limb in various tasks (carrying items, manual handling, securing doors, leading horses, loading items into a car boot). The court found that the level and frequency of use of the left arm on the footage were materially inconsistent with the Plaintiff's contemporaneous representations to medical experts (that she had very limited or no useful use of the left upper limb), and that these differences were not credibly explained by episodic use of analgesia or neurostimulation, nor by assistance from the friend's help in the ways suggested. The court accepted the evidence of the Defendant's pain and orthopaedic experts that objective findings and absence of significant wasting were inconsistent with the degree of disability asserted.

The court also considered documentary and messaging evidence about the Plaintiff's vehicle and adaptations. The Plaintiff had, at various times, represented to experts and in a schedule of loss that an automatic vehicle had been purchased or adapted in 2018. The Defendant requested documentary evidence of adaptation; the Plaintiff did not produce a V5 confirming the adaptations and later messaging material indicated discussions about procuring corroboration for an adaptation that the Plaintiff could not document. During the period in issue the Plaintiff had two vehicles associated with the same registration plate (different VIN numbers recorded in disclosure) and the transfer of the registration plate occurred after the surveillance; the court found the documentary trail cogent evidence that the Plaintiff had driven a manual vehicle at the time of the surveillance and had later transferred plates when selling and acquiring vehicles. The court further found evidence that the Plaintiff had sought others to provide retrospective corroboration that adaptations had been performed when such corroboration did not reflect the documentary record.

The court reviewed other inconsistencies: statements to an employer that the Plaintiff attended work in dirty clothes because she had horses to look after; a contemporaneous investigatory interview in which the Plaintiff stated she worked full‑time hours despite a schedule of loss claiming only part‑time capacity; social media messages suggesting more routine involvement with horses than the Plaintiff later described at trial; and athletic classification documentation using uncompromising language about impairment. The court found several of these items inconsistent with the Plaintiff’s evidence in court.

Applying the Ivey test, the court found that the Plaintiff's accounts to experts and in formal litigation documents were dishonest by the standards of ordinary decent people: the Plaintiff knew, or must have known, she was presenting a materially more disabling picture than the evidence (including surveillance and contemporaneous records) supported. The court applied the "fundamental" enquiry (Howlett and related authorities, and the three‑question approach in Brian Muyepa) and found that the dishonesty was not collateral or incidental: it went to the heart of the claim because it related directly to the extent of the left upper limb disability upon which claims for general damages, past and future loss of earnings and future care/support were founded. The court considered the likely quantitative effect of the dishonest presentation and observed that the Plaintiff's valuation of the claim had been substantially inflated by the misrepresentation; while the court did not attempt a precise valuation, it considered that the honest claim might have been materially (and significantly) lower.

The court therefore concluded that the Plaintiff had been fundamentally dishonest and that the Defendant should have permission to enforce any costs order made against the Plaintiff to its full extent under CPR 44.16. The court also dismissed the Plaintiff's substantive claim on the merits (negligence and Animals Act grounds), a finding separate from, but reinforced by, the finding of fundamental dishonesty.

Holding and Implications

CLAIM DISMISSED

Holding:

• The court found that the Plaintiff fell from Horse A only once during the lesson and that the Defendant was not liable in negligence for the Plaintiff's injuries.
• The court found that the elements of s.2(2) Animals Act 1971 were not satisfied (notably, severe injury was not reasonably to be expected under s.2(2)(a)), and therefore the Animals Act claim failed.
• The court found, on the balance of probabilities, that the Plaintiff had been fundamentally dishonest in relation to key aspects of her claim (notably the extent of functional disability in the left upper limb, the representation about vehicle adaptations/purchase, and aspects of responsibility for horses and work capacity).
• The court granted permission to the Defendant to enforce any costs order to its full extent pursuant to CPR 44.16 (removing QOCS protection), concluding that the dishonesty was fundamental and went to the root of the claim.

Implications:

• Direct effect on the parties: the Plaintiff's claim was dismissed; the Defendant was cleared of liability in negligence and under the Animals Act for the injuries sustained on 4 September 2015. The Defendant may recover costs in full if it obtains a costs order, by virtue of the court's grant of permission under CPR 44.16.
• The court's conclusions were heavily fact‑specific. The judge applied established authorities and tests (including the sequential approach to s.2(2), the Mirvahedy/Ivey frameworks, and the established tests for "fundamental dishonesty") rather than laying down new legal principle. Accordingly, the decision does not purport to establish new precedent beyond these fact‑specific applications of established law.
• Practical note: the decision illustrates (i) the importance of contemporaneous documentation and the persuasive effect of surveillance in contested pain/function claims, and (ii) the circumstances in which a court will interpret "fundamental dishonesty" as removing QOCS protection and permitting full enforcement of a costs order.

Note: all personal names and identifying particulars in this summary have been anonymised and replaced by consistent, generic descriptors (for example "Plaintiff", "Defendant", "Instructor", "Senior Soldier", "Friend", "Grandmother", "Employer", "Horse A", etc.) in accordance with the requirements of the request.