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If you have been involved with horses for a while you have probably fallen out with someone over a sale or at least know someone who has. We see ever more situations where a seller finds themselves facing a claim from a disgruntled purchaser. This article focusses on situations where a health or lameness issue manifests shortly after the sale.
Horses are living creatures, and the simple reality is that they can go lame or develop health issues at any point in time. Sometimes issues can manifest very quickly following a sale, but that does not necessarily mean that the seller is at fault. There could be some pre-existing underlying issue (which might give rise to a claim against the seller) or something new (which probably would not give rise to a claim). This is often the fundamental issue of a claim of this type, and the parties (and their lawyers) will argue over whether lameness or health issues are the former or the latter – and claims of this type are often very fact sensitive.
If a purchaser can demonstrate, usually with independent expert evidence, that there was a pre-existing condition, the seller may be liable. That is the case even if the seller was genuinely unaware of the issue, because there may be a claim in innocent misrepresentation and/or breach of contract pursuant to the statutory implied conditions of fitness for purposes or satisfactory quality.
Therefore, the battleground is often whether the claimant can prove on the balance of probabilities that the issue is pre-existing. These cases do often come down to a battle of expert evidence. The quality of the expert evidence is therefore paramount and whether claimant or defendant, the parties will want a clear opinion from an independent veterinary expert at an early stage.
The focus of the case may be changed if the purchaser can show that representations that the horse was healthy/sound were made carelessly or without the seller having reasonable grounds for believing its truth – this might arise, for example, if the seller had only owned the horse for a short period of time and did not take reasonable steps to assess its health status. Of course, if the purchaser can show with evidence that the seller actually knew the horse’s health issue existed, and failed to disclose it or gave misleading information, that could give rise to a much more serious claim.
It is still fairly common that people purchase horses without recording any or most of their discussions. The purchaser’s claim or seller’s defence might fail because you cannot prove what was or was not said at the time. A good idea when purchasing horses is to follow up verbal discussions (whether in person or by telephone) with an email or message confirming what was said, especially about the health status of the horse. You should also record whether the seller expressed that the horse was open to a pre-purchase vetting (hint: it should be), the buyer’s decision regarding a vetting and what was said to the examining vet.
The purchaser might also consider pursuing the vet who completed the pre-purchase examination (see our other article regarding equine veterinary negligence). In that case a purchaser would have to show that the particular health issue is one which should have been identified as part of the examination which the vet was asked to carry out (usually a 5 stage vetting). The scope of the vet’s instructions will be important – including whether the vet was instructed to take x-rays, scans and/or samples (such as bloods), and whether such procedures should reasonably have identified the particular issue.
Also, the purchaser will usually ask the vet to assess the horse on a certain basis. If the vet is asked to assess the horse as a happy hacker only and it develops an issue which would prevent it showjumping to an advanced level (but it remains sound hacking), it is difficult to see how there might be a claim against the examining vet. The details of this will come down to the particular facts of the case and, usually, the independent expert evidence.
In the past, litigation of this type would usually have been reserved for professional competition animals (because expending the associated legal costs need to be worthwhile as against the amount you are seeking to claim – i.e. the purchase price). However, horse prices across the market have increased substantially in recent years, even at the lower and middle ranges, and we expect to see more purchasers being willing to resort to legal proceedings where a horse has gone lame or developed another health issue post sale.