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Horse & Law - Issue 4 June 2013

28 June 2013

 A Horse is a Horse, of Course of Course   -   But When is a Vet Liable?

In most instances buyers of horses obtain a pre-purchase vet check. The result of a vet check can influence a buyer’s decision to purchase the horse or not. There are tales of purchasers who have based their decision to purchase or not on a vet check, only to learn, days, months or sometime years later that the horse they didn’t buy was now a champion, or the horse they did buy is a nonstarter.  In these situations the person who suffered loss or damage will often blame the vet. In more serious cases the buyer will seek reimbursement of the loss from the vet or vet practice. Accordingly, for the vet to be responsible for the loss, the vet would have to be liable.

Tests for determining the liability of a vet in a legal sense are drawn from legislation, case law and industry regulation.   A vet practicing in New Zealand is legally obliged to follow the provisions of the Veterinarians Act 2005.  The Veterinarians Act makes provision for the registration and discipline of veterinarians. Other law such as Consumer Guarantees Act 1993, Fair Trading Act 1986 and Contractual Remedies Act 1979 also apply to vet practice. The Veterinary Council of New Zealand further provides a Code of Professional Conduct that must be followed. The code states that because a vet is a highly trained professional, they know that the owner or buyer placing the horse in their care is doing so in the expectation that such care will be of a proper standard.

Taking this law into consideration the liability of a vet, and whether you can successfully pursue a vet for loss, can be based on many different grounds.  A claim could be based on professional negligence. For example if the vet failed to detect a serious condition which they should have noticed in the pre-purchase examination, then it may be reasonable to assume that they did not devote the necessary care the owner or buyer of the horse was entitled to expect, and the vet is negligent.

A successful negligence claim relies on the vet acting below a reasonable standard of care and if a reasonable body of comparable veterinarians would have found the issue on the day of the vet check. On the other hand it is important to note that a vet will only carry out the inspection to the point the buyer has instructed them to.

The New Zealand Equine Veterinary Association recommends a procedure that Equine vets follow for vet checks. However a buyer should expect a vet to note any abnormalities found in the horse during examination and describe the potential consequences. If a firm diagnosis cannot be given of an abnormality, it is the vet's role to suggest further research into the issue - if necessary. It is up to the buyer to request or approve this further research, such as x-rays to diagnose a condition like navicular. However, if no approval is given or no request to research further is made by the buyer, the vet may have no duty to investigate on their own account.

Often buyers’ expectations as to what a vet can advise on, or report, during a vet check is inflated.  Buyers regularly assume a vet check lasts the horse’s lifetime. A pre-purchase vet check is valid for the day the horse was examined.  If a horse is sound and healthy on the day, this is what will be noted on the certificate. A vet check cannot guarantee the horse’s performance capabilities, like how high it can jump or how fast it can race. As obvious as it sounds, it is not the vet’s role, nor can a vet advise if the horse will be sound for the rest of its racing or competition career.

 

Alice Nunn is a solicitor at Norris Ward McKinnon. Information in this article should not be a substitute for legal advice. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.

The Norris Ward McKinnon Equine Team invites you to submit topics about Equine matters you would like more information on so that we may write pieces useful to you. Please email topics or questions to alice.barker@nwm.co.nz.