I beg to move, That the Bill be now read a Second time.
The purpose of this Bill is to bring clarity to an area of law that has been beset with controversy and confusion in recent years, leading to enormous negative practical consequences for interested parties. I am talking about the legal framework for the application of civil liability in respect of damage done by animals, and in particular the application of strict liability in cases where non-dangerous animals have caused injury or damage. I am talking about animals such as horses, ponies and cows, rather than tigers or snakes.
The relevant legislation is section 2(2) of the Animals Act 1971. My short Bill aims to restore the careful balance that the Act tried to achieve between the rights of members of the public and the rights of keepers of animals regarding the circumstances in which keepers are liable for damage caused by animals, which has been upset in recent years following the 2003 House of Lords ruling in the case of Mirvahedy v. Henley.
In attempting to restore that balance, my Bill will clarify the limits on how and when strict liability can be applied. As I will argue, that clarification will be entirely in keeping with the original intentions between the 1971 Act and will be consistent with the underlying principles of that legislation.
I spent last Friday morning at a disabled riding centre in my constituency. I had a fabulous time watching a large group of young people with various physical and learning disabilities drawn from a huge cross-section of society enjoying a riding lesson. I spoke to the parents and carers of those young people who told me—every single one of them—that the weekly riding session was the highlight of the young people's week. They told me about the importance of the activity, not only because of the pure fun and enjoyment offered by the experience but because it helped the young people to develop motor skills and better co-ordination and to gain confidence.
I then spent some time talking to the owner of the riding centre, Mrs. Janet Gibson. She is not a lawyer and would not claim to understand all the legal arguments about the application of strict liability, but she does understand her business: how to run a large and extremely well-organised riding centre that provides not only lessons for hundreds of able-bodied and disabled riders each week but, through a link to the local further education college, tuition to riding instructors. She described to me the burdens and challenges facing riding centres such as hers. Specifically, she told me about the soaring insurance costs that she has faced in recent years, which threaten the financial viability of her centre. She told me that she saw her insurance costs leap by about 25 per cent. in one year alone. That year was 2004-05, which is significant as we are thinking about the effects of the 2003 House of Lords judgment. Her insurance costs have risen by more than 65 per cent. since then.
She explained how insurance has been getting more expensive and a lot more difficult to obtain for riding centres and livery yards. She told me about six or seven other riding centres in the region that she knew had been forced to close as a consequence of the increasing cost burden affecting the equine sector.
I fully support the hon. Gentleman's Bill, and I hope that it will be enacted. Does he agree that the problem does not only affect rural areas? Many urban city farms are also affected by increasing litigation and the increasing cost of insurance. The one in Vauxhall, five or 10 minutes from this House, is affected by that problem, and those who run it would also like the Bill to be supported.
The hon. Lady is absolutely right. I have been delighted with the response to the Bill both from organisations with an obvious rural interest and from those that take an interest in the more urban opportunities for making riding available to young people and adults.
Awareness of the problem has been growing among Members from all parts of the UK and both sides of the House over the past few years, and many have illustrative cases in their constituencies. There is widespread acknowledgement that there is a problem stemming from the lack of clarity about the application of strict liability, and growing consensus that it needs to be addressed.
I am not the first Member to seek to tackle the problem. My hon. Friend Mr. Robertson, who is one of the sponsors of my Bill, sought to bring in a Bill on the issue under the ten-minute rule. I tried that route, too, last year. Furthermore, a succession of early-day motions over the last three years have demonstrated substantial cross-party concern and support for a policy remedy. Early-day motion 992, for example, in the 2005-06 Session, attracted the support of 149 Members.
I must also pay tribute to Barry Gardiner, who is another sponsor of the Bill. He has taken an active interest in the issue for a long time, and in his former capacity as Minister for the horse he organised a consultation on the question that we are considering today. That consultation overwhelmingly found in favour of the proposed policy solution embodied in the Bill.
I am grateful to all the sponsors of the Bill and the many other Members from both sides of the House who have not just expressed general support but have read the Bill and believe that it strikes an appropriate balance and will make a good contribution to fixing the problem. I should also pay tribute to those interested organisations that have raised the issue. In particular, I want to thank the Country Land and Business Association for first bringing the issue to my attention and highlighting the particular constituency case. The association has campaigned ceaselessly for a change in the law. I have also received very persuasive representations from, among others, the British Horse Society, the Countryside Alliance and the National Farmers Union.
I have also discussed the Bill with lawyers who have represented injury victims and animal owners, with representatives of the insurance industry, and with organisations such as the Ramblers Association. They have all given it their backing. I have also discussed the matter with the Association of Personal Injury Lawyers, and its members have raised their concerns with me.
Absolutely. I understand that the Government are very supportive of the Bill. I have been delighted not only with the personal support that the Minister has given me, but with the support of his team in the Department. We have had meetings almost weekly for three or four months now—
That would have been nice, though.
We have had meetings with stakeholder organisations to clarify the question at hand and to come up with a policy remedy that we can all unite around and that we believe will do what it says on the packet and fix the problem, of which there is growing awareness.
The central purpose of the Bill is to clarify section 2(2) of the 1971 Act, and in so doing ensure that the Act remains true to its original intentions. By achieving far greater clarity over how strict liability should be applied to keepers of non-dangerous animals, my Bill will have substantial benefits for the rural economy and more generally for all those who own animals. It will impact most noticeably on the equine sector, which not only forms a vital part of the social fabric of our countryside but makes a significant contribution to the national economy. According to the British Equestrian Trade Association's national survey in 2006, 4.3 million people from all walks of life rode a horse on at least one occasion. More than £730 million is spent on riding lessons each year and overall the industry is estimated to be worth £4 billion for our economy.
Those are not bald statistics: behind them lie real stories of families, young people and adults from all walks of life who enjoy the benefits of riding and the countryside. The Department for Environment, Food and Rural Affairs estimates that in 2005 the equine industry employed up to 250,000 people, with another 11 million holding some interest in the horse industry and 5 million taking an active interest. This vital sector is under enormous pressure, not least because of the huge increases in insurance costs that we have seen over the past few years.
There are probably many more promising ways of making a fortune than setting up a riding school or livery yard. In most cases, the motivation is not financial but a passion for horses and a desire to share that passion with others. The fact that so many highly qualified people are prepared to run equestrian businesses on wafer-thin margins is a testament to their commitment to the sport. The House should remember that we look to today's riding schools to bring on tomorrow's Olympic medallists.
It follows that a business that operates on such narrow margins is highly susceptible to relatively modest increases in costs. The substantial year-on-year increases in insurance premiums that we have seen will simply be more than many businesses can withstand. Although the data that we have on riding school closures cannot accurately highlight one factor rather than another as the primary cause of failure, the British Horse Society cites the insupportable burden of ever-increasing insurance costs as the primary cause of deep anxiety among proprietors.
Insurers themselves have told me:
"Many riding schools and trekking establishments are certainly financially struggling with rising premiums".
The Bill will help to limit the soaring insurance costs faced by the equine sector.
The hon. Gentleman has been talking in support of his Bill for 10 minutes, and he has concentrated on horses. However, the Bill would of course affect all animals, other than wild animals. Most injuries are caused by dogs, not horses. How would the Bill impact on a child savaged by a big dog?
The hon. Gentleman will be aware that other legislation covers dangerous dogs, and I understand that the Bill would not affect the application of that legislation.
The Bill would help to limit the soaring insurance costs faced by the equine sector. Clarifying the law should provide greater certainty about when strict liability will apply, thus allowing insurers to reassess the risk involved in insuring animal owners. The amendment to the 1971 Act would also help to enable the swifter resolution of claims. I hope that those benefits would be reflected in revised insurance premiums.
What was the problem with the 2003 Mirvahedy judgment and why has it created or compounded problems for animal owners? The intention behind section 2(2) of the 1971 Act was to ensure that the keeper of a potentially dangerous animal should bear appropriate responsibility for damage caused by that animal and should take particular precautions when there was a real and identifiable risk of damage occurring. To that end, it imposed strict liability on the keeper when the animal in question was known to present such a risk, either permanently because of its temperament, or temporarily because of particular circumstances applying at the time. The intention of the Act was not—I think that this view is shared on both sides of the House; it is shared by the Minister and his Department—to impose strict liability in respect of all damage by all animals.
I entirely support the Bill and hope that it makes progress. Is not the problem with the state of the existing law that it considers animals to be reasonable creatures that act in a reasonable way? Anyone who has ever owned an animal or ridden a horse knows that they occasionally do not act in a reasonable way. Is not the importance of the Bill that it would retain strict liability for circumstances in which someone ought to know that an animal is dangerous and not remove the tort of negligence when proper precautions had not been taken?
The hon. Gentleman is exactly right and he makes an important intervention. Nothing in the Bill would undermine an injured party's right to seek the normal avenues of common law and negligence-based claims.
The Mirvahedy judgment extended the scope of section 2(2) of the 1971 Act to increase liability for keepers of non-dangerous animals that can display dangerous behaviour in particular circumstances or at particular times. A great many people who have looked closely and carefully at this matter, including a minority of the judges who considered the Mirvahedy case, believe that the imposition of strict liability in cases in which a normal animal is behaving in a way that is not normal for an animal of that species, yet normal for that species in particular circumstances—for example, if a horse bolts after being sufficiently alarmed—goes further than the original intention of Parliament when it passed the 1971 Act. Far from clarifying what even the majority of the judges considering Mirvahedy agreed was an ambiguous piece of legislation, the judgment has extended the possible application of strict liability to a wider range of situations. That has compounded the problem of interpreting and applying the legislation. It has also created greater uncertainty and confusion in the minds of animal owners and a greater risk for insurance, which is reflected in increased insurance premiums.
The hon. Gentleman makes a great deal of the impact on insurance. Will he comment on a point made on page 19 of the Library brief that refers to an article by two barristers questioning why the predicted explosion in strict liability compensation cases has not happened as many feared that it would? There has not been an explosion in strict liability cases, so how does he explain the rise in insurance premiums, which cannot be linked to more cases and compensation claims?
We have discussed the issue in detail with not only stakeholder organisations representing the interests of animals, but lawyers who have represented victims. The hon. Gentleman is shaking his head, but this is true. We have discussed the matter in detail with lawyers representing the insurance industry. They have given a written explanation—I will happily send it to him—of the way in which the 2003 Mirvahedy judgment has "muddied the waters" and led to greater confusion and uncertainty over claims in the area.
I am grateful to the hon. Gentleman for that helpful intervention.
The opaque language of section 2(2) of the 1971 Act has been widely criticised. Lord Nicholls of Birkenhead, in his 2003 judgment, stated:
"there has been a difference of judicial opinion. This difference of view exists also in your Lordships' House...In common with all other judges who have had to wrestle with this question, I have found that the tortuous language of section 2(2)(b) renders its intended meaning peculiarly difficult to ascertain. I readily acknowledge that my mind has fluctuated between the two interpretations."
It might be helpful if I explain the legal background in a little more detail. Section 2(2) of the 1971 Act focuses on the damage caused by non-dangerous animals, but does so in an unfortunately complex way. It places strict liability on the keepers of non-dangerous animals that cause harm, assuming that three requirements are satisfied. The first requirement is:
"the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe".
The second requirement, which is crucial to this discussion, is:
"the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at peculiar times or in particular circumstances".
The third requirement is:
"those characteristics were known to that keeper".
Although the first and third points are clear and non-controversial, it is perhaps unsurprising that the courts have struggled to understand the language of that second requirement. My Bill would address precisely that problem.
In the Mirvahedy case, the court had to judge whether the provision referred only to a particular dangerous animal, or whether it could also refer to a perfectly normal animal that just happened to display dangerous characteristics typical of a species at a particular time or in particular circumstances, whether predictable or not. Clearly, the latter interpretation broadens the scope of the requirement, and in Mirvahedy v. Henley that was the side that their lordships ultimately chose.
It is important to understand the details of the case that led to this landmark ruling. Horses belonging to the Henleys were spooked. Although they had been securely fenced in, they were so scared that they managed to break through the fences. They ran for a mile before coming to the road along which Mr. Mirvahedy was driving and collided with his car, tragically causing him serious injuries. At no stage was there any question that the Henleys had been in any way negligent. The case was initially found in favour of the Henleys, but once it was taken on appeal under the Animals Act 1971, the Henleys were found liable to pay for the harm caused, although they had not been negligent and were powerless to prevent their horses from getting spooked and breaking out.
Given the seriousness of Mr. Mirvahedy's injuries, he was entitled to compensation. The legal case was thus fought out between his insurers and those of the Henleys to determine which insurance company would pay. However, the fact that the judgment was found against the Henleys has had severe consequences for those in the equine industry, because of the subsequent rise in insurance premiums.
The hon. Gentleman says that he believes that the Mirvahedy case was fought between the insurance companies. I do not know whether Mr. Mirvahedy's case was supported by his insurers, but that would be extremely unusual. He might have been supported by his legal expenses insurer. However, the fact remains that most people who are victims of animal accidents are not insured against the risk, so if they cannot claim compensation, they end up paying the full cost. The whole system of insurance involves spreading the risk across everyone. Is it right that someone who is turned into a paraplegic ends up paying the full cost, as opposed to the cost being spread across the industry as a whole?
I understand where the hon. Gentleman wants to go with this line of inquiry, but it is not true that the vast majority are not insured. The vast majority of claims are covered by the negligence-based route. We are talking about only a very small proportion of claims in the context of strict liability. The Mirvahedy case was eventually a legal dispute between the insurance companies for both parties.
Another good illustration is provided by the Llanwnda riding stables in Fishguard in my constituency run by Mrs. Ingrid Evans. She faced a potential case because of an accident that occurred at her school during a riding lesson. Barking dogs had run around a corner causing a horse to bolt and its rider to be thrown. Mrs. Evans was potentially liable under the Animals Act, despite the fact that the horse was known to be generally docile and all sensible precautions had been taken. Her riding school, which also offers courses for the disabled, now faces enormous problems in obtaining affordable insurance. She tells me that her premium has risen from around £900 a year in 2001 to more than £7,000 today: an 800 per cent. increase. She has been forced to increase her prices in an attempt to cope with the rising costs, but she fears that those increases make it harder for lower-income families in relatively poor communities, such as mine in Pembrokeshire, to enjoy the benefits of riding.
Similar problems are faced by an increasing number of businesses across the equine industry, including those who have never had a claim against them. The Mirvahedy case has perhaps had the greatest impact on the legal interpretation of the Act, but similar compensation claims have been brought under the Animals Act where the complexity of section 2(2) has again caused confusion.
Only last week, the Court of Appeal published its ruling in the case of McKenny v. Foster. In that instance, a cow, driven by maternal instinct, leaped over several obstacles—including, incredibly, a six-bar gate and a 12 ft cattle grid—in order to reach her calf, from which she had been separated. The cow collided with a Vauxhall Vectra, seriously injuring the driver, Helen McKenny, and tragically killing the passenger, Mr. Derek Shaw. Miss McKenny brought a claim under the Animals Act arguing that the fact that cows will go to extreme lengths to reach their calves was a well-known characteristic in cows whose calves have been recently weaned, and that the defendant should have know that. However, after much debate the judge decided that the cow's ability to jump over a gate and a 12 ft cattle grid was unprecedented and could not have been foreseen by the defendants, and so dismissed the claim. Despite that dismissal, we see again the confusion arising from the opaque language of section 2(2)(b) and the lengthy court processes that can ensue.
The rising premiums that were mentioned earlier may well be the result of the costs of such court cases being passed on to customers.
My hon. Friend is right in her analysis. Other factors are also in play, and the owners of riding stables in my constituency accept that they face a range of other burdens and challenges, but insurance premiums pose a real problem that is directly linked to the interpretation of a confused and difficult section of the 1971 Act.
There is a counter-intuitive argument here, which the hon. Lady raised from the wrong perspective, and that is that strict liability is clear, and if it is removed and replaced by a return to the common-law test of negligence—I am not sure whether the Bill achieves that, but we may come to that later—there will be more litigation because the law will be less clear because it will be reliant on discussions on the law of negligence and whether liability attaches. Strict liability is clear, negligence is not, so more cases will go to court and more money will go to lawyers and less to victims.
I sense that the hon. Gentleman is trying to broaden the discussion from what my Bill is designed to achieve, which is to clarify the circumstances in which strict liability will apply. It is not about removing strict liability and leaving it all to the common law; it is about being clear about those cases where strict liability should rightly apply.
My Bill clarifies the circumstances in which strict liability should apply. It reflects the idea that it is desirable that the keepers of animals that do not belong to a dangerous species should be strictly liable for damage or harm caused by an animal when they know that the animal in question may be dangerous at the time that the damage is caused, either because of its temperament or because of the circumstances applying at the time, such as when it has young to protect. The Bill replaces the wording of section 2(2) with a new formulation referring to the damage being caused by an
"unusual or conditional characteristic of the animal".
Unusual characteristics are defined as those that are not shared by the species generally, while conditional characteristics are those that are shared generally by the species, but only in particular circumstances. The new wording requires that for strict liability to apply in cases where an unusual characteristic was the cause of the damage, the keeper of the animal at the time that the damage was caused must have known of the characteristic in the animal. Where the damage is due to a conditional characteristic of the animal, it provides a defence to strict liability where the keeper of the animal when the incident took place is able to show that there was no particular reason to expect that the particular circumstances that provoked the conditional characteristic would arise at the time.
The intention here is to allow the courts to distinguish between a continuing generalised risk that the keeper knows may occur at some time—for example, a horse shying at a plastic bag blowing in the wind near it—but does not know when it may occur, and a heightened specific risk over a specific period that the keeper knows will increase the possibility of the animal displaying dangerous behaviour, such as a cow with calves or a horse in a field next to a shoot.
It is important to stress again that victims of negligent behaviour by keepers of animals would still have recourse to the usual avenues. Riding schools, farmers and pet owners would still be subject to the usual common-law negligence and health and safety laws. In that way, the Bill, by striking the appropriate balance between imposing strict liability for identifiable risks and protecting careful animal owners against risks that cannot be foreseen, would safeguard the rights of the injured.
The hon. Gentleman refers to people who could still bring claims of negligence, but he has not answered my earlier point about what will happen to those who may be killed or become paraplegic and suffer significant serious lifetime disabling injuries who cannot bring a claim because of his Bill.
According to the 1967 Law Commission report that informed the drafting of the 1971 Act, it was never the Act's intention that strict liability should apply in all those cases. The Act sought to define a range of criteria where strict liability should be applied. If it was the Act's intention that strict liability should apply in all cases, why would section 2(2) exist?
None of us wishes to prevent irresponsible keepers of animals from being forced to face the consequences of their actions, and it is important that victims in such cases should enjoy the full force of law in pursuing their claims. Responsible animal owners would, however, be encouraged to take out third party insurance, but would not face liability for genuine accidents. Keepers of dangerous animals would also quite reasonably continue to be strictly liable. That would be closer to the original intentions of the 1971 Act.
The very fact that the Act requires each of the requirements in section 2(2) to be cumulatively satisfied before the keeper will come under strict liability proves those intentions. Had Parliament wanted to extend strict liability to all keepers of animals, it would not have needed so many requirements and section 2(2)(b) would have been entirely unnecessary. Had the creators of the Act meant to impose strict liability on the keeper of an animal that did not belong to a dangerous species for any damage caused by any dangerous propensity of that animal, they could have simply had the one requirement in the Act for strict liability, namely that of the keeper's knowledge of the dangerous propensity. However, that is not the case.
The Bill will be of great benefit to many people, particularly those involved in the land-based and equestrian businesses that make such a vital contribution to the UK economy. They will benefit from the greater certainty achieved by my Bill and should see fewer court cases and, I hope, reduced insurance premiums. There would also be broader benefits for the countryside and for people everywhere, with more people able to experience the pleasures of riding. The Ramblers Association, which represents not animal owners but the interests of people who want to walk in the countryside and might be victims, tells me that the Bill would have wider benefits because more riders means more people who are interested in protecting and extending the public rights of way network. In addition, reduced insurance premiums might encourage landowners to offer more access to the public.
The hon. Gentleman is being very generous and good-hearted, and I do not want to fall out with him personally over this, as we have had some reasonable discussions. He says that insurance premiums will go down, but my experience is that they never go down, whatever the change in the risk may be. What guarantees has he had from the Association of British Insurers that if the Bill were to be enacted, premiums would be, say, halved?
If the intention of the original Bill had been to enforce an insurance obligation on animal owners, it would have said that it was compulsory for all owners to have third party insurance. It did not say that, therefore the original intention was never to force owners to take out third party unlimited liability cover. My hon. Friend is right to argue that there would be a reduction, but there would also be a reduction in the need for such insurance cover.
In opening, I referred to the backing that my Bill has received from many of my colleagues and hon. Members of all parties. It is unquestionably a good thing for the public to see Members across the House working together to ensure that seemingly small but very significant practical problems are addressed constructively. I am particularly delighted that the Government have signalled their support for the Bill. I am grateful, again, to the Minister for his personal support and that of the officials in his Department. I also thank and pay tribute to Mr. Williams, who has campaigned on this issue, for the support that he has given me on behalf of his Liberal Democrat colleagues. I look forward to hearing the other contributions to this debate.
I take pride and satisfaction in the fact that the Bill attracts such broad support across the House. That demonstrates that it tackles an important point that, as all parties agree, needs to be addressed. It would make an enormous difference to a great many people—owners of animals and those who enjoy them—in towns and the countryside. The careful balance between owners of animals and others needs to be restored, and my Bill would achieve that. I urge the House to back the businesses that are struggling to survive; it should back the equine sector, give the Bill a Second Reading and ensure that such businesses continue to provide joy to millions.
I congratulate Mr. Crabb on his private Member's Bill. I am here not to criticise but to support him, although with reservations and questions that I hope the Minister will answer; I hope that the Minister will give me the clarification that I need. The hon. Gentleman was extremely generous in giving way. It is helpful to be able to get answers from the promoter of the Bill, and I listened intently to the hon. Gentleman's remarks.
It would appear that the Bill is about horses and riding schools, about which the hon. Gentleman obviously knows a great deal. However, the Bill is about animals in general. In answer to a question about dogs, the hon. Gentleman said that a certain issue was covered by other Acts. However, if that were so, the Bill would be entitled "Animals Act 1971 (Amendment) Bill—except for dogs".
I had wanted to put that point to Mr. Crabb in an intervention. He talked about other legislation relating to dogs. That is primarily made up of two Acts—the Guard Dogs Act 1975 and the Dangerous Dogs Act 1991. Neither of them create civil liability; they create only criminal liability and therefore are not a basis for a compensation claim.
That brings me to animals' actions that affect my constituents. I am a city MP; as far as I know, there are no farms within the constituency boundary, although a few bounce off it.
One can certainly spot the skyscrapers, flats and housing estates; closer into Glasgow are the more affluent houses, and there are certainly no farmyards or riding schools around there. One would not expect to see them in the city centre.
As an MP I go to the hustings fairly regularly, depending on the election; I also regularly do campaigning work. An unbelievable number of dogs attack my colleagues, yet when, for example, a finger was half bitten off, there was no recourse for finding out who was liable. The animal concerned was not "dangerous" according to the description, yet it was pretty dangerous to the helper putting an envelope through the letterbox. We try to train our helpers not to do that, but the new letterboxes with brushes make that very difficult. If that dog was dangerous for an electioneer, what chance would a postman delivering letters on a regular basis have?
My hon. Friend has hit on an important point. I have been bitten while election campaigning. During my very first election in 1982, when I was running for the council, a Jack Russell took a bit out of my calf on election day. The second time was during the 2001 general election, when a Cairn terrier nipped my finger. If the hon. Member for Preseli Pembrokeshire had got his way, I am not sure that I could have brought a claim in either case—not that I would have done so anyway. On the third occasion, I put my finger through a letterbox and something—I have no idea what—got me. My finger was bleeding when it came out.
My hon. Friend has told a good story, although I could probably beat it.
Let me give an example. We talk about strict liability in respect of the Bill, but what does that mean? On a twilight evening during the 2001 general election, I was walking down Lincoln avenue, a large road in my constituency. It was about 9 o'clock at night and dark. I went to put a leaflet through a letterbox, but did not spot two Alsatians chained to a drainpipe. I had not expected to find them there, that is for sure—and I certainly would not have expected such dogs to keep quiet until I was about two inches from them, when they started to bark and jump at me. Who had the liability in that situation? Were the dogs entitled to be there? Was any person who went through the gate, which was open, liable? Alternatively, did the owner, who stupidly left the dogs out for whatever purpose, have liability?
I have read bits and pieces about strict liability in respect of the Bill. Animals are not usually bad; they do not deliberately attack somebody unless the owner trains them to do so, as happens in a lot of cases, or unless such behaviour is a characteristic of their breed and it is in their genes—as with hunting dogs, for example. We would not expect somebody to have such an animal in a built-up, city centre area and certainly not to chain them to a drainpipe in a garden. Such strong animals could pull the drainpipe down and attack passers-by. Would that be the dog's fault? In some cases, it would not be; it is usually down to the owners. I have great sympathy for people who are attacked by animals and I would complain about the animal in such cases, and it is the animal who will eventually suffer. In a lot of cases, if it has a history of such behaviour, it will be put down, yet we would never think of putting down the owner for the treatment of the animal or for teaching it to act in such a way. I therefore have a problem with strict liability.
Hon. Members have discussed the Animals Act 1971 and its intent. We are now in 2008—quite a long way down the road from 1971. I look favourably on the Bill because the hon. Member for Preseli Pembrokeshire is trying to tackle what has happened in the meantime. However, intent and need are not the same and I wonder about the treatment of the ordinary person under the Bill. The Wild Mammals (Hunting with Dogs) Bill caused all sorts of problems. It was said that the dogs were always under control, that the riders knew what they were doing and that the measure was unnecessary because we simply had to make sure that the existing rules were used. Similar comments have been made about the Bill that we are debating. Yet we know that a pack of animals does not act in the same way as an individual animal; animals act differently in a group. Some animals hunt in packs and their behaviour in the pack is different from that when they are individual pets in somebody's sight.
We discussed the problem of the plastic bag and a horse rearing. If we substitute a child—or an adult—for the plastic bag, and the person is crippled by the horse, as in the case that my hon. Friend Mr. Dismore mentioned, what sort of liability do they have? Their lives might be drastically changed because of an accident with an animal. How do they ensure that they are looked after? I have difficulty with that. It is easy for people to say that the animals were simply doing what they do, and that the horse reared because the child or adult frightened or shocked it. However, the person—I would call him or her the victim—has to live with whatever disability they end up with.
Let us suppose that a family goes out for a walk to the countryside on a Sunday afternoon. They are walking along a country lane that is a bridlepath, when a horse comes the other way and injures a child, who could be crippled. Under the Bill, the child may end up with no compensation, and the family would be left looking after that child for the rest of its life with no financial support from any insurance company, because most people will not be insured against that sort of risk. Who should bear the risk—the stable, which makes money out of a business, or the injured child's family?
That is also my concern. My hon. Friend is much more knowledgeable than I am on that matter and I am sure it will be well worth listening to his contribution.
The problem is that the lawyers and the courts may not interpret the Bill in the way that we intend. I do not have my hon. Friend the Member for Hendon or anyone else in the Chamber in mind, but I have always had a thing about lawyers because they are the only ones who ever seem to make money these days. We are being crucified over expenses and various other items for which we might not claim. I want to put it on the record that I do not have a £10,000 kitchen, although my wife phoned today and said, "Does that mean we can get a new kitchen?" I said no. However, I digress. Lawyers will always interpret things differently. Someone once said that two lawyers together will give two different explanations because they can then both make money. Therein lies a problem. I am attracted by the idea of trying to define things better, as the hon. Member for Preseli Pembrokeshire would like to do, because I would prefer such matters to be tackled out of court, by insurance companies.
My hon. Friend the Member for Hendon made some good comments about insurance companies. He said that there had not been many cases under the 1971 Act. That surprised me because I would have thought, given that the hon. Member for Preseli Pembrokeshire is promoting the Bill, that there must have been several cases about which people had a problem. The hon. Member for Preseli Pembrokeshire mentioned the problem of insurance costs for a riding school increasing by a large amount—I cannot remember whether he said that they had doubled—probably by much more than anybody had reason to expect. Those running a business—and a riding school is a business—would probably not have catered for that and would have to find the money from somewhere. That is not right. However, the argument is not with the Bill but with the insurance companies, if they are ripping people off. Bill Wiggin shakes his heard and he may be right—I am not an expert, but if insurance policies go through the roof and no extra claims are made on them, I cannot understand why they would have to increase to the amount that the hon. Member for Preseli Pembrokeshire suggested.
The hon. Member for Preseli Pembrokeshire said that only a tiny number of cases would be affected. If that is the case, the Bill cannot possibly have a significant impact on the industry in increased costs of premiums. There are simply not enough cases to make an impact.
Thank you, Mr. Deputy Speaker, but I think you give me more credit than I am due.
My hon. Friend the Member for Hendon answered his own question. I say to the hon. Member for Leominster that, if the amount is the problem, that must be examined, but it is not part of the Bill. [Interruption.] I thought that we were considering liability, not the amount of money that is paid out.
The size of the premium reflects the risk. The risk is not necessarily in the number of claims but in their size. The insurance company essentially needs to get its money back and that is why the breadth of the liability, not the number of cases or claims, causes the premium to go up.
I hear what the hon. Gentleman says, but if I were running an insurance company, I would be talking about potential amounts rather than the actual amounts. To go back to the earlier part of my contribution, we do not know how someone whose finger has been bitten off through a letterbox or who has been trampled by a horse and crippled could get any of the liability, but it appears that insurance companies are charging for such claims anyway, even though they may never have to look after such a case.
My hon. Friend has been generous in giving way. Bill Wiggin made a point about the cost of the pay-out, but if there is only a tiny number of cases, the insurance can be averaged out across the horse industry—indeed, across animal insurance generally—and that pushes the premium down.
My hon. Friend is right, and there is a problem.
I have spoken for far longer than I anticipated but I thank hon. Members for their interventions. Again, I thank the hon. Member for Preseli Pembrokeshire for promoting the Bill. I hope that the Under-Secretary will deal with my questions and concerns and I wish the Bill well.
I, too, congratulate Mr. Crabb on his success in bringing the Bill before the House. I wish to speak briefly in support of it.
The Bill has been welcomed by people in various walks of life, particularly farmers, owners of equine centres and others who own non-dangerous animals, because of the lack of clarity in the 1971 Act, which we have already heard about. That lack of clarity means that folk in the situations that have been discussed, particularly farmers and owners of equine centres, face strict liability—and therefore risk paying potentially huge compensation claims—and massively inflated insurance premiums, even if there is no question of the owner being at fault.
The increased premiums that have resulted from that uncertainty have undoubtedly put small businesses, including many farms and equine centres, at risk in my constituency in south Cumbria. Those running such small and relatively unprofitable outfits face not just a financial threat, which has a debilitating impact on the business, but damage from the anxiety and stress that that causes.
We are not talking about wealthy people, by and large. In the south lakes area in my constituency, which includes not just parts of the Lake district but parts of the Yorkshire dales, there are many hill farmers under extreme financial pressure, on to whose land people come to go walking every week, and quite rightly. I do not want to get into foot and mouth, but the foot and mouth outbreak last year cost the average hill farmer in my constituency some £10,000, when their average income is probably half that normally. It is clearly debilitating for those people to face insurance premiums or the threat of paying such high compensation claims. We need to get away from that.
We are not talking about people who are cavalier about their responsibilities, either. The aim of the Bill is to prevent unfair claims against people who have done all that they reasonably could to ensure safety. We have already heard that those who do not do that are covered by other avenues, and that should remain. Indeed, we would not want anyone who had suffered damage as a result of genuine negligence to have no recourse. That is not the aim of the Bill and it is certainly not mine in supporting it.
Normal farm animals, domestic animals or horses that cause accidents when behaving in a characteristic fashion, when all reasonable steps to prevent the action have been taken, are subject to strict liability. That is unreasonable and debilitating, and not just for the businesses concerned. We are living in a litigious society, but let us just accept it: all outdoor activity comes with a risk. We can put ourselves in little bubbles if we want, or we can accept that all life comes with an element of risk. If the threat of strict liability, which has resulted from that lack of clarity, reduced—perhaps it already is reducing—the amount of outdoor activity undertaken, whether it be with animals or around animals, that would be a very sad consequence. The Bill will help to remove stress and anxiety from conscientious people who may otherwise fall victim to their animals causing damage to others, through no fault of their own. The Bill will also allow a proper focus on genuinely dangerous animals and genuine acts of negligence.
I said that this would be a brief contribution and it will be. I finish by saying that the Bill will also signal an important victory for common sense, as it will mark a step back from our depressing slide towards an increasingly litigious society. For those reasons I support the Bill and commend it to the House.
I, too, congratulate Mr. Crabb not only on introducing the Bill, but on his persistence, as he has attempted to achieve a similar result before. Persistence often pays off, and I hope that it will today.
I declare an interest in a farming business that is entered in the Register of Members' Interests. Listening to the hon. Gentleman emphasised my responsibility for a number of animals that I hope are not dangerous. Indeed, it might be in my personal interest to be home attending to those animals, rather than trying to alter legislation here.
For me, the main issue is the uncertainty and the consequences that flow from it. Much of this morning's debate has been about businesses, but individuals who want to ride their horses in the countryside also face uncertainty about how they would be dealt with if an incident occurred. I am glad that the Department for Environment, Food and Rural Affairs is supporting the proposals, because one of its intentions is that people should enjoy the countryside more, but such uncertainty does not encourage people to do so.
In a past role, I was chairman of the Brecon Beacons national park. One purpose of the national park is to encourage enjoyment there. Indeed, all the national parks in England and Wales encourage both walkers and riders. If we are to ensure that they have as much opportunity as possible to derive that enjoyment, that uncertainty must be dealt with.
A number of hon. Members have mentioned the problems with insurance. That has certainly been my experience, too. I have received many representations from the Wales Trekking and Riding Association. The business has had its ups and downs over the years, but one particular problem is the increasing price of insurance. To give the House an example of where an inability to get insurance has closed a business down, Roy and Myfanwy Mitchell run a horse-drawn caravan business in my constituency that has been very successful—families really enjoy the experience—but in the past two years Roy and Myfanwy have unfortunately been quite unable to obtain insurance from any firm.
It is not a question of affordability; insurance is simply being denied people who keep ringing up and who want to have that opportunity. Indeed, a number of the caravans were used by children as part of their exhibitions for the Duke of Edinburgh's award scheme. For a time, the local authority was able to get insurance to use the facility, but now even that has been denied. There are real problems. Not only has a business suffered, but people who could be enjoying the Welsh countryside can no longer do so.
Because of that uncertainty, we are seeing a sterilisation of the countryside. People are not going out and enjoying it with the freedom that they used to. I supported the Countryside and Rights of Way Act 2000 and the right to roam, which did not make me that popular with some of the landowning interests in my area. One of the concerns of landowners was that they might be liable for animals grazing on their land that were involved in incidents with people exercising their right to access that land. The Bill would preclude that liability, but I am still keen that there should be more access to land and to the countryside. There will be obstacles to obtaining that, but the Bill will lessen some of those objections.
The point that the hon. Gentleman is making is very important and is exactly why the Ramblers Association has come out in support of my Bill. It recognises that it has a shared interest with people who own countryside-related businesses, which is about opening up the countryside. Achieving clarity in law will help that.
I thank the hon. Gentleman. I was coming to that point. People have often opposed increased access because they are afraid that they might make themselves liable for increased responsibilities. The hon. Gentleman has said that this is a small Bill, but it is important and will contribute to making the countryside more accessible to people and increasing their enjoyment of it. I wish it all possible success.
I welcome the Bill and pay tribute to my hon. Friend Mr. Crabb for his hard work and for using the opportunity of being drawn in the ballot to introduce it. I also pay tribute to my hon. Friend Mr. Robertson, whose ten-minute Bill two years ago raised the profile of this important matter.
As for declaring interests, I am the owner of some cows, a bull and a few sheep, but I am allergic to the dust in horses' coats. It gives me a hay fever-type reaction, which is very unpleasant. Despite that, I am a patron of Herefordshire's Riding for the Disabled.
As hon. Members will know, the Bill has considerable cross-party support. The recent early-day motion 1092, tabled by my hon. Friend the Member for Preseli Pembrokeshire, and the earlier early-day motion 14, tabled by my hon. Friend Mr. Paice, which I co-sponsored, have attracted widespread support. That is because there is a strong feeling that the operation of the current law is unfairly punitive, especially in relation to animal ownership and riding schools.
I support the Bill because it will help to correct an anomaly in the law that I do not believe Parliament intended. I do not believe that Parliament would have legislated to provide that the strictest liability be applied to animal owners when their animals have been involved in an accident, even when the owner has taken all reasonable steps to anticipate and prevent it. Nor do I think that Parliament intended to cause rising insurance premiums or to strangle riding schools and force them out of existence.
During the original debate on the 1971 Act, section 2 received little comment. It was referred to mostly as a code, bringing together the existing laws and the recommendations of the 1967 Law Commission report on civil liabilities for animals. However, it is worth mentioning the short debate on section 2 in the other place, which appears to support the notion that Parliament and the Government of the time may not have intended the Act to be interpreted as it was in the Mirvahedy case. The late Lord Chancellor, Lord Hailsham of St. Marylebone, commented on how the Bill had changed from an earlier draft. In relation to concerns about an owner becoming liable for
"normal acts on the part of such an animal, which in certain circumstances could cause danger", he reassured the other place that,
"in the case of an animal not belonging to an inherently dangerous species, only that animal's abnormal characteristics can give rise to liability."—[ Hansard, House of Lords, 29 October 1970; Vol. 312, c. 197.]
"where an animal has mischievous propensities, the keeper is liable only for such damage as is due to such propensities."
That is good legalese. He explained this change, commenting that in the Bill as previously drafted,
"a perfectly harmless animal but one which might be capable of doing damage would render the owner liable. For instance...a horse might be capable of causing damage if it were suddenly frightened; obviously, it is capable of kicking out and causing damage. Therefore, the change which is made in the Bill is that the keeper shall be liable only for a mischievous propensity of which the owner must know."—[ Hansard, 27 January 1971; Vol. 810, c. 738-39.]
That change was the insertion of section 2(2)(b), which, as hindsight has demonstrated, provides contention and uncertainty rather than the improvement and clarification that were originally intended.
The Law Commission's report that laid the foundations for the 1971 Act also went through the various permutations of strict liability. The application of strict liability under section 2 of the Act has led to much confusion and criticism by the courts, despite the attempts to clarify matters during its passage through Parliament in the early 1970s. There have been a number of cases in which decisions have been made under section 2, and in paragraph 9 of the Mirvahedy v. Henley judgment, Lord Nicholls stated:
"Unfortunately the language of section 2(2) is itself opaque. In this instance the parliamentary draftsman's zeal for brevity has led to obscurity. Over the years section 2(2) has attracted much judicial obloquy."
The hon. Gentleman is quoting Lord Nicholls's judgment in the Mirvahedy case, but does he agree that Lord Nicholls said that there were ultimately two options? They are the two options before the House today, which are matters for Parliament to decide: whether we wish to have strict liability or something rather less, as the Bill suggests. It is not about history, it is about where we are now.
The hon. Gentleman sets out the choice that we will face, which I shall sum up later. I agree that that is what we must decide today. Roughly speaking, we must choose whether someone in Mr. Mirvahedy's situation would in future be able to get compensation. If we wanted there to be insurance for risk caused by unforeseen circumstances, over which the owner had no control, we should not amend section 2(2) but introduce a Bill that would insist on compulsory third-party insurance, just as we do with cars. We should insist that, just as a person cannot drive their car without being insured, they should not be allowed to have an animal without insurance. That is not our intention, so the Bill would remove the question mark about whether people should have third-party cover for owning animals.
The Bill does not just apply to riding schools. The point of the proposed change is that it would apply to every type of animal and all unforeseen circumstances. That is why Tim Farron, who mentioned insurance premiums, was wrong. It is the size of the risk that causes premiums to rise. Having provisions that apply only to riding schools is contrary to what Mr. Dismore said in an earlier intervention about the damage that a dog could do. I do not wish to be harsh on him, but he might have contradicted himself in his interventions.
Section 2(2) of the 1971 Act created the view, which the Mirvahedy case turned into a legal precedent, that if an incident involves an animal, regardless of the circumstances, it cannot be considered an accident. The animal's owner will always be strictly liable. A number of passages in the Law Lords' decision were devoted to that point, and in particular to "normal" and "abnormal" characteristics and circumstances. Despite their decision, the Law Lords noted the controversy surrounding the case and the test in section 2(2)(b) of whether strict liability occurs.
Lord Slynn of Hadley, who allowed the appeal by the Henleys, commented in paragraph 50:
"It is not surprising that different Courts in cases before the present one should have taken different views as to the meaning of section 2(2)(b) of the Act; nor that different views should emerge in the present case. The meaning of that part of the sub-section is not at all obvious or clear."
Lord Nicholls of Birkenhead, who dismissed the appeal by the Henleys, similarly remarked in paragraph 31:
"In common with all other judges who have had to wrestle with this question, I have found that the tortuous language of section 2(2)(b) renders its intended meaning peculiarly difficult to ascertain."
Arguing that the subsection was an anomaly for Parliament and the legislative process to resolve, he stated:
"It may be said that the loss should fall on the person who chooses to keep an animal which is known to be dangerous in some circumstances. He is aware of the risks involved, and he should bear the risks. On the other hand, it can be said that, negligence apart, everyone must take the risks associated with the ordinary characteristics of animals commonly kept in this country. These risks are part of the normal give and take of life in this country...These considerations, and other arguments of this nature, are matters for Parliament. They are not matters for this House acting in its judicial capacity."
As legislators, we have a duty to set out and create laws that have clear meanings and to outline the circumstances whereby blame can be apportioned to one party or another.
Section 2 of the 1971 Act needed to be changed and the Bill takes the debate forward. I welcome the fact that the Government have indicated their support for that change and clarification of the law. It is very rare for me to welcome anything that the Government do, although I am fond of the Minister, whom I shadow, but in this case I think it excellent that the Government have supported the Bill and its clarification of the law. I also note that the consultation carried out by the former Minister, Barry Gardiner, showed that 26 out of 29 respondents favoured amending the Animals Act 1971.
My hon. Friend helpfully mentions that 26 out of the 29 respondents to the consultation supported my Bill, but is he aware that of the three that were not initially supportive, one—the Ramblers Association—is now very publicly supporting the Bill?
I was not aware of that and it is helpful that my hon. Friend has put that on the record.
It is important that the legislation be amended because the impact of the Mirvahedy case has ricocheted beyond the parties in that case and is having a devastating effect on the nation's riding schools. The precedent set by the case implies that wherever a case involves an animal, the owner will almost certainly be liable for any accidents that take place. That judgment has led to a massive rise in insurance premiums. In Pembrokeshire, the Llandwana stables saw its insurance premiums rise from £2,000 to £6,000 after an incident that was beyond its control. Others have seen their premiums rise from £858 in 2001 to £7,051 and some figures have suggested average premium increases of about 70 per cent.
In the past four years, the number of riding schools has dropped by about a quarter from 2,500 down to 1,850. Not all of that fall in numbers can be directly attributed to the rising insurance costs, but it does remain a factor. It is another burden placed on a small and predominantly rural business, and it would be a great loss to our country, especially to rural areas, if riding school numbers continued to fall. Riding is enjoyed by 2.4 million people each year, and it is estimated that double that number have an active interest in the industry. I believe that my hon. Friend the Member for Preseli Pembrokeshire echoed those figures when he opened the debate. We have a world class equestrian team, but where will our future champions be able to train if, by the 2012 Olympics in London, there are only a handful of riding schools left?
There are, of course, good reasons why the Animals Act 1971 is in place, and the legal principle behind it is a fair one. It is designed to protect people from dangerous animals—something that we all agree is important—and to ensure that cases involving the owners of animals that can pose a danger to the public and cause injuries or damage are handled and accommodated in a suitable manner with no risk to the public. That principle is fair, which is why the Act does not need amending in its entirety.
It is the job of this House to legislate clearly and to reflect the needs of our constituents. The choice before us for the future is very stark. Do we think that Mr. Mirvahedy should have been able to claim damages after being hit by a horse or that, provided all reasonable steps had been taken, he should not have been eligible to claim? Because we are generally well-meaning people, we probably want it both ways. Sadly, in no small part due to the litigious nature of our society, we cannot have it both ways. The reality is that we as legislators must work to close the gap between the letter of the law and justice. That means that we must allow people the freedom— [Interruption.]
I will give way to the hon. Gentleman in a few moments, but he asked me about this matter earlier and I want to finish this part of my speech.
To close the gap between the letter of the law and justice means that we must allow people the freedom to own and enjoy animals responsibly rather than prohibit that by stealthy insurance premiums. We need to make certain that those owners do not escape their responsibilities by ensuring that they take all sensible precautions, but we need to end the open-ended risk to owners. It is not a legal requirement for people to insure their animals as they do their cars, so we should be defending this privilege of ownership by correcting the inconsistencies in section 2(2)(b). My hon. Friend's Bill remedies that situation, while still remaining sensitive to incidents where it is appropriate for owners of animals to be liable for damages and injuries—where they are responsible for them.
Is the hon. Gentleman therefore quite prepared to see people who are seriously injured or just injured go uncompensated because they are unable to take out insurance against risks that they do not even know exist, as compared with people who are able to insure because of their ownership of the particular animal?
No, I think that the hon. Gentleman has got that completely wrong. It is clear from his interventions all morning that he has been struggling to understand the Bill's difficulties, although I have some sympathy with where he is coming from. Perhaps this is the best way to put it: if we really think that the owner is responsible for all his animal's actions at any time, we should be legislating to insist on proper, compulsory third-party insurance. I do not believe, however, that that is what we as a nation believe. I do not think that our constituents would want every owner to have a third-party insurance policy for their pet, irrespective of its size. The Mirvahedy case was a very clear example of where the owner could not have done anything to prevent the accident. The question we face therefore is whether or not we should insist on insurance. If we do, we should not be amending the Animals Act 1971 by the Bill. Indeed, if the hon. Member for Hendon believes that, he should bring in his own Bill to insist on that. That, however, was never the intention, so the hon. Gentleman's characterisation of my position is incorrect. He could paint himself into a corner and create the scenario that he mentioned in his intervention, but that would be wrong. I believe that we need to defend the right to take some degree of risk.
Let me provide a small example. When I took my children to learn to ride, my youngest child was not allowed to do so because it was impossible to insure him. As his parent, I think that that should be my decision, not the decision of the riding school's insurance company. However, we are where we are, and the Bill will release the riding school of that decision and give it to me as a parent. The hon. Member for Hendon may think that that is wrong, but the bottom line is that that is what parental responsibility is all about. We have to be careful not to fall too easily into what I would call a nanny state solution; we should rather give people the freedom to do what they want to do.
I am not quite sure that I understood what the hon. Gentleman meant by that. Perhaps he would like to intervene again to clarify it.
The hon. Gentleman has focused on section 2 of the original Act, which is what we are debating today, but section 5 provides a series of statutory defences. As the hon. Gentleman will know, in riding school cases, those defences have been heavily relied upon by people who have undertaken to go riding and have had an accident simply because they decided to go riding. That defence has stood on a number of occasions both before and after the Mirvahedy case.
Now I understand what the hon. Gentleman is talking about. I am grateful for that clarification. The point I have been trying to make is that we have to commit one way or the other. I am prepared to commit to not insisting on compulsory insurance; if that is wrong, we should be addressing the issue again in a different way and ensure that everyone who owns an animal has the responsibility to insure it. It should therefore be a responsibility that comes with animal ownership. At the moment, it does not and that is not going to change, so I think that the hon. Gentleman's characterisation is wrong.
With this amending Bill, the legislation can be improved and become clearer. Parliament can act to help prevent the decline in riding schools and we can continue to encourage responsible animal ownership. I think that the Bill does exactly what is needed: it clarifies the position that the judges got themselves into and it will make it much easier for people to own animals, confident in the knowledge that if they behave responsibly and try to foresee every sort of accident that can happen and protect themselves and their animals accordingly, they can carry on with the privilege of ownership. The open-ended risk hanging over animal owners would be removed by the Bill, so the measure is helpful and important. I congratulate my hon. Friend the Member for Preseli Pembrokeshire on proposing the Bill, on his early-day motion and on his campaign to ensure that animal ownership is a privilege that can be enjoyed by the many, not just the few.
I, too, begin by congratulating Mr. Crabb, who began his remarks by referring to Riding for the Disabled in his constituency. A number of other hon. Members have also referred to that worthwhile charity. I thank him for his kind remarks about my hon. Friend Barry Gardiner, who worked hard on the issue when he had my role.
The hon. Gentleman also referred to the consultation that he carried out and the number of people who enjoy riding. I should mention that last year, in his constituency, I rode a horse for the first time. He went on to talk about how riding schools would bring on the Olympic champions of tomorrow. I stand ready for the task. If it is my duty as a Minister of the Crown to enter the British equestrian team, and if people are needed, the team can get my phone number from the House of Commons exchange. You never know what might happen, Mr. Deputy Speaker.
The Government are pleased to confirm their support for the Bill. The hon. Gentleman has brought together an important coalition of interests, including the Country Land and Business Association, the National Farmers Union, the British Horse Society, the Countryside Alliance and, indeed, the ramblers, and it is welcome to present the case for changing the Animals Act 1971. As he said, he has worked closely with my Department and parliamentary counsel, and we are grateful for the way in which he conducted those discussions.
I can assure my hon. Friend that the consultation ranged far and wide and included insurance companies, so that they would be aware of the concern that he is expressing. We always ensure that our consultations are available on our website, and we do our level best to ensure that everyone has access and can comment.
I am grateful to my hon. Friend for giving way again, because he has not really answered the point: insurers are on the same side of the fence as well. The Association of Personal Injury Lawyers, which the hon. Member for Preseli Pembrokeshire mentioned, told me that it first became aware of the Bill when he phoned up very recently. It certainly does not support the Bill in the way that was portrayed earlier.
As I say, we conduct our consultations in accordance with the rules set out by the Cabinet Office.
To clarify the point, let me say that no one has attempted to portray the Association of Personal Injury Lawyers as coming out publicly in support of my Bill. I did not say that, nor did I even attempt to hint at it. I said that I have discussed the Bill with the association, verbally and in writing. At this stage, it has raised no concerns whatever with me. We have had consultative meetings here in the House of Commons, involving barristers who have represented victims and also insurance companies. Mr. Dismore is not correct in trying to portray the consultation as one-sided. It has been broad and the range of inputs that we have received has been helpful.
I am grateful for what I think was an intervention on me. It is a considerable achievement for the hon. Gentleman to introduce the Bill, and his energy and dedication are to be commended.
The case for amending the Act is, we think, persuasive. Since the legislation was passed, there has been disagreement and conflicting case law concerning the interpretation of section 2(2), and in particular section 2(2)(b), both as concerns the purpose of the first phrase,
"the likelihood of the damage or of its being severe", and the meaning of the last,
"except at particular times or in particular circumstances".
The result of that confusion over the meaning of the wording has been general uncertainty and, following the apparent extension of the scope of strict liability to animal owners in respect of the Mirvahedy case, which we have heard about, growing concern that anyone who owns an animal—a dog, a horse, a cow or a goat—could face unlimited liability for events that they had no control over and, indeed, did not even know had occurred.
The Government have long understood the concern felt by animal owners and their representative bodies, such as the CLA and BHS, which have campaigned vigorously for a change in the law. The question whether the 1971 Act could be amended was reflected in "Strategy for the Horse Industry in England and Wales", which the Government were delighted to produce in conjunction with the British Horse Industry Confederation in 2005. Passing the Bill would be another achievement in the pursuit of that strategy.
As Minister for the horse industry, I would be pleased with that result, but I must stress that the Government's primary objective in the matter is clarification of the law, not the possibility of reduced insurance premiums for animal owners and equestrian businesses. I appreciate that that is a slightly different representation of priorities from that expressed by the hon. Gentleman and others today, but I do not think that we are in any way at odds with the outcome that we all wish to achieve.
If my hon. Friend seeks clarification of the law, presumably as the hon. Gentleman has expressed it in his Bill, does he accept that the consequence would be that, in respect of people who were injured or even killed by other people's animals—walking along the road minding their own business, or driving along on a country lane or bridleway—no compensation whatever would be paid? Is he satisfied and happy with that outcome?
I will answer that point. We must decide today whether we believe that someone should be liable in every conceivable instance. The Bill's purpose is not discussion of the wide-ranging issues of liability, but clarification of the law, arising from the Mirvahedy case. I shall go on to provide examples. We want to provide clarification.
Tim Farron talked about striking a blow for common sense. That is at the heart of what we hope to achieve by supporting the Bill. I will come to a particular example, and hon. Members have provided examples and a good explanation of what we are attempting to do. We do not believe that one can have a crystal ball in every circumstance involving an animal.
To return to my text, that statement of the Government's admittedly rather technocratic primary objective—clarification—is not to suggest in any way that we do not care about the equestrian businesses, farmers and individual animal owners who might benefit as a result of that clarification of the law. It is the Government's duty—indeed, it is the duty of the House—to pass clear and comprehensible legislation, and to take steps, where appropriate, to address any instance where lack of clarity in the law is proven. That is particularly true where such lack of clarity is demonstrably causing problems to the courts and the wider public.
In this case, therefore, the Government are keen to ensure that the law is clarified. Any additional benefits accruing as a result of the clearer legislation, such as reduced insurance premiums, would, of course, be very welcome.
I have not studied the form of the insurance industry in relation to the equestrian industry. That is a matter for the insurance industry. It is a belief among those in the equestrian industry that premiums will go down. If the insurance industry is advancing to particular businesses the argument that the reason why insurance premiums are higher this year is the lack of clarity and the test cases, businesses will obviously say to their broker, "Hang on a minute, the law has been clarified. Don't give me that excuse. You put the premium up last year, advancing that argument. I expect to see a reduction." That will be a matter between the client and his insurer. That is not the Government's primary objective in supporting the Bill; our objective is clarification of the law.
We need to consider three situations. First, we need to consider damage caused by animals of a dangerous species. Secondly, there is damage caused by an individual animal of a non-dangerous species when that animal is known to possess a peculiarly dangerous trait, such as a particularly vicious dog; my hon. Friend John Robertson talked about vicious dogs, and I will deal with his points later. Thirdly, we need to consider damage caused by individual animals of a non-dangerous species when animals of that species are known to possess dangerous characteristics in certain circumstances.
There is no question but that strict liability should apply in the first of those situations. Anyone who chooses to bring a dangerous animal into society should bear full responsibility for its behaviour. Likewise, in the second instance, anyone who owns a dog, horse, sheep or cow that is known to be particularly dangerous should bear full responsibility for any damage that it causes. However, the third situation is more tricky. There are certain situations in which it is reasonable to expect that the owner or keeper of an ordinary animal should know that there is a greater risk that it could cause damage. The situation that is often quoted is that of a cow with calves or a bitch with puppies. It is known that animals in those conditions are often more aggressive. It therefore seems perfectly sensible to require the keepers of animals in such circumstances to bear full responsibility for their actions, and to take extra precautions to see that they do not present a danger to the public. I see nods of agreement. There are also other occasions on which a normally placid animal can cause damage, such as when it is scared or surprised.
That is the crux of today's debate: when should strict liability apply in respect of such accidents, and when should it be left to liability in negligence, which will continue to apply across the board? Let us be clear that the framers of the original Act did not envisage strict liability applying to all damage caused by all animals in all circumstances.
I agree that when the matter was first considered by Lord Goddard's committee in the 1950s, and by the Law Commission, the intention was not to create strict liability. However, that was 40 or 50 years ago. Society has moved on, and so has the nature of the insurance industry and of risk and risk assessment. We are legislating for 2008, not the 1950s, '60s or '70s. Does the Minister therefore agree that what happened at that time is not necessarily a guide as to the direction that we should take today?
No, I do not agree. Riding a horse in the beautiful Pembrokeshire countryside is the same today as it was in the 1960s. Such things are timeless, and have been enjoyed for generations. Does my hon. Friend think that there should be liability insurance in all circumstances?
Let me give my hon. Friend an example, and let us see what he thinks of it. When the Department was considering its response and working on the Bill with the hon. Member for Preseli Pembrokeshire, an insurer gave us the following example. The insurer received a public liability claim arising from a horse riding accident, the details of which might be useful to hon. Members in considering whether to support the Bill. The policyholder was a riding stable, and the accident occurred in November 2005. The claimant—a 22-year-old woman of limited horse riding experience—was taking part in a supervised hack. The horse that the claimant was riding shied away from a twig that had been kicked up by a horse in front. As a result, the claimant was thrown from a horse on to the ground, suffering injuries as a consequence. Liability was admitted in view of Mirvahedy. The horse in question was not known to present characteristics that would deem the accident foreseeable. The riding stable is no longer insured with the insurance company. The claim is potentially of high value. The insurer spoke to the underwriters, who advised that they did not invite a renewal of the policy as a direct result of the claim. Clearly, the Mirvahedy decision had a significant impact on both insurer and insured in this instance.
Does my hon. Friend think that there should be liability in those innocent circumstances?
First, my hon. Friend is not considering the post-Mirvahedy cases, which would not create that situation. We can discuss those later. Nor is he considering the section 5 defence already provided by the Animals Act in those circumstances, which would give rise to a defence of volenti. I am more concerned about the innocent passer-by. If someone decides to go horse riding in those circumstances, the volenti defence would apply. I am concerned about innocent people who are in no way, shape or form involved with the animal, who get hurt.
Okay. I think that my hon. Friend agrees with me on those circumstances, so we need to clarify the law. That is what we are attempting to do today. In the circumstances involving the unfortunate lady concerned, the law needs to be clarified.
If someone was rambling in the beautiful Brecon Beacons national park, which was chaired most ably by Mr. Williams for a number of years, and an animal caused an injury to that person, and the keeper of that animal could not reasonably have foreseen that the animal would escape from its holding area, my hon. Friend feels that that owner should be liable.
Let us take the example of the horse that shied with an inexperienced rider. Let us suppose that a young child had been walking with her family in the countryside, coming the other way along the bridlepath, and as the horse shied, it kicked the child and inflicted severe brain damage, and the child was crippled and dependent on their family. Ultimately, I suppose that the state would pay the cost ever after. My argument is that under the current law there probably would not be liability, but I think that there should be.
We are looking for clarification of a particular situation. My hon. Friend's example takes us into a wider issue, which would not be suitable for a private Member's Bill of this type. A great deal more parliamentary scrutiny would be needed to deal with such an issue.
If strict liability were to apply in all cases, the 1967 Law Commission report, paragraph 14, and the 1971 Act would have looked very different. It would have been very much easier to understand and interpret if that had been the case. If strict liability was going to apply in all cases, section 2(2) would not have needed to distinguish between accidents involving dangerous species and those involving non-dangerous species, and we would certainly not have needed section 2(2)(b) to try to identify circumstances in which strict liability was the order of the day. If strict liability is to apply in some circumstances but not in others, we need to try to identify those in which it should apply and those in which it should not. We must bear in mind that we are here not to discuss the principles underpinning the Act—that is, whether strict liability should apply in all cases—but only to reach a sensible and reasonable decision on the cases in which it should apply.
The Bill reflects the policy that it is desirable for the keeper of an animal that does not belong to an inherently dangerous species to be strictly liable for damage or harm caused by that animal only when he knows that it may be dangerous at the time when the damage is caused, either because of its particular temperament or because of particular circumstances applying at the time—the animal may have young to protect, for instance—that the owner or keeper could have predicted. That seems to me to be eminently sensible.
The Bill replaces the existing tortuous wording of section 2(2)(b) with a new formulation referring to the damage being caused by "unusual or conditional" characteristics of the animal. Unusual characteristics are defined as those that are not shared by the species generally, while conditional characteristics are those that are shared by the species but only in particular circumstances. The term "particular circumstances" is not defined in the Bill, and it would be for the courts to decide what constitutes them in the light of the details of cases brought before them.
The new wording requires that for strict liability to apply in cases in which an unusual characteristic was the cause of the damage, the keeper of the animal at the time when the damage was caused must have known of that characteristic in the animal. When the damage is due to a conditional characteristic of the animal, there is a defence against strict liability if the person who was the keeper of the animal when the incident took place is able to show that there was no particular reason to expect the particular circumstances that provoked the conditional characteristic to arise at that time.
The intention is to allow the courts to distinguish between a continuing, generalised risk that the keeper knows may occur at some time although they do not know when—as the hon. Member for Preseli Pembrokeshire suggested, a horse may shy at a plastic bag if the wind blows one near—and a heightened, specific risk over a specific period that the keeper knows will increase the possibility of the animal's displaying dangerous behaviour during that period. That may apply to a cow with calves or a horse in a field next to a shoot.
There will of course be marginal cases: there always are when the actions of people and, indeed, animals are involved. The law cannot predict such cases or prescribe the route that the courts must take in every circumstance, but it can point the way. In the case of conditional characteristics, the courts will be presented with a series of tests which they should apply to the facts in the case. First, they will need to ascertain whether the damage was due to the conditional characteristic that the animal possesses. Secondly, they will have to ascertain whether the damage was caused in the particular circumstances that provoke the conditional characteristic in the animal. Thirdly, they will need to be satisfied that the person who was the keeper of the animal at the time when the damage was caused cannot prove that he had no particular reason to expect those circumstances to arise at the time when the damage occurred.
That means that someone who knowingly puts his or her animal in a position in which the particular circumstances that are likely to cause its conditional characteristic to be displayed could be strictly liable for any damage that ensues as a result of that conditional characteristic. An example might be placing a horse in a field next to a shoot in the knowledge that it could well be frightened by the gunshots. On the other hand, someone whose animal exhibits a conditional characteristic of the species at a time or in a place where the particular circumstances that triggered it could not have been predicted would not be strictly liable, although he or she might still be liable under negligence. An example might be the same horse in the same field being frightened by a firework display in the middle of June when the owner had not been notified of the display. Obviously on
The Government accept that this amendment to the law might have an impact on individuals injured in accidents involving normally well-behaved animals when, under the current case law following Mirvahedy, a court might impose strict liability provided that it could infer that the injury resulted from "particular circumstances", irrespective of whether those circumstances could be identified or whether the person responsible for the animal had any reason to expect that they might arise. Some of those cases might be addressed by negligence, but some would not.
I am still waiting for the Minister's answer to the key question. Is he prepared to see cases involving people who are severely injured, perhaps even killed or suffering paraplegia or brain damage—or even those who are not so severely injured—go uncompensated, and in serious cases to see such people become dependent on the state rather than, hopefully, an insurance company?
My hon. Friend has given a very emotive example. Of course no hon. Member wants that to happen to a constituent or to any citizen of this country, but we must exercise moderation in applying the law. Do we really think that there should be liability in every one of the circumstances which I have described and which have been described by other hon. Members? I do not think that, and I do not believe that the British public would either. I think that they would say that common sense should apply. I gave the example of a horse in a field, but many other examples could be given. If such cases occur, of course it is tragic for the individual and his or her family, but we have welfare services to support people in those circumstances. We cannot have insurance to cover every walk of life.
People are concerned about how litigious our country is becoming. I think that if we were to have a wider debate and wider legislation, and adopt the sort of insurance scheme and liability laws that have been suggested, that would not chime with what the British public want. They want common sense and fairness to apply. What we are doing here is clarifying the law. A private Member's Bill such as this should not open the book on the wider issues of liability.
If the hon. Member for Hendon is arguing that my Bill undoes a higher level of protection that Mirvahedy has given to all victims in cases of this kind, he is wrong. The Mirvahedy judgment did not settle the issue, as we saw in the Court of Appeal last week. What that case did, as has been said time and again by numerous parties representing both victims and animal-owning interests, was muddy the waters further. We need to clarify the circumstances in which strict liability applies and those in which it does not, and I think that my Bill helps us to do that.
I am grateful for that intervention —I think it was directed at me.
The Government appreciate that this situation would leave some innocent parties unable to claim compensation for injuries sustained as a result of incidents involving animals, where the Animals Act cannot be shown to apply and there is no case to answer in negligence. However, the Government would contend that the law was not introduced to enable people to claim compensation in such circumstances—as the 1967 Law Commission report made clear, strict liability should not apply in respect of damage caused by all animals. Also, such cases are, in practice, relatively rare, and where they do occur the injured parties are sometimes entitled to compensation through their own personal insurance—the Mirvahedy case is an example.
My hon. Friend has just said that these cases are very rare, and we know that that is the case from the Library brief and all the other statistics. As they are very rare, why is there such a problem to do with them, as they cannot have much of an impact on insurers? Also, as they are rare, why are we doing this? In the end, the victims will be the people who will lose out. Would my hon. Friend have seen Mr. Mirvahedy go uncompensated, bearing in mind the severity of his injuries?
What about the question of insurance? I accept that there are not many cases, but this is clearly having an effect on the industry; I have given examples of that.
Is my hon. Friend saying that because there is a potential for compensation, that is having an effect on the industry—that the problem is the potential money rather than the actual money?
I must take us back to where I began. It is essential that we understand that this is clarifying the law. We do not want the current set of circumstances to continue, whereby in any situation someone can be liable for the way an animal acts despite their acting responsibly and making the best endeavours to ensure that the animal does not cause injury. This is a clarification of the law.
The Government also contend that the ability to claim compensation in the types of cases I have been referring to is not fully in line with the liability regimes applying in comparable situations where injury is caused by things other than animals; and the outcome of compensation claims in such cases involving animals remains uncertain under the current legislation, even allowing for the extension of strict liability into this territory following Mirvahedy, and the recent Appeal Court verdict in McKenny v. Foster.
In passing, I would like to draw special attention to the McKenny v . Foster case, not only because it clearly demonstrates that, despite the assumptions made by some, the current situation relating to compensation for innocent parties injured in accidents involving animals is far from clear or certain, but because the bizarre facts in the case clearly demonstrate how impossible it is to predict, and therefore protect against, the behaviour of animals. As many Members will know, this case revolved around a cow that was standing stationary in the road when it was hit by a car. The hon. Member for Preseli Pembrokeshire described the offence, whereby the cow, which was separated from its calf, managed to jump not only a six-bar field gate into a farm lane, but also a 12 ft cattle grid at the end of the lane. The courts, sensibly, in this case held that the behavioural characteristic that the cow had exhibited was not the normal agitation resulting from being separated from its calf. Bill Wiggin, as an experienced farmer, will know that very well, as, I am sure, will the hon. Member for Brecon and Radnorshire, who is no longer present.
The cow behaved in an extraordinary manner, and the ruling confirmed that, notwithstanding Mirvahedy, not all accidents involving animals entail strict liability under section 2(2) of the Animals Act. Nevertheless, the outcome of this case does not lessen the need to clarify section 2(2), and it is worth noting that the judges in McKenny referred to the ambiguity in section 2(2) and the conflicting interpretations of it. The Government therefore believe that it is in everybody's interests to clarify the law, so that everybody—owners, riders, businesses, victims, lawyers, insurers and the courts—can be certain where strict liability applies and where it does not.
Will my hon. Friend provide some clarification for me on an incident in an urban environment? In a park in my constituency, a domestic animal—a dog—brutally attacked a constituent. The owner of the animal was with the person who was attacked, and it was not clear at what stage the dog became erratic. What is the liability, and who is responsible in such circumstances?
I am coming on to the dog questions—my hon. Friend the Member for Glasgow, North-West asked about them.
Now I have completely lost my place.
Yes, the dog nicked my speech—it ate my homework.
The Government believe that it is in everybody's interests to clarify the law. Their position, therefore, is that they accept that the wording of section 2(2)(b) is unclear, creates uncertainty and causes problems for animal keepers, victims and the courts. They do not think that the framers of the original Act intended strict liability to apply in all situations where animals caused harm or damage. As noted, if they had, the Government think that section 2 would have been very different, and that section 2(2)(b) would have been entirely unnecessary. The Government think that the intention behind section 2(2) was to encourage the keeper of a potentially dangerous animal to take particular precautions when there was a real and identifiable risk of damage occurring. To this end, they imposed strict liability on the keeper when the animal in question was known to present such a risk, either permanently because of its temperament, or temporarily because of the particular circumstances applying at the time. The Government consider that the majority view in the Mirvahedy judgment went beyond this, by confirming that strict liability can apply in a wider range of circumstances, including those where there was no particular reason to expect that the animal presented a particular risk or that the circumstances that might prompt the animal to cause damage existed at the time.
Let me now come on to the points raised in this debate. My hon. Friend the Member for Glasgow, North-West talked about injuries sustained through letterboxes while delivering the leaflets that were ultimately successful in electing him to this House. [Interruption.] The shadow deputy Chief Whip says not to deliver leaflets, but my hon. Friend is a campaigner who looks after his constituents. We are all familiar with stories about getting fingers nipped by dogs as we put leaflets through doors. Although we do not yet have such a law, many hon. Members will have had conversations with their campaigners about the need for a law on having a certain size of letterbox, on having no names on houses, only numbers, and on ensuring that there is a cage behind the letterbox.
Any other bids for this Bill? [Hon. Members: "No Brushes."] Anything else—no? We can perhaps predict what will be at the top of this year's private Member's Bill list—it will be a Bill on standardising letterboxes. That is not something that I would expect to hear from the Conservatives.
They have retreated already: they are changing their minds and flip-flopping once again.
I turn to the matter of dangerous dogs going on to private property. The Dogs Act 1871 is the relevant legislation. That civil law Act deals with dogs that are dangerously out of control in private places. We are aware of the concerns of postal workers—my hon. Friend the Member for Glasgow, North-West will share those concerns—but we have no evidence to suggest that they are not being compensated by courts when attacked by a dog in a private place. The law is in place and can be applied in those circumstances.
Section 2 may be used, but I am advised that the law that I am discussing is the one that people can use to prosecute in respect of attacks occurring in private places.
I assure my hon. Friend that this Bill will not affect those circumstances: those claims will still be able to be made where people are behaving irresponsibility.
The hon. Member for Westmorland and Lonsdale talked about the many equestrian industries in his beautiful constituency in the Lake district. He, too, thought that the Bill would strike a blow for common sense.
The hon. Member for Brecon and Radnorshire, who has a depth of experience, talked about ensuring that people could enjoy the countryside more. He wanted more people to come to the countryside, and thought that the Bill would assist in that. He talked about how he supported the Countryside and Rights of Way Act 2000 and how he wanted to maximise people's access to the countryside. The good news for him is that we are introducing coastal access, which will provide more opportunities for people to enjoy such areas in every county in England—
In every county of England that has a coastline—I would have thought that was obvious, but I am pleased to provide clarification for the hon. Gentleman. He was obviously getting carried away, still thinking about whether he wants to introduce that private Member's Bill on letterboxes—he cannot make his mind up.
The hon. Member for Leominster is an excellent and experienced farmer, but he talked about the difficulty that dust from horses' hooves causes him.
I am concerned about those. If there is any law that the hon. Gentleman wishes to introduce, I shall carefully examine his proposals. He grasped the complicated detail of the legal judgment, but he essentially agreed with the majority of the comments made today that the Bill is a reasonable step forward in clarifying the law.
For these reasons, the Government think that there is justification in amending section 2(2) of the Animals Act and, in the absence of Government time in Parliament to effect a suitable change, they support the Bill which, they believe, strikes the appropriate balance between imposing strict liability where risks can be identified and protecting careful animal keepers where they cannot. I congratulate the hon. Member for Preseli Pembrokeshire, in particular on the style and tone that he has brought to this debate. We are very grateful to him.
First, I should remind that House that I was a personal injury lawyer for 20 years before I was a Member of Parliament. I have maintained my practising certificate and am a consultant with my law firm, although I am not taking any cases. This job is more than a full-time one, as everybody in the House is aware. As a result of that interest, I have, of course, kept a close eye on what happens in the personal injury law world.
I obviously congratulate, as other hon. Members have done, Mr. Crabb. He has spotted an issue and run hard with it in several different ways. He has been very persistent, and I congratulate him on that, as well as on the good humour with which he has presented his Bill today. He has engaged constructively with me in debate. Unfortunately, as he knows, we have come to different conclusions on this issue, but that is not a reflection on the way in which he has approached it. I am sorry that he has not been able to persuade me, nor I him, but I hope to be able to influence the House's discussion of the Bill.
My concern is that the hon. Gentleman has focused on only one side of the story, as my various interventions have probably revealed. We have heard about the support for the Bill from country landowners, riding stables and many people involved on that side of the fence. We have heard about how the insurance industry, including the Association of British Insurers, is right behind this Bill—well, to coin a phrase, "They would be, wouldn't they?" My concern is for those on the other side of the fence. They are the people whom I used to represent when I was in practice—the injured, the victims, the people who are hurt through no fault of their own. People can be going along minding their own business and their car is hit by an animal belonging to someone else. They are run off the road and, as happened in the Mirvahedy case, they can sustain very serious injuries.
I am concerned about the young child, out with their family, walking along the bridlepath enjoying a sunny Sunday afternoon's stroll through the countryside, who is suddenly hit by a runaway horse, is severely injured and becomes a paraplegic. They will then be dependent on their family and on the state. I am concerned about the girl playing in the park who is unexpectedly attacked by a dog, as my hon. Friend Mr. Mahmood suggested, and has her face ripped off, but is left with no compensation. I am concerned about everybody who is injured by someone else's animal. That may be because that person has not trained their animal properly, or looked after it properly or fenced it properly. It may be because of that person's negligence, or it may not. It may be because of some characteristic of the animal, or it may not.
In any case, I believe—and this is the bull point of the debate—that if someone owns an animal that has the potential to hurt somebody else, it is far easier for the owner to take out insurance against what may happen as a result. Taking out insurance is also the responsible thing to do. If someone owns a horse, or a riding stable, they can take out insurance. If someone owns a dog, they can take out insurance. Indeed, their household policy may already cover them, as a standard term, for injuries caused by their domestic pets. But the passer-by, the car driver who only has third party insurance, the child on the bridle path, or the little girl playing on the swings who gets attacked by the pit bull cannot insure against that risk, because they do not even know that it exists. The net result is that they end up uncompensated and their family have to look after them for the rest of their lives. That also involves the state, because if someone is severely injured, they will become dependent on benefits and the state will have to pay.
It is a luxury to own a dog. Before I was elected, I had a dog. Unfortunately, she died of old age in the autumn of 1996, and our present lifestyle would make it difficult to own another, given the hours that we work. She was a wonderful animal, and she would not have bitten anybody, but she would growl and snarl a bit. I was responsible for her behaviour, and I recognise that fact. Similarly, if people own a horse, they should be responsible for injuries that it may cause. That is self-evident, and if most people were asked the question in that way, they would answer in the affirmative. Most people would recognise that they can insure over the things that they own, but they cannot insure over things and risks that they do not own. That is the fundamental difference between us today. When I put that question to the hon. Member for Preseli Pembrokeshire and my hon. Friend the Minister, the problem was that everyone skirted round the answer. Nobody would say, "Yes, I am prepared to see that person go uncompensated and dependent on their family and the state." Nobody was prepared to say that in absolute terms.
Does my hon. Friend agree with the perhaps simplistic thought that if we start from the proposition that there is automatic liability on the part of an owner, whatever the consequences of an animal's behaviour, it becomes hopefully not a question for lawyers to argue about at great length and expense but for the insurance industry to take up? The insurance industry has a long history of being able to assess risk and charge accordingly.
My hon. Friend makes an extremely constructive point. I am not sure that we will be able to eliminate lawyers completely from the equation, but liability will always be one of the big issues. Even with a law of strict liability, there will always be arguments about who is or is not within the terms of that. My hon. Friend is entirely right, and this is my main point. If someone owns something that can cause people injury, even if they do not expect it to, they can insure against that risk. The injured person cannot. That is why what has been proposed today is unfair to society as a whole. If someone is making money as a business out of owning a horse establishment, that is their business and they are making a profit. If someone owns a dog, they have the pleasure of owning the dog. Indeed, that is true of any other pet.
I do not understand the logic of what the hon. Gentleman is saying. I could understand it if he was talking about no-fault compensation under any circumstances, but if there is strict liability purely for the purposes of owning an animal when no negligence has been shown, why does he not extend that principle to every potential risk? Someone might drive into the wall outside his house. Does he believe that he should have strict liability for that? There is no negligence on his part, but does he believe that he should be responsible for any consequences?
The hon. Gentleman probably means the driver. If a driver drove into the wall outside my house, they would probably have been negligent in the process. The hon. Gentleman raises a more interesting question, which is the issue of strict liability. We have strict liability elsewhere in the law—there is no doubt about that—in circumstances where it is appropriate. I remember when I was a young articled clerk sweating through section 14 of the Factories Act 1961—thou shalt guard a machine. If someone did not, and a worker got a finger chopped off, that person was liable. The worker might have shown contributory negligence and the compensation might have been reduced, but there was strict liability. The person whose machine it was was responsible for it. Similarly, here, it is a case of saying, "It's your dog. You are responsible for it." If that dog injures somebody, the owner should have to pay for it.
There are examples elsewhere in the law, too—I hope to give some of them later—of where strict liability applies when it is considered appropriate, although that is not the case throughout society. We also see semi-strict liability appearing in the law in other circumstances. For example, in motoring cases, generally speaking the law will apply a much higher standard to a driver who injures a pedestrian than to one who hits another vehicle. That is how the law has developed in relation to how the standard of carelessness is applied. To suggest that somehow this is a novel concept and that we do not have strict liability in the law anywhere else is wrong. Do I advocate strict liability throughout society? That is somewhat utopian; I would like to see it, but it is a somewhat utopian dream. [ Interruption. ] Yes, the hon. Member for Somerton and Frome is a Liberal; he wants utopia.
Let me make a point of clarification because dogs have been referred to a great deal and we have heard about the incident involving a child being attacked in a public park. The Dangerous Dogs Act 1991 makes it an offence to allow a dog to be dangerously out of control in a public place, or a place in which it has no right to be—someone else's private property—and compensation can be paid.
I think that my hon. Friend will find that that does not follow because that Act creates criminal liability, not civil liability, and that is a rather different kettle of fish. The same issue arises from the Guard Dogs Act 1975 because it creates criminal liability, not civil liability. In the end, that is the basic problem.
We have strict liability in relation to product liability, and certain aspects of occupiers' liability involve strict liability, so it is nothing new. However, the feature that makes something worthy of strict liability is an imbalance between the parties: the victim and the person who owns—that is "owns" in the broadest sense—the hazard. Under the Factories Act, strict liability is applied because of the imbalance of the relationship between the owner of the machine in the factory and their employee. In product liability, there is strict liability between a product's manufacturer and its consumer. In occupiers' liability, there is strict liability in certain circumstances between the owner of the land and the visitor to it. In those examples, there is a significant power imbalance between the groups concerned. I believe that there is a power imbalance between the owner of an animal, who is in a position to insure for what the animal might do—even if the way in which they look after the animal is not negligent—and the victim who is injured. That makes the argument in favour of strict liability in this case.
There are some very irresponsible dog owners in urban areas who do not insure or take precautions. There are also dangerous people who breed dogs for fighting purposes. When those dangerous dogs attack someone and there is no absolute liability, how do we represent our constituents?
Owning a fighting dog would be a criminal offence under the Dangerous Dogs Act 1991, but unfortunately that does not create civil liability. In the end, such cases come back to the Animals Act 1971. Under that Act, one is ultimately dependent on the other party being able to pay, which is why responsible people have insurance, although unfortunately some people do not. Who bears the responsibility: the victim who is injured, or the person who has the benefit of the animal? It should be the person who has the benefit of the animal—rightly or wrongly, and regardless of whether they have looked after the animal properly. One should accept the consequences of one's actions, and owning an animal is an action. If that animal misbehaves, for whatever reason, and injures someone, its owner should be liable to pay compensation to the victim.
I am trying to follow the hon. Gentleman's argument. It appears that his main objection is not with my Bill, but with the very principle of section 2(2) of the Animals Act. He does not agree that that Act should try to achieve an appropriate balance, but thinks that strict liability should apply in all cases. That is probably not a discussion for the consideration of this Bill and he should work on that outside this debate.
This is a Second Reading debate. The hon. Gentleman is trying to weaken the existing elements of strict liability, but I would like that to go further. If the Bill makes further progress, I might well wish to table amendments to that effect on Report, but we will have to see how the Bill gets on. I think that I was sent down this road by the intervention made by the hon. Member for Somerton and Frome, although I had not intended to go down this particular byway at present. However, I am quite happy for my views on this issue to be flushed out. A discussion about strict liability is relevant to the Bill because it would remove strict liability in circumstances in which it already exists. I would argue that that is the wrong way to go. We should be going in the other direction, reinforcing the strict liability that already exists and clarifying the law in that direction, not clarifying it in the other direction by taking away the strict liability that already exists.
I am not trying to remove strict liability where it already exists in law. The whole point is that the law is unclear. We have had the Mirvahedy judgment and last week's Court of Appeal judgment that went the other way. This area of the law is muddied and confused and there is an urgent need to bring clarification to it, and that is the whole point of the Bill.
I hear what the hon. Gentleman says, and my hon. Friend the Minister said that the object was to clarify the law. I have read the Mirvahedy judgment and I do not find it particularly difficult to follow the principles behind it. The courts have applied Mirvahedy in a series of cases since, and generally speaking they found in favour of the defendant in most of the cases that I have read, one or two of which we may discuss later. I would simply say that if the law does need clarification, the hon. Gentleman is clarifying it in the wrong direction.
I am delighted to hear that my hon. Friend finds Mirvahedy straightforward. That is another compliment to his extraordinary forensic brain. However, I seem to remember that in McKenny v. Foster there was a long discussion about the psychology of a cow on a road and the degree of agitation caused to that cow. Does my hon. Friend accept that there are many of us who sadly lack his cerebral qualities who do find the law confusing, but are not entirely convinced that the Bill will resolve all the issues?
I would simply say to my hon. Friend that if it is his cow, it is his responsibility. That is my answer to his question. That particular case came to a different conclusion, and we will perhaps talk about that later and analyse the decisions in that case. If my argument were to be accepted, it would answer his question very simply.
I would tend to agree with my hon. Friend. We may reach this point later, but having looked at the Bill, in my opinion it may create some confusion. If the proposed amendments to the Animals Act clarify the law, they do so by reverting to the old-fashioned law of negligence, as I understand the Bill's intention. The problem with that is that, although it is tried and tested and has developed over centuries, it provides a field day for lawyers as to what is or is not negligent, what is or is not a breach of duty and whether a duty is owed in some circumstances under the Donoghue v. Stevenson principle. We may talk about snails later and how they got into the bottle of ginger beer. In fact, it was never discovered whether there was a snail in the first place, but that is another story. The basic principles of negligence are wide open for argument. One of my concerns is that if the Bill is enacted we will see a lot more cases going to court with argument about whether the circumstances were negligent than we do under the existing arrangements where we have a modicum of strict liability, which is a lot clearer and more likely to lead to an earlier settlement of claims where people have been injured as a result of somebody else's animal.
This may appear to be a slightly abstruse debate, but we should never forget that in McKenny v. Foster there was a fatality. Does my hon. Friend agree that we are not necessarily debating an obscure point of law but, as in the tragic case when Derek Shaw was killed, what may be a life and death issue, and that we should at least try to introduce law that—if not in every case, in the majority of cases—will prevent, and where it cannot prevent, compensate?
On the intervention made by Stephen Pound, I should say that my Bill does not affect negligence; that is not the point. The Bill is about clarifying where strict liability can be applied— [Interruption.] I shall need to intervene again on Mr. Dismore.
The hon. Gentleman seems content with the law as it has been since the case of Mirvahedy. Yet in the case mentioned by the hon. Member for Ealing, North, the victim was not compensated because the law was not sufficient to provide the protection. The law is unclear; that is the whole point of this discussion. We are not talking about claims that go along the negligence route, but about where strict liability does and does not apply.
That is the point—it is a question of "stick or twist". Personally, I think that the Mirvahedy case is inadequate in the other direction from the hon. Gentleman's. Although it could not, because of the way that the 1971 Act is phrased, I would have liked that case to produce a different result—the one for which my hon. Friend Stephen Pound is contending. The hon. Member for Preseli Pembrokeshire wants things to go the other way—that is, as the minority of those involved in the judgment concluded, that Mr. Mirvahedy should have gone uncompensated despite his tragic and serious injuries. The consequence of the hon. Gentleman's argument would be that Mr. Mirvahedy would not have been compensated.
That is unusual. Generally speaking, people are not insured in such cases; if Mr. Mirvahedy was, that was a one-off. If he had not been, as would normally have been the case, he would not have been compensated, according to the hon. Gentleman's interpretation of the law. My argument is that at least Mr. Mirvahedy was compensated. If a Bill was to be introduced, I would like it to go in the other direction from the one in which this Bill goes—towards improving, rather than reducing, victims' rights. That is where I part company with the hon. Gentleman.
I say gently to the hon. Gentleman that although this is the Second Reading of a private Member's Bill and there is room for wide debate, he said earlier that he was going to start dealing with the Bill in detail. He is in danger of confusing the Bill with what he would like to see. It is worth making that point to him.
And clairvoyance. I apologise.
The purpose of the Bill is to clarify the law, a point mentioned by the Minister and by the hon. Member for Preseli Pembrokeshire—although it may be the hon. Gentleman's secondary point after the insurance issue. My argument is that they intend to clarify the law in the wrong direction; the Bill is the wrong way to go about achieving that clarity.
This is a private Member's Bill and this area of the law is too complicated to be dealt with through such a Bill. The issue is one for a Government Bill that considers comprehensively the law on liability for animals. That would be a far more sensible route. The Minister said that he had not been able to find Government time for that, but the fact remains that we have not discussed proper legislation on this issue since 1971, and the roots of the 1971 Act date back to the 1950s. It is time to have a proper review of the law.
On a point of order, Mr. Deputy Speaker. In your previous ruling, you advised the hon. Member for Hendon to restrict himself to dealing with the Bill, rather than telling us what he wants. Just now, I distinctly heard him say that he wanted a Government Bill. Is that in order?
Such matters are for debate. I would have interrupted the hon. Member for Hendon if I had thought that he was out of order. However, my earlier remarks still stand. The hon. Gentleman is an experienced Member, not least when it comes to Friday sittings; I am sure that he will bear in mind what I have said.
I am a member of the Association of Personal Injury Lawyers—I am classed as an academic member rather than a practising member, which means that my subs are a bit lower. I spoke to representatives of that organisation this morning. They had not heard of the Bill until the hon. Gentleman contacted them—I believe that he made contact only at my suggestion when he held his little meeting the other week. They said, without endorsing the Bill, that they need to examine it and discuss it with their members. If I know the Association of Personal Injury Lawyers, it will make similar criticisms to those that I have expressed.
The Bill overlooks the statutory protection in section 5 of the 1971 Act. That came out in some of our earlier discussions. When I made the point, it seemed from people's reactions that they had never heard of or looked at section 5. It provides a significant defence for claims in either the Mirvahedy circumstances or, more frequently, in the riding school cases.
Section 5 of the 1971 Act states:
"A person is not liable under sections 2 to 4"— we are concerned with section 2—
"of this Act for any damage which is due wholly to the fault of the person suffering it... A person is not liable under section 2... for any damage suffered by a person who has voluntarily accepted the risk thereof."
Most of the cases involving people in riding schools—those who have been trained to ride a horse or have hired the horse—have failed on the basic principle of volenti non fit injuria, which is an old common law principle given statutory force in section 5. A defence, therefore, exists in many cases.
There is also protection under section 5 for liability in respect of a trespasser if it is proved that
"the animal was not kept there for the protection of persons or property; or...that keeping it there for that purpose was not unreasonable."
That is important because the debate so far has focused on horses, but we know from the statistics that far more accidents are caused by dogs, including guard dogs. Although the debate has focused on the equine, we should not forget the canine. Section 5 of the 1971 Act provides a defence for many of the cases that trouble the hon. Member for Preseli Pembrokeshire. He should bear that in mind in our debate.
The hon. Gentleman made great play of insurance. The Library briefing states that there has been a rise in insurance premiums and mentions riding schools whose insurance premiums have increased to more than £7,000. It also states that the cost of annual membership of the Racehorse Owners Association has increased from £165 to £195. For someone who owns a racehorse, £30 more probably constitutes small change down the back of the sofa. The hon. Gentleman should not pray that in aid. In his press release that announced the Bill, he said that the existing legal position was grossly unfair to responsible animal owners and that rural businesses were placed at risk by the huge increase in premiums since the House of Lords judgment. He also said that millions of people who enjoy horse riding face extra costs as a result.
When the hon. Gentleman introduced the Bill, he said that his clarification of the law through the removal of strict liability would affect only a small number of cases. My hon. Friend the Under-Secretary also said that. The Library briefing cites an article by barristers Susan Rodway QC and James Todd, entitled "Mirvahedy—Three Years On". They report that insurers are insisting on higher standards of risk management in the form of record keeping, risk assessment and compliance with local licensing regimes. The article asks why the predicted explosion in strict liability cases has not happened. Indeed, there has not been a huge increase in cases or risk. There has been a tiny number of cases. Some may be high value cases—Mirvahedy was a high value case because of the extent of the injuries—there is no doubt about that, but they are a tiny number. If we average out the insurance risk even of high-value multi-million pound claims, of which there are very few, over the cost for the whole industry, that does not significantly increase the insurance liability risk. That is what insurers are about.
I asked the hon. Member for Preseli Pembrokeshire in an intervention—it was a tongue-in-cheek intervention, but an intervention none the less—whether he had received any indication from the insurance industry that it would reduce premiums if the Bill went through. Obviously he could not answer that question, never mind consider the 50 per cent. reduction that we can infer from the figures in the Library briefing that have been quoted in this debate. The fact is that insurers do not reduce their premiums. I have yet to hear of any circumstance in which insurance companies charged less because something changed. A bit like the gas board and the cost of oil prices, insurance companies are quite happy to put premiums up, but very slow to bring them down.
That is the simple nature of the insurance industry. If the hon. Gentleman's Bill goes through, I would be happy to have a little gentleman's wager with him—of a drink in the Strangers Bar, say, or whatever he chooses—that insurance premiums would not go down. I know for certain that premiums would not come down and I think that, realistically, he knows that, too.
I am not entirely knowledgeable about the black arts of the actuarial profession—the actuary of actuaries, actually— [ Laughter. ] However, some risks that are covered never have any claims made against them at all. Insurance is provided because large claims may be made in the future, so the hon. Gentleman's point about smoothing and averaging things out does not apply to rural businesses in particular. They have great insurance difficulties, because they are small businesses that potentially face large claims.
The hon. Gentleman has hit the nail on the head. The insurance industry has not made an assessment that risks have increased; rather, it is starting to cherry-pick its customers. Frankly, the industry does not like small businesses, because it does not make any money out of them. Even if insurance premiums go up, they are still relatively trivial to the insurance industry. What is happening more generally—not just in the context of this debate—is that small businesses are finding it harder to get insurance because it is more trouble than it is worth for the industry to insure them. The industry therefore jacks up its premiums to achieve that objective.
There is a general trend in the insurance industry, which the increases in premiums reflect. The increases are nothing to do with the Mirvahedy case, which the industry is using as an excuse. In the same way, the compensation culture argument is used as an excuse to jack up premiums, when we all know that there is no such thing as the compensation culture. There is a perception that it exists, but all the figures show that it does not. Indeed, all the figures show that the number of claims is decreasing. What we have seen is a different market approach from the insurers, who are looking at how they can insure people differently. The insurers are cherry-picking and looking for the good risks and the large businesses, from which they can make money, and they do not like small businesses.
I do not share my hon. Friend's gifts of clairvoyance, but for a moment I peered into my mind and saw a future private Member's Bill of his own, on requirements for insurance companies, and I anticipate being here on a Friday morning to support him in that. However, does he agree that the Mirvahedy case was essentially a dispute between two insurance companies? We should be asking whether the Bill that Mr. Crabb has brought forward would make such disputes less likely or whether it would encourage more insurers to widen their pool of insured people prior to its becoming a putative Act.
The hon. Member for Preseli Pembrokeshire said at the start of this debate that the number of cases that would be excluded from liability is relatively small. If we start from that premise, the number of cases where the victim would be insured in the way that Mr. Mirvahedy was insured would be even smaller. We would then be using an exception of exceptions to create a new rule. That is the real problem. The debate is building a huge superstructure from a problem that is relatively trivial in the wider scheme of things. It is an important matter and an important legal principle, but the Bill would not make any difference to the insurance industry because it applies to a small number of claims. It would not make any difference to the insurance premium of Mr. Williams, because he is not a particularly attractive risk for the insurance industry to take on.
The real reason for the current situation can be found in another part of the article in the Library briefing. It states that
"insurers are likely now to insist on much higher standards of risk management in the form of record keeping, risk assessments and compliance with local licensing regimes."
That has nothing to do with Mirvahedy; it is about negligence. If somebody is sued for negligence, those are the sort of things with which they will have to be able to show that they have complied in order to defeat the claim. The Mirvahedy case would have had strict liability irrespective of risk assessments, licensing regimes and record keeping, so the case has made no difference at all.
Quite rightly, the insurance industry has recognised that the animal industry is not as safe as it could be. A lot of claims have been made, but they are nothing to do with Mirvahedy. They might instead relate to ordinary negligence procedures and to other parts of section 2 of the 1971 Act. If there has been an increase in the number of claims, that might be where it has come from and the reason why the insurance industry has jacked up its premiums. It might use Mirvahedy as an excuse, but the reality is rather different.
She is one of the UK's three leading barristers with expertise on the 1971 Act. The hon. Gentleman should be aware that she has participated in our discussions in the past few months with those in Parliament, stakeholder organisations, officials from the Department for Environment, Food and Rural Affairs and others. I assure him that she is very much alive to the fact that Mirvahedy has created problems. There are other problems and pressures associated with the Act, but if the hon. Gentleman wishes to quote Susan Rodway QC, he should be aware of her participation in the discussions about the effect of Mirvahedy.
I am happy to accept what the hon. Gentleman says about Ms Rodway, but I am talking about cause and effect. Yes, insurance premiums have risen, but why? Is it because of Mirvahedy or other factors? My argument in response to his case is that when one analyses the facts, one sees that Mirvahedy can logically have had only a minor impact on premiums, if it has had one at all.
The growth of insurance premiums is the hon. Gentleman's key point, but I believe that the insurance industry has made a general risk assessment of its exposure to liability in respect of animals, and particularly horses. It has recognised that there are serious concerns irrespective of Mirvahedy, so it is clamping down on riding establishments that are not doing things properly. I think that we would all agree that risk assessments and appropriate record keeping are good, and I am sure that we would agree that compliance with local licensing regimes is good. That is why the insurance industry is insisting on those things. I am sure that premiums have risen for those who have not been following those procedures, who present a much bigger risk than the off-chance of a Mirvahedy-type claim. That is why insurance premiums have gone up.
There has been a general trend for the insurance industry to cherry-pick and to make it difficult for small business, not just in relation to claims on animal matters. That has been a fact of insurance life for quite some time. The timing of the Mirvahedy judgment and increases in insurance premiums may have coincided, but that is indeed a coincidence rather than being due to cause and effect to any great degree.
As my hon. Friend John Robertson and I mentioned earlier with particular reference to injuries caused by dogs, many people in urban conurbations do not insure themselves against that risk. Will the Bill make a real difference to my constituents? If, for example, someone campaigning for me in the constituency and dropping leaflets through the door has their finger ripped off when they put their hand through the letterbox or someone enjoying a day in the park with the family gets set on by a dog, causing serious injuries, how will the Bill assist them if the owner of the animal has no insurance?
I regret to tell my hon. Friend that the Bill will not assist them at all. That is the issue. It takes us back to earlier discussions of whether we should have compulsory insurance for animal ownership. I suspect, however, that in the circumstances my hon. Friend the Member for Birmingham, Perry Barr described, even if we had legislation making insurance for dog owners compulsory, certain irresponsible people would still not be insured. Unfortunately, some people are irresponsible and do not insure when they should; for example, at any one time, something like a fifth of motorists are not insured. There are, of course, arrangements in the motoring industry to compensate those who are injured by uninsured, negligent drivers, because, unfortunately, some people are irresponsible and do not comply with the law.
The Law Commission report on which the Animals Act 1971 was based actually reported in 1967—41 years ago—yet it was not until cases such as Curtis v. Betts of 1990 that that Act started to be subject to legal scrutiny. Does my hon. Friend feel that in the period between the Law Commission report and Curtis v. Betts, the law actually operated? If so, what has changed? If my hon. Friend denies that there is a compensation culture, what has suddenly caused this flurry of cases and increased scrutiny of the 1971 Act?
I do not think that there has been a flurry of cases. If we go through history, we find such cases coming through all the time, as I shall explain later in more detail when I examine some of the consequences if the Bill changed the law as the hon. Member for Preseli Pembrokeshire wants. There has not been a huge upsurge, but a steady trickle, going back, in my reckoning, to about the 1880s—
My hon. Friend suggests the 1980s, but I actually mean the 1880s, as there have been many such cases throughout history. Frankly, I do not believe that the Mirvahedy decision is primarily responsible for that significant increase. The hon. Member for Preseli Pembrokeshire conceded that, because he acknowledged that there were few such cases.
First, I do not concede that any such confusion in the law is as confusing as the hon. Gentleman suggests and, secondly, the adverse cases are those when people are not compensated rather than the opposite. That is my main difference with the hon. Gentleman, who prefers to see children go uncompensated.
The fact remains, to finish the point about insurance that my hon. Friend the Member for Ealing, North raised earlier, provision for compulsory insurance is already in place in certain circumstances. Chapter 70 of the Riding Establishments Act 1964 makes it a requirement for riding schools. Section 1(4A)(d) makes it absolutely clear that
"the licence holder shall hold a current insurance policy which insures him against liability for any injury sustained by those who hire a horse from him for riding and those who use a horse in the course of receiving from him, in return for payment, instruction in riding and arising out of the hire or use of a horse as aforesaid and which also insures such persons in respect of any liability which may be incurred by them in respect of injury to any person caused by, or arising out of, the hire or use of a horse as aforesaid".
Thus, there is already a requirement for compulsory insurance in the horse industry—a point I put to the hon. Member for Leominster, who was clearly not aware of the Riding Establishments Act 1964. Although that requirement for comprehensive insurance dates from the 1960s, it was reinstated in the Riding Establishments Act 1970, which made provision in similar terms, so there is nothing novel in my argument that there should be compulsory insurance for animal ownership. It goes back to 1964—before the 1967 Law Commission inquiry, before the Animals Act 1971 and before the Riding Establishments Act 1970, which also predates the 1971 Act. What I propose in that respect is nothing new.
Where does that take us? The Library briefing summarises the position simply:
"The Bill aims to narrow the number of situations...when an owner of an animal will be strictly liable (that is liable for compensation to an injured party regardless of whether there is any fault on the owner's part) following an accident involving the animal."
The Mirvahedy case puts the point rather clearly and throws the question squarely upon us. Lord Nicholls of Birkenhead, who made the lead judgment in the Mirvahedy case, put it this way:
"The appeal raises one question: is the keeper of an animal such as a horse strictly liable for damage caused by the animal when the animal's behaviour in the circumstances was in no way abnormal for an animal of the species in those circumstances?
Lest there be any misunderstanding one point should be clarified at the outset. Considered as a matter of social policy, there are arguments in favour of answering this question yes, and arguments in favour of answering no. It may be said that the loss should fall on the person who chooses to keep an animal which is known to be dangerous in some circumstances. He is aware of the risks involved, and he should bear the risks."
That is my case. Lord Nicholls continued:
"On the other hand, it can be said that, negligence apart, everyone must take the risks associated with the ordinary characteristics of animals commonly kept in this country. These risks are part of the normal give and take of life in this country."
That is the argument of the hon. Member for Preseli Pembrokeshire, and that is what his Bill would achieve. Those paragraphs from Lord Nicholls's judgment fairly and squarely put the difference between us in the House today.
Lord Nicholls goes on to say:
"These considerations, and other arguments of this nature, are matters for Parliament. They are not matters for this House acting in its judicial capacity. It is not for the courts to form a view on which of these arguments seems the more weighty when Parliament has already carried out this exercise. Parliament must be taken to have weighed the various factors, and balanced the conflicting interests of those who keep animals and those who are injured by them, when enacting the Animals Act 1971. The answer to the question I have posed lies in interpreting the provisions of this Act, and in particular section 2(2), in accordance with established principles of statutory interpretation."
Applying those principles, Lord Nicholls and the majority in the Mirvahedy case—we have heard a lot about the minority—came to the conclusion that, in those circumstances, Mr. Mirvahedy should be compensated, and I agree with Lord Nicholls. The majority in the House of Lords agreed with him as well.
The basic principle set out in the Mirvahedy judgment is clear, but the issue is not new. It has been troubling society since biblical times, believe it or not. If we look at Exodus— [Interruption.] My hon. Friend the Member for Ealing, North perks up. There is provision in Exodus. That is important because it is the origin of the scienter principle, which goes to the root of today's debate. The scienter principle was overturned by the 1971 Act and replaced by section 2(2)(b). It is to do with the extent to which somebody knows or does not know what their animal is likely to do. My hon. Friend is now looking at me with anticipation. If he wants the references, they are Exodus 21, 28-30 and 35-6.
I am sure the whole House is grateful for the enlightenment provided by my hon. Friend. I have to say that my Douay version of the Bible is not as yet amended by the 1971 Act, but I am sure that it is only a matter of time. Surely the key point in the case he refers to and the matter we are discussing is whether the Bill would protect and save. Is not that the real issue—the effect on people rather than an obtuse point of law, or even the Old Testament?
As usual, my hon. Friend puts the point succinctly, and we need to see the root of how we got there. I am sure he prefers the King James version to the New International. The King James version simply says:
"But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death."
I am certainly not advocating the death penalty in those circumstances.
I am listening carefully to the hon. Gentleman. He mentioned that his dog died, and I am sorry to hear that; I wonder whether its death was due to boredom. I can see that he is very concerned about animals. After he has finished speaking, I have a Bill that will impact on biodiversity, and I hope that he will bear that in mind.
I am sure that the hon. Lady, who is not a regular attender on a Friday—[Hon. Members: "Oh."] Well, if the House sits on a Friday, I believe that people should come. I come, and my hon. Friend the Member for Ealing, North comes regularly, to debate such matters. I am sure that the hon. Lady would not expect a public Bill to advance to Committee, if that is the will of the House, without receiving effective and proper scrutiny. It was her choice, of course, to timetable her Bill to come after this one. If she had thought about it, she might have picked a different day, when it might have been taken earlier. It would be an unfortunate parliamentary precedent if we were to eschew proper scrutiny of this Bill in order to get on to her Bill.
I am interested by the hon. Gentleman's comments. My point is that going back to the Bible is a rather unnecessarily long-winded way of scrutinising this Bill. What does that add to the scrutiny of the various clauses, to which he has not referred particularly so far? Will he take that into account while he continues to ramble on?
The problem is that the origins of section 2 go back to the principle of scienter—to put it bluntly, the extent to which an owner knows what an animal may or may not do or could be attributed with that knowledge. We have to go back to first principles if we are going to start taking them apart. In 1329, there was a case of a cow that struck a child under the mouth, from which blow it died—
The hon. Gentleman clearly has not been listening that carefully to the debate. If he had, he would know that the purpose of my amendment is not to undermine first principles but to seek to clarify the law based on existing principles. His objective, as he has made clear in his speech so far, is to rip apart the principles underpinning the 1971 Act, which, as I understand it, is not under discussion this afternoon.
The hon. Gentleman's Bill does exactly that; if he wants to change the law around, he must understand what the consequences would be. What he is trying to change goes to the roots of our laws relating to animals. The laws of Alfred refer to a dog biting a man, and what had to be paid for the first offence—that is, strict liability—
Order. The hon. Gentleman will not be in order if he continues to trace back the whole history. We are dealing with a very short Bill, and he should bear in mind the distinction between discussion of general principle on Second Reading and detailed dissection in Committee.
Order. I understand that that might be to the extreme disappointment of Stephen Pound, but we will have to bear his disappointment as stoically as we can.
My hon. Friend is absolutely right to concentrate on first principles. I understand why you have made the ruling, Mr. Deputy Speaker, but we are talking about something of real contemporary relevance. Justine Greening will perhaps be aware that the Ramblers Association was among those consulted in the Department for Environment, Food and Rural Affairs consultation in 2006. Originally, the association expressed some concern about the matter. Would it not be an utter dereliction of our duty if we did not subject the Bill to increasing scrutiny? I therefore appeal to my hon. Friend, as much as I can, to abjure the siren call from Putney.
Of course, Mr. Deputy Speaker.
We need to examine the law of negligence, and the starting point for that is the excellent text of the 17th edition of "Winfield and Jolowicz on Tort", which sets out the present position in short form. Chapter 16 states:
"At common law a person might be liable for damage caused by an animal on one or more of three distinct grounds, namely, ordinary liability in tort, liability under the strict scienter rule"— that is what this is about, although I will not go down that route because you told me not to, Mr. Deputy Speaker, so we will not know what the scienter rule is—
"and liability for cattle trespass."
I am pleased to say that we are not concerned with that today, although it involves another interesting list of cases.
The text goes on to state:
"Liability for an animal may be based on negligence", and cites these words:
"Quite apart from the liability imposed upon the owner of animals or the person having control of them by reason of knowledge of their propensities, there is the ordinary duty of a person to take care that either his animal or his chattel is not put to such a use as is likely to injure his neighbour—the ordinary duty to take care in the cases put upon negligence."
In other words, the ordinary rules of negligence apply, plus the scienter rule. That means that a person who knows that an animal is potentially dangerous is liable even if he is not negligent in dealing with it. That is what those earlier cases determined. If the hon. Member for Preseli Pembrokeshire gets his way, we will turn the clock back and return the law to how it was before the Animals Act.
The cases and issues relating to animals fall into two categories. There are animals known as "ferae naturae" and animals known as "tame animals"—there is another Latin phrase that I may come to later. Section 2(1) of the Act deals with the law applying to wild animals, while section 2(2) deals with that applying to domestic animals. The leading case in this connection is Behrens v. Bertram Mills Circus 1954. It took place in the days before political correctness, so I hope the House will bear with me when I relate the facts, which are recorded as follows:
"The plaintiffs, husband and wife, were both midgets and during the Christmas season in...1953, were on exhibition in a booth in a funfair adjoining the defendants' circus."
At the circus the defendants kept six female Burmese elephants that performed in the circus. Now, the problem was that the midgets' manager had a dog, and when the elephants went past, the dog spooked the elephants, and the midgets were trampled. The issue before the court was whether the elephants were domestic elephants or wild elephants. [Laughter.] I know it sounds funny, but it is actually quite important in the context of the principles behind the Bill. If the court had concluded that the elephants were domesticated and therefore not ferae naturae, section 2 of the Act and the amendments would apply to them. But the court concluded that, as a matter of law, all elephants were dangerous. It made no difference that the particular elephant in question was a highly trained Burmese elephant and, in fact, tame,
"for the harmfulness of an offending animal was to be judged, not by reference to its particular training and habits, but by reference to the general habits of the species to which it belonged."
The judgment stated:
"The elephant Bullu is in fact no more dangerous than a cow; she reacted in the same way as a cow would do to the irritation of a small dog; if perhaps her bulk made her capable of doing more damage, her high training enabled her to be more swiftly checked."
However, the judge also said:
"But I am compelled to assess the defendants' liability in this case in just the same way as I would assess it if they had loosed a wild elephant into the funfair."
What must be determined in such cases is whether an animal is a wild or a domestic animal in the first place. The debate has focused on horses, but the amendments that the hon. Member for Preseli Pembrokeshire seeks to introduce extend far beyond them to cover other animals.
The earliest case relating to animals going astray, and the one that set the scene, is Tillett v. Ward. The consequences in this case could well be the consequences of the hon. Gentleman's Bill, which seeks to return the law to its former state. This case is not about a bull in a china shop, but about an ox in an ironmonger's. It occurred in 1882. An ox belonging to the defendant was being driven through the streets of a country town, went into the plaintiff's shop, which adjoined the street, through an open doorway and damaged his goods, and there was no negligence on the part of the persons in charge of the ox. The ox was being driven along a street called Ironmonger street, which is a coincidence as the case involved an ironmonger's shop. The ox went along the pavement and into the shop and did a lot of damage; it took three quarters of an hour to get it out. There was no evidence of it being of a vicious or unruly nature normally, which was also the situation in the Mirvahedy case. There was nothing exceptional in its temper or character making it unsafe to drive it through the streets. The result in that case was that the shop owner, Mr. Tillett, went uncompensated. That would be the result in such cases if we were to return to the situation prior to the Animals Act, consequent upon the Bill of the hon. Member for Preseli Pembrokeshire.
There are also plenty of cases involving horses. There is a case that is of particular relevance to the principles of negligence that would be in place if the hon. Gentleman were to get his way—the Bradley v. Thompson Court of Appeal case of 1913. In the course of his employment, a workman was killed by the kick of a horse belonging to a third party whose servant had brought it on to the employee's premises and left it unattended. The court came to the conclusion that it was not in the ordinary course of things that a horse not known to be vicious should kick a man. Such cases are of relevance in respect of the Mirvahedy judgment. In these circumstances, it was decided that there was no negligence at common law. The hon. Gentleman is contending that in such circumstances people such as Mr. Bradley should go uncompensated.
There is another case involving a pony bolting and damaging a draper's shop in Marylebone. The defendant's pony and milk van went through the window and damaged a lot of the stock; the case occurred in 1923 and the shop was called Gayler and Pope Ltd. The court looked at the circumstances and considered the issue of negligence, and came to the conclusion that for injury caused by horses or cattle to property on or adjoining a highway, the owner is not liable in the absence of negligence or a wilful intention on his part. Again, there would be strict liability under the Mirvahedy criteria in those circumstances, but under the Bill they would no longer apply.
I am fascinated by the legal journey—if not marathon—on which my hon. Friend is taking us, but let us go back to first principles, to borrow an expression he has used. The Law Commission report, which I see as the foundation of the Animals Act 1971, is the basis of his comments. That report addresses the issue of responsibility on the part of the owner. How does my hon. Friend think that that precautionary principle would be aided and encouraged if the hon. Member for Preseli Pembrokeshire were successful?
Basically, I do not think it would. Let me explain my concern. I have been sharing these cases because they involve real incidents that actually happened, and because referring to them illustrates that such cases are nothing new, but have been going on for ever. They also show that people need to take responsibility. Earlier, we discussed insurers, who are now cracking the whip a bit and making sure that people are rather more responsible in how they run their businesses. If the hon. Member for Preseli Pembrokeshire were to get his way, such people would not be compensated because the court would find that there was no negligence. As things currently stand under the existing wording of the Animals Act, I think they probably would on the basis of the Mirvahedy principle.
Not for the first time—and, sadly, probably not for the last—I did not make myself entirely clear. I am particularly concerned about the issue of precaution and additional responsibilities on the owner or keeper of the animal. Does my hon. Friend think that there is anything in the Bill that would encourage or underpin the need for the owner or keeper of the animal to take more precautions?
Yes, but I am always willing to give a clear answer when I am able to do so.
One or two of the dog cases illustrate a similar problem to the one that I am discussing. Fardon v. Harcourt-Rivington from 1932 is the first such case and it is one of the leading ones. The dog in question, a large Airedale, had been left unattended in a car parked round the back of Selfridges. When an innocent passer-by walked past, the dog started jumping about, the window broke and a shard of glass went into the passer-by's eye. No liability was found in that case. There probably would be liability under the principles of the Mirvahedy case, which the hon. Member for Preseli Pembrokeshire wants to remove. I am discussing the common law as it stood before the Animals Act and before Mirvahedy, and that would again be the position as a consequence of the Bill. When someone shuts a dog inside a car and the dog then starts to jump about and breaks a window, there ought to be liability, even though the court found that there had been no negligence in the 1932 case.
I come to the case of an accident that occurred virtually on all fours with the Mirvahedy case. The Searle v. Wallbank case related to events of April 1944, when someone cycling during a blackout collided with a stray horse on the highway. Again, the net result was that no liability was found. That was a similar case to the Mirvahedy one. The case of Fitzgerald v. E.D and A.D. Cooke Bourne (Farms) Ltd in 1962 involved a filly in a field, and again no liability was eventually found. The trial judge found that the fillies were not vicious but had a malicious propensity to play, which the defendants knew to be potentially dangerous, but the defendants' appeal was allowed on the basis that the animals were mansuetae naturae—domesticated animals. That was the sort of case—
Order. I say to the hon. Gentleman that I do not think he has to go through every case in order to make his point, particularly given that he admits that he is repeating similar things. I ask him to bear in mind the proportionality of his argument. I have already ruled on the line between a general debate and what happens in Committee in detail.
As always, I take your constraints to heart, Mr. Deputy Speaker. I assure you that I was not going through all the cases; I was just discussing a selection. If I selected too many, I apologise for doing so. There are some interesting ones to come.
Let us move on to how the proposed change to the law came about. We have heard a lot about the Law Commission proposals of 1967, but we have not heard about the January 1953 report of the Committee on the Law of Civil Liability for Damage done by Animals, which was chaired by Lord Goddard. That was the real precursor of the 1971 Act. The Committee held 19 meetings, and, as we are finding today, it found the subject matter of its inquiry to be
"of considerable difficulty and complexity" because many of the cases were "of great antiquity". The Committee rightly drew the distinction between mansuetae naturae and ferae naturae in considering where the law stood and made various recommendations. It concluded that someone
"in the absence of scienter cannot recover for damage to the person whether caused to himself or his servants."
That is where the law stood, and that is basically the problem that we face in this debate.
That ultimately led to the Law Commission inquiry, in respect of which a great deal has been prayed in aid in this debate. I freely acknowledge that Lord Goddard's 1953 inquiry and the Law Commission's 1967 one came to different conclusions from mine. The Law Commission report's introduction emphasised that the reform in this field is controversial, but it thought that the modernisation and simplification of the law was necessary. Again, it referred to the importance of the strict liability principle in relation to wild animals and drew the distinction in respect of tame—domestic—animals based on the knowledge principle, the scienter action.
I am not going to go through all the Law Commission's conclusions, Mr. Deputy Speaker, because I am sure that you would bring me to order if I were to attempt to do so.
Before my hon. Friend moves off that point, one of the key issues in the 1967 Law Commission report was that strict liability should not be imposed in respect of damage done by all animals. What was the motive behind the 1953 Goddard report? What concern about the law led to that report?
The answer lies in the cases to which I previously referred. They highlighted a series of examples that made people uneasy about the conclusions of those cases. It was felt that people should have been compensated, but they clearly were not being compensated. The elephant case did lead to compensation, but the case of the ox in the ironmonger's shop did not. That case and others led to the pressure for law reform. The Goddard report came out in 1953, having reached its difficult conclusions, and the Government of the day must have put it in the too hard to do box.
In 1967, the Law Commission made further proposals. It said:
"We do not consider that it would be desirable to impose strict liability in respect of damage done by all animals."
I take a different view of that, but it went on to say that it would be better to establish a category of animals for which there would be strict liability because they present a special danger, either to persons or property. The Law Commission recommended the imposition of strict liability in such circumstances. The category is not confined only to animals ferae naturae, but applies more widely, which is how we ended up with section 2 of the Animals Act 1971.
The Law Commission thought that strict liability should be imposed in respect of any injury or damage done by animals of a species presenting a special danger to persons or property. The question of whether an animal belongs to a dangerous species should depend, in the case of a category of animals ferae naturae, on a test prescribed by law. That test should take into account the risks to persons or property in the circumstances of this country. There are arguments about whether camels, for example, are domestic animals, and in the UK, at least, camels are considered to be wild animals, despite the fact that they are often domesticated in other parts of the world.
The Law Commission also discusses the issue of strict liability being imposed in respect of injury or damage done by an animal that does not belong to a dangerous species or if an animal had no dangerous characteristics from which the injury or damage resulted—which is the sort of case that we are talking about now—even if those characteristics are not common to the species as a whole, but are shared by other animals within the species, such as age, a particular time of year or in certain conditions. It also recommends strict liability in respect of either of the two categories, but that it should not be dependent on escape from control, which is where we are with the Mirvahedy case, because it did not turn on the fact that the animal had escaped. In fact, it turned on the fact that the animal was on the highway in a spooked condition. That of course leads to the question, which is discussed in some of the law books on the subject, of what would have happened if the spooking of the horse had ended and it was simply stood in the road not knowing what to do with itself—in other words, behaving normally after its anguish had ended. On a proper interpretation of Mirvahedy in those circumstances, it might well be that the liability would not have attached—an interesting moot point. I am pleased to say that the court did not decide on that point, although it is discussed in the law books.
The Law Commission also dealt with the question of negligence and recommended that liability should attach—I apologise, because that point has to do with the section 5 defences of contributory negligence and being responsible for one's own injuries.
The Law Commission's report gave rise to the debate that led to the Animals Act 1971. The first Bill on the issue was introduced in 1969, by the then Labour Government, and it was based on the model recommended by the Law Commission. The problem was that between 1969 and 1971 there was a general election and the further problem was that the Labour party did not win that election. When the new Conservative Government introduced the Animals Bill mark 2 in 1971, clause 2 had changed. It read as section 2 stands rather than as did the section recommended by the Law Commission. They should have stuck with the Law Commission definition. This is a disgrace on the Conservative party. All the problems come back to their decision in 1971 on how to phrase the Bill.
I certainly do not blame the hon. Gentleman for the Bill in 1971. I blame his party, and he has to take collective responsibility for the decisions made by his party. I am happy to take responsibility for the original Bill of 1969, which would have dealt with the issue far more simply. If the Conservatives had kept the original wording, which was recommended by the Law Commission, we would not be in the difficulties that we are now. The law would have been a lot clearer. It would not have been what I would want to see—although it might have been what the hon. Gentleman wants to see—but, unfortunately, we do not have that before us today.
"This has always been a troublesome and difficult branch of the law...it is a very ancient part of the law, because the law with regard to animals tended to reflect an agricultural society, and the society on which much of the early law was based was one in which man was much dependent upon the animals and came more into contact with animals."—[ Hansard, 27 January 1971; Vol. 810, c. 736.]
My hon. Friend the Member for Ealing, North gives me a funny look, but that point is at the heart of our debate. The debate has focused on the rural side of the equation and, apart from the interventions of various of my hon. Friends, has overlooked the urban side, and in particular the problems caused by dogs.
The Attorney-General went on to deal with horses that are frightened and capable of kicking out. His view was
"that the keeper shall be liable only for a mischievous propensity of which the owner must know."—[ Hansard, 27 January 1971; Vol. 810, c. 739.]
That is the old scienter principle, for which the hon. Member for Preseli Pembrokeshire contends. If that is what was intended, why did the hon. Gentleman's party, which introduced the Bill, not say so rather than create the mess that he believes exists and wants to tidy up? The Attorney-General went on to deal with clause 5, which concerned the defences as they then were. That gave rise to where we are with the 1971 Act today.
It is important to look at the 1971 Act before we start to consider the hon. Gentleman's amendments to it, in order to see exactly what we are dealing with. The Act provides for strict liability for damages done by animals under section 1. It deals with the circumstances in which that will arise, and we are particularly concerned with section 2.
Section 2 is divided into two halves. The first deals with animals that belong to a dangerous species, and that is where liability attaches. When damage is caused by an animal that does not belong to a dangerous species—we have to decide what a dangerous species is; we know that an elephant is, and so is a camel, but there are problems in relation to other animals—three criteria have to be satisfied to establish strict liability. The first is:
"the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe".
That provision has two different limbs. I tend to agree with the hon. Member for Preseli Pembrokeshire on this little point of amendment. We could do with some clarification here. That would not do any harm, and to that extent I am with him. However, when he gets on to section 2(2)(b), I start to have difficulties. That paragraph states:
"the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances".
That was the rationale of the Mirvahedy case, which came to the conclusion that when an animal was spooked it would be within those characteristics at that time. We also have a redefinition of scienter in section 2(2)(c), which reads:
"those characteristics were known to that keeper or were at any time known to a person".
The hon. Gentleman's amendments do not make it clear in his definition whether he will keep the constructive knowledge provided for in the 1971 Act or whether he will take that away. Perhaps when he sums up, he will tell us whether he plans to keep the constructive knowledge test. That is quite an important part of section 2.
I am loth to mention the Dangerous Dogs Act 1991 further. However, one of the great difficulties with its interpretation was the business of whether characteristics were inherited, trained, or acquired. Does my hon. Friend honestly believe that we can establish any sort of judicial, legislative, or even scientific framework to define the characteristics of an animal?
My hon. Friend raises a very interesting point. Ultimately, that is a matter for case law. There is a difference in law between animals that are considered to be wild and those that are considered to be tame. The general definition in the Animals Act sits rather uneasily with the schedule to the Dangerous Wild Animals Act 1976 that specifically sets out dangerous animals. The Animals Act might have been more helpful if it had included such a schedule because that would have made life a lot easier. In the end, characteristics become a question of law. There was a case in which there was a question of whether a filly's prancing around a field and injuring someone was a characteristic. That was not decided under the Animals Act, but if it had been, it would have created interesting law.
I was trying to make the point that the majority of domestic animals might live in a state of nature in their natural lives, but in many cases they are shaped and formed by human beings, so are we considering an inherent characteristic, a formed characteristic, or a shaped characteristic? Once, when I was interviewing one of my constituents, he allowed a ferret to run across the desk, and it bit me. Apparently, that is an inherent characteristic of ferrets when meeting Labour MPs. Equally, however, an animal could be trained against its nature, so how could we possibly attempt to define the characteristics of an animal?
Thank you for rescuing me, Mr. Deputy Speaker. I could see myself getting into somewhat hot water over the nature of a ferret.
The Animals Act is well analysed in the 17th edition of "Winfield and Jolowicz on Tort". The authors particularly raise the scienter principle—you have said that I cannot go into that in detail, Mr. Deputy Speaker, so I will not—and examine the range of animals to which section 2(2) of the Animals Act applies. While I might not know the position in relation to ferrets, I certainly do in relation to dogs. The question is whether we are looking at all dogs, as a generic animal, or individual dogs of particular species and, ultimately, breeds. I am pleased that case law has looked at dogs with reference to their breeds. "Winfield and Jolowicz on Tort" says—this is relevant in relation to injuries—that Alsatians are powerful dogs and that if a member of that breed bites someone, it is likely that the injury will be severe. It says that it is unnecessary to say that a particular Alsatian is especially large or has unusually big teeth. What matters is not whether the injury is severe, but the propensity within the definitions in section 2.
There is also a question of likelihood, and what is meant by likely. An interesting example was given by Lord Scott in Mirvahedy itself. He said that one might break one's neck by falling down stairs after tripping over an escaped pet dormouse, but that no one would suggest that a dormouse was likely to cause death or injury. On the other hand, it is probable that the requirement would be satisfied if horses were to escape on to a busy motor road, as happened in the Mirvahedy case.
Mirvahedy is the particular problem here, and the learned authors of "Winfield and Jolowicz on Tort" have examined it. They summarise clearly the ratio in the Mirvahedy case.
"Horses are not normally in a state of mindless panic but they will be when they are frightened and, for the majority of the House of Lords, their being frightened was 'particular circumstances' for the purposes of the second limb" of the test.
"The rival, unsuccessful interpretation,"— for which the hon. Member for Preseli Pembrokeshire contends—
"that the 'second limb' is not an alternative basis of liability but merely explains the basic requirement of abnormality by recognising that in some circumstances even placid animals will react dangerously is less consistent with the statutory wording".
That is the point. Ultimately we come back to looking at the wording of the statute, and that is where the point that I made earlier arises. They go on to say:
"Suppose the horse had got over its panic at being lost and suddenly stopped still in the middle of the highway and was hit by the claimant's car. Is the accident now attributable to any characteristic of the horse for the purposes of section 2(2)?"
The answer to that has to be no. That summarises where we are in relation to that part of section 2.
We must then look at section 2 and its interrelationship with the definition of "dangerous wild animal", which is the point raised by my hon. Friend: what sort of animal comes within section 2(2) and what sort of animal comes within section 2(1)? Again, I turn to the authors of "Winfield and Jolowitz on Tort", who give great assistance here. They say:
"A dangerous species is defined as: 'a species (a) which is not commonly domesticated in the British Islands and (b) whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe.'"
They give the examples of the elephant, which we talked about earlier, in the Bertram Mills' circus, a lion and certain types of monkey. The problem is that we know an elephant when we see it, but the broad definition is somewhat difficult to follow. I think that everyone remembers the Chipperfield circus case when Dorothy Tutin was put in a camel race and fell off. One of the arguments there was whether the camel was a wild animal within the terms of section 2 of the Animals Act. The conclusion was that it was, even though it was a domesticated camel, perhaps in the same way that the elephant was, and that the circus was strictly liable under the first part of section 2 of that Act. Life would be made a lot easier if the test in the Dangerous Wild Animals Act 1976, which sets out sensibly and clearly what is or is not a dangerous wild animal, was included in section 2.
Is not the logic of what my hon. Friend says that the hon. Member for Preseli Pembrokeshire—for the most noble reasons and entirely in line with his duty to represent his constituents—in seeking to limit strict liability may be leading us in completely the opposite direction and there will be pressure from the insurance companies to increase the degree of control and restraint that will have to be exercised by the owners and keepers of animals if strict legal liability is restricted?
I am not sure that I follow my hon. Friend's point, or that anyone else does either, but I think that I understand what he is getting at. There is little doubt, as we saw from the Library briefing for today's debate, that the insurance industry is getting a lot tougher, certainly with those who keep animals for commercial purposes, particularly horse riding establishments, who are expected to conduct proper risk assessments and keep proper records, which is a good thing, and to comply with the licensing regulations rather more effectively than they had been doing. That was referred to in the article by the learned QC whose name escapes me who I referred to earlier.
Has the hon. Gentleman consulted any of the excellent riding schools in his own constituency, in Mill Hill in particular? I fear that they, like riding schools in my constituency, may have experience of the problems with the Animals Act as identified by the Bill.
I am contending for the status quo—nothing more and nothing less. Nobody would lose out on anything as a result of what I am arguing for. However, the victims of people who own animals that cause severe injury would lose out if the situation were different. I argue for maintaining the status quo. Ultimately, I would like to go a lot further, but we will not go down that road, which belongs to an earlier part of the debate. As far as I am concerned, the status quo is a reasonable balance. Riding schools have nothing to fear from my arguments.
There are not many riding schools in my constituency. However, if a fox hunt was roaring through a village and the horses were maddened and behaving uncharacteristically because of the excitement of the chase, would not the Bill limit the liability for a claim made by a victim of such an out-of-control hunt? Would it not be a charter for those who cause the damage rather than those who suffer?
That is an interesting point. To gallop is a natural characteristic of a horse. In the situation that my hon. Friend mentions, a claim might well be found in negligence, but certainly not according to the criteria of proposed new section 2B. There might well be liability through different routes if a hunt chased wildly through a residential road and injured somebody, as that would be a negligent thing to do. However, there would not be strict liability, because galloping is natural for horses. We are interested in unnatural characteristics at a particular time. My hon. Friend raises an interesting point, but I am not sure that it would make a difference to the outcome in the end.
I am no great expert on the horse, but it cannot be the natural characteristic of a horse to be ridden by a large florid huntsman and to pursue a sentient mammal. Its natural characteristic is to be a gramnivorous quadruped idly cropping the steppes of its native land. Surely the horse is not a hunter by birth.
If it were a wild horse, it would probably come under section 2(1) of the 1971 Act. However, a horse in a hunt is a domestic horse, whose natural characteristic is to gallop. At the risk of being taken down a peculiar byway, I should say that my hon. Friend would find the same outcome; anyone injured in such circumstances would probably be compensated under the law of negligence. Such a case would not be among the small number, referred to earlier, that would come within the criteria of the Mirvahedy decision.
I go back to what would be caught by section 2(1). Applying the Dangerous Wild Animals Act 1976 would be much better; it sets out an interesting schedule of animals considered to be dangerous, ranging from a giant anteater to the aardvark, via elephants, camels and tigers.
That may be true, but it is a dangerous wild animal according to the 1976 Act. I think that its drafters erred on the side of caution; the Act includes reptilian animals and spiders as well as the hippopotamus, the wild boar and the giraffe. I certainly do not think that giraffes are particularly dangerous—not that I have great experience of them. The point is that the 1976 Act would be a far better way of dealing with the issue addressed under section 2(1) of the 1971 Act.
However, we have to see how the 1971 Act has been applied and what difference it would make post-Mirvahedy. The leading case on the issue was presided over by Lord Denning. It concerned a guard dog. The defendant was the occupier of a breaker's yard in the east end. The yard was locked up and the defendant's untrained Alsatian was turned loose to deter intruders. One night, an associate of the defendant, who had access to a key, unlocked the side gate and, accompanied by the plaintiff, who knew about the dog, entered the yard and the dog attacked the plaintiff. Lord Denning uses some wonderful language in his judgment. He stressed that the yard was in the east end of London,
"where persons of the roughest type come and go. It was a scrap-yard, true, but scrap-yards, like building sites, often contain much valuable property. It was deserted at night and at weekends. If there was no protection, thieves would drive up in a lorry and remove the scrap with no one to see them or to stop them. The only reasonable way of protecting the place was to have a guard dog. True it was a fierce dog. But why not? A gentle dog would be no good. The thieves would soon make friends with him. It seems to me that it was very reasonable—or, at any rate, not unreasonable—for the defendant to keep this dog there."
He goes on to find no liability in relation to the plaintiff. He called it, "The case of the barmaid bitten by a big dog."
I believe that such cases would be caught by the Mirvahedy decision, if they had not been caught previously. Lord Denning went on to refer to the Guard Dogs Act 1975, which was new at the time. He made the point that the answer lay in that measure. However, he did so without reflecting on the fact that it does not create civil liability. I cannot remember who mentioned the Guard Dogs Act earlier—certainly someone from the far side. Although that measure is clear about what people should do—guard dogs should not be permitted without a warning sign, the dog has to be under a handler's control or otherwise secured—if that does not happen and the dog gets loose or someone is bitten, no liability arises under it. Liability arises under the Animals Act. That is why section 2 is so important.
There are many cases involving dogs. For example, there is the case of the border collie and the problem of dogs that have a particular propensity to bite people who carry bags. There is also the problem of dogs that are known to attack other dogs adopting people. The most recent case involving a scrap yard owner was of a loose Alsatian, which was not a guard dog. Liability was found because the dog was a stray that had been adopted without being properly examined.
The only case to succeed was Curtis v. Betts, which my hon. Friend the Member for Ealing, North mentioned. It concerned a bull mastiff, which bit a 10-year-old child neighbour. The dog was being put in a car, the child came along to pat the dog and the dog went for him. Section 2(2) of the Animals Act is clear and the case succeeded. The court applied section 2(2)(b), which requires the plaintiff to show that
"the likelihood of the damage or of its being severe was due to the characteristics of the animal which are not normally found...except at particular times or in particular circumstances".
The "particular circumstance" in that case was that the dog was guarding its territory, which was taken to be the back of the Land Rover into which it was being loaded. The child was badly injured and the 11 or 12 stone bull mastiff was responsible.
The Dangerous Dogs Act 1991 was mentioned earlier. We know that it is problematic. Again, it does not provide an answer to cases of dog bites. It is a criminal offence to keep a dangerous dog, which is defined in several different ways by reference to breed. We know about pit bulls and the Japanese tosa, but the Act also refers to any dog that appears to have been bred for fighting or that has the characteristics—my hon. Friend the Member for Ealing, North made a point earlier about defining characteristics—of a type bred for that purpose. The problem with the Dangerous Dogs Act is that it, too, fails to provide for civil liability. Therefore, the difficulty is that there is no additional civil liability in those circumstances, other than that provided for by section 2(2) of the 1971 Act.
There are also cases involving horses that predated Mirvahedy. The first—Haimes v. Watson, in October 1980—had almost exactly the same facts:
"The plaintiff was riding his horse along the near side of a country road...the horse moved across the road and the defendant collided with it broadside."
The question was whether the horse or the rider was responsible. The court came to the conclusion that
"there was no absolute duty on a rider of a horse who rode it properly along the highway to prevent it going out of control" and that
"the fact that the horse had moved...broadside...called for an explanation", but
"the explanation...given, ie, that it had shied and that" the rider
"had temporarily lost control of it, had been adequate to negative any possible inference of negligence that might otherwise have been drawn".
I raise that case, which might have succeeded under the Mirvahedy principle if it had gone to the House of Lords, which it did not—it went only to the Court of Appeal—because if the hon. Member for Preseli Pembrokeshire got his way, it would have been decided the other way. The plaintiff—in fact, the defendant, because there was a counter-claim—would then have recovered compensation. It is perhaps a pity that that case did not go to the House of Lords, because Mr. Haimes lost out as a result.
The other case that is almost on all fours with Mirvahedy is Jaundrill v. Gillett, in January 1996. In that case the horses were
"maliciously released on to the road where they panicked and galloped into an oncoming car".
Those are almost exactly the same facts as the Mirvahedy case. The notes continued:
"The horses had escaped from a field where they had been kept by the defendant. It was common ground that some malicious intruder had opened a gate and driven the horses on to the highway."
We do not know how the horses got out in Mirvahedy, but the inference was always that an intruder had spooked them. The conclusion drawn was that there was no liability on the owners of the horse. Again, Jaundrill v. Gillett was a Court of Appeal judgment predating Mirvahedy. In those circumstances—this is exactly the sort of case that I am arguing about—the victim of the accident was uncompensated. If that case had been decided under the 1971 Act post-Mirvahedy, however, he would have been compensated.
We come to the Mirvahedy judgment, which is the root cause of all our ills today. The headnote for the case summarises the position pretty clearly—this is why I think the law does not require clarification—saying that the keeper of a non-dangerous animal is
"strictly liable for damage" or injury
"caused by the animal when the animal's behaviour", although not normal behaviour for animals of that species, is nevertheless normal behaviour for the species in the circumstances, such as a horse bolting when sufficiently alarmed. Since the actions of the claimant had been caused by the defendants' horses behaving in an unusual way, caused by their panic, they were liable to him.
The leading judgment of Lord Nicholls ended by saying:
"The fact that an animal's behaviour, although not normal behaviour for animals of that species, was nevertheless normal behaviour for the species in the particular circumstances does not take the case outside section 2(2)(b)...Horses are large and heavy animals. But it was not this innate physical characteristic of the defendants' horses which caused the road accident. The horses escaped because they were terrified. They were still not behaving ordinarily when they careered over the main road, crashing into vehicles rather than the other way about."
Lord Nicholls also referred to the Court of Appeal judgment, saying that Lady Justice Hale had
"concluded that it was precisely because they were behaving in this unusual way caused by their panic that the road accident took place...That conclusion, on the evidence, seems to me irrefutable and to be fatal to the case of" the defendants. That is why he dismissed their appeal.
That law is pretty clear and I do not really understand why the hon. Member for Preseli Pembrokeshire or my hon. Friend the Minister have suggested that it is not. The issue has been tried in a series of cases since, some of which my hon. Friend the Member for Ealing, North referred to in an intervention by citing the Library briefing, and the vast bulk were lost. Galton v. Moorcroft, for instance, involved a horse on display at Windsor castle, but failed under the defence under section 5(2) of the 1971 Act—the volenti defence, which was referred to earlier.
In the case of Clark v. Bowlt, the claimant's vehicle was slowly passing a horse going in the same direction. The horse jumped about a bit and moved into the road just as the car passed. Nobody could avoid a collision and there were no exceptional characteristics. The accident was a mishap, and Mr. Clark went uncompensated.
We heard earlier about the McKenny v. Foster case—the escaped cow case. I think that the hon. Member for Preseli Pembrokeshire said that it went to the Court of Appeal last week. That case, too, failed, so we can rely on the courts to adopt some common sense. In the 2006 Clark v. Bowlt case, to which my hon. Friend the Member for Ealing, North, referred in an intervention, the claimant was driving along and minding his own business. He slowed his vehicle to pass a horse being ridden by the defendant on a narrow verge, in the same direction. As he passed the horse, it made an uncontrolled movement into the road and hit the front of the car, and both parties sustained injuries. There was no negligence involved, and it was found that the horse had no unusual characteristic, as was the case in Mirvahedy. It was found that
"a propensity occasionally to move otherwise than as directed could not be described as a characteristic of an animal".
The characteristic was the horse's weight, which was normal, so the requirements of section 2(2)(b) had not been satisfied. That is another post-Mirvahedy case in which the courts came to a sensible conclusion. Personally, I would like the law to be different and include absolute liability in such circumstances, but unfortunately that is not what we are discussing today. I am simply arguing for the status quo, which would at least mean that some cases that have failed would have succeeded.
The Plum v. Berry and Berry (T/A Chorley Equestrian Centre) case also involved an experienced rider. Her horse went into a gallop and threw her, and the case failed because of a defence under section 5(2) that she had voluntarily accepted the risk by riding the horse. The final case that I wish to mention relates to a dog.
Before my hon. Friend moves from horses to dogs, is there not implicit in his comments a duty of responsibility for the training of the rider? Does that feature in law? He used the expression "an experienced rider". What if the rider were inexperienced and had never ridden a horse on a public road before? Would such a case be applicable?
My hon. Friend gives an interesting set of circumstances. I think that he will find that if an inexperienced rider were put on a horse that was inappropriate for them, there might well be liability for negligence. I am aware of some cases along those lines. It is horses for courses, if I may use that pun.
I am not entirely sure that such a case would turn on section 2(2), because it would involve a normal characteristic of the horse. If the inexperienced rider caused the horse to behave in a way that was not a normal characteristic—I have details somewhere in my pile of documents of a case in which someone was thrown in such circumstances—there would not be a claim under the Animals Act. It would be an example of a normal domesticated horse behaving in a normal way that could have been anticipated, although there might be a negligence claim because the wrong person was put on the wrong horse.
As I said, the other relevant example is a dog case: Gloster v. Chief Constable of Greater Manchester. A police officer, who was the claimant, was bitten by a police dog. He was in a police car chasing a stolen vehicle. The driver of the stolen vehicle ran off and the policeman gave chase. The dog handler on the scene had his German shepherd and would have given chase and effected an arrest, but the claimant had not heard the command to remain in his vehicle. Once police dogs are set loose, they will go after the first person they see. Unfortunately, in this case it happened to be the police officer, because the dog handler fell over and the dog slipped its leash and bit the policeman, not the car thief. The conclusion was that there had been no negligence and that it was an accident. Because the dog had been trained to act as it did, it was not its characteristic or natural inclination. The likelihood of the damage being severe was not due to any characteristic but because the dog had, as the defendant put it, "big, sharp teeth." It is characteristic of German shepherd dogs that they are capable of being trained to perform certain acts, but the act of attacking or biting was viewed not as a characteristic in itself, but merely as a manifestation of the dog's characteristic in being able to respond to instruction. In that particular case—another section 2(2) case—the claim failed because of the fact that the behaviour was a normal characteristic of the animal.
The hon. Member for Preseli Pembrokeshire says that many problems have been created, but we see from the cases I have described that, in practice, they have not. All the cases failed because the animals behaved in a normal way, whereas in the Mirvahedy case, the animal behaved in an abnormal way. If the animals behave normally, no problem is caused by Mirvahedy or section 2(2). There may be a claim in respect of negligence, but in the cases I have cited, no negligence was found.
Let me deal now with certain issues related to the explanatory notes, the first of which is the question of strict liability. It is important to reflect on the fact that strict liability is not a novel concept in the law—I am not going to go through it in detail, as we explored it in earlier interventions—as the Occupiers' Liability Act 1957, the Consumer Protection Act 1987 and all the Factory Acts through history are quite happy to impose strict liability.
At the risk of straying across the channel, the French civil code imposes strict liability on animal owners, who are responsible, pure and simple, for the damage caused by their animals. I am not going to read out the French, as that might be out of order, Mr. Deputy Speaker, but I have here the text of the code if anyone wishes to check that my translation is correct. The fact remains that when it comes to strict liability, there is nothing novel in Europe either.
I would like to deal now with the impact assessments of the Bill. I say that I would like to, but the problem is that the impact assessment is somewhat difficult to find. The explanatory notes state:
"An Impact Assessment has been published alongside the Bill", and we are told that it can be found at www.defra.gov.uk. Unfortunately, that is a rather optimistic assertion. I have had the Library try to find it, but I received a letter this morning telling me:
"Although para. 15 of the attached Explanatory Notes to this Bill refers to and paraphrases the Impact Assessment, I and my colleagues have not yet been able to trace a copy of the document. I have contacted the office of the DEFRA Parliamentary Clerk who was not able to immediately trace a copy. "
A number of other office numbers to contact were then mentioned.
The problem is that if we are expected to debate a Bill, we should be able to scrutinise the impact assessment relating to it. I suggest, Mr. Deputy Speaker, that it will be very difficult to do so if the impact assessment cannot be found. That problem needs to be addressed because when I had a go at finding the Minister's website, I could not find it. The particular website referred to in the explanatory notes has hundreds of impact assessments, so it may be lost in a herd and cannot be found. The Library has been working for me, but it cannot find it, and even the parliamentary Clerk cannot find it. That does make it rather difficult to scrutinise this particular Bill. The impact assessment is, however, summarised in the explanatory notes. I am sure that it is summarised accurately; I have no reason to think otherwise, though I would have liked to have had the opportunity—
Order. I think that it is right to note that quite serious deficiency, but we can only congratulate the hon. Member on the supreme way in which he has managed to overcome the handicap.
Thank you, Mr. Deputy Speaker. I have not overcome the handicap, but I will try to work from the explanatory notes, which summarise the impact assessment—accurately, I hope. The summary goes on to say that
"there will be no significant impact on charities and the voluntary sector"— that is probably clear—and then that the Bill
"may result in fewer court cases", but I suspect that that is not the case. I think that it will result in more court cases. If we have to fall back on the law of negligence as opposed to the law of strict liability, it will inevitably become a matter of contention in the law of negligence whether a particular act or omission is a breach of duty—or indeed where precisely a breach of duty lies—and that will increasingly become an issue for the lawyers. Given that the law of strict liability is clearer, it is likely to lead to quicker and easier settlements of cases.
We are then told in the impact assessment that there might be reduced insurance premiums:
"Insurance companies will be able to balance any loss in terms of lower premiums with the reduced cost of payments needed to settle cases brought under the clarified Act."
The hon. Member for Preseli Pembrokeshire has already conceded that we are talking about a handful of cases and we have already explored the question of reduced insurance premiums. I think that they will not be reduced, for the reasons we debated earlier. I shall not repeat that debate because, of course, that would be out of order, but I would very much have liked to see the impact assessment, as it would have enabled me to see the basis of the argument that insurance premiums would be reduced. It is counter-intuitive that that would be the case; I think it is wrong. Unfortunately, I am not able to test the argument as we do not have the impact assessment before us.
I am following my hon. Friend's analysis. Is he not leading us in the direction that many of us in the House are already taking? We have great sympathy with the Bill, but a radical amendment of the 1971 Act might simply not be possible within the confines of a private Member's Bill. Should Government time be given to examine the issue, perhaps outside the limited ambit of a private Member's Bill?
My hon. Friend is right, and I briefly hinted at that point earlier. There really is a problem here. The hon. Member for Preseli Pembrokeshire has cherry-picked a small part of the 1971 Act, and we should bear it in mind that the gestation of the issue goes back to the Goddard inquiry of the 1950s, the Law Commission report of the 1960s and the Act itself. People have a different attitude to, on the one hand, what they should and should not be compensated for, and, on the other, the care of animals. The Bill raises a series of other issues, not just the question of liability for accidents caused by animals; it deals with all sorts of other stuff.
It would be far more sensible for the Government to go away and think about root-and-branch reform, and perhaps even consolidation of all the different measures relating to animals. As we have seen today, during the brief discourse that I have been able to undertake, several pieces of legislation interact and potentially conflict—for example, in relation to the definition of a "wild animal" in the legislation that deals with the licensing of the keeping of wild animals, and the definition of "wild animal" in the 1971 Act. Surely it would make a lot more sense to have a consolidated definition across the board, either the generic definition in the 1971 Act or the list set out in the legislation dealing with the licensing regime.
Is it my hon. Friend's understanding that the Government wish to revisit this area? In autumn 2006—less than two years ago—the Department conducted what was admittedly an informal consultation on the meaning of the 1971 Act. Do the Government recognise that there are difficulties here and are they acting, if perhaps not quite as quickly as the hon. Member for Preseli Pembrokeshire would wish?
My hon. Friend raises an interesting question, and I am not quite sure that I know the answer to it. I think that the Government were considering the issues relating to section 2 of the 1971 Act, but I am not sure that they were looking at the wider implications.
It would be sensible to consider a consolidating measure to bring together all the different definitions and arguments in one place and under one set of principles. I hope that that would also provide an opportunity to clarify the law in relation to insurance. As I have said, we must consider the issue of compulsory insurance in relation to both wild animals and riding establishments. However, there is no compulsory insurance for other animals.
I am not saying that it would be a good idea for everybody who owns a cat to have compulsory insurance, although I suppose it depends on how big the cat is.
As my hon. Friend says, a lion is a cat. If he looks at the Dangerous Wild Animals Act 1976, he will see that "lion" appears in one category, but that the domestic cat is excepted from the rules. He has raised an interesting point and there is an argument for bringing some of those definitions together.
The impact assessment goes on to say that
"there may be an impact on some individuals injured in accidents involving animals where strict liability does not apply following the Bill...Some of these cases may be addressed by negligence and some of them will not. The impact will be felt more acutely in cases where negligence cannot be established. Such cases are thought to be relatively rare and their outcome...uncertain under the current legislation."
If those cases are rare, why must we start messing around with the law in this way to exclude such people? Such people may have been killed, and their families bereaved and left without a breadwinner. In the Mirvahedy case, someone suffered severe injuries. In some of the dog cases, children have had their faces bitten off. We are talking about children going to the countryside, minding their own business on a Sunday afternoon out, and getting trampled by a horse. Those are real people, and to say that there "may be an impact" on them is a wild understatement. A serious personal injury is a life-changing event—indeed, a fatal accident completely changes a person's life, because it comes to an end. To say, in that bland way, that there "may be an impact", is a gross understatement and, in my view, shows gross disrespect to the victims.
However, one aspect of the impact assessment appears to be entirely missing. There are only two paragraphs—one dealing with insurance, and the other with the point about people losing compensation—and the impact on the public purse is not dealt with. If people who are severely injured go uncompensated, they will inevitably fall back on the resources of the state. If they are severely hurt and require hospitalisation, they will fall back on the NHS. When they come out of hospital, they may need long-term care. If their case succeeds, the long-term care will be paid for by the insurance industry; if it fails, it will be paid for by the taxpayer through social services. The person might require adaptations to their home that they will not be able to afford through social services, but that they would be able to afford through an insurance claim. Their quality of life will be much reduced because they will be dependent on the state and what the state is prepared and able to provide, compared with what they would be entitled to—to put them in the same position, as far as compensation can do that—if they were able to succeed in their law cases.
A whole section is missing from the impact assessment, on a matter of fundamental importance. I wanted to scrutinise that document so that I could satisfy myself as to whether the issue had been considered and discounted, or simply had not been thought of in the first place. If it had not been thought of in the first place, DEFRA is in its compartmentalised chimney, and is not looking at the wider implications for social services, local government and the Department for Work and Pensions budget when benefits must be paid to support the victim. That would be a serious error and omission in the regulatory impact assessment.
Arguments were advanced earlier that this was all about the compensation culture. I want to answer those points briefly, because the issue has been raised before in Friday morning debates on various aspects of compensation. Everyone talks about the compensation culture, but although that might be the perception, the reality is different. The most recent figures were published in the Health and Safety Bulletin in January-February this year—hot off the press. Research by the university of Warwick—an excellent university if I may say so, as it is my alma mater—found that
"the number of personal injury cases heard by the High Court and county courts declined by 42 per cent. between 1999 and 2003" and that
"the number of personal injury actions in the Queen's Bench Division...fell from 1,187 cases in 1999 to 570 in 2003—a fall of 52 per cent. The same period saw a 38 per cent. decline in county court claims, from 3,580 to 2,210. The findings follow earlier research that identified a 5.3 per cent. fall in accident claims between 2000 and 2005".
Those figures, the research goes on to say,
"are further evidence that the UK's alleged 'compensation culture' is a myth."
I am sure that the whole House is grateful for that information, which will come as a considerable surprise to the leader writers of the Daily Mail.
Does my hon. Friend think that the reason why the specialist legal practitioners who responded to the DEFRA consultation that took place 18 months ago concluded that Mirvahedy v. Henley created a satisfactory situation is relevant to the point that he has just made?
I do not think that it is, given that Mirvahedy may be responsible for only a handful of cases. In fact, as far as we are aware there have not been any other cases. Mirvahedy is the one and only case that has been reported. I think that if there had been more cases based on the same principle and involving horses, we would know of them from the newspaper columns or, indeed, the researches of the hon. Member for Preseli Pembrokeshire. I believe that such occurrences are very rare indeed. It may well be that Mirvahedy is a one-off—an unusual case that has led to extensive discussion and debate.
That may be so, but might not a number of cases have been settled as a result of Mirvahedy that would have gone to court if that case had not been heard and if that ruling had not been made?
The hon. Gentleman makes a fair point, and he may well be right. Obviously it is far better for cases to be settled than fought, but serious cases will tend at least to be litigated, even if no judgment follows. The figures that I gave earlier showing a decline in the number of High Court cases across the board are symptomatic. If what he suggests were correct, the insurance industry would have produced very detailed briefings for today's debate, which would presumably have contained a lengthy list of all the cases that had been settled that it considered to be unfair on the basis of the Mirvahedy principle. The dog that did not bark—an apt way of putting it, in the context of the Animals Act—is the insurance industry, which has produced no evidence of actual post-Mirvahedy cases that it considers to be unfair, as opposed to general speculation that there might be a few of them of which we have not heard. The insurance industry is very good at carrying out research, and when debates such as this have taken place in the past it has always brought chapter and verse to the table. It has not done so today, and I think it extremely unlikely that we will see any evidence of those cases.
Paragraph 17 of the explanatory notes, headed "European convention on human rights", states:
"The Bill amends existing legislation to clarify the circumstances in which strict liability can apply to the owners of animals that cause harm or damage. Nothing in the Bill directly affects the rights or obligations of any person in such a way as to engage their Convention rights."
The Joint Committee on Human Rights would have an awful lot to say about that bald assertion. In our annual report this year, we produced a coruscating paragraph in which we pointed out that far too many Departments make such bald assertions of compliance without analysing the facts. An assertion does not constitute justification for a statement of compliance with the Human Rights Act 1998, and I cannot take this assertion as a proper certificate for those purposes.
We need only refer to the Human Rights Act to see that human rights principles may well be engaged. For a start, there is the right to life—the most important of human rights—which is enshrined in article 2 of the convention. It is fundamental in this context. The state has a positive duty to protect the right to life, and the weakening of civil liability will work against that positive duty. There is also the right to protection of private property, which may also be engaged. The Bill deals with not just personal injury but property damage, and that principle too could be engaged. The same applies to the right to protection of private and family life, which is laid down in article 8. So I am certainly not convinced that the Bill is compliant with the Human Rights Act and the convention.
The Bill's promoter says that the intention is to return to the common law of negligence. I do not think that the Bill does that. It offers one sensible amendment in relation to damage by substituting for section 2(2)(b) of the 1971 Act provision that
"the damage was due to an unusual or conditional characteristic of the animal".
That is a helpful clarification. However, its changes to paragraph (c) are unhelpful, and the remainder of the Bill does not achieve the objectives sought.
The explanatory notes state:
"The intention is to allow the courts to distinguish between a continuing, generalised risk that the keeper knows may occur at some time (e.g. a horse may shy at a plastic bag if one blows in the wind near it) but does not know when it may occur, and a heightened, specific risk over a specific period of time that the keeper knows will increase the possibility of the animal displaying dangerous behaviour during that period (e.g. a cow with calves, or a horse in a field next to a shoot)."
That is not a return to the original common law, as we have learned from references to previous cases. Let us look at the definition of unusual characteristics in the commentary in the explanatory notes:
"Unusual characteristics are defined as those that are not shared by the species generally, while conditional characteristics are defined as those that are shared generally by the species, but only in particular circumstances".
The hon. Gentleman has rightly drawn attention to the two different limbs of his new definition: the unusual characteristics and the conditional characteristics. However, I do not think that that would add a great deal in the scheme of things. We are dealing with a small number of cases, and I think we should leave well alone.
There are other complications. I am unsure whether the hon. Gentleman intends to include the same definition of knowledge as that in section 2. I am sure he will want to reply to the debate, and perhaps when he does so he will clarify the position in relation to constructive knowledge and say whether the same test would continue to apply.
There is also an issue in relation to the limitation period. The normal limitation period for personal injury claims is three years, but a 2002 case—Clarke v. Barber—changed the principles in relation to limitation, and that is important in terms of liability under the Animals Act. In that case, the top of the claimant's index finger was bitten off by a dog, but the claim was brought three years and nine months after the incident. The limitation period was thought to be three years, under section 11 of the Limitation Act 1980, so, unfortunately, the case fell outside its provisions. However, the court came to the conclusion that a special six-year limitation period would apply because of the particular requirements of strict liability under the 1971 Act. The court concluded:
"The cause of action under the 1971 Act was one of strict liability".
That is the section 2(2) point. It went on to say that
"therefore once a claimant had established the three requirements under s.2(2) of the 1971 Act relating to non dangerous species"
—in this case a dog, but it could have been a horse—
"then liability followed. The 1971 Act did not impose a duty of restraint or duty to take reasonable care and therefore could not be interpreted as a claim for breach of duty. Therefore a six year limitation period applied."
If the hon. Gentleman is going to start messing around with section 2(2), perhaps he will tell us what the implications would be for the limitation period under that section. What will be the implications for the six-year limitation period relating to strict liability if he gets his way and removes that strict liability under section 2(2)(b)?
Before my hon. Friend moves off that point, may I say that I do not think that anyone would accuse the hon. Member for Preseli Pembrokeshire of trying to mess around in the Bill? He is acting from the noblest of motives. We talk about inherent characteristics, but our problem is that, as in the case of the Burmese elephant and the then entitled "midget", this is about the strength of the animal and its ability rather than its characteristics. A famous sign in the Paris zoo translates into English as, "This animal is very bad. When it is attacked, it defends itself." Surely every single animal has within it the ability or characteristic in certain circumstances to act in a way that would define it as dangerous.
My hon. Friend is right; that is why the law makes the distinctions between wild animals and domesticated animals and between normal characteristics, abnormal characteristics and characteristics that appear in certain circumstances or at a certain time, such as when a dog is with its pups. However, that does not deal with my point, which is about the Limitation Act 1980.
If the consequence of the Bill would be to halve the limitation period, that would be significant. I do not know whether the hon. Member for Preseli Pembrokeshire has considered the consequences of the limitation period. Has he thought through whether, because he is removing strict liability, the limitation period would be reduced to three years from six years? That is a significant omission from the introduction to the Bill, because it would significantly affect people's rights. The matter is fundamentally important.
The Bill contains no commencement clause. I am not sure whether that is an omission or whether it was done deliberately. I am not sure whether the hon. Gentleman wants to fall back on the simple, normal commencement arrangements or whether he feels that it would be more appropriate for commencement to be set out in the Bill, so that people are aware of when it will come into force and of how to organise their arrangements around that. Let us consider the case of insurance. If people know when the legislation will change, thus in the unlikely event that insurance policies and premiums changed, that would enable people to know from when they should start negotiating their lower premiums. As I have said, I am sceptical of his argument on insurance, but if we knew that the Bill's provisions were going to come into force in six months' time, people would know when the cut-off period would be when they came to renew their insurance policy. That would greatly benefit people in trying to negotiate insurance arrangements.
I have examined the Bill in some detail. There are significant problems with it. There is a significant gap in the way in which the hon. Member for Preseli Pembrokeshire approaches the matter and our opinions differ significantly. I want to preserve the status quo. He wants to reduce the rights of victims of accidents, but I do not. I think that people who have been injured are entitled to compensation, and I hope that he will reflect on my comments.
It has been enlightening for me to hear today's comments—I am not merely referring to the journey that has taken us back to Exodus and the sound principle that if an ox misbehaves, it should be stoned to death, as should its owner.
I should like to place on record my respect for Mr. Crabb. He is doing the right thing, but possibly in the wrong way. He has identified a cause that is of wide concern, not only in this House, but outside the Chamber and throughout the country. That concern is reflected in the, admittedly, informal consultation that took place under the auspices of the Minister who was responsible for the horse industry at the time, my hon. Friend Barry Gardiner.
I was impressed to note that in the henotic spirit that so often informs the hon. Member for Preseli Pembrokeshire, his supporters included not only a group of MPs predominantly representing rural areas, but my hon. Friend the Member for Brent, North. When I looked at the list of the Bill's supporters, my initial concern was whether this was yet another rural and urban divide and whether this issue was of great concern to the rural community but of less concern to the urban community. As an urban MP, I was pleased to note that my hon. Friends the Members for Vauxhall (Kate Hoey) and for Brent, North were among the sponsors of the Bill.
Were anyone to think that this was entirely a rural issue and urban Members should not speak to it, they need simply accompany me on my diurnal journey to this place. It is my pleasure to pass along the Bayswater road, and as I draw adjacent to Rotten row, the road is often crossed by many people riding horses, as apparently some stables are tucked away there, not a million miles from the new residence of the former Prime Minister, Mr. Tony Blair. As the horses cross the road, I frequently concern myself with a possible interaction between them and my motorbike or car, whichever I happen to be using on the day.
I have given some thought to the issues that the Bill raises, and my difficulty is that the hon. Member for Preseli Pembrokeshire proposes to limit the liability expressed in the Animals Act 1971. If he proposes to limit liability, he must do so with a purpose. By limiting liability in one area, he will increase liability in another. If the liability that is legally incumbent on the owner or the keeper of the animal is limited, it is diluted from the perspective of a victim of that animal. We then enter this extraordinarily difficult area.
Any person with any element of common sense would want a system in which if a person is not a good and careful animal keeper, they—and not the innocent animal—should be liable for the actions of that creature. Over and over again, we see examples of animals that exist in a state of natural nobility being turned, twisted, perverted or shaped in a way to suit a human design. It is people who act thus whom we seek to punish. We do not seek to penalise the animal, as the case law so exhaustively delineated by my hon. Friend Mr. Dismore shows. It is not the characteristics of the animal that are of concern, but the strict legal point about whether it is reasonable for that animal to react in a certain way, whether because of provocation from persons of restricted growth in circuses, because a paper bag blew across a field, or because it is giving birth or protecting its young.
My instinct is to support the hon. Member for Preseli Pembrokeshire, because his Bill is a response to a widespread concern, but I also feel that he is not approaching it in entirely the right way. It is the issue of the ownership or keeping of the animal that cannot be addressed within the scope of his admirably brief Bill. If the Animals Act 1971 were to be amended in this way, the people to gain from it would be the personal injury lawyers. I understand that my hon. Friend the Member for Hendon is a distinguished member of that profession, and I would never dare to criticise it. I am sure that personal injury lawyers have their purpose, and one day I will discern what that purpose actually is. They are the people who would have to tidy up the mess.
I think that I can help the hon. Gentleman on the question of the purpose. The purpose today was to prevent Ministers from being held accountable on Heathrow and the environmental impact of airports.
I am, as always, grateful for the hon. Lady's intervention, but I have searched the Bill, the explanatory notes and the Library notes, and I cannot see anything about Heathrow airport—
An aspersion has been cast from the other side of the House, but my hon. Friend will know from our discussions that I have grave reservations of principle about this Bill, and it was entirely appropriate that I should put those reservations before the House today. I would not wish to retract anything that I said. I fundamentally oppose the Bill and I wished to ensure that the House had the benefit of my arguments against it. It had nothing to do with anything that might come afterwards: when I first saw the Bill, I did not even know what would follow it.
I thank my hon. Friend. I understand where the hon. Lady is coming from, but every single one of us must accept that we cannot pick and choose; it is an absolute incumbent duty on us as MPs to scrutinise the legislation that comes before us. If that is not our prime purpose today, what is? Surely legislation is the business of this House, and it is the business of Members of this House to scrutinise that legislation.
Before I give way, I hope that it is not necessary to remind the House that the case of McKenny v. Foster would be affected if the Bill were to come into law. That case concerned a person who died. It is that important.
Order. I do not want a debate on procedure to erupt at this point. We are still dealing with the Bill. If I have anticipated what the hon. Lady might have wished to say, it is perhaps better that it is not said and that we proceed with the Bill.
It would be a foolish man or woman, Mr. Deputy Speaker, who ever attempted to qualify or interpret your comments. Your word is law: you speak ex cathedra—we know that. However, I felt that it was appropriate to respond to the hon. Lady, even though I would not have made the point myself.
The principle I apply when scrutinising the Bill is to ask who gains and who loses. I can see that there is a gain to the owners and keepers of animals. Limiting strict liability in those cases makes life slightly easier. That is not the main purpose of the Bill, however. As the hon. Member for Preseli Pembrokeshire has graphically expressed, the purpose of the Bill is to tidy up an area that is unclear. Of the just under 30 respondents to the autumn 2006 consultation from DEFRA, only the Ramblers Association initially objected to some revisiting of the legislation. In fact, after consultation, the Ramblers Association changed its view and said that it would support the principles of the Bill. The only people who remained utterly wedded to the original Bill were—I hesitate to say it—personal injury lawyers. However, my concern is that when we have a series of legal cases, a series of judgments, a series of many cases—
It appearing on the report of the Division that 40 Members were not present, Mr. Deputy Speaker declared that the Question was not decided, and the business under consideration stood over until the next sitting of the House.