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Mr. Heath: May I make it absolutely clear that I entirely understand that balance of interests? I think that I alluded to it in my comments. Before I was a Member of Parliament, I used to keep pigs. I never required a private hire carrier or black cab driver to try to take one of my pigs in the back of his cab.
Mr. Dismore: I am grateful to the hon. Gentleman.
Claire Ward (Watford): My hon. Friend refers to his own experiences of attempting to take his dog in a cab but being refused because the dog had muddy paws. Does he think that those who drafted the new clause considered that muddy paws equated to damaging a vehicle?
Mr. Dismore: Muddy paws themselves cannot damage a vehicle. In fact, my dog had rather more than muddy paws on that occasion. However, if the muddy paws got on to the upholstery, the vehicle could be damaged. I have still got the car with the muddy paw marks in the back to prove it. Sometimes such marks do not come out.
Mr. Gardiner: What happened to the dog?
Mr. Dismore: I am afraid that the dog died of old age in 1996, and I have not replaced her because, frankly, my lifestyle since being elected to the House would not allow me to look after a dog properly. As a responsible dog owner, I thought it inappropriate to get another one.
Lawrie Quinn: I am sure that all hon. Members would appreciate not only my hon. Friend's skills as a dog owner, but the fact that he has a legal background. Indeed, the hon. Member for Chipping Barnet (Sir Sydney Chapman) said in his opening remarks that the current civil law of tort made provision for recovery of a debt if
a vehicle is soiled. Will my hon. Friend confirm from his experience as a lawyer that that is the case now and that it would be the case if the Bill were to become a statute?
Mr. Dismore: I am grateful to my hon. Friend for that intervention. I shall come to that issue shortly, and there are some points to be made about the present legal position in the absence of the new clause.
The hon. Member for Northavon (Mr. Webb) suggested in an intervention that, if the dog owner were sight impaired or blind, he might not be able to see the condition of the dog. That is an important point, but it goes against the argument, which he was trying to advance, that the owner may not be aware of the condition of the dog at the time. The briefing from the RNIB says that that will be a very unusual occurrence and that it would arise only if the dog were ill, for example, because assistance dogs are properly trained and well behaved. I certainly take that point on board, but even if such occurrences are comparatively rare, it is important to ensure that the rights of the car owner or driver are protected, because the damage could be expensive to repair.
Mr. Chris Pond (Gravesham): Does my hon. Friend understand that the difficulty that may arise is that, if a driver says, "I'm sorry. I am not going to take you and your dog because your dog is in a poor state and might damage my vehicle," the owner of the dog may be unable to assess whether that is the truth? That is a very serious loophole in the Bill.
Mr. Dismore: If the new clause said that, I would agree with my hon. Friend, but I am afraid it does not. It relates to carrying the dog in the car, not to refusing to take the dog in the car. It would apply ex post facto, rather than on refusing to admit the dog. That is dealt with in amendment No. 2, which I shall come to later. So there are some important considerations to bear in mind.
There is a problem with the wording of the new clause. It refers to "the full cost", and there could be arguments about the full cost of restoring the vehicle to its previous condition. I would have preferred the new clause to refer to "reasonable cost", as perhaps that would be a fairer way to deal with the point made by the hon. Member for Northavon. The phrase "reasonable cost" would have been better, but perhaps we could consider that on another occasion.
Mr. Boswell: Is the hon. Gentleman aware—the House should be made aware—that the Guide Dogs for the Blind Association has advised that dogs trained by it are covered by public liability insurance and that the cost of repairing any damage so caused would not fall on the blind person? So it seems that the point that he makes has been taken into account.
Mr. Dismore: I am grateful to the hon. Gentleman for that intervention. When we debate amendment No. 2, I shall make a point about the definition of the term "assistance dog". That definition raises some issues that the hon. Gentleman might not have anticipated in making that intervention. I am grateful to the hon. Gentleman for drawing my attention to that fact, but of course public liability insurance applies only if there is liability in the first place. That point has been made by my right hon. Friend the Member for Gateshead, East and Washington,
West (Joyce Quin), and the hon. Member for Chipping Barnet has referred us to the RNIB briefing, which simply says that such damage would be covered by the common law of tort. I should like to know a little more about that.Before being elected to the House, I practised as a solicitor for 20 years in the law of tort, and I can envisage something of a minefield. For example, if a case were brought on negligence, the question would be whether the dog owner was negligent. The dog owner may well be able to say, "I was not negligent", for a variety of reasons. Could such an action be brought in contract? Doing so could be difficult because the contract may not be with the car driver and car owner, but with the minicab company, subcontracting the call to the car driver. So it may be difficult to bring the action in contract.
There is an argument about whether the dog owner would be liable under the Animals Act 1971. Hon. Members have said that the behaviour of guide dogs is always excellent, so it could be strongly argued that that Act may not apply because it normally clicks in when strict liability is involved and the species of animal has a propensity to behave badly. If the normal propensity of the breed or species of guide dog is to behave properly, it may not be strictly liable under the Act. It may come under other provisions, but then there are arguments about whether liability is involved.
10.30 am
Lawrie Quinn: Is my hon. Friend aware that taxis in some seaside towns, not least the towns of Scarborough and Whitby, display the terms of carriage, which often state the fine for soiling. Under the new clause, the terms of the contract would have to be made available in braille, and before a booking was made those terms would have to be explained. Does that not provide over-regulation, which I am sure my hon. Friend the Member for Walthamstow (Mr. Gerrard) does not intend?
Mr. Dismore: I am grateful to my hon. Friend. He makes an important point, which relates to the distinction I was making between black cabs and minicabs. If a driver picks up a passenger off the street, the contract of hire is immediately between the passenger and the driver, who, as part of the contract, can specify the terms, which could include the need for liquidated damages should this problem arise. The difficulty in this case is that, first, the driver has no say in whether to accept the contract—we are making that clear in the Bill—and, secondly, the contract may not be between the driver and the passenger, and, thus, there is no privity of contract that can be enforced between the driver and the passenger, because the contract may be between the passenger and the minicab company, which subcontracts the hire to the driver. That is the problem that one can reach in contract.
Whether I am right or wrong, these points are arguable at law. I would hate the small claims court to have to adjudicate between a sight-impaired person and a minicab driver. It would be far better to have a very clear statutory term under which, if damage is done, the reasonable cost could be met, whether through the public liability insurance policy to which the hon. Member for Daventry (Mr. Boswell) referred, or by the owner of the dog.
Mr. Gardiner: My hon. Friend's argument, as I understand it, hinges on two things. One is
compulsion—the minicab driver is compelled to take the dog or the animal—and the other is potential ignorance on the part of the passenger as to the condition of the dog. What I fail to understand—perhaps my hon. Friend will enlighten me—is why he does not envisage a minicab driver being able to say to the owner of the animal about to board his cab under compulsion, "Your dog looks a bit ropey to me, are you sure he is all right to travel?" The passenger, or potential passenger, is therefore made completely aware of the condition of the dog, and everything else will follow. I am not a lawyer, however, so I accept that I probably do not understand these things.
Mr. Dismore: I am grateful to my hon. Friend for that point. That assumes, however, that the driver can see that the dog is ill. The dog may have an illness that is not immediately apparent to the driver. My point is that a whole series of arguments could end up having to be litigated on in the county court. In practice, however, we could deal with the problem very simply with a new clause along these lines. I fully accept that the new clause is not perfect in its current form, and that can perhaps be corrected in another place. Important issues need to be addressed, however, to make sure that we deal fairly with the obligation that we are imposing on the driver.
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