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These notes refer to the Animals Act 1971(Amendment) Bill as introduced in the House of Commons on 5th December 2007 [Bill 18] ANIMALS ACT 1971 (AMENDMENT) BILL EXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Animals Act 1971 (Amendment) Bill as introduced in the House of Commons on 5th December 2007. They have been provided by the Department for Environment, Food and Rural Affairs, with the consent of Stephen Crabb MP, the Member in charge of the Bill, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. SUMMARY AND BACKGROUND 3. Strict liability is the imposition of liability without fault. Liability in negligence is fault-based liability. Section 2 of the Animals Act 1971 provides for strict liability. The existence of section 2 of the Animals Act (i.e. the possibility of imposing of strict liability for damage caused by certain animals) does not affect liability in negligence under the common law for the keeper of an animal. 4. Section 2 of the Animals Act creates strict liability for the keeper of an animal in certain circumstances. Section 2(1) provides that the keeper of an animal that is of a "dangerous species" is strictly liable for damage caused by it. "Dangerous species" is defined by section 6(2) of that Act as one that is not commonly domesticated in the British Islands and whose fully grown members 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. Section 2(2) provides for strict liability in certain circumstances for damage caused by an animal that is not of a dangerous species. The current wording of section 2 is appended in Annex I for ease of reference. A consolidated version of section 2 of the Act as amended by the proposals in the Bill (with amendments underlined) is appended in Annex II. Bill 18—EN 54/3 5. Since the Act 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 phrase "except at particular times or in particular circumstances". 6. Notably, the House of Lords considered the interpretation of section 2(2)(b) Animals Act in Mirvahedy v Henley [2003] UKHL 16. There were two different lines of thinking in this judgment. The minority considered that the majority view went further in imposing strict liability than was intended. In this judgment and others concerning section 2(2)(b), there has been judicial criticism that section 2(2)(b) lacked clarity. 7. The Bill amends section 2(2) of the Act to clarify the circumstances in which strict liability should apply. The policy that it seeks to reflect is that it is desirable that the keepers of animals that do not belong to an inherently dangerous species should be strictly liable for damage or harm caused by that animal when they know that the animal in question may be dangerous at the time the damage is caused, either because of its particular temperament, or because of the particular circumstances applying at the time, such as when it has young to protect. TERRITORIAL EXTENT 8. The Bill extends only to England and Wales. It confers no new powers or responsibilities on the National Assembly for Wales. COMMENTARY 9. The Bill amends section 2(2) by replacing the existing 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 defined as those that are shared generally by the species, but only in particular circumstances (or one of a range of 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. 10. There are therefore two limbs in section 2(2)(b); one concerning "unusual characteristics", the other concerning "conditional characteristics". The original section 2(2)(c) was designed to cover both, but it is not apt to cover "conditional characteristics" properly as now clarified. The knowledge requirement in relation to "conditional characteristics" is therefore now dealt with separately as a defence in section 2(2C)(b). 11. 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 the damage was caused must have known of that characteristic in the animal. It limits the application of strict liability in cases where the damage is due to a conditional characteristic of the animal by providing a defence to strict liability where the keeper of the animal when the incident took place shows that there was no particular reason to expect that the particular circumstances that provoked the conditional characteristic would 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 (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). 12. Finally, the Bill addresses a further long-standing criticism of section 2(2)(b) of the Act, by removing the phrase "the likelihood of the damage or of its being severe" and replacing it with "the damage", as suggested by the Court of Appeal in Curtis v Betts [1990] 1 All ER 769. This is intended to simplify the Act, by removing references to the likelihood and severity of the damage that are already contained in section 2(2)(a) and therefore to remove an confusion that may arise from the repetition of these words. FINANCIAL EFFECTS 13. The Bill would have no implications for public finances. PUBLIC SERVICE MANPOWER 14. The Bill would have no implications for public service manpower. IMPACT ASSESSMENT 15. An Impact Assessment has been published alongside the Bill (www.defra.gov.uk). This indicates that there will be no significant impact on charities and the voluntary sector, and that the impact on business will be generally positive. Land-based and equestrian businesses should benefit from the greater certainty achieved by an amendment to a contentious piece of legislation, which may result in fewer court cases and 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. 16. The Impact Assessment acknowledges that there may be an impact on some individuals injured in accidents involving animals where strict liability does not apply following the Bill and yet may have applied under current case-law interpreting section 2(2) Animals Act. 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 relatively uncertain under the current legislation. EUROPEAN CONVENTION ON HUMAN RIGHTS 17. 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. ANNEX I: EXTRACT FROM SECTION 2 OF THE ANIMALS ACT 1971 "2 Liability for damage done by dangerous animals (1) Where any damage is caused by an animal which belong to a dangerous species, any person who is a keeper of the animal is liable for the damage, except as otherwise provided by this Act. (2) Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if- (a) 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; and (b) 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; and (c) those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as that keeper's servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.". ANNEX II: CONSOLIDATED VERSION OF SECTION 2 AS AMENDED BY THE PROPOSALS IN THE BILL, SHOWING THE AMENDMENTS INSERTED BY THE BILL AS UNDERLINED "2 Liability for damage done by dangerous animals (1) Where any damage is caused by an animal which belong to a dangerous species, any person who is a keeper of the animal is liable for the damage, except as otherwise provided by this Act. (2) Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if- (a) the damage is of a kind which the animal, unless restrained, was likely to cause or which, of caused by the animal, was likely to be severe; and (b) the damage was due to an unusual or conditional characteristic of the animal; and (c) that characteristic, in the case of an unusual characteristic, was known to that keeper or was at any time known to a person who at that time had charge of the animal as that keeper's servant or, where that keeper is the head of a household, was known to another keeper of the animal who is a member of that household and under the age of sixteen. (2A) A characteristic of an animal is unusual of it is not shared by animals of that species generally. (2B) A characteristic of an animal is conditional if it is shared by animals of that species generally, but only in particular circumstances. (2C) Subsection (2)- (a) applies by virtue of a conditional characteristic only if the damage was caused in particular circumstances (or one of them); and (b) does not apply by virtue of a conditional characteristic if the keeper of the animal at the time when the damage was caused shows that there was no particular reason to expect that those circumstances would arise at that time.". |
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