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“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.
Mr. Dismore: 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?
Mr. Crabb: 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.
Justine Greening (Putney) (Con): The rising premiums that were mentioned earlier may well be the result of the costs of such court cases being passed on to customers.
Mr. Crabb: 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.
Mr. Dismore: 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.
Mr. Crabb: 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.
Mr. Dismore: 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.
Mr. Crabb: 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.
Mr. Dismore: Will the hon. Gentleman give way?
Mr. Crabb: I will give way to the hon. Gentleman for the last time.
Mr. Dismore: 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?
Mr. Crabb: The hon. Gentleman knows about the insurance sector; I know a little about it too. It is not for Parliament to try to legislate for insurance premiums.
Mr. Dismore: But that is what you just said.
Mr. Crabb: No, I just said that I hoped that the Bill, in clarifying the 1971 Act, would result in a limit on the soaring insurance costs that are burdening the equine sector.
Bill Wiggin (Leominster) (Con): 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.
Mr. Crabb: From the evidence that I have seen and discussed with departmental officials and many Members across the House, I believe that there is a link between the lack of clarity in law and the increased insurance burden on riding centres.
Mr. Crabb: I will not give way again to the hon. Gentleman. My Bill’s primary purpose is to fix not insurance premiums but the lack of clarity and the confusion in the law.
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 the hon. Member for Brecon and Radnorshire (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.
10.23 pm
John Robertson (Glasgow, North-West) (Lab): I congratulate the hon. Member for Preseli Pembrokeshire (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”.
Mr. Dismore: I had wanted to put that point to the hon. Member for Preseli Pembrokeshire (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.
John Robertson: 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.
Jonathan Shaw: You can spot them.
John Robertson: 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?
Mr. Dismore: 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.
John Robertson: 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.
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