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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.
Mr. Dismore: 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?
Jonathan Shaw: 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.
The hon. Member for Westmorland and Lonsdale (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.
Mr. Dismore: I am grateful to my hon. Friend for giving way, because I want to put to him the point that I put earlier. Does he seriously believe that insurance premiums would go down if the Bill went through the House?
Jonathan Shaw:
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 the Member for Glasgow, North-West (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.
Mr. Dismore: 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?
Jonathan Shaw:
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?
Mr. Dismore: I certainly think that if someone owns an animal, they should be responsible for it. If that animal injures somebody, the owner should bear the consequences. Whether they decide to insure themselves is a matter for them.
Jonathan Shaw: 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?
Mr. Dismore: 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.
Jonathan Shaw: 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 the hon. Member for Brecon and Radnorshire (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.
Mr. Dismore:
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.
Jonathan Shaw: 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 5 November the owner would know about it—there would be signs all over the village advertising it—but if someone decides to hold a firework party in a field near the horse without telling the owner, the owner cannot be liable. That is fair and reasonable, and I think it is what the British public would expect.
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.
Mr. Dismore:
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?
Jonathan Shaw: 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.
Mr. Crabb: 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.
Jonathan Shaw: 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.
Mr. Dismore:
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?
Jonathan Shaw: 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.
John Robertson: 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?
Jonathan Shaw: 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. The hon. Member for Leominster (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.
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