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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.
Mr. Khalid Mahmood (Birmingham, Perry Barr) (Lab): 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?
Jonathan Shaw: 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.
John Robertson: The dog ran away with my hon. Friend’s speech.
Jonathan Shaw: 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.
Mr. Andrew Robathan (Blaby) (Con): At waist height.
Jonathan Shaw: 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.
Jonathan Shaw: 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.
Mr. Dismore: I think that my hon. Friend would find that most of those cases are based on section 2 of the Animals Act.
Jonathan Shaw: 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.
Mr. Dismore: Those claims are being brought and they are being paid through household insurance. To return to our earlier debate about insurance, I should point out that, generally speaking, people who have animals have an insurance policy, but the victims do not.
Jonathan Shaw: 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—
Mr. Robathan: Not in Leicestershire.
Jonathan Shaw:
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.
Bill Wiggin: From horses’ coats.
Jonathan Shaw: 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.
11.54 am
Mr. Andrew Dismore (Hendon) (Lab): 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, the hon. Member for Preseli Pembrokeshire (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 the Member for Birmingham, Perry Barr (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.
Dr. Desmond Turner (Brighton, Kemptown) (Lab):
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.
Mr. Dismore: 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.
Mr. Dismore: A plethora; who shall I start with? I shall I give way to the hon. Member for Somerton and Frome (Mr. Heath).
Mr. Heath: 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?
Mr. Dismore: 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.
Stephen Pound (Ealing, North) (Lab): It is a perfectly worthy ambition.
Mr. Dismore: Obviously, as a good Catholic, my hon. Friend has read Sir Thomas More’s book, “Utopia”, and sees what it is all about.
Stephen Pound: For the information of the House, I have, of course, read everything that Sir Thomas More wrote.
Mr. Dismore: I am not in the least bit surprised.
Jonathan Shaw: 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.
Mr. Dismore: 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.
Mr. Mahmood: 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?
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