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Mr. Dismore: Owning a fighting dog would be a criminal offence under the Dangerous Dogs Act 1991, but unfortunately that does not create civil liability. In the end, such cases come back to the Animals Act 1971. Under that Act, one is ultimately dependent on the other party being able to pay, which is why responsible people have insurance, although unfortunately some people do not. Who bears the responsibility: the victim who is injured, or the person who has the benefit of the animal? It should be the person who has the benefit of the animal—rightly or wrongly, and regardless of whether they have looked after the animal properly. One should accept the consequences of one’s actions, and owning an animal is an action. If that animal misbehaves, for whatever reason, and injures someone, its owner should be liable to pay compensation to the victim.
Mr. Crabb: I am trying to follow the hon. Gentleman’s argument. It appears that his main objection is not with my Bill, but with the very principle of section 2(2) of the Animals Act. He does not agree that that Act should try to achieve an appropriate balance, but thinks that strict liability should apply in all cases. That is probably not a discussion for the consideration of this Bill and he should work on that outside this debate.
Mr. Dismore: This is a Second Reading debate. The hon. Gentleman is trying to weaken the existing elements of strict liability, but I would like that to go further. If the Bill makes further progress, I might well wish to table amendments to that effect on Report, but we will have to see how the Bill gets on. I think that I was sent down this road by the intervention made by the hon. Member for Somerton and Frome, although I had not intended to go down this particular byway at present. However, I am quite happy for my views on this issue to be flushed out. A discussion about strict liability is relevant to the Bill because it would remove strict liability in circumstances in which it already exists. I would argue that that is the wrong way to go. We should be going in the other direction, reinforcing the strict liability that already exists and clarifying the law in that direction, not clarifying it in the other direction by taking away the strict liability that already exists.
Mr. Crabb: I am not trying to remove strict liability where it already exists in law. The whole point is that the law is unclear. We have had the Mirvahedy judgment and last week’s Court of Appeal judgment that went the other way. This area of the law is muddied and confused and there is an urgent need to bring clarification to it, and that is the whole point of the Bill.
Mr. Dismore: I hear what the hon. Gentleman says, and my hon. Friend the Minister said that the object was to clarify the law. I have read the Mirvahedy judgment and I do not find it particularly difficult to follow the principles behind it. The courts have applied Mirvahedy in a series of cases since, and generally speaking they found in favour of the defendant in most of the cases that I have read, one or two of which we may discuss later. I would simply say that if the law does need clarification, the hon. Gentleman is clarifying it in the wrong direction.
Stephen Pound:
I am delighted to hear that my hon. Friend finds Mirvahedy straightforward. That is another compliment to his extraordinary forensic brain. However, I seem to remember that in McKenny v. Foster there
was a long discussion about the psychology of a cow on a road and the degree of agitation caused to that cow. Does my hon. Friend accept that there are many of us who sadly lack his cerebral qualities who do find the law confusing, but are not entirely convinced that the Bill will resolve all the issues?
Mr. Dismore: I would simply say to my hon. Friend that if it is his cow, it is his responsibility. That is my answer to his question. That particular case came to a different conclusion, and we will perhaps talk about that later and analyse the decisions in that case. If my argument were to be accepted, it would answer his question very simply.
Dr. Desmond Turner: This is a salient point. If we are talking about clarifying the law, the simple test is whether the Bill adds clarity or further opportunities for lack of clarity. If my hon. Friend can give his view on that, I shall be grateful.
Mr. Dismore: I would tend to agree with my hon. Friend. We may reach this point later, but having looked at the Bill, in my opinion it may create some confusion. If the proposed amendments to the Animals Act clarify the law, they do so by reverting to the old-fashioned law of negligence, as I understand the Bill’s intention. The problem with that is that, although it is tried and tested and has developed over centuries, it provides a field day for lawyers as to what is or is not negligent, what is or is not a breach of duty and whether a duty is owed in some circumstances under the Donoghue v. Stevenson principle. We may talk about snails later and how they got into the bottle of ginger beer. In fact, it was never discovered whether there was a snail in the first place, but that is another story. The basic principles of negligence are wide open for argument. One of my concerns is that if the Bill is enacted we will see a lot more cases going to court with argument about whether the circumstances were negligent than we do under the existing arrangements where we have a modicum of strict liability, which is a lot clearer and more likely to lead to an earlier settlement of claims where people have been injured as a result of somebody else’s animal.
Stephen Pound: This may appear to be a slightly abstruse debate, but we should never forget that in McKenny v. Foster there was a fatality. Does my hon. Friend agree that we are not necessarily debating an obscure point of law but, as in the tragic case when Derek Shaw was killed, what may be a life and death issue, and that we should at least try to introduce law that—if not in every case, in the majority of cases—will prevent, and where it cannot prevent, compensate?
Mr. Dismore: That is basically my position on the Bill. The hon. Member for Preseli Pembrokeshire does not want that outcome, but my view is that if someone owns an animal, they should pay for the consequences of that.
Mr. Crabb:
On the intervention made by the hon. Member for Ealing, North (Stephen Pound), I should say that my Bill does not affect negligence; that is not the point. The Bill is about clarifying where strict
liability can be applied— [Interruption.] I shall need to intervene again on the hon. Member for Hendon (Mr. Dismore).
Mr. Dismore: I think that I know what the hon. Gentleman’s intervention was going to be.
Stephen Pound: Good Lord; is there no limit to your powers?
Mr. Dismore: I can be a bit of a mind reader sometimes; I have had to be many times in this area of the law. I think that the hon. Member for Preseli Pembrokeshire is trying to say that his Bill would make the law of negligence clearer than it is now.
Mr. Dismore: If that is not what he is trying to say, so be it. My mind-reading ability and crystal ball have failed me.
Mr. Crabb: The hon. Gentleman seems content with the law as it has been since the case of Mirvahedy. Yet in the case mentioned by the hon. Member for Ealing, North, the victim was not compensated because the law was not sufficient to provide the protection. The law is unclear; that is the whole point of this discussion. We are not talking about claims that go along the negligence route, but about where strict liability does and does not apply.
Mr. Dismore: That is the point—it is a question of “stick or twist”. Personally, I think that the Mirvahedy case is inadequate in the other direction from the hon. Gentleman’s. Although it could not, because of the way that the 1971 Act is phrased, I would have liked that case to produce a different result—the one for which my hon. Friend the Member for Ealing, North (Stephen Pound) is contending. The hon. Member for Preseli Pembrokeshire wants things to go the other way—that is, as the minority of those involved in the judgment concluded, that Mr. Mirvahedy should have gone uncompensated despite his tragic and serious injuries. The consequence of the hon. Gentleman’s argument would be that Mr. Mirvahedy would not have been compensated.
Mr. Dismore: That is unusual. Generally speaking, people are not insured in such cases; if Mr. Mirvahedy was, that was a one-off. If he had not been, as would normally have been the case, he would not have been compensated, according to the hon. Gentleman’s interpretation of the law. My argument is that at least Mr. Mirvahedy was compensated. If a Bill was to be introduced, I would like it to go in the other direction from the one in which this Bill goes—towards improving, rather than reducing, victims’ rights. That is where I part company with the hon. Gentleman.
Mr. Deputy Speaker:
I say gently to the hon. Gentleman that although this is the Second Reading of a private Member’s Bill and there is room for wide debate, he said earlier that he was going to start dealing
with the Bill in detail. He is in danger of confusing the Bill with what he would like to see. It is worth making that point to him.
Mr. Dismore: Thank you, Mr. Deputy Speaker; I am afraid that I got carried away by the interventions.
Stephen Pound: And clairvoyance.
Mr. Dismore: And clairvoyance. I apologise.
The purpose of the Bill is to clarify the law, a point mentioned by the Minister and by the hon. Member for Preseli Pembrokeshire—although it may be the hon. Gentleman’s secondary point after the insurance issue. My argument is that they intend to clarify the law in the wrong direction; the Bill is the wrong way to go about achieving that clarity.
This is a private Member’s Bill and this area of the law is too complicated to be dealt with through such a Bill. The issue is one for a Government Bill that considers comprehensively the law on liability for animals. That would be a far more sensible route. The Minister said that he had not been able to find Government time for that, but the fact remains that we have not discussed proper legislation on this issue since 1971, and the roots of the 1971 Act date back to the 1950s. It is time to have a proper review of the law.
Bill Wiggin: On a point of order, Mr. Deputy Speaker. In your previous ruling, you advised the hon. Member for Hendon to restrict himself to dealing with the Bill, rather than telling us what he wants. Just now, I distinctly heard him say that he wanted a Government Bill. Is that in order?
Mr. Deputy Speaker: Such matters are for debate. I would have interrupted the hon. Member for Hendon if I had thought that he was out of order. However, my earlier remarks still stand. The hon. Gentleman is an experienced Member, not least when it comes to Friday sittings; I am sure that he will bear in mind what I have said.
Mr. Dismore: Thank you, Mr. Deputy Speaker. I had finished my point, so the hon. Member for Leominster (Bill Wiggin) need not have made his point of order.
I am a member of the Association of Personal Injury Lawyers—I am classed as an academic member rather than a practising member, which means that my subs are a bit lower. I spoke to representatives of that organisation this morning. They had not heard of the Bill until the hon. Gentleman contacted them—I believe that he made contact only at my suggestion when he held his little meeting the other week. They said, without endorsing the Bill, that they need to examine it and discuss it with their members. If I know the Association of Personal Injury Lawyers, it will make similar criticisms to those that I have expressed.
The Bill overlooks the statutory protection in section 5 of the 1971 Act. That came out in some of our earlier discussions. When I made the point, it seemed from people’s reactions that they had never heard of or looked at section 5. It provides a significant defence for claims in either the Mirvahedy circumstances or, more frequently, in the riding school cases.
Section 5 of the 1971 Act states:
“A person is not liable under sections 2 to 4”—
we are concerned with section 2—
“of this Act for any damage which is due wholly to the fault of the person suffering it... A person is not liable under section 2... for any damage suffered by a person who has voluntarily accepted the risk thereof.”
Most of the cases involving people in riding schools—those who have been trained to ride a horse or have hired the horse—have failed on the basic principle of volenti non fit injuria, which is an old common law principle given statutory force in section 5. A defence, therefore, exists in many cases.
There is also protection under section 5 for liability in respect of a trespasser if it is proved that
“the animal was not kept there for the protection of persons or property; or...that keeping it there for that purpose was not unreasonable.”
That is important because the debate so far has focused on horses, but we know from the statistics that far more accidents are caused by dogs, including guard dogs. Although the debate has focused on the equine, we should not forget the canine. Section 5 of the 1971 Act provides a defence for many of the cases that trouble the hon. Member for Preseli Pembrokeshire. He should bear that in mind in our debate.
The hon. Gentleman made great play of insurance. The Library briefing states that there has been a rise in insurance premiums and mentions riding schools whose insurance premiums have increased to more than £7,000. It also states that the cost of annual membership of the Racehorse Owners Association has increased from £165 to £195. For someone who owns a racehorse, £30 more probably constitutes small change down the back of the sofa. The hon. Gentleman should not pray that in aid. In his press release that announced the Bill, he said that the existing legal position was grossly unfair to responsible animal owners and that rural businesses were placed at risk by the huge increase in premiums since the House of Lords judgment. He also said that millions of people who enjoy horse riding face extra costs as a result.
When the hon. Gentleman introduced the Bill, he said that his clarification of the law through the removal of strict liability would affect only a small number of cases. My hon. Friend the Under-Secretary also said that. The Library briefing cites an article by barristers Susan Rodway QC and James Todd, entitled “Mirvahedy—Three Years On”. They report that insurers are insisting on higher standards of risk management in the form of record keeping, risk assessment and compliance with local licensing regimes. The article asks why the predicted explosion in strict liability cases has not happened. Indeed, there has not been a huge increase in cases or risk. There has been a tiny number of cases. Some may be high value cases—Mirvahedy was a high value case because of the extent of the injuries—there is no doubt about that, but they are a tiny number. If we average out the insurance risk even of high-value multi-million pound claims, of which there are very few, over the cost for the whole industry, that does not significantly increase the insurance liability risk. That is what insurers are about.
I asked the hon. Member for Preseli Pembrokeshire in an intervention—it was a tongue-in-cheek intervention, but an intervention none the less—whether he had received any indication from the insurance industry that it would reduce premiums if
the Bill went through. Obviously he could not answer that question, never mind consider the 50 per cent. reduction that we can infer from the figures in the Library briefing that have been quoted in this debate. The fact is that insurers do not reduce their premiums. I have yet to hear of any circumstance in which insurance companies charged less because something changed. A bit like the gas board and the cost of oil prices, insurance companies are quite happy to put premiums up, but very slow to bring them down.
That is the simple nature of the insurance industry. If the hon. Gentleman’s Bill goes through, I would be happy to have a little gentleman’s wager with him—of a drink in the Strangers Bar, say, or whatever he chooses—that insurance premiums would not go down. I know for certain that premiums would not come down and I think that, realistically, he knows that, too.
Mr. Roger Williams: I am not entirely knowledgeable about the black arts of the actuarial profession—the actuary of actuaries, actually— [ Laughter. ] However, some risks that are covered never have any claims made against them at all. Insurance is provided because large claims may be made in the future, so the hon. Gentleman’s point about smoothing and averaging things out does not apply to rural businesses in particular. They have great insurance difficulties, because they are small businesses that potentially face large claims.
Mr. Dismore: The hon. Gentleman has hit the nail on the head. The insurance industry has not made an assessment that risks have increased; rather, it is starting to cherry-pick its customers. Frankly, the industry does not like small businesses, because it does not make any money out of them. Even if insurance premiums go up, they are still relatively trivial to the insurance industry. What is happening more generally—not just in the context of this debate—is that small businesses are finding it harder to get insurance because it is more trouble than it is worth for the industry to insure them. The industry therefore jacks up its premiums to achieve that objective.
There is a general trend in the insurance industry, which the increases in premiums reflect. The increases are nothing to do with the Mirvahedy case, which the industry is using as an excuse. In the same way, the compensation culture argument is used as an excuse to jack up premiums, when we all know that there is no such thing as the compensation culture. There is a perception that it exists, but all the figures show that it does not. Indeed, all the figures show that the number of claims is decreasing. What we have seen is a different market approach from the insurers, who are looking at how they can insure people differently. The insurers are cherry-picking and looking for the good risks and the large businesses, from which they can make money, and they do not like small businesses.
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