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Stephen Pound:
My hon. Friend is absolutely right to concentrate on first principles. I understand why you have made the ruling, Mr. Deputy Speaker, but we are talking about something of real contemporary relevance. The hon. Member for Putney (Justine Greening) will perhaps be aware that the Ramblers Association was among those consulted in the Department for Environment, Food and Rural Affairs
consultation in 2006. Originally, the association expressed some concern about the matter. Would it not be an utter dereliction of our duty if we did not subject the Bill to increasing scrutiny? I therefore appeal to my hon. Friend, as much as I can, to abjure the siren call from Putney.
Mr. Deputy Speaker: Order—but not the siren call from the Chair.
Mr. Dismore: Of course, Mr. Deputy Speaker.
We need to examine the law of negligence, and the starting point for that is the excellent text of the 17th edition of “Winfield and Jolowicz on Tort”, which sets out the present position in short form. Chapter 16 states:
“At common law a person might be liable for damage caused by an animal on one or more of three distinct grounds, namely, ordinary liability in tort, liability under the strict scienter rule”—
that is what this is about, although I will not go down that route because you told me not to, Mr. Deputy Speaker, so we will not know what the scienter rule is—
“and liability for cattle trespass.”
I am pleased to say that we are not concerned with that today, although it involves another interesting list of cases.
“Liability for an animal may be based on negligence”,
“Quite apart from the liability imposed upon the owner of animals or the person having control of them by reason of knowledge of their propensities, there is the ordinary duty of a person to take care that either his animal or his chattel is not put to such a use as is likely to injure his neighbour—the ordinary duty to take care in the cases put upon negligence.”
In other words, the ordinary rules of negligence apply, plus the scienter rule. That means that a person who knows that an animal is potentially dangerous is liable even if he is not negligent in dealing with it. That is what those earlier cases determined. If the hon. Member for Preseli Pembrokeshire gets his way, we will turn the clock back and return the law to how it was before the Animals Act.
The cases and issues relating to animals fall into two categories. There are animals known as “ferae naturae” and animals known as “tame animals”—there is another Latin phrase that I may come to later. Section 2(1) of the Act deals with the law applying to wild animals, while section 2(2) deals with that applying to domestic animals. The leading case in this connection is Behrens v. Bertram Mills Circus 1954. It took place in the days before political correctness, so I hope the House will bear with me when I relate the facts, which are recorded as follows:
“The plaintiffs, husband and wife, were both midgets and during the Christmas season in...1953, were on exhibition in a booth in a funfair adjoining the defendants’ circus.”
At the circus the defendants kept six female Burmese elephants that performed in the circus. Now, the problem was that the midgets’ manager had a dog, and when the elephants went past, the dog spooked the
elephants, and the midgets were trampled. The issue before the court was whether the elephants were domestic elephants or wild elephants. [Laughter.] I know it sounds funny, but it is actually quite important in the context of the principles behind the Bill. If the court had concluded that the elephants were domesticated and therefore not ferae naturae, section 2 of the Act and the amendments would apply to them. But the court concluded that, as a matter of law, all elephants were dangerous. It made no difference that the particular elephant in question was a highly trained Burmese elephant and, in fact, tame,
“for the harmfulness of an offending animal was to be judged, not by reference to its particular training and habits, but by reference to the general habits of the species to which it belonged.”
“The elephant Bullu is in fact no more dangerous than a cow; she reacted in the same way as a cow would do to the irritation of a small dog; if perhaps her bulk made her capable of doing more damage, her high training enabled her to be more swiftly checked.”
“But I am compelled to assess the defendants’ liability in this case in just the same way as I would assess it if they had loosed a wild elephant into the funfair.”
What must be determined in such cases is whether an animal is a wild or a domestic animal in the first place. The debate has focused on horses, but the amendments that the hon. Member for Preseli Pembrokeshire seeks to introduce extend far beyond them to cover other animals.
The earliest case relating to animals going astray, and the one that set the scene, is Tillett v. Ward. The consequences in this case could well be the consequences of the hon. Gentleman’s Bill, which seeks to return the law to its former state. This case is not about a bull in a china shop, but about an ox in an ironmonger’s. It occurred in 1882. An ox belonging to the defendant was being driven through the streets of a country town, went into the plaintiff’s shop, which adjoined the street, through an open doorway and damaged his goods, and there was no negligence on the part of the persons in charge of the ox. The ox was being driven along a street called Ironmonger street, which is a coincidence as the case involved an ironmonger’s shop. The ox went along the pavement and into the shop and did a lot of damage; it took three quarters of an hour to get it out. There was no evidence of it being of a vicious or unruly nature normally, which was also the situation in the Mirvahedy case. There was nothing exceptional in its temper or character making it unsafe to drive it through the streets. The result in that case was that the shop owner, Mr. Tillett, went uncompensated. That would be the result in such cases if we were to return to the situation prior to the Animals Act, consequent upon the Bill of the hon. Member for Preseli Pembrokeshire.
There are also plenty of cases involving horses. There is a case that is of particular relevance to the principles of negligence that would be in place if the hon. Gentleman were to get his way—the Bradley v. Thompson Court of Appeal case of 1913. In the course of his employment, a workman was killed by the kick of a horse belonging to a third party whose servant had
brought it on to the employee’s premises and left it unattended. The court came to the conclusion that it was not in the ordinary course of things that a horse not known to be vicious should kick a man. Such cases are of relevance in respect of the Mirvahedy judgment. In these circumstances, it was decided that there was no negligence at common law. The hon. Gentleman is contending that in such circumstances people such as Mr. Bradley should go uncompensated.
There is another case involving a pony bolting and damaging a draper’s shop in Marylebone. The defendant’s pony and milk van went through the window and damaged a lot of the stock; the case occurred in 1923 and the shop was called Gayler and Pope Ltd. The court looked at the circumstances and considered the issue of negligence, and came to the conclusion that for injury caused by horses or cattle to property on or adjoining a highway, the owner is not liable in the absence of negligence or a wilful intention on his part. Again, there would be strict liability under the Mirvahedy criteria in those circumstances, but under the Bill they would no longer apply.
Stephen Pound: I am fascinated by the legal journey—if not marathon—on which my hon. Friend is taking us, but let us go back to first principles, to borrow an expression he has used. The Law Commission report, which I see as the foundation of the Animals Act 1971, is the basis of his comments. That report addresses the issue of responsibility on the part of the owner. How does my hon. Friend think that that precautionary principle would be aided and encouraged if the hon. Member for Preseli Pembrokeshire were successful?
Mr. Dismore: Basically, I do not think it would. Let me explain my concern. I have been sharing these cases because they involve real incidents that actually happened, and because referring to them illustrates that such cases are nothing new, but have been going on for ever. They also show that people need to take responsibility. Earlier, we discussed insurers, who are now cracking the whip a bit and making sure that people are rather more responsible in how they run their businesses. If the hon. Member for Preseli Pembrokeshire were to get his way, such people would not be compensated because the court would find that there was no negligence. As things currently stand under the existing wording of the Animals Act, I think they probably would on the basis of the Mirvahedy principle.
Stephen Pound: Not for the first time—and, sadly, probably not for the last—I did not make myself entirely clear. I am particularly concerned about the issue of precaution and additional responsibilities on the owner or keeper of the animal. Does my hon. Friend think that there is anything in the Bill that would encourage or underpin the need for the owner or keeper of the animal to take more precautions?
Mr. Dismore: I can give a straightforward answer to that: no.
Stephen Pound: That was unusually terse.
Mr. Dismore: Yes, but I am always willing to give a clear answer when I am able to do so.
One or two of the dog cases illustrate a similar problem to the one that I am discussing. Fardon v. Harcourt-Rivington from 1932 is the first such case and it is one of the leading ones. The dog in question, a large Airedale, had been left unattended in a car parked round the back of Selfridges. When an innocent passer-by walked past, the dog started jumping about, the window broke and a shard of glass went into the passer-by’s eye. No liability was found in that case. There probably would be liability under the principles of the Mirvahedy case, which the hon. Member for Preseli Pembrokeshire wants to remove. I am discussing the common law as it stood before the Animals Act and before Mirvahedy, and that would again be the position as a consequence of the Bill. When someone shuts a dog inside a car and the dog then starts to jump about and breaks a window, there ought to be liability, even though the court found that there had been no negligence in the 1932 case.
I come to the case of an accident that occurred virtually on all fours with the Mirvahedy case. The Searle v. Wallbank case related to events of April 1944, when someone cycling during a blackout collided with a stray horse on the highway. Again, the net result was that no liability was found. That was a similar case to the Mirvahedy one. The case of Fitzgerald v. E.D and A.D. Cooke Bourne (Farms) Ltd in 1962 involved a filly in a field, and again no liability was eventually found. The trial judge found that the fillies were not vicious but had a malicious propensity to play, which the defendants knew to be potentially dangerous, but the defendants’ appeal was allowed on the basis that the animals were mansuetae naturae—domesticated animals. That was the sort of case—
Mr. Deputy Speaker: Order. I say to the hon. Gentleman that I do not think he has to go through every case in order to make his point, particularly given that he admits that he is repeating similar things. I ask him to bear in mind the proportionality of his argument. I have already ruled on the line between a general debate and what happens in Committee in detail.
Mr. Dismore: As always, I take your constraints to heart, Mr. Deputy Speaker. I assure you that I was not going through all the cases; I was just discussing a selection. If I selected too many, I apologise for doing so. There are some interesting ones to come.
Let us move on to how the proposed change to the law came about. We have heard a lot about the Law Commission proposals of 1967, but we have not heard about the January 1953 report of the Committee on the Law of Civil Liability for Damage done by Animals, which was chaired by Lord Goddard. That was the real precursor of the 1971 Act. The Committee held 19 meetings, and, as we are finding today, it found the subject matter of its inquiry to be
“of considerable difficulty and complexity”
because many of the cases were “of great antiquity”. The Committee rightly drew the distinction between mansuetae naturae and ferae naturae in considering where the law stood and made various recommendations. It concluded that someone
“in the absence of scienter cannot recover for damage to the person whether caused to himself or his servants.”
That is where the law stood, and that is basically the problem that we face in this debate.
That ultimately led to the Law Commission inquiry, in respect of which a great deal has been prayed in aid in this debate. I freely acknowledge that Lord Goddard’s 1953 inquiry and the Law Commission’s 1967 one came to different conclusions from mine. The Law Commission report’s introduction emphasised that the reform in this field is controversial, but it thought that the modernisation and simplification of the law was necessary. Again, it referred to the importance of the strict liability principle in relation to wild animals and drew the distinction in respect of tame—domestic—animals based on the knowledge principle, the scienter action.
I am not going to go through all the Law Commission’s conclusions, Mr. Deputy Speaker, because I am sure that you would bring me to order if I were to attempt to do so.
Stephen Pound: Before my hon. Friend moves off that point, one of the key issues in the 1967 Law Commission report was that strict liability should not be imposed in respect of damage done by all animals. What was the motive behind the 1953 Goddard report? What concern about the law led to that report?
Mr. Dismore: The answer lies in the cases to which I previously referred. They highlighted a series of examples that made people uneasy about the conclusions of those cases. It was felt that people should have been compensated, but they clearly were not being compensated. The elephant case did lead to compensation, but the case of the ox in the ironmonger’s shop did not. That case and others led to the pressure for law reform. The Goddard report came out in 1953, having reached its difficult conclusions, and the Government of the day must have put it in the too hard to do box.
In 1967, the Law Commission made further proposals. It said:
“We do not consider that it would be desirable to impose strict liability in respect of damage done by all animals.”
I take a different view of that, but it went on to say that it would be better to establish a category of animals for which there would be strict liability because they present a special danger, either to persons or property. The Law Commission recommended the imposition of strict liability in such circumstances. The category is not confined only to animals ferae naturae, but applies more widely, which is how we ended up with section 2 of the Animals Act 1971.
The Law Commission thought that strict liability should be imposed in respect of any injury or damage done by animals of a species presenting a special danger to persons or property. The question of whether an animal belongs to a dangerous species should depend, in the case of a category of animals ferae naturae, on a test prescribed by law. That test should take into account the risks to persons or property in the circumstances of this country. There are arguments about whether camels, for example, are domestic animals, and in the UK, at least, camels are considered to be wild animals, despite the fact that they are often domesticated in other parts of the world.
The Law Commission also discusses the issue of strict liability being imposed in respect of injury or damage done by an animal that does not belong to a dangerous species or if an animal had no dangerous characteristics from which the injury or damage resulted—which is the sort of case that we are talking about now—even if those characteristics are not common to the species as a whole, but are shared by other animals within the species, such as age, a particular time of year or in certain conditions. It also recommends strict liability in respect of either of the two categories, but that it should not be dependent on escape from control, which is where we are with the Mirvahedy case, because it did not turn on the fact that the animal had escaped. In fact, it turned on the fact that the animal was on the highway in a spooked condition. That of course leads to the question, which is discussed in some of the law books on the subject, of what would have happened if the spooking of the horse had ended and it was simply stood in the road not knowing what to do with itself—in other words, behaving normally after its anguish had ended. On a proper interpretation of Mirvahedy in those circumstances, it might well be that the liability would not have attached—an interesting moot point. I am pleased to say that the court did not decide on that point, although it is discussed in the law books.
The Law Commission also dealt with the question of negligence and recommended that liability should attach—I apologise, because that point has to do with the section 5 defences of contributory negligence and being responsible for one’s own injuries.
The Law Commission’s report gave rise to the debate that led to the Animals Act 1971. The first Bill on the issue was introduced in 1969, by the then Labour Government, and it was based on the model recommended by the Law Commission. The problem was that between 1969 and 1971 there was a general election and the further problem was that the Labour party did not win that election. When the new Conservative Government introduced the Animals Bill mark 2 in 1971, clause 2 had changed. It read as section 2 stands rather than as did the section recommended by the Law Commission. They should have stuck with the Law Commission definition. This is a disgrace on the Conservative party. All the problems come back to their decision in 1971 on how to phrase the Bill.
Justine Greening: The hon. Gentleman cannot really blame my hon. Friend the Member for Preseli Pembrokeshire (Mr. Crabb) for that; he was not even born then.
Mr. Dismore: I certainly do not blame the hon. Gentleman for the Bill in 1971. I blame his party, and he has to take collective responsibility for the decisions made by his party. I am happy to take responsibility for the original Bill of 1969, which would have dealt with the issue far more simply. If the Conservatives had kept the original wording, which was recommended by the Law Commission, we would not be in the difficulties that we are now. The law would have been a lot clearer. It would not have been what I would want to see—although it might have been what the hon. Gentleman wants to see—but, unfortunately, we do not have that before us today.
In 1971, during the Second Reading Committee on the Animals Bill, which was introduced in the Lords, the Attorney-General said:
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