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“This has always been a troublesome and difficult branch of the law...it is a very ancient part of the law, because the law with regard to animals tended to reflect an agricultural society, and the society on which much of the early law was based was one in which man was much dependent upon the animals and came more into contact with animals.”—[ Official Report, 27 January 1971; Vol. 810, c. 736.]
My hon. Friend the Member for Ealing, North gives me a funny look, but that point is at the heart of our debate. The debate has focused on the rural side of the equation and, apart from the interventions of various of my hon. Friends, has overlooked the urban side, and in particular the problems caused by dogs.
The Attorney-General went on to deal with horses that are frightened and capable of kicking out. His view was
“that the keeper shall be liable only for a mischievous propensity of which the owner must know.”—[ Official Report, 27 January 1971; Vol. 810, c. 739.]
That is the old scienter principle, for which the hon. Member for Preseli Pembrokeshire contends. If that is what was intended, why did the hon. Gentleman’s party, which introduced the Bill, not say so rather than create the mess that he believes exists and wants to tidy up? The Attorney-General went on to deal with clause 5, which concerned the defences as they then were. That gave rise to where we are with the 1971 Act today.
It is important to look at the 1971 Act before we start to consider the hon. Gentleman’s amendments to it, in order to see exactly what we are dealing with. The Act provides for strict liability for damages done by animals under section 1. It deals with the circumstances in which that will arise, and we are particularly concerned with section 2.
Section 2 is divided into two halves. The first deals with animals that belong to a dangerous species, and that is where liability attaches. When damage is caused by an animal that does not belong to a dangerous species—we have to decide what a dangerous species is; we know that an elephant is, and so is a camel, but there are problems in relation to other animals—three criteria have to be satisfied to establish strict liability. The first is:
“the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe”.
That provision has two different limbs. I tend to agree with the hon. Member for Preseli Pembrokeshire on this little point of amendment. We could do with some clarification here. That would not do any harm, and to that extent I am with him. However, when he gets on to section 2(2)(b), I start to have difficulties. That paragraph states:
“the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances”.
That was the rationale of the Mirvahedy case, which came to the conclusion that when an animal was spooked it would be within those characteristics at that time. We also have a redefinition of scienter in section 2(2)(c), which reads:
“those characteristics were known to that keeper or were at any time known to a person”.
The hon. Gentleman’s amendments do not make it clear in his definition whether he will keep the constructive knowledge provided for in the 1971 Act or whether he will take that away. Perhaps when he sums up, he will tell us whether he plans to keep the constructive knowledge test. That is quite an important part of section 2.
Stephen Pound: I am loth to mention the Dangerous Dogs Act 1991 further. However, one of the great difficulties with its interpretation was the business of whether characteristics were inherited, trained, or acquired. Does my hon. Friend honestly believe that we can establish any sort of judicial, legislative, or even scientific framework to define the characteristics of an animal?
Mr. Dismore: My hon. Friend raises a very interesting point. Ultimately, that is a matter for case law. There is a difference in law between animals that are considered to be wild and those that are considered to be tame. The general definition in the Animals Act sits rather uneasily with the schedule to the Dangerous Wild Animals Act 1976 that specifically sets out dangerous animals. The Animals Act might have been more helpful if it had included such a schedule because that would have made life a lot easier. In the end, characteristics become a question of law. There was a case in which there was a question of whether a filly’s prancing around a field and injuring someone was a characteristic. That was not decided under the Animals Act, but if it had been, it would have created interesting law.
Stephen Pound: I was trying to make the point that the majority of domestic animals might live in a state of nature in their natural lives, but in many cases they are shaped and formed by human beings, so are we considering an inherent characteristic, a formed characteristic, or a shaped characteristic? Once, when I was interviewing one of my constituents, he allowed a ferret to run across the desk, and it bit me. Apparently, that is an inherent characteristic of ferrets when meeting Labour MPs. Equally, however, an animal could be trained against its nature, so how could we possibly attempt to define the characteristics of an animal?
Mr. Dismore: My hon. Friend raises an interesting case. I am not sure whether a ferret is classed as a wild or domesticated animal in legislation. I would have required notice of that question to give my hon. Friend an answer.
Mr. Deputy Speaker: Order. I think that that is for another day.
Mr. Dismore: Thank you for rescuing me, Mr. Deputy Speaker. I could see myself getting into somewhat hot water over the nature of a ferret.
The Animals Act is well analysed in the 17th edition of “Winfield and Jolowicz on Tort”. The authors particularly raise the scienter principle—you have said that I cannot go into that in detail, Mr. Deputy Speaker, so I will not—and examine the range of animals to which section 2(2) of the Animals Act
applies. While I might not know the position in relation to ferrets, I certainly do in relation to dogs. The question is whether we are looking at all dogs, as a generic animal, or individual dogs of particular species and, ultimately, breeds. I am pleased that case law has looked at dogs with reference to their breeds. “Winfield and Jolowicz on Tort” says—this is relevant in relation to injuries—that Alsatians are powerful dogs and that if a member of that breed bites someone, it is likely that the injury will be severe. It says that it is unnecessary to say that a particular Alsatian is especially large or has unusually big teeth. What matters is not whether the injury is severe, but the propensity within the definitions in section 2.
There is also a question of likelihood, and what is meant by likely. An interesting example was given by Lord Scott in Mirvahedy itself. He said that one might break one’s neck by falling down stairs after tripping over an escaped pet dormouse, but that no one would suggest that a dormouse was likely to cause death or injury. On the other hand, it is probable that the requirement would be satisfied if horses were to escape on to a busy motor road, as happened in the Mirvahedy case.
Mirvahedy is the particular problem here, and the learned authors of “Winfield and Jolowicz on Tort” have examined it. They summarise clearly the ratio in the Mirvahedy case.
“Horses are not normally in a state of mindless panic but they will be when they are frightened and, for the majority of the House of Lords, their being frightened was ‘particular circumstances’ for the purposes of the second limb”
“The rival, unsuccessful interpretation,”—
for which the hon. Member for Preseli Pembrokeshire contends—
“that the ‘second limb’ is not an alternative basis of liability but merely explains the basic requirement of abnormality by recognising that in some circumstances even placid animals will react dangerously is less consistent with the statutory wording”.
That is the point. Ultimately we come back to looking at the wording of the statute, and that is where the point that I made earlier arises. They go on to say:
“Suppose the horse had got over its panic at being lost and suddenly stopped still in the middle of the highway and was hit by the claimant’s car. Is the accident now attributable to any characteristic of the horse for the purposes of section 2(2)?”
The answer to that has to be no. That summarises where we are in relation to that part of section 2.
We must then look at section 2 and its interrelationship with the definition of “dangerous wild animal”, which is the point raised by my hon. Friend: what sort of animal comes within section 2(2) and what sort of animal comes within section 2(1)? Again, I turn to the authors of “Winfield and Jolowitz on Tort”, who give great assistance here. They say:
“A dangerous species is defined as: ‘a species (a) which is not commonly domesticated in the British Islands and (b) whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe.’”
They give the examples of the elephant, which we talked about earlier, in the Bertram Mills’ circus, a lion
and certain types of monkey. The problem is that we know an elephant when we see it, but the broad definition is somewhat difficult to follow. I think that everyone remembers the Chipperfield circus case when Dorothy Tutin was put in a camel race and fell off. One of the arguments there was whether the camel was a wild animal within the terms of section 2 of the Animals Act. The conclusion was that it was, even though it was a domesticated camel, perhaps in the same way that the elephant was, and that the circus was strictly liable under the first part of section 2 of that Act. Life would be made a lot easier if the test in the Dangerous Wild Animals Act 1976, which sets out sensibly and clearly what is or is not a dangerous wild animal, was included in section 2.
Stephen Pound: Is not the logic of what my hon. Friend says that the hon. Member for Preseli Pembrokeshire—for the most noble reasons and entirely in line with his duty to represent his constituents—in seeking to limit strict liability may be leading us in completely the opposite direction and there will be pressure from the insurance companies to increase the degree of control and restraint that will have to be exercised by the owners and keepers of animals if strict legal liability is restricted?
Mr. Dismore: I am not sure that I follow my hon. Friend’s point, or that anyone else does either, but I think that I understand what he is getting at. There is little doubt, as we saw from the Library briefing for today’s debate, that the insurance industry is getting a lot tougher, certainly with those who keep animals for commercial purposes, particularly horse riding establishments, who are expected to conduct proper risk assessments and keep proper records, which is a good thing, and to comply with the licensing regulations rather more effectively than they had been doing. That was referred to in the article by the learned QC whose name escapes me who I referred to earlier.
Mrs. Theresa Villiers (Chipping Barnet) (Con): Has the hon. Gentleman consulted any of the excellent riding schools in his own constituency, in Mill Hill in particular? I fear that they, like riding schools in my constituency, may have experience of the problems with the Animals Act as identified by the Bill.
Mr. Dismore: I am contending for the status quo—nothing more and nothing less. Nobody would lose out on anything as a result of what I am arguing for. However, the victims of people who own animals that cause severe injury would lose out if the situation were different. I argue for maintaining the status quo. Ultimately, I would like to go a lot further, but we will not go down that road, which belongs to an earlier part of the debate. As far as I am concerned, the status quo is a reasonable balance. Riding schools have nothing to fear from my arguments.
Stephen Pound: There are not many riding schools in my constituency. However, if a fox hunt was roaring through a village and the horses were maddened and behaving uncharacteristically because of the excitement of the chase, would not the Bill limit the liability for a claim made by a victim of such an out-of-control hunt? Would it not be a charter for those who cause the damage rather than those who suffer?
Mr. Dismore: That is an interesting point. To gallop is a natural characteristic of a horse. In the situation that my hon. Friend mentions, a claim might well be found in negligence, but certainly not according to the criteria of proposed new section 2B. There might well be liability through different routes if a hunt chased wildly through a residential road and injured somebody, as that would be a negligent thing to do. However, there would not be strict liability, because galloping is natural for horses. We are interested in unnatural characteristics at a particular time. My hon. Friend raises an interesting point, but I am not sure that it would make a difference to the outcome in the end.
Stephen Pound: I am no great expert on the horse, but it cannot be the natural characteristic of a horse to be ridden by a large florid huntsman and to pursue a sentient mammal. Its natural characteristic is to be a gramnivorous quadruped idly cropping the steppes of its native land. Surely the horse is not a hunter by birth.
Mr. Dismore: If it were a wild horse, it would probably come under section 2(1) of the 1971 Act. However, a horse in a hunt is a domestic horse, whose natural characteristic is to gallop. At the risk of being taken down a peculiar byway, I should say that my hon. Friend would find the same outcome; anyone injured in such circumstances would probably be compensated under the law of negligence. Such a case would not be among the small number, referred to earlier, that would come within the criteria of the Mirvahedy decision.
I go back to what would be caught by section 2(1). Applying the Dangerous Wild Animals Act 1976 would be much better; it sets out an interesting schedule of animals considered to be dangerous, ranging from a giant anteater to the aardvark, via elephants, camels and tigers.
Stephen Pound: An aardvark never killed anybody.
Mr. Dismore: That may be true, but it is a dangerous wild animal according to the 1976 Act. I think that its drafters erred on the side of caution; the Act includes reptilian animals and spiders as well as the hippopotamus, the wild boar and the giraffe. I certainly do not think that giraffes are particularly dangerous—not that I have great experience of them. The point is that the 1976 Act would be a far better way of dealing with the issue addressed under section 2(1) of the 1971 Act.
However, we have to see how the 1971 Act has been applied and what difference it would make post-Mirvahedy. The leading case on the issue was presided over by Lord Denning. It concerned a guard dog. The defendant was the occupier of a breaker’s yard in the east end. The yard was locked up and the defendant’s untrained Alsatian was turned loose to deter intruders. One night, an associate of the defendant, who had access to a key, unlocked the side gate and, accompanied by the plaintiff, who knew about the dog, entered the yard and the dog attacked the plaintiff. Lord Denning uses some wonderful language in his judgment. He stressed that the yard was in the east end of London,
“where persons of the roughest type come and go. It was a scrap-yard, true, but scrap-yards, like building sites, often contain much valuable property. It was deserted at night and at weekends. If there was no protection, thieves would drive up in a lorry and
remove the scrap with no one to see them or to stop them. The only reasonable way of protecting the place was to have a guard dog. True it was a fierce dog. But why not? A gentle dog would be no good. The thieves would soon make friends with him. It seems to me that it was very reasonable—or, at any rate, not unreasonable—for the defendant to keep this dog there.”
He goes on to find no liability in relation to the plaintiff. He called it, “The case of the barmaid bitten by a big dog.”
I believe that such cases would be caught by the Mirvahedy decision, if they had not been caught previously. Lord Denning went on to refer to the Guard Dogs Act 1975, which was new at the time. He made the point that the answer lay in that measure. However, he did so without reflecting on the fact that it does not create civil liability. I cannot remember who mentioned the Guard Dogs Act earlier—certainly someone from the far side. Although that measure is clear about what people should do—guard dogs should not be permitted without a warning sign, the dog has to be under a handler’s control or otherwise secured—if that does not happen and the dog gets loose or someone is bitten, no liability arises under it. Liability arises under the Animals Act. That is why section 2 is so important.
There are many cases involving dogs. For example, there is the case of the border collie and the problem of dogs that have a particular propensity to bite people who carry bags. There is also the problem of dogs that are known to attack other dogs adopting people. The most recent case involving a scrap yard owner was of a loose Alsatian, which was not a guard dog. Liability was found because the dog was a stray that had been adopted without being properly examined.
The only case to succeed was Curtis v. Betts, which my hon. Friend the Member for Ealing, North mentioned. It concerned a bull mastiff, which bit a 10-year-old child neighbour. The dog was being put in a car, the child came along to pat the dog and the dog went for him. Section 2(2) of the Animals Act is clear and the case succeeded. The court applied section 2(2)(b), which requires the plaintiff to show that
“the likelihood of the damage or of its being severe was due to the characteristics of the animal which are not normally found...except at particular times or in particular circumstances”.
The “particular circumstance” in that case was that the dog was guarding its territory, which was taken to be the back of the Land Rover into which it was being loaded. The child was badly injured and the 11 or 12 stone bull mastiff was responsible.
The Dangerous Dogs Act 1991 was mentioned earlier. We know that it is problematic. Again, it does not provide an answer to cases of dog bites. It is a criminal offence to keep a dangerous dog, which is defined in several different ways by reference to breed. We know about pit bulls and the Japanese tosa, but the Act also refers to any dog that appears to have been bred for fighting or that has the characteristics—my hon. Friend the Member for Ealing, North made a point earlier about defining characteristics—of a type bred for that purpose. The problem with the Dangerous Dogs Act is that it, too, fails to provide for civil liability. Therefore, the difficulty is that there is no additional civil liability in those circumstances, other than that provided for by section 2(2) of the 1971 Act.
There are also cases involving horses that predated Mirvahedy. The first—Haimes v. Watson, in October 1980—had almost exactly the same facts:
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