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“The plaintiff was riding his horse along the near side of a country road...the horse moved across the road and the defendant collided with it broadside.”
The question was whether the horse or the rider was responsible. The court came to the conclusion that
“there was no absolute duty on a rider of a horse who rode it properly along the highway to prevent it going out of control”
“the fact that the horse had moved...broadside...called for an explanation”,
“the explanation...given, ie, that it had shied and that”
“had temporarily lost control of it, had been adequate to negative any possible inference of negligence that might otherwise have been drawn”.
I raise that case, which might have succeeded under the Mirvahedy principle if it had gone to the House of Lords, which it did not—it went only to the Court of Appeal—because if the hon. Member for Preseli Pembrokeshire got his way, it would have been decided the other way. The plaintiff—in fact, the defendant, because there was a counter-claim—would then have recovered compensation. It is perhaps a pity that that case did not go to the House of Lords, because Mr. Haimes lost out as a result.
The other case that is almost on all fours with Mirvahedy is Jaundrill v. Gillett, in January 1996. In that case the horses were
“maliciously released on to the road where they panicked and galloped into an oncoming car”.
Those are almost exactly the same facts as the Mirvahedy case. The notes continued:
“The horses had escaped from a field where they had been kept by the defendant. It was common ground that some malicious intruder had opened a gate and driven the horses on to the highway.”
We do not know how the horses got out in Mirvahedy, but the inference was always that an intruder had spooked them. The conclusion drawn was that there was no liability on the owners of the horse. Again, Jaundrill v. Gillett was a Court of Appeal judgment predating Mirvahedy. In those circumstances—this is exactly the sort of case that I am arguing about—the victim of the accident was uncompensated. If that case had been decided under the 1971 Act post-Mirvahedy, however, he would have been compensated.
We come to the Mirvahedy judgment, which is the root cause of all our ills today. The headnote for the case summarises the position pretty clearly—this is why I think the law does not require clarification—saying that the keeper of a non-dangerous animal is
“strictly liable for damage”
“caused by the animal when the animal’s behaviour”,
although not normal behaviour for animals of that species, is nevertheless normal behaviour for the species in the circumstances, such as a horse bolting when sufficiently alarmed. Since the actions of the claimant
had been caused by the defendants’ horses behaving in an unusual way, caused by their panic, they were liable to him.
The leading judgment of Lord Nicholls ended by saying:
“The fact that an animal’s behaviour, although not normal behaviour for animals of that species, was nevertheless normal behaviour for the species in the particular circumstances does not take the case outside section 2(2)(b)...Horses are large and heavy animals. But it was not this innate physical characteristic of the defendants’ horses which caused the road accident. The horses escaped because they were terrified. They were still not behaving ordinarily when they careered over the main road, crashing into vehicles rather than the other way about.”
Lord Nicholls also referred to the Court of Appeal judgment, saying that Lady Justice Hale had
“concluded that it was precisely because they were behaving in this unusual way caused by their panic that the road accident took place...That conclusion, on the evidence, seems to me irrefutable and to be fatal to the case of”
the defendants. That is why he dismissed their appeal.
That law is pretty clear and I do not really understand why the hon. Member for Preseli Pembrokeshire or my hon. Friend the Minister have suggested that it is not. The issue has been tried in a series of cases since, some of which my hon. Friend the Member for Ealing, North referred to in an intervention by citing the Library briefing, and the vast bulk were lost. Galton v. Moorcroft, for instance, involved a horse on display at Windsor castle, but failed under the defence under section 5(2) of the 1971 Act—the volenti defence, which was referred to earlier.
In the case of Clark v. Bowlt, the claimant’s vehicle was slowly passing a horse going in the same direction. The horse jumped about a bit and moved into the road just as the car passed. Nobody could avoid a collision and there were no exceptional characteristics. The accident was a mishap, and Mr. Clark went uncompensated.
We heard earlier about the McKenny v. Foster case—the escaped cow case. I think that the hon. Member for Preseli Pembrokeshire said that it went to the Court of Appeal last week. That case, too, failed, so we can rely on the courts to adopt some common sense. In the 2006 Clark v. Bowlt case, to which my hon. Friend the Member for Ealing, North, referred in an intervention, the claimant was driving along and minding his own business. He slowed his vehicle to pass a horse being ridden by the defendant on a narrow verge, in the same direction. As he passed the horse, it made an uncontrolled movement into the road and hit the front of the car, and both parties sustained injuries. There was no negligence involved, and it was found that the horse had no unusual characteristic, as was the case in Mirvahedy. It was found that
“a propensity occasionally to move otherwise than as directed could not be described as a characteristic of an animal”.
The characteristic was the horse’s weight, which was normal, so the requirements of section 2(2)(b) had not been satisfied. That is another post-Mirvahedy case in which the courts came to a sensible conclusion. Personally, I would like the law to be different and include absolute liability in such circumstances, but unfortunately that is not what we are discussing today. I am simply arguing for the status quo, which would at least mean that some cases that have failed would have succeeded.
The Plum v. Berry and Berry (T/A Chorley Equestrian Centre) case also involved an experienced rider. Her horse went into a gallop and threw her, and the case failed because of a defence under section 5(2) that she had voluntarily accepted the risk by riding the horse. The final case that I wish to mention relates to a dog.
Stephen Pound: Before my hon. Friend moves from horses to dogs, is there not implicit in his comments a duty of responsibility for the training of the rider? Does that feature in law? He used the expression “an experienced rider”. What if the rider were inexperienced and had never ridden a horse on a public road before? Would such a case be applicable?
Mr. Dismore: My hon. Friend gives an interesting set of circumstances. I think that he will find that if an inexperienced rider were put on a horse that was inappropriate for them, there might well be liability for negligence. I am aware of some cases along those lines. It is horses for courses, if I may use that pun.
I am not entirely sure that such a case would turn on section 2(2), because it would involve a normal characteristic of the horse. If the inexperienced rider caused the horse to behave in a way that was not a normal characteristic—I have details somewhere in my pile of documents of a case in which someone was thrown in such circumstances—there would not be a claim under the Animals Act. It would be an example of a normal domesticated horse behaving in a normal way that could have been anticipated, although there might be a negligence claim because the wrong person was put on the wrong horse.
As I said, the other relevant example is a dog case: Gloster v. Chief Constable of Greater Manchester. A police officer, who was the claimant, was bitten by a police dog. He was in a police car chasing a stolen vehicle. The driver of the stolen vehicle ran off and the policeman gave chase. The dog handler on the scene had his German shepherd and would have given chase and effected an arrest, but the claimant had not heard the command to remain in his vehicle. Once police dogs are set loose, they will go after the first person they see. Unfortunately, in this case it happened to be the police officer, because the dog handler fell over and the dog slipped its leash and bit the policeman, not the car thief. The conclusion was that there had been no negligence and that it was an accident. Because the dog had been trained to act as it did, it was not its characteristic or natural inclination. The likelihood of the damage being severe was not due to any characteristic but because the dog had, as the defendant put it, “big, sharp teeth.” It is characteristic of German shepherd dogs that they are capable of being trained to perform certain acts, but the act of attacking or biting was viewed not as a characteristic in itself, but merely as a manifestation of the dog’s characteristic in being able to respond to instruction. In that particular case—another section 2(2) case—the claim failed because of the fact that the behaviour was a normal characteristic of the animal.
The hon. Member for Preseli Pembrokeshire says that many problems have been created, but we see from the cases I have described that, in practice, they have not. All the cases failed because the animals behaved in
a normal way, whereas in the Mirvahedy case, the animal behaved in an abnormal way. If the animals behave normally, no problem is caused by Mirvahedy or section 2(2). There may be a claim in respect of negligence, but in the cases I have cited, no negligence was found.
Let me deal now with certain issues related to the explanatory notes, the first of which is the question of strict liability. It is important to reflect on the fact that strict liability is not a novel concept in the law—I am not going to go through it in detail, as we explored it in earlier interventions—as the Occupiers’ Liability Act 1957, the Consumer Protection Act 1987 and all the Factory Acts through history are quite happy to impose strict liability.
At the risk of straying across the channel, the French civil code imposes strict liability on animal owners, who are responsible, pure and simple, for the damage caused by their animals. I am not going to read out the French, as that might be out of order, Mr. Deputy Speaker, but I have here the text of the code if anyone wishes to check that my translation is correct. The fact remains that when it comes to strict liability, there is nothing novel in Europe either.
I would like to deal now with the impact assessments of the Bill. I say that I would like to, but the problem is that the impact assessment is somewhat difficult to find. The explanatory notes state:
“An Impact Assessment has been published alongside the Bill”,
and we are told that it can be found at www.defra.gov.uk. Unfortunately, that is a rather optimistic assertion. I have had the Library try to find it, but I received a letter this morning telling me:
“Although para. 15 of the attached Explanatory Notes to this Bill refers to and paraphrases the Impact Assessment, I and my colleagues have not yet been able to trace a copy of the document. I have contacted the office of the DEFRA Parliamentary Clerk who was not able to immediately trace a copy. ”
A number of other office numbers to contact were then mentioned.
The problem is that if we are expected to debate a Bill, we should be able to scrutinise the impact assessment relating to it. I suggest, Mr. Deputy Speaker, that it will be very difficult to do so if the impact assessment cannot be found. That problem needs to be addressed because when I had a go at finding the Minister’s website, I could not find it. The particular website referred to in the explanatory notes has hundreds of impact assessments, so it may be lost in a herd and cannot be found. The Library has been working for me, but it cannot find it, and even the parliamentary Clerk cannot find it. That does make it rather difficult to scrutinise this particular Bill. The impact assessment is, however, summarised in the explanatory notes. I am sure that it is summarised accurately; I have no reason to think otherwise, though I would have liked to have had the opportunity—
Mr. Deputy Speaker: Order. I think that it is right to note that quite serious deficiency, but we can only congratulate the hon. Member on the supreme way in which he has managed to overcome the handicap.
Mr. Dismore: Thank you, Mr. Deputy Speaker. I have not overcome the handicap, but I will try to work from the explanatory notes, which summarise the impact assessment—accurately, I hope. The summary goes on to say that
“there will be no significant impact on charities and the voluntary sector”—
that is probably clear—and then that the Bill
“may result in fewer court cases”,
but I suspect that that is not the case. I think that it will result in more court cases. If we have to fall back on the law of negligence as opposed to the law of strict liability, it will inevitably become a matter of contention in the law of negligence whether a particular act or omission is a breach of duty—or indeed where precisely a breach of duty lies—and that will increasingly become an issue for the lawyers. Given that the law of strict liability is clearer, it is likely to lead to quicker and easier settlements of cases.
We are then told in the impact assessment that there might be reduced insurance premiums:
“Insurance companies will be able to balance any loss in terms of lower premiums with the reduced cost of payments needed to settle cases brought under the clarified Act.”
The hon. Member for Preseli Pembrokeshire has already conceded that we are talking about a handful of cases and we have already explored the question of reduced insurance premiums. I think that they will not be reduced, for the reasons we debated earlier. I shall not repeat that debate because, of course, that would be out of order, but I would very much have liked to see the impact assessment, as it would have enabled me to see the basis of the argument that insurance premiums would be reduced. It is counter-intuitive that that would be the case; I think it is wrong. Unfortunately, I am not able to test the argument as we do not have the impact assessment before us.
Stephen Pound: I am following my hon. Friend’s analysis. Is he not leading us in the direction that many of us in the House are already taking? We have great sympathy with the Bill, but a radical amendment of the 1971 Act might simply not be possible within the confines of a private Member’s Bill. Should Government time be given to examine the issue, perhaps outside the limited ambit of a private Member’s Bill?
Mr. Dismore: My hon. Friend is right, and I briefly hinted at that point earlier. There really is a problem here. The hon. Member for Preseli Pembrokeshire has cherry-picked a small part of the 1971 Act, and we should bear it in mind that the gestation of the issue goes back to the Goddard inquiry of the 1950s, the Law Commission report of the 1960s and the Act itself. People have a different attitude to, on the one hand, what they should and should not be compensated for, and, on the other, the care of animals. The Bill raises a series of other issues, not just the question of liability for accidents caused by animals; it deals with all sorts of other stuff.
It would be far more sensible for the Government to go away and think about root-and-branch reform, and perhaps even consolidation of all the different measures relating to animals. As we have seen today, during the brief discourse that I have been able to
undertake, several pieces of legislation interact and potentially conflict—for example, in relation to the definition of a “wild animal” in the legislation that deals with the licensing of the keeping of wild animals, and the definition of “wild animal” in the 1971 Act. Surely it would make a lot more sense to have a consolidated definition across the board, either the generic definition in the 1971 Act or the list set out in the legislation dealing with the licensing regime.
Stephen Pound: Is it my hon. Friend’s understanding that the Government wish to revisit this area? In autumn 2006—less than two years ago—the Department conducted what was admittedly an informal consultation on the meaning of the 1971 Act. Do the Government recognise that there are difficulties here and are they acting, if perhaps not quite as quickly as the hon. Member for Preseli Pembrokeshire would wish?
Mr. Dismore: My hon. Friend raises an interesting question, and I am not quite sure that I know the answer to it. I think that the Government were considering the issues relating to section 2 of the 1971 Act, but I am not sure that they were looking at the wider implications.
It would be sensible to consider a consolidating measure to bring together all the different definitions and arguments in one place and under one set of principles. I hope that that would also provide an opportunity to clarify the law in relation to insurance. As I have said, we must consider the issue of compulsory insurance in relation to both wild animals and riding establishments. However, there is no compulsory insurance for other animals.
I am not saying that it would be a good idea for everybody who owns a cat to have compulsory insurance, although I suppose it depends on how big the cat is.
Stephen Pound: A lion is a cat.
Mr. Dismore: As my hon. Friend says, a lion is a cat. If he looks at the Dangerous Wild Animals Act 1976, he will see that “lion” appears in one category, but that the domestic cat is excepted from the rules. He has raised an interesting point and there is an argument for bringing some of those definitions together.
The impact assessment goes on to say that
“there may be an impact on some individuals injured in accidents involving animals where strict liability does not apply following the Bill...Some of these cases may be addressed by negligence and some of them will not. The impact will be felt more acutely in cases where negligence cannot be established. Such cases are thought to be relatively rare and their outcome...uncertain under the current legislation.”
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