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If those cases are rare, why must we start messing around with the law in this way to exclude such people? Such people may have been killed, and their families bereaved and left without a breadwinner. In the Mirvahedy case, someone suffered severe injuries. In some of the dog cases, children have had their faces bitten off. We are talking about children going to the countryside, minding their own business on a Sunday afternoon out, and getting trampled by a horse. Those are real people, and to say that there “may be an impact” on them is a wild understatement. A serious
personal injury is a life-changing event—indeed, a fatal accident completely changes a person’s life, because it comes to an end. To say, in that bland way, that there “may be an impact”, is a gross understatement and, in my view, shows gross disrespect to the victims.
However, one aspect of the impact assessment appears to be entirely missing. There are only two paragraphs—one dealing with insurance, and the other with the point about people losing compensation—and the impact on the public purse is not dealt with. If people who are severely injured go uncompensated, they will inevitably fall back on the resources of the state. If they are severely hurt and require hospitalisation, they will fall back on the NHS. When they come out of hospital, they may need long-term care. If their case succeeds, the long-term care will be paid for by the insurance industry; if it fails, it will be paid for by the taxpayer through social services. The person might require adaptations to their home that they will not be able to afford through social services, but that they would be able to afford through an insurance claim. Their quality of life will be much reduced because they will be dependent on the state and what the state is prepared and able to provide, compared with what they would be entitled to—to put them in the same position, as far as compensation can do that—if they were able to succeed in their law cases.
A whole section is missing from the impact assessment, on a matter of fundamental importance. I wanted to scrutinise that document so that I could satisfy myself as to whether the issue had been considered and discounted, or simply had not been thought of in the first place. If it had not been thought of in the first place, DEFRA is in its compartmentalised chimney, and is not looking at the wider implications for social services, local government and the Department for Work and Pensions budget when benefits must be paid to support the victim. That would be a serious error and omission in the regulatory impact assessment.
Arguments were advanced earlier that this was all about the compensation culture. I want to answer those points briefly, because the issue has been raised before in Friday morning debates on various aspects of compensation. Everyone talks about the compensation culture, but although that might be the perception, the reality is different. The most recent figures were published in the Health and Safety Bulletin in January-February this year—hot off the press. Research by the university of Warwick—an excellent university if I may say so, as it is my alma mater—found that
“the number of personal injury cases heard by the High Court and county courts declined by 42 per cent. between 1999 and 2003”
“the number of personal injury actions in the Queen’s Bench Division...fell from 1,187 cases in 1999 to 570 in 2003—a fall of 52 per cent. The same period saw a 38 per cent. decline in county court claims, from 3,580 to 2,210. The findings follow earlier research that identified a 5.3 per cent. fall in accident claims between 2000 and 2005”.
Those figures, the research goes on to say,
“are further evidence that the UK’s alleged ‘compensation culture’ is a myth.”
Stephen Pound: I am sure that the whole House is grateful for that information, which will come as a considerable surprise to the leader writers of the Daily Mail.
Does my hon. Friend think that the reason why the specialist legal practitioners who responded to the DEFRA consultation that took place 18 months ago concluded that Mirvahedy v. Henley created a satisfactory situation is relevant to the point that he has just made?
Mr. Dismore: I do not think that it is, given that Mirvahedy may be responsible for only a handful of cases. In fact, as far as we are aware there have not been any other cases. Mirvahedy is the one and only case that has been reported. I think that if there had been more cases based on the same principle and involving horses, we would know of them from the newspaper columns or, indeed, the researches of the hon. Member for Preseli Pembrokeshire. I believe that such occurrences are very rare indeed. It may well be that Mirvahedy is a one-off—an unusual case that has led to extensive discussion and debate.
Mr. Roger Williams: That may be so, but might not a number of cases have been settled as a result of Mirvahedy that would have gone to court if that case had not been heard and if that ruling had not been made?
Mr. Dismore: The hon. Gentleman makes a fair point, and he may well be right. Obviously it is far better for cases to be settled than fought, but serious cases will tend at least to be litigated, even if no judgment follows. The figures that I gave earlier showing a decline in the number of High Court cases across the board are symptomatic. If what he suggests were correct, the insurance industry would have produced very detailed briefings for today’s debate, which would presumably have contained a lengthy list of all the cases that had been settled that it considered to be unfair on the basis of the Mirvahedy principle. The dog that did not bark—an apt way of putting it, in the context of the Animals Act—is the insurance industry, which has produced no evidence of actual post-Mirvahedy cases that it considers to be unfair, as opposed to general speculation that there might be a few of them of which we have not heard. The insurance industry is very good at carrying out research, and when debates such as this have taken place in the past it has always brought chapter and verse to the table. It has not done so today, and I think it extremely unlikely that we will see any evidence of those cases.
Paragraph 17 of the explanatory notes, headed “European convention on human rights”, states:
“The Bill amends existing legislation to clarify the circumstances in which strict liability can apply to the owners of animals that cause harm or damage. Nothing in the Bill directly affects the rights or obligations of any person in such a way as to engage their Convention rights.”
The Joint Committee on Human Rights would have an awful lot to say about that bald assertion. In our annual report this year, we produced a coruscating paragraph in which we pointed out that far too many Departments make such bald assertions of compliance without analysing the facts. An assertion does not constitute justification for a statement of compliance with the Human Rights Act 1998, and I cannot take this assertion as a proper certificate for those purposes.
We need only refer to the Human Rights Act to see that human rights principles may well be engaged. For a start, there is the right to life—the most important of human rights—which is enshrined in article 2 of the
convention. It is fundamental in this context. The state has a positive duty to protect the right to life, and the weakening of civil liability will work against that positive duty. There is also the right to protection of private property, which may also be engaged. The Bill deals with not just personal injury but property damage, and that principle too could be engaged. The same applies to the right to protection of private and family life, which is laid down in article 8. So I am certainly not convinced that the Bill is compliant with the Human Rights Act and the convention.
The Bill’s promoter says that the intention is to return to the common law of negligence. I do not think that the Bill does that. It offers one sensible amendment in relation to damage by substituting for section 2(2)(b) of the 1971 Act provision that
“the damage was due to an unusual or conditional characteristic of the animal”.
That is a helpful clarification. However, its changes to paragraph (c) are unhelpful, and the remainder of the Bill does not achieve the objectives sought.
“The intention is to allow the courts to distinguish between a continuing, generalised risk that the keeper knows may occur at some time (e.g. a horse may shy at a plastic bag if one blows in the wind near it) but does not know when it may occur, and a heightened, specific risk over a specific period of time that the keeper knows will increase the possibility of the animal displaying dangerous behaviour during that period (e.g. a cow with calves, or a horse in a field next to a shoot).”
That is not a return to the original common law, as we have learned from references to previous cases. Let us look at the definition of unusual characteristics in the commentary in the explanatory notes:
“Unusual characteristics are defined as those that are not shared by the species generally, while conditional characteristics are defined as those that are shared generally by the species, but only in particular circumstances”.
The hon. Gentleman has rightly drawn attention to the two different limbs of his new definition: the unusual characteristics and the conditional characteristics. However, I do not think that that would add a great deal in the scheme of things. We are dealing with a small number of cases, and I think we should leave well alone.
There are other complications. I am unsure whether the hon. Gentleman intends to include the same definition of knowledge as that in section 2. I am sure he will want to reply to the debate, and perhaps when he does so he will clarify the position in relation to constructive knowledge and say whether the same test would continue to apply.
There is also an issue in relation to the limitation period. The normal limitation period for personal injury claims is three years, but a 2002 case—Clarke v. Barber—changed the principles in relation to limitation, and that is important in terms of liability under the Animals Act. In that case, the top of the claimant’s index finger was bitten off by a dog, but the claim was brought three years and nine months after the incident. The limitation period was thought to be three years, under section 11 of the Limitation Act 1980, so, unfortunately, the case fell outside its provisions. However, the court came to the conclusion
that a special six-year limitation period would apply because of the particular requirements of strict liability under the 1971 Act. The court concluded:
“The cause of action under the 1971 Act was one of strict liability”.
That is the section 2(2) point. It went on to say that
“therefore once a claimant had established the three requirements under s.2(2) of the 1971 Act relating to non dangerous species”
—in this case a dog, but it could have been a horse—
“then liability followed. The 1971 Act did not impose a duty of restraint or duty to take reasonable care and therefore could not be interpreted as a claim for breach of duty. Therefore a six year limitation period applied.”
If the hon. Gentleman is going to start messing around with section 2(2), perhaps he will tell us what the implications would be for the limitation period under that section. What will be the implications for the six-year limitation period relating to strict liability if he gets his way and removes that strict liability under section 2(2)(b)?
Stephen Pound: Before my hon. Friend moves off that point, may I say that I do not think that anyone would accuse the hon. Member for Preseli Pembrokeshire of trying to mess around in the Bill? He is acting from the noblest of motives. We talk about inherent characteristics, but our problem is that, as in the case of the Burmese elephant and the then entitled “midget”, this is about the strength of the animal and its ability rather than its characteristics. A famous sign in the Paris zoo translates into English as, “This animal is very bad. When it is attacked, it defends itself.” Surely every single animal has within it the ability or characteristic in certain circumstances to act in a way that would define it as dangerous.
Mr. Dismore: My hon. Friend is right; that is why the law makes the distinctions between wild animals and domesticated animals and between normal characteristics, abnormal characteristics and characteristics that appear in certain circumstances or at a certain time, such as when a dog is with its pups. However, that does not deal with my point, which is about the Limitation Act 1980.
If the consequence of the Bill would be to halve the limitation period, that would be significant. I do not know whether the hon. Member for Preseli Pembrokeshire has considered the consequences of the limitation period. Has he thought through whether, because he is removing strict liability, the limitation period would be reduced to three years from six years? That is a significant omission from the introduction to the Bill, because it would significantly affect people’s rights. The matter is fundamentally important.
The Bill contains no commencement clause. I am not sure whether that is an omission or whether it was done deliberately. I am not sure whether the hon. Gentleman wants to fall back on the simple, normal commencement arrangements or whether he feels that it would be more appropriate for commencement to be set out in the Bill, so that people are aware of when it will come into force and of how to organise their arrangements around that. Let us consider the case of insurance. If people know when the legislation will change, thus in the unlikely event that insurance policies and premiums changed, that would enable people to know from when they
should start negotiating their lower premiums. As I have said, I am sceptical of his argument on insurance, but if we knew that the Bill’s provisions were going to come into force in six months’ time, people would know when the cut-off period would be when they came to renew their insurance policy. That would greatly benefit people in trying to negotiate insurance arrangements.
I have examined the Bill in some detail. There are significant problems with it. There is a significant gap in the way in which the hon. Member for Preseli Pembrokeshire approaches the matter and our opinions differ significantly. I want to preserve the status quo. He wants to reduce the rights of victims of accidents, but I do not. I think that people who have been injured are entitled to compensation, and I hope that he will reflect on my comments.
2.13 pm
Stephen Pound (Ealing, North) (Lab): It has been enlightening for me to hear today’s comments—I am not merely referring to the journey that has taken us back to Exodus and the sound principle that if an ox misbehaves, it should be stoned to death, as should its owner.
I should like to place on record my respect for the hon. Member for Preseli Pembrokeshire (Mr. Crabb). He is doing the right thing, but possibly in the wrong way. He has identified a cause that is of wide concern, not only in this House, but outside the Chamber and throughout the country. That concern is reflected in the, admittedly, informal consultation that took place under the auspices of the Minister who was responsible for the horse industry at the time, my hon. Friend the Member for Brent, North (Barry Gardiner).
I was impressed to note that in the henotic spirit that so often informs the hon. Member for Preseli Pembrokeshire, his supporters included not only a group of MPs predominantly representing rural areas, but my hon. Friend the Member for Brent, North. When I looked at the list of the Bill’s supporters, my initial concern was whether this was yet another rural and urban divide and whether this issue was of great concern to the rural community but of less concern to the urban community. As an urban MP, I was pleased to note that my hon. Friends the Members for Vauxhall (Kate Hoey) and for Brent, North were among the sponsors of the Bill.
Were anyone to think that this was entirely a rural issue and urban Members should not speak to it, they need simply accompany me on my diurnal journey to this place. It is my pleasure to pass along the Bayswater road, and as I draw adjacent to Rotten row, the road is often crossed by many people riding horses, as apparently some stables are tucked away there, not a million miles from the new residence of the former Prime Minister, Mr. Tony Blair. As the horses cross the road, I frequently concern myself with a possible interaction between them and my motorbike or car, whichever I happen to be using on the day.
I have given some thought to the issues that the Bill raises, and my difficulty is that the hon. Member for Preseli Pembrokeshire proposes to limit the liability expressed in the Animals Act 1971. If he proposes to limit liability, he must do so with a purpose. By limiting liability in one area, he will increase liability in another.
If the liability that is legally incumbent on the owner or the keeper of the animal is limited, it is diluted from the perspective of a victim of that animal. We then enter this extraordinarily difficult area.
Any person with any element of common sense would want a system in which if a person is not a good and careful animal keeper, they—and not the innocent animal—should be liable for the actions of that creature. Over and over again, we see examples of animals that exist in a state of natural nobility being turned, twisted, perverted or shaped in a way to suit a human design. It is people who act thus whom we seek to punish. We do not seek to penalise the animal, as the case law so exhaustively delineated by my hon. Friend the Member for Hendon (Mr. Dismore) shows. It is not the characteristics of the animal that are of concern, but the strict legal point about whether it is reasonable for that animal to react in a certain way, whether because of provocation from persons of restricted growth in circuses, because a paper bag blew across a field, or because it is giving birth or protecting its young.
My instinct is to support the hon. Member for Preseli Pembrokeshire, because his Bill is a response to a widespread concern, but I also feel that he is not approaching it in entirely the right way. It is the issue of the ownership or keeping of the animal that cannot be addressed within the scope of his admirably brief Bill. If the Animals Act 1971 were to be amended in this way, the people to gain from it would be the personal injury lawyers. I understand that my hon. Friend the Member for Hendon is a distinguished member of that profession, and I would never dare to criticise it. I am sure that personal injury lawyers have their purpose, and one day I will discern what that purpose actually is. They are the people who would have to tidy up the mess.
Justine Greening: I think that I can help the hon. Gentleman on the question of the purpose. The purpose today was to prevent Ministers from being held accountable on Heathrow and the environmental impact of airports.
Stephen Pound: I am, as always, grateful for the hon. Lady’s intervention, but I have searched the Bill, the explanatory notes and the Library notes, and I cannot see anything about Heathrow airport—
Mr. Dismore: An aspersion has been cast from the other side of the House, but my hon. Friend will know from our discussions that I have grave reservations of principle about this Bill, and it was entirely appropriate that I should put those reservations before the House today. I would not wish to retract anything that I said. I fundamentally oppose the Bill and I wished to ensure that the House had the benefit of my arguments against it. It had nothing to do with anything that might come afterwards: when I first saw the Bill, I did not even know what would follow it.
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