Animals Act 1971 (Amendment) Bill

We are looking for clarification of a particular situation. My hon. Friend's example takes us into a wider issue, which would not be suitable for a private Member's Bill of this type. A great deal more parliamentary scrutiny would be needed to deal with such an issue. If strict liability were to apply in all cases, the 1967 Law Commission report, paragraph 14, and the 1971 Act would have looked very different. It would have been very much easier to understand and interpret if that had been the case. If strict liability was going to apply in all cases, section 2(2) would not have needed to distinguish between accidents involving dangerous species and those involving non-dangerous species, and we would certainly not have needed section 2(2)(b) to try to identify circumstances in which strict liability was the order of the day. If strict liability is to apply in some circumstances but not in others, we need to try to identify those in which it should apply and those in which it should not. We must bear in mind that we are here not to discuss the principles underpinning the Act—that is, whether strict liability should apply in all cases—but only to reach a sensible and reasonable decision on the cases in which it should apply. The Bill reflects the policy that it is desirable for the keeper of an animal that does not belong to an inherently dangerous species to be strictly liable for damage or harm caused by that animal only when he knows that it may be dangerous at the time when the damage is caused, either because of its particular temperament or because of particular circumstances applying at the time—the animal may have young to protect, for instance—that the owner or keeper could have predicted. That seems to me to be eminently sensible. The Bill replaces the existing tortuous wording of section 2(2)(b) with a new formulation referring to the damage being caused by ““unusual or conditional”” characteristics of the animal. Unusual characteristics are defined as those that are not shared by the species generally, while conditional characteristics are those that are shared by the species but only in particular circumstances. The term ““particular circumstances”” is not defined in the Bill, and it would be for the courts to decide what constitutes them in the light of the details of cases brought before them. The new wording requires that for strict liability to apply in cases in which an unusual characteristic was the cause of the damage, the keeper of the animal at the time when the damage was caused must have known of that characteristic in the animal. When the damage is due to a conditional characteristic of the animal, there is a defence against strict liability if the person who was the keeper of the animal when the incident took place is able to show that there was no particular reason to expect the particular circumstances that provoked the conditional characteristic to arise at that time. The intention is to allow the courts to distinguish between a continuing, generalised risk that the keeper knows may occur at some time although they do not know when—as the hon. Member for Preseli Pembrokeshire suggested, a horse may shy at a plastic bag if the wind blows one near—and a heightened, specific risk over a specific period that the keeper knows will increase the possibility of the animal's displaying dangerous behaviour during that period. That may apply to a cow with calves or a horse in a field next to a shoot. There will of course be marginal cases: there always are when the actions of people and, indeed, animals are involved. The law cannot predict such cases or prescribe the route that the courts must take in every circumstance, but it can point the way. In the case of conditional characteristics, the courts will be presented with a series of tests which they should apply to the facts in the case. First, they will need to ascertain whether the damage was due to the conditional characteristic that the animal possesses. Secondly, they will have to ascertain whether the damage was caused in the particular circumstances that provoke the conditional characteristic in the animal. Thirdly, they will need to be satisfied that the person who was the keeper of the animal at the time when the damage was caused cannot prove that he had no particular reason to expect those circumstances to arise at the time when the damage occurred. That means that someone who knowingly puts his or her animal in a position in which the particular circumstances that are likely to cause its conditional characteristic to be displayed could be strictly liable for any damage that ensues as a result of that conditional characteristic. An example might be placing a horse in a field next to a shoot in the knowledge that it could well be frightened by the gunshots. On the other hand, someone whose animal exhibits a conditional characteristic of the species at a time or in a place where the particular circumstances that triggered it could not have been predicted would not be strictly liable, although he or she might still be liable under negligence. An example might be the same horse in the same field being frightened by a firework display in the middle of June when the owner had not been notified of the display. Obviously on 5 November the owner would know about it—there would be signs all over the village advertising it—but if someone decides to hold a firework party in a field near the horse without telling the owner, the owner cannot be liable. That is fair and reasonable, and I think it is what the British public would expect. The Government accept that this amendment to the law might have an impact on individuals injured in accidents involving normally well-behaved animals when, under the current case law following Mirvahedy, a court might impose strict liability provided that it could infer that the injury resulted from ““particular circumstances””, irrespective of whether those circumstances could be identified or whether the person responsible for the animal had any reason to expect that they might arise. Some of those cases might be addressed by negligence, but some would not.