Animals Act 1971 (Amendment) Bill

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. The text goes on to state:"““Liability for an animal may be based on negligence””," and cites these words:"““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 judgment stated:"““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.””" However, the judge also said:"““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 to 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.