Animals Act 1971 (Amendment) Bill

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:"““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””" and that"““the fact that the horse had moved…broadside…called for an explanation””," but"““the explanation…given, ie, that it had shied and that””" the rider"““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””" or injury"““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, but failed under the defence under section 5(2) of the 1971—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 as 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.