HIGHWAYS (STRAYING ANIMALS) (Hansard, 9 July 1963)

§ Sir Barnett Janner

I beg to move. That leave be given to introduce a Bill to provide for the payment of compensation for injury or damage caused by animals straying on the highways. My proposed Bill, in the view of myself and very many others, is essential in order to remove an anomaly which has existed for all too long.

Very many people were disturbed when the excellent Bill which was introduced by my hon. Friend the Member for Aberdare (Mr. Probert), in March, 1961, was not passed into law by a large majority, if not unanimously. It is now ten years since the Committee on the Law of Civil Liability for Damage done by Animals reported in favour of such a Measure being enacted. I refer to Command Paper 8746. The Standing Joint Committee of the Motoring Organisations has been urging that the Report should be implemented for a very considerable time, as have very many other well-informed bodies and persons, but all to no avail.

Before and since the introduction of my hon. Friend's Bill quite a number of accidents, some fatal, have occurred owing to animals straying on the highways. Judges have been moved to make strong comment on the position. For example, in the case of Gomberg v. Smith it was reported in The Times on 23rd January, 1962, that Lord Justice Davies said: The law is in a most unsatisfactory state. In 1952, a committee was formed by the Lord Chancellor, of which his Lordship was a member, to deal with this very point. It has done so, but, in the usual slack way of the Government, nothing has happened. Had it done, most of the arguments in the present case—this was stated in court—would have been avoided.

In the case of Ellis v. Johnstone reported in The Times on 4th December, 1962, an eminent judge, Lord Justice Donovan, who is well known to us in this House, where he was a Member whose views were highly respected, was reported as saying: There had been previous judicial pleas for Parliament to look at the law relating to 1051 animals Government time was understandably very crowded"— It is much more crowded today, perhaps, than it was previously— but a private Member's success in the Ballot would perform a public service if he could introduce a Bill to regulate liability for damage by animals. The heart of the new legislation which was required could be found in the Report of Lord Chancellor's Committee published in 1952. How many deaths and accidents might have been avoided if this legislation had been in force?

Lord Justice Ormerod said: It may be that the rule as it stands is repugnant to many people but it is the law of the land and will remain so until such time as Parliament decides to abolish or modify the rule in some way. I have time, of course, only to deal with the matter in telegraphic terms today, but I hope, nevertheless, that I can make the position sufficiently clear within the time at my disposal to get the consent of the House to my Motion.

The position at present is that an owner of domestic animals, which includes horses, ponies, cattle and sheep, does not owe any duty to users of the highway to prevent such animals from straying from his land on to the highway. For example, if a motorist comes into collision with a domestic animal which has strayed in this way he has no legal remedy whatsoever to recover the damage which he has suffered.

There are only two cases in which the owner of a domestic animal could be held liable for injury. One is where he deliberately brings it on to the highway, in which event he is under a duty to keep it under control. The other is where the injury is due to a vicious tendency of the animal of which the owner has knowledge; for example, where a horse kicks a child. Straying is considered to be not a vicious tendency, but a natural propensity of domestic animals.

In a poignant case which was brought to my notice in my own area, counsel advised that, as the evidence was that the animals strayed from an orchard on to the highway and were not deliberately brought on to it, no duty whatsoever was imposed on the owner to keep his gates closed to prevent them from straying—if, in fact, this was how they escaped. He advised—quite rightly, in my view, as 1052 the law stands at present—that even if it could be shown that the ponies had previously escaped and that the owner knew this, he would still not be liable, because straying is a natural propensity.

It may be that an offence under Section 135(1) of the Highways Act, 1959, had been committed, but the maximum fine there is the absurd one of 5s. in respect of each animal found straying, and what is more, the time limit for instituting proceedings is six months from the date of the commission of the offence. This is absurd.

The case to which I am referring was one in which the father of the lady who was killed wrote a letter to me in which he said: On the night of l1th February of this year our only child, a daughter aged 23, was killed when the pick-up van in which she was travelling was hit by a stray horse. At the inquest the owner of the horse admitted that this was the second time that same night that his horses, three in all, had escaped on to the public highway. Surely on this evidence and the farmer's statement in court, this is a case of gross negligence, to the extent of loss of human life. Apparently the totally inadequate and antiquated laws regarding domestic animals—i.e. horses—require investigation. This is the third death this year we have read of caused in this way. My wife and I have taken the liberty of writing to you to advise us what approach to make to alter these outdated laws. Nothing can replace our only child, but it may save other lives in future if farmers are made responsible for their stock. Our daughter was a teacher of backward children. The headmaster of the school in which the lady was teaching writes: As the headmaster of this large secondary school I would like to join with Mr. and Mrs. Woodward of Houghton-on-the-Hill, Leicestershire, in protesting to you against the law as it stands with regard to straying animals. Had the law been different it is possible that the late Miss Woodward, who was a member of my teaching staff, would be alive today. In general terms my own view is that with the possible exception of areas such as Dartmoor, where appropriate signs can be erected to warn motorists, and others, the onus of responsibility for accidents and damage caused by animals staying on to roads should be entirely with the owner of the animals. I have also had letters from others in the surrounding district. A solicitor in Leicester sent me a copy of correspondence relating to a claim put forward by an American airman who consulted him in April, 1961. This solicitor stated: To be quite frank I felt some embarrassment in having to advise him that in English law he had no civil claim for damages. 1053 He said that he had written a letter to the farmer concerned, saying: I have been consulted by S/Sgt. B. P Jones, of R.A.F. Station, Bruntingthorpe, with regard to an accident which occurred on the 27th January, 1961, on a country lane near Bruntingthorpe Village late in the evening, when his motor car was in collision with a small herd of your cattle which had strayed on to the highway. The reply was that there was no liability on the farmer. The National Farmers' Union Mutual Insurance Society sent a brief note stating that nothing at all could be done in the matter. The solicitor stated the law in writing to his client. He said: There is no obligation on an owner or occupier of a field adjacent to a highway to maintain a fence on the border of the highway. This is founded on our ancient social condition and is in no way related to or liable to be qualified by such matters as the relative levels of fields and highway, the nature of the highway or the amount of traffic on it. Save in cases of animals fierce by nature there is no general duty on the owner of domestic animals to take steps to prevent them straying on to the highway and so causing risk of accidents to users of the highway. As there is no liability to have a fence at all, liability does not arise because there is a fence which is not properly maintained or a gate not properly closed. It is absurd for these provisions to remain as they stand, and I hope that the House will give me leave to introduce a Bill to remedy the position.