HIGHWAYS (STRAYING ANIMALS) (Hansard, 27 February 1968)

§ Sir Barnett Janner (Leicester, North-West)
I beg to move, That leave be given to bring in a Bill to provide for the payment of compensation for injury or damage caused by animals straying on the highway. I have endeavoured from time to time, in my humble way, to remove some strange anomalies in the law. I have referred to these under the heading, "Believe it or not". Today, I am asking leave to reintroduce a Bill of that nature—[Interruption.]

§ Mr. Speaker
Order. The House insisted that leave to introduce Ten-Minute Rule Bills should be asked for at this point in the day's business. We must listen to the hon. Gentleman.

§ Sir B. Janner
I was saying that I am trying to reintroduce a Bill to provide for payment of compensation by those responsible for injury or damage caused by animals straying on the highways. Judging from the lack of regard for the necessity of dealing with this situation, it appears that we, the legislators, have been lulled into a sense of poetic languor by Gray's famous Elegy and that time stopped for us when we read the first lines: The lowing herd winds slowly o'er the lea. Today, the lowing herd, or some of its strays, suddenly amble on to the highways and motorways which have replaced the lovers' lanes where they were likely to do no harm and might even have added to the enchantment of the scene.
Unfortunately, on many roads or substituted roads, or even on some of the byways which were heretofore barely used, modern man chooses to use motor vehicles, and these no longer preceded by a runner holding a red flag. From the present law on accidents on the roads caused by straying animals, one would imagine either that we take a sadistic delight in the knowledge that so many are killed or injured, or that we have been lulled into a cuckoo-land dream. Under any circumstances, we are not entitled to allow this ridiculous and unsatisfactory state of affairs to continue.
1238 The history of attempts to put the situation right also deserves the heading, "Believe it or not". A Committee was set up 18 years ago by the then Lord Chancellor, of which he was a member, called the Committee on the Law of Civil Liability for Damage done by Animals. This Committee was reported in favour of such a measure as that which I ask leave to introduce. Before then and ever since, a large number of accidents, many of them fatal, have occurred owing to animals being allowed to stray on the highways. Learned judges have commented strongly against the continuance of the present law relating to compensation to those injured or the relatives of those killed, but the injuries and the deaths continue from day to day.
In 1961 my hon. Friend the Member for Aberdare (Mr. Probert) introduced a Bill to deal with the position. In 1963, and on three or four occasions since, I have been given leave to introduce a Measure, but unfortunately these Bills have been obstructed. Eventually the Law Commission, which has been dealing with the question of civil liability for animals, issued its Report. That document stated: To the general liability for negligence there is in the case of animals, an important exception under the present law. A school authority may be liable for negligence in allowing a child to wander on to the highway and there cause an accident. But the occupier of land adjoining the highway from which an animal gets on to the highway, there causing injury or damage to a user of the highway, is not liable in negligence, even if it is possible to show that in allowing the animal to escape he failed to exercise reasonable care and that the user was guilty of no contributory negligence. This exception to the general rule was confirmed by the House of Lords in Searle v. Wallbank (where the appellant collided on the highway with a horse belonging to the respondent which had escaped from a field in which the respondent had placed it). the Report added: However qualified, the exception from negligence liability recognised in Searle v. Wallbank has been the subject of frequent and strong judicial criticism". The statistical information bearing on the problems raised by that case shows that … in 1958 there were 4,135 vehicles involved in personal injury accidents on highways in which the presence of an animal was considered by the police to have contributed to the accident. In 1957 the comparable figure was 4,132. If figures were available for more recent 1239 years, I am sure that they would show an even greater prevalence of animals being involved in these cases.
On previous occasions I have referred to communications which I have received. I assure hon. Members that I have received a large number of them. Today, however, I wish to quote from a letter received by the hon. Member for Ormskirk (Sir D. Glover), which illustrates the position: The BBC's 10.45 p.m. Home Service programme of Today in Westminster' has for me, over the years, been a better soporific nightcap than Horlicks, and as I lie in bed listening to the daily report, more often than not I doze off before 11 p.m.! Two weeks ago I was in this semi-conscious state when I heard the end of a report that one Member of the House was endeavouring to put forward a Bill to make Farmers responsible for their animals when wandering on the Public Highway… In October of this year I was travelling on the fast lane of the M.6, near Stafford, at 70 m.p.h., when, out of the corner of my eye, I saw a cow running from behind a car on the North bound carriageway, across the 10 ft. centre grass division. Before I could do anything I hit the animal, killing it instantly and sending it 50 yards down the motorway. I struggled for control of the car and eventually came to rest on the centre reservation. My car was extensively damaged, but I shall ever be grateful to providence that both I and my passenger were not killed. Had we not struck the animal dead centre, but on the right or left of the bumper, we should undoubtedly have turned over and at 70 m.p.h. this would certainly have proved fatal. Again a divine Angel must have watched over us, for how easily could we have skidded over the narrow centre reservation and collided with North bound fast lane traffic— The writer adds: We were undoubtedly lucky, though our luck was not sufficient to avoid a very large repair bill and four weeks without a car. The day after the accident I visited the A.A. office at Liverpool. ' Sorry, Sir, we cannot help! Now had it been an elephant, you would have had a claim.' I could hardly believe that they were not pulling my leg! My own Solicitor confirmed that I had no claim against the Farmer, despite the fact that the police had found the opening in the fence where the animal could have entered the motorway precinct. He remarked jovially, ' It's an old joke in law school that Bulls are allowed in China Shops! ' The Staffordshire Police 1240 informed me that they had examined the case and were not taking any action". This is one of numerous cases in which the folly of the law as it stands is exposed and, against this background, I beg to ask leave to introduce the Bill.

§ Mr. Speaker
Order. Does the hon. and learned Gentleman seek to oppose the Bill?

§ Mr. Paget
I fear so, Mr. Speaker. I am sorry to have to oppose my hon. Friend the Member for Leicester, North-West (Sir B. Janner) in this matter. I was the unsuccessful counsel in the Searle v. Wallbank case and I had considerable occasion to study this matter. I assure my hon. Friend that I was satisfied that the House of Lords was right and that I was wrong in that case. To put on the members of the farming community the burden of warranting their fences and warranting that nobody will leave a gate open would be to impose a quite impossible burden on that community. As a matter of ordinary practice, it is far better that the burden of driving in such a manner that bears in mind the possibility of cattle on roads in country districts should be borne by the motorist and his insurance, and it would be wrong to change this law.