HL Deb 11 December 1969 vol 306 cc655-65

3.18 p.m.

THE LORD CHANCELLOR

My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(The Lord Chancellor.)

On Question, Motion agreed to.

Clause 2 [Liability for damage done by dangerous animals]:

LORD FOOTmoved Amendment No. 1: Page 2, line 1, leave out ("of any kind").

The noble Lord said: My Lords, I should like to refer to a point which I raised on Clause 2(2) of the Bill at the Committee stage. At that time I suggested that there was a possible ambiguity or uncertainty in the wording of this subsection. The noble and learned Lord the Lord Chancellor, in replying, said that he thought the wording was right, but he suggested that we might refer to the point at this stage in order to see whether it was indeed correct. He invited me to look at what he had to say at that time, which I have faithfully done, but I am afraid that what he had to say has not altogether allayed the doubts which I have on this point.

I should like briefly to repeat the substance of the criticism that I made on that occasion. It relates to the wording of Clause 2(2) which reads: (2) Where damage of any kind is caused by an animal which does not belong to a dangerous species, and— (a) the animal has such characteristics that it is likely, unless restrained, to cause damage of that kind or that any damage of that kind … Then it goes on to say if the keeper of the animal knows of those characteristics he will be liable for any damage. The words to which I wish to direct the attention of the House are the words "damage of that kind", because I ask myself what is this damage which is so described as "of that kind"? If one looks back to the beginning of the clause one sees the words "damage of any kind". It seems to me, on the face of it, that one interpretation of this clause is that the words "of that kind" are intended to relate "that" to the words "damage of any kind" at the beginning of the clause, with the result, if that interpretation is correct, that the section would read like this: Where damage of any kind is caused by an animal which does not belong to a dangerous species, and— (a) the animal has such characteristics that it is likely, unless restrained, to cause damage of any kind "— and then, if those characteristics are known to the keeper, he will be liable for damages.

It seemed to me that that is a possible construction to be put upon these words; and if it is a possible construction, certainly it is not what is intended to be covered by the clause, because it is clear that the purpose of this clause is to provide (if I may use informal language) that where damage of any kind is caused by an animal which does not belong to a dangerous species, and the animal has such characteristics that it is likely, unless restrained, to cause damage of the kind which has in fact occurred in this particular case—the case under consideration at the time—then, and then only, will the keeper, if the characteristics are known to him, be liable in damages.

I think that the reason why there are these two alternative possible constructions—the second one, obviously being the right one, but the one to which I have drawn attention nevertheless being a possible one—is because of the use of the word "kind" in the beginning of the clause, and then the repetition of the word "kind" lower down. One automatically thinks that one is being referred back to the words "of any kind" at the beginning of the clause. If I am right about that, may I suggest how I think my Amendment cures the difficulty? It would be possible, I suppose, in order to put the matter beyond any doubt, to insert in subsection (2(a), after the words "cause damage of that kind", the words "that actually occurred" or words to that effect. I would suggest, however, that the proposal I have made, to leave out the words "of any kind", clears up this difficulty altogether. May I read the clause as it would be worded with my Amendment: Where damage is caused by an animal which does not belong to a dangerous species, and— (a)the animal has such characteristics that it is likely, unless restrained, to cause damage of that kind…". Pausing there, I would point out that if these words are used it is perfectly clear that the words "damage of that kind" means damage of the kind that was actually caused by the particular animal on the particular occasion—the occasion with which one happens to be dealing.

I would respectfully suggest, further, that the omission of these words is good on its own account, because the words "of any kind" appear to me to be redundant and otiose. If we were to leave out the words I suggest should be deleted, and leave in simply the word "damage", would not the word "damage" comprise damage of all kinds and of any kind? Is it necessary at all to add the words "of any kind"? Therefore, by adopting this Amendment, in addition to clearing up the ambiguity which I foresee we should be getting rid of some words which are, in my submission, unnecessary. My Lords, I beg to move.

THE LORD CHANCELLOR

My Lords, drafting questions are of course important but not necessarily easy, and I apologise, as usual, for my position. The Amendment would delete the words "of any kind" after "damage", so that, as the noble Lord has said, the provision would read: Where damage is caused by an animal which does not belong to a dangerous species …". This would hardly make any difference to the sense of the subsection, which would still refer to the damage caused by the animal—and prima facie, damage would be damage of any kind. On the other hand, we do not want the drafting to make the whole provision wider than was intended. I am not certain that the noble Lord has not got a point. I have, therefore, been re-examining the clause, in consultation with the experts in the Law Commission and others, to try to ascertain whether the noble Lord's concern is justified. It has not been possible so far to conclude these consultations in the time available.

The Government's intention is that Clause 2(2) should give effect to the Law Commission's recommendation on strict liability for animals of a normally harmless species which are known to have dangerous characteristics. The recommendation is summarised in paragraph 91(iv) of the Report as follows: Strict liability should also be imposed in respect of injury or damage of any kind done by an animal which does not belong to a dangerous species, if the particular animal had dangerous characteristics known to its keeper which made it likely that injury or damage of that kind would occur or that any injury or damage of that kind which might occur would be severe. Such characteristics should he capable of giving rise to strict liability even if they are shared by other animals within the species, whether at a particular age, at certain times of the year or in certain conditions. The background is explained more fully in paragraphs 17 and 18.

As I have said, these consultations are still going on; and if the noble Lord would be good enough to withdraw his Amendment, if it is found that Clause 2(2) goes wider and imposes liability in circumstances not contemplated in the recommendation, I would undertake, in consultation with the Law Officers, to ensure that the necessary Amendments to narrow the scope will be introduced in another place.

BARONESS WOOTTON OF ABINGER

My Lords, I hope that when the noble and learned Lord on the Woolsack looks at this matter again he will make it perfectly clear whether this provision applies only to animals not of a normally dangerous species, individuals among which develop dangerous characteristics. I have in mind a particular case that happened to concern myself. I keep some animals which certainly could not be called dangerous in the ordinary sense, but on one occasion they managed to escape from the field in which they are generally lodged and took themselves to trespass into somebody else's garden, where they walked all over the lawn and made lacerations with their hooves. They are not dangerous animals. Fortunately, on this occasion (it was a summer day, but the whole family were indoors, with the french windows open) the people were glued to the television and therefore did not see what happened. But this raises the question whether the clause refers to ordinarily undangerous animals which can do damage, or merely to dangerous specimens of undangerous species who do damage. Will the noble and learned Lord look at this point in the reconsideration?

LORD KILBRACKEN

My Lords, may I, to a certain extent, support what my noble friend has said? I am thinking in particular of cattle of the bovine species. Either the species has to be dangerous or it has not to be dangerous. We all know that the noble Lord, Lord Balerno, thought that this provision automatically would apply to bulls. In my own experience, the bull is a much maligned animal. A cow, particularly with a young calf, is often more dangerous than a bull. But the bovine species as a whole has to be considered as one that is not dangerous. Therefore, a wicked bull—let us say a Jersey or Friesian bull—would not be considered an animal of a dangerous species, although he might be a very dangerous beast himself.

LORD FOOT

My Lords, my Amendment is concerned simply with the wording of this clause and is directed simply to trying to get it right in order to express the principle which the clause is intending to express, and to express it so that it will be beyond any doubt. I am most grateful to the noble and learned Lord for undertaking to look at this matter again. In those circumstances I am quite satisfied and have pleasure in asking leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

3.30 p.m.

LORD ROWALLANmoved Amendment No. 2: After Clause 4, insert the following new clause:

Liability for loss or expense occasioned to owner or occupier of land by straying livestock.

".Where livestock belonging to any person strays on to land used by a herd, or any part of a herd, accredited pursuant to a scheme for accrediting brucellosis free herds, and as a consequence of the straying, and in order to retain the accredited status, the owner or occupier of the land—

  1. (a) is restricted in the use of the land, or any part thereof, for a period; or
  2. (b) is restricted in any farming or business activity;
the person to whom the straying livestock be-longs shall be liable for any loss or expense occasioned thereby to the owner or occupier of the land."

The noble Lord said: My Lords, I do not propose to take long in reviewing what happened at the Committee stage, but for the sake of your Lordships who were not then present I may say that I pointed out then that no provision was made for the recovery of damages for loss caused by the trespass of cattle from a non-accredited herd on land which was in the occupation of an accredited herd. In one case the damage was immediate, in that the Ministry of Agriculture, Fisheries and Food immediately put a closure order on that field, which disorganised the whole of the rotational grazing. I spoke also of the very serious damage—in fact the crippling loss—that might be incurred when a herd lost its accredited status and the owner was no longer allowed to take the animals to shows or to accredited markets. This was happening more and more frequently as time went on. I withdrew my Amendment at the last stage because I was not quite sure exactly what the noble and learned Lord on the Woolsack had said, and I wished to study it further.

The noble Lord, Lord Nugent of Guildford, asked the Lord Chancellor whether it was not the case that Clause 4(1)(a) covered damage of the kind which I anticipated. Clause 4(1) says: Where livestock belonging to any person strays on to land in the ownership or occupation of another and— (a) damage is done by the livestock to the land or to any property on it which is in the ownership or possession of the other person … In reply the noble and learned Lord the Lord Chancellor said that it covered only damage done by the trespassing livestock to property. He said that if this Amendment were accepted it would be a dangerous thing to have a herd next door to somebody with a brucellosis-free herd. My Lords, it is infinitely more dangerous for a person with a brucellosis-free herd to be surrounded on all sides by farms where no efforts whatever have been taken to control brucellosis.

The noble Lord, Lord Nugent of Guildford, again asked whether, when cattle which are not accredited within the brucellosis scheme stray on to ground where there is a brucellosis-free herd, and the straying cattle have contact with the accredited herd, the accredited herd will lose their accreditation and thereby will depreciate in value quite significantly. The noble and learned Lord the Lord Chancellor replied that this was a loss incurred, but not damage.

Clause 4(1)(a) is intended to reproduce the existing law which deals with small amounts of damage that may be done by trespassing cattle. The whole importance of this matter has been slurred over. The importance is that a man who is doing his best in the interests of agriculture, and in the interests of the consumers of milk in particular, is being left in the hands of the man who has done nothing towards clearing his herd and has run no risks whatsoever in his farming practices.

It was suggested by several noble Lords that this point should me covered by insurance. Not more than an hour or so ago I was in touch by telephone with the Yorkshire Insurance Company, which probably does the largest business in livestock insurance in this country. They said that they had no experience of a claim of this nature. I pointed out to them that it would be rather complicated to draw up a rational scheme because the conditions would vary so greatly between the man who was surrounded by non-accredited cattle and the man who was entirely out on his own with no reasonable chance of infection from outside. I asked the accident assessor whether he would let me know what the mature consideration of the insurance companies would be on this question. I fear, however, that in the meantime the premium would be almost entirely prohibitive to the man who most needs insurance; namely, the man whose land forms an enclave between non-accredited herds.

I congratulate Her Majesty's Government on having at long last decided to call it a brucellosis-eradication scheme and not an accreditation scheme. They have expressed their intention of taking steps which for the past ten years, and more, all farmers have been pressing them with increasing urgency to take. But, my Lords, it will take some time for that step to become a reality, and during that time I must press my point that the man who has done his best, who has worked and risked his capital and his own future, deserves the protection which this Amendment would give him. I beg to move.

LORD INGLEWOOD

My Lords, I should like to support the noble Lord in this Amendment. As a country we are somewhat late in the day in trying to eradicate brucellosis. It is most important that we should do so, not just from the point of view of the health of the cattle but also from the point of view of the position and reputation which our cattle hold in the world and the export possibilities which are now being frustrated. Furthermore, this disease is a hazard to human health, even though it is not what I believe is called colloquially a "killer". If we now have this scheme under way it cannot be so long, one would hope, before brucellosis in this country is eradicated, and therefore this extra protection for which my noble friend asks in this Amendment is not something which will continue until the day of judgment. It is just something a little extra which these forward-looking farmers deserve during this short period while we are making this great effort to rid this country of a very serious cattle disease. I hope that this Amendment will meet with the support of your Lordships.

LORD COLLISON

My Lords, may also offer my support for the Amendment? I too am glad that the Government are now at last going to tackle the problem of brucellosis. I have felt it to be rather ridiculous that an accredited herd could be implicated in brucellosis simply through animals straying on to a neighbouring farm. I have also been concerned with the human aspect of brucellosis. More than half the veterinary surgeons in this country have contracted it because of their contact with cattle, as also have a considerable number of farm workers. It is not a pleasant disease; it is an undulant fever, and I believe that it is almost impossible to cure it. There is therefore a further virtue in this Amendment in that it will persuade farmers to make sure that their herds are properly enclosed, and thereby help to prevent the spread of the disease by contact.

BARONESS ELLIOT OF HARWOOD

My Lords, I also support this Amendment. I am sure the noble Baroness, Lady Summerskill, would feel strongly about it, if she were present, since she has on the Order Paper an Unstarred Question on this subject. It seems to me that, if we are now passing an Act of Parliament on this subject, to leave out the danger and, as it were to pay no attention to this great attempt by farmers all over the country to get their herds brucellosis-tested would be doing something very retrograde. I remember when attestation for milk was first started. A great many herds were not tuberculin-tested cattle. It took some time to get them all tuberculin-tested, but the work is now complete. I imagine that in a few years the situation will be the same with brucellosis, and every herd will be attested as brucellosis-free. It will take a long time, but it is something for which we should aim. In my view, it would be most unfortunate if this new Act were passed, in December, 1969, without provision being made for something that is obviously coming, and if those farmers who are spending a great deal of money trying to get the herds clear of this disease, not only from the point of view of cattle but also from the point of view of human beings, were handicapped. I support the Amendment.

LORD CLITHEROE

My Lords, I beg to support the Amendment for the reasons I gave on the previous occasion.

LORD WISE

My Lords, while appreciating the point of view of my noble friend Lord Rowallan, and sympathising to a certain extent, I am afraid that I cannot entirely support him. Cattle are peculiar creatures; they are always doing the unexpected, and the fact of being brucellosis-free will not make them any less likely to stray. After all, the grass is always greener on the other side. I believe it is a regulation with brucellosis-free herds that double fencing is essential, in which case the neighbours' cattle are also double fenced. The animals in the brucellosis-free herd will stray just as frequently as the non-accredited cattle. Therefore I think it would be prudent of the owner of the brucellosis-free herd to insure, if need be, against any consequential loss which may occur as a result of his own cows straying. Until such time as we eradicate brucellosis—and I hope we shall continue moving in that direction; indeed, I am sure we shall—the owners should insure against consequential loss.

LORD KILBRACKEN

My Lords, I should like to intervene for a moment because it so happens that I myself last month had a very serious outbreak of this disease in my herd, as a result of which one quarter of my breeding cattle, cows and heifers, have had to be destroyed. In the country where I farm, across the St. George's Channel, there has been a compulsory eradication programme for over three years, and I have been fortunate enough throughout the three-year period to be completely free of any reactions. Moreover, I have a completely self-contained herd. I never buy any cattle; I never use an outside bull, and outside cows never come to my bulls. So far as I know, there have been no strays, and the neighbouring farms have all been clear. Yet, quite suddenly, after being completely clear of the disease over the three-year period, when the annual test—which I faced with complete equanimity —took place, it was found that 14 out of 60 cows and heifers reacted, and under the rules in Ireland had to be destroyed.

Full and generous compensation is payable, which is not the case in this country. Here, if a cow is affected the farmer is faced at once with the difficult problem of what to do with it. The only honest thing he can do is to isolate it, try to get some condition on it, and then sell it to the factory for beef. But there is a very great temptation, until the compulsory eradication programme, to put it on the market as a springing cow. If he sells it for beef there is a loss. There are also important secondary losses, in that he cannot sell any females, or is restricted in the selling of both females and, what is important in my case, pure-bred bulls. I have three young pure-bred bulls which I should normally be selling now, but I cannot sell them until they have passed another 90-day test and then a 60-day test.

I mention my experience to show the great difficulties that will be found in eradicating this disease. I feel that it would be somewhat unfair to put a responsibility on a farmer next door to prevent his cattle from straying when it may be the obligation of the owner of the accredited herd to see that his own land is fenced and that his cattle are not allowed to go across to his neighbour's land. However, I am very glad that the noble Lord, Lord Rowallan, has moved this Amendment, and in general I have great sympathy with it.

LORD NUNBURNHOLME

My Lords, I rise to support the Amendment, but, as I have said previously, I feel that it is not going to he very effective. If the neighbour is a man of no worth, you will not get any compensation out of him. That brings me to the question of insurance. The noble Lord, Lord Rowallan, said he did not know what the insurance rate would be for accredited herds. As the Government are starting this brucellosis eradication scheme in this country, would they also start a scheme whereby the accredited or brucellosis-free herd can be insured with the Government until the rate is fixed by the insurance companies?