§ 3.50 p.m.
§ Debate on the Second Reading resumed.
§ LORD NUGENT OF GUILDFORD
My Lords, may I start by thanking the noble and learned Lord the Lord Chancellor for his authoritative and, indeed, fascinating exposition of the contents of this Bill, and for including in his review an analysis of the defects in the present position of the law, based as it is on Common Law precedents. I would agree immediately that he has made out a compelling case for the modernisation of the law and for putting it on to a statutory basis. Although this Bill has important practical effects, I am sure all noble Lords would agree with me that it is primarily a legal Bill to reform a highly complicated technical section of the law, and noble Lords may understand my regret that I do not have with me here on 547 the Front Bench, to assist me, my noble and learned friend Lord Colville of Culross, who would have been able to deal with this subject so much better than I can.
May I begin by congratulating the Law Commission on their admirable Report, Civil Liability for Animals, on which the Bill is based; and may I then congratulate the noble and learned Lord the Lord Chancellor on having the Bill written in English, as he attractively put it, and perhaps also the Parliamentary draftsmen, who must have had quite a struggle to get it into such an unfamiliar shape. To me, complex and technical though the issues are, I am bound to say that the Bill really reads like common sense. It is intelligible to the layman, and that is rare with any Bill. I only hope that its simplicity is not deceptive. The philosophy of the Bill, as the noble and learned Lord the Lord Chancellor has told us, is to replace by Statute Law the Common Law precedents which at the moment determine the liability for damage done by animals, and in the process to give the law a greater certainty and precision. Certainly so far as I am concerned, the first Part—that is, Clauses 2 to 7 and including also Clause 9—is a very successful attempt to do this. The noble and learned Lord the Lord Chancellor has explained most lucidly what these clauses do. I would confirm that in my experience people living in the countryside, both landowners and farmers, have generally understood the law to be something like this, but there have been areas of uncertainty which have sometimes led to disputes and sometimes—in fact rather too often—led to litigation. I dare say there will be some even in the future. I hope they will be less.
It has always been thought that a farmer has a right to protect his livestock from the attack of a dog, if necessary by shooting it, and Clauses 3 and 9 now give statutory definition to this position. I entirely agree with the noble and learned Lord the Lord Chancellor that the thought of a pet dog being shot is most offensive, but the figures quoted by the noble and learned Lord of the losses from the attack of dogs of 54,000 sheep and 71,00 poultry in six years emphasise that in the last resort a farmer must have the right to do this. I entirely confirm the 548 noble and learned Lord's observation that once a dog has started on this tack almost inevitably he is incurable.
Similarly, it has been thought that trespassing cattle could be impounded against a payment for the damage they had caused, but this has always been a rather hazy area of the law. I can recollect that in my part of the world, particularly in pre-war days, we used to have frequent skirmishes with horses belonging to the gipsies. The damage done in the fields was not too serious, but when the horses got into a garden they really caused havoc. Unless the horse was caught and impounded there was no hope whatsoever of getting any satisfaction out of the gipsies. They all swore that it did not belong to them, and of course the horse disappeared over the horizon. If the horse could be caught and shut up in a stable, it was surprising how soon someone came along and claimed ownership; but when a demand was made for some token payment towards the damage caused, more by way of a deterrent to the horse from coming again than as real compensation, a flow of language would follow, casting doubts both on the legality of my action—and, I may say, among other things, on the legality of my heredity. This Bill will at least remove the first doubt and will go a long way towards curing a great deal of the uncertainty in this area.
I may say that these colourful folk, the gipsies, no longer drive about with horses. They now drive about in rickety vans and are a far greater danger than ever they were before with their horses. I would confirm the noble and learned Lord's suspicions that public pounds no longer exist as such. The ruins of them are sometimes to be seen, but there is nobody to operate them, even if the animals were brought along. However, as I understand it as a practical man, the Bill deals effectively in the right balance with the various conflicting interests.
I now turn to Clause 8 of the Bill, and, as the noble and learned Lord anticipated, this is an area, I am afraid, of controversy. Clause 8, as we have been told, defines the duty of the owner of an animal to take care to prevent the causing of damage through the straying of animals on the highway. The noble and learned Lord has explained that this is a new departure in Statute Law and directly 549 changes the law as understood from the Common Law precedents in the leading case of Searle v. Wallbank. I think the noble and learned Lord has deployed the arguments for this change most persuasively. I would myself accept the logic of the change, and the extract from the Law Commission's Report which the noble and learned Lord quoted of Lord Greene's observation, seems to me to be very logical.
I can remember a case a few years ago that rather caught my imagination. It occurred on a farm in Cornwall, where the country lanes are sunken. A horse was feeling skittish one morning and decided to jump out of his field. Unfortunately, he chose the hedge on the side bounding the sunken road, and like the man on the flying trapeze he sailed through the air with the greatest of ease, sailed over the fence and landed slap on the roof of a passing car. It must have been a most unpleasant experience for the people in the car and I must say my sympathy was with them. So I accept the logic of this in principle. But there are some worrying practical implications about which I should like to say a word, and I am afraid I have to tell the noble and learned Lord the Lord Chancellor that, despite the great efforts that have been made to meet the case put forward by the farmers and the landowners, the N.F.U. and the C.L.A., they are still not completely happy with Clause 8. As the noble and learned Lord has told as, Clause 8(2) takes great pains to try to define various defences which the livestock owner may have; and let me acknowledge the efforts that have been made to meet this range of cases. But there are still two major hazards that I think are not sufficiently met, and I would briefly refer to them; we can return to them on Committee.
The first hazard which the farmer cannot completely guard against is the odd occasion when the cattle are determined to get out of the field: for instance, when heifers are on heat and trying to get to a bull; or, in the summer, when cattle are driven mad by flies. In those circumstances no ordinary cattle-proof fence or hedge will hold them; they will either go through it or over it. It is quite astonishing how they can jump when they want to, as, indeed, will my horse when being schooled for the White City horse show. There are occasions when cattle 550 will break out of anything. I suggest that it would not be fair to make farmers responsible for something which, in the nature of things, they cannot completely guard against. Clause 8(2)(c) goes some way to meet this point, but I would suggest (and this is a point we can look at in Committee) that it should be a good defence for the farmer to prove that his fencing was sound for all normal purposes—some such clear defences that, so that the farmer may know where he is.
The second hazard to which I should like to refer and which the noble and learned Lord the Lord Chancellor mentioned, against which farmers cannot guard, arises in livestock rearing areas, particularly hill land not fenced on the road sides although they are private property. The agricultural value of this land is low; it is no more than marginal. Thus, the cost of fencing it would be totally uneconomic. If we want it to continue to be farmed as a matter of national policy, and I believe we all do, it can be so farmed only for grazing purposes, and we shall have to accept that it will not be fenced on the road side. Again, Clause 8(2)(d) and (e) move to try to meet this point, but I do not think that they go far enough; the liability still left on the farmer is too heavy. I believe that the only practical solution with this type of land is to treat it in the same way as common land. This is dealt with in the last sentences of Clause 8, and I understand it to mean that cattle grazed on common land will not be subjected to this liability if they stray on to the highway and an accident occurs.
I should like to say a word about the question of insurance, to which the noble and learned Lord referred to-day. In his speech in the debate on the gracious Speech a short time ago, the noble and learned Lord referred to the farmer's facility to insure. He indicated then that he thought the additional premium to cover the risks inherent in these proposed changes in the law might be nothing, or, if it was something, it would be small. I acknowledge the good arguing point he made to-day about experience in Scotland; I agree that it is relevant. But I have pursued some inquiries with the National Farmers' Union Mutual Insurance Society to ask what their experience has been in this 551 field. They conducted a study into it this year, following the report of the Law Commission, and they concluded that it was impossible to be certain of the effect of the new liabilities until there is experience of how the courts interpret the new Act. But they have expressed the view that it is certain to involve them in higher claims costs than they now have, and it would therefore seem inevitable that on this account farmers will eventually have to pay higher premiums. They also express doubt whether most of the farmers in the livestock areas in these outlying districts have insurance policies at all at present to cover this particular liability.
The N.F.U. Mutual Insurance Society were also asked to express a view about the specific insurable risk of cattle grazing on unfenced land, and they expressed a similarly cautious view: that they could not tell until they had experience. May I suggest that we try to strike a fair balance in determining what liability falls on the stock farmer, and that we give rather better defences than does the Bill as now drafted? I accept that the noble Lord has moved in the spirit in which I should wish and expect him to move, but I hope that he will be willing to move just a little further. Perhaps we can pursue this most important aspect on Committee stage. Finally, with regard to Clause 8 I should be grateful if, when he replies to the debate, the noble and learned Lord would say a word on liability for dogs straying on the highway. It is not completely clear to me whether dogs straying on the highway will be caught by the Bill as now drafted. In conclusion, despite the difficulties which I see in Clause 8 and those particular points to which I have referred, I should like to give a warm welcome to the Bill, which I feel is a most valuable advance in an extremely difficult field and one which will be of great benefit to the whole community.
§ 4.6 p.m.
My Lords, like the noble Lord, Lord Nugent of Guildford, I accept, and indeed welcome, at least three of the four quarters of this Bill, but I think that Clause 8, about which he spoke and which deals with animals straying on the highway, effects so great 552 a change that it presents certain difficulties of which not all your Lordships may be aware. Perhaps your Lordships will allow me to explain and discuss some of them. I think this is a good example of socially desirable change but that the wrong people are being asked to pay for it. It is not unreasonable that damage, however caused, should be the subject of compensation; and of course liability for compensation can be taken care of by insurance. But who is going to meet the extra cost of the premiums? The noble Lord, Lord Nugent, has already said that the noble and learned Lord who sits on the Woolsack was perhaps a little optimistic about this matter. As Lord Nugent pointed out, even if the cost is relatively small it is going to be a substantial change in what farmers have had to meet up to now. It is not altogether unreasonable, when you make an entirely new imposition upon a section of the community, to ask yourself to what extent it is fair that they should meet it.
I have been slightly surprised by the calm assumption, even among my own friends, that the agricultural industry should pay for a situation which is not of its own making. The situation is, after all, one which has been created by the motorist. It has not been caused by farmers keeping more livestock than they ever kept before; nor has it been caused by farmers keeping an inordinate amount of stock. It has been caused for no other reason than that motorists use roads which they never used before. That is in fact why the law is what it is. The motorist has created the situation, and in so far as the motorist is a member of the public it is not unreasonable to expect that some part of that extra burden should be shared at least by people other than the farmer.
In the case of third party insurance the motorist is compelled to insure against accident and not the third party against the motorist. Why in this case should the agricultural industry meet the bill for compensation in a situation which has been created by somebody else? One might look at the matter in another way, from the point of view of liability for dangerous animals. We have an Alice in Wonderland situation here. Normally under the old law the owner 553 of a dangerous animal, or of anything dangerous, was under strict liability for the damage it did. But here we have the Gilbertian situation that the motorist, who is, after all, the dangerous animal, is expecting his victim to insure against the damage done. So much for what I feel is an inequitable state of affairs.
Now may I turn to one or two actual details, some of which have been touched on by the noble Lord, Lord Nugent of Guildford. First of all, may I refer to the question of unenclosed land which is not common land? Most of that land —and there are many hundreds of thousands of acres of it in the British Isles—is of very low agricultural value indeed. The going rent for the kind of land which will support, shall we say, one ewe per three acres, is between 2s. 6d. and 5s. At the moment, the cost of fencing, that is, posts and wire, is about £750 a mile. That fence will last for about 25 years, and if you calculate the additional cost per acre of fencing that unenclosed land you will find that it comes to something like 20 times the value of the land itself. Therefore, it is a totally impracticable proposition that if that sort of land is to be used for agriculture, it should be fenced. So somehow or other somebody has to accept the liability that accidents may occur. Who is to bear the cost of that? I do not think all of it should fall on the farmer.
The noble and learned Lord suggests that possibly paragraphs (d) and (e) of Clause 8(2) go some way towards answering a charge of liability. I hope that paragraph (a), which says,the nature of the land and its situation in relation to the highway;may also be included. I think possibly that that goes some way towards explaining the unfenced nature of unfenced land, but again it does not go far enough. I think that somehow or other one has to exempt unenclosed land altogether in the same way that one exempts common land. May I point out that some common land is fenced—not enclosed in a technical sense—and a great deal of unenclosed land is not.
Then there are other difficulties. What about snow? Occasionally a fence is completely buried in snow. Sheep will get over the fence and may cause a 554 serious accident. Is Clause 8(2)(c) helpful in this case? It says:the obstacles, if any, to be overcome by animals …Perhaps the noble and learned Lord the Lord Chancellor would say something about that.
Then we come on to the most difficult question of all, the question of trespassers. Trespassers leave gates open, animals escape and cause accidents. And not only trespassers; the public, after all, have rights on land to look at, shall we say, the Roman Wall, and they, too, leave gates open. What about the tipand-run motorist who knocks down a wall on an extensive farm and the farmer does not know about it for days? What about the people visiting the Cotswolds who are a menace to the landowners because they steal bits of the dry stone walls for making crazy paving and other things in their gardens? All these prolems are not really covered. Clause 8(2)(c) dealing withthe obstacles, if any, to be overcome …or lack of obstacles is the nearest I could find. These are circumstances in which accidents are going to happen; they are circumstances which have to be guarded against by insurance, and they will create a burden where a burden did not exist before.
There is the question of footpaths and bridleways. I hope that Clause 8(2)(6), which says,the use likely to be made of the highway at the time the damage was caused;covers that question. Some of the paragraphs in Clause 8(2) may be useful, and may be used in such a way as to make the onerous nature of what is suggested should be put on the agricultural community less onerous than it looks.
There was one other point which the noble Lord, Lord Nugent of Guildford, touched upon, that is, the question of fences which are ordinarily sufficient for their purpose. The noble Lord quoted the case of heifers in use, or of cattle under the influence of flies. Both heifers in use, looking for a bull, and cattle irritated by flies will jump over any fence that is normally sufficient to hold them in. What is going to be the position in that case? These, and matters like them, are difficulties which I think will have to be looked at before the agricultural industry 555 can be entirely happy about this complete change in the law.
There is one small point that I think your Lordships ought to remember. Although I do not know the exact percentage, over 95 per cent. of all accidents on the highway caused by animals are caused not by agricultural animals but by pet dogs. The weight of what I have been trying to suggest is that if the public wants to be compensated against accidents—and it should be—then I do not think it is unreasonable that, in the case of accidents which are caused by other agencies than farmers, some of the expenses of that liability should be borne either by the motorists, who have created this situation, or by trespassers who have aggravated it. In so far as motorists and trespassers are members of the public, it is by the members of the public that some measure of this liability should be borne. Having said that, I welcome what is a very sensible piece of legislation.
§ 4.17 p.m.
§ VISCOUNT MASSEREENE AND FERRARD
My Lords, I should like to apologise to the noble and learned Lord the Lord Chancellor because I was not here to hear his exposition of this Bill. I was detained by quite unforeseen circumstances.
I should like to ask the noble and learned Lord whether he would explain Clause 5, "Exceptions from liability". Of course, I am sure the noble and learned Lord has explained it already, but I do not quite understand Clause 5(3)(a) and (b). Supposing you keep guard dogs, and somebody breaks into your premises and your guard dog bites them, apparently under this clause you are liable for the damage done to the intruder. That seems very odd to me, because if anyone who keeps dogs to protect their property, or any other animal—if people do keep other animals to protect their property; I rather doubt it, I think they are always dogs—it seems extraordinary that they should be "had up" for damage if their dog hurts the intending burglar, or if it hurts a man who has already committed a burglary and is going away. I should like the noble and learned Lord, if he could, to explain to me why owners of dogs guarding their premises are not exempt under this clause from damage to the trespasser.
556 I should also like to say two or three words about Clause 8. Of course, it is perfectly true, as the noble Lord, Lord Henley, has said—and also, I think, the noble Lord, Lord Nugent of Guildford—that there are many thousands of acres in England and Wales of unenclosed land, which it will be extremely expensive to enclose. I quite agree that there is some protection under subsection (2) of Clause 8, because paragraph (e) refers to,… the extent … to which fencing is the normal practice in the area in which the land is situate.But I should like to see a clear-cut definition of unenclosed land. Could we not say that, for the purposes of this Bill, any land which has not been ploughed for, say, 50 years, or even 100 years, shall be regarded as unenclosed land and need not be fenced? Apart from the great expense of fencing in hill areas, there is also the question of amenity. It is very unsightly to have extensive fences over beautiful hill country. The noble Lord, Lord Henley, made a very good point when he spoke of snow. A farmer's animals can get over a fence and on to the highway if snow drifts against a fence, but you cannot expect a farmer to go along miles of fencing shovelling the snow away. As I did not arrive for the explanation of the Bill I will say no more, except that I wholeheartedly support the Bill and consider that it is a great improvement on the existing law.
§ 4.22 p.m.
§ LORD CONESFORD
My Lords, the noble Lords who have so far intervened in the debate have spoken largely as agriculturists. May I, as a lawyer, give the Bill a very warm welcome? In general, the noble and learned Lord on the Woolsack will not be entirely astonished if I say that I have much more admiration for the common law than I have for a great many modern statutes. But this is a sphere in which both academic and practical lawyers have long recognised the need for a statute. The learned editor of the Law Quarterly Review has had notes on numerous occasions, pointing to the urgent need of reform in the light of cases decided in the courts. A modern statute is necessary to deal with the complications, doubts and even absurdities of the present law. In fact, one of the few compensations for the present law is that it 557 occasionally gives rise to hilariously funny cases, and I think the only case which can be made against the noble and learned Lord on the Woodsack is that perhaps he is being a little bit of a killjoy in stopping such cases in future. Nevertheless, I think he has a very good defence and this is, on the whole, an admirable Bill.
Some question has been raised by my noble friend Lord Nugent of Guildford and others about Clause 8, and I have no doubt that that will be further considered very carefully when the Committee stage is reached. Nevertheless, I think they are under some misapprehension about the effect of Clause 8 as it stands. Clause 8 takes away the immunity from actions for negligence that has hitherto existed if the negligence consisted in allowing animals to stray on the highway. But before a farmer can be caught under Clause 8, he must be found to have been negligent. My noble friend Lord Nugent of Guildford seemed to think that, in the case of an accident, the farmer would be, under Clause 8, virtually an insurer against accident, and that he would be virtually under a strict liability. That is not the case.
I feel quite certain that the noble and learned Lord on the Woolsack and the Bill are right in doing away with complete immunity for allowing animals to stray on the highway. I think the case made in the Report of the Law Commission on this point is quite overwhelming. But, of course, I do not wish to minimise any of the points made by my noble friend Lord Nugent and the noble Lord, Lord Henley, with their great experience of the difficulties of farmers, and I am certain that when the Bill reaches the Committee stage the clause will be most carefully considered.
Two leading cases, which are frequently mentioned in the Law Commission's Report now before us, particularly interested me and revived my memories of the only occasion when I was professionally involved in this branch of the law. The two cases are, first, the important leading case of Searle v. Wallbank, reported in  Appeal Cases, and, secondly, McQuaker v. Goddard, reported in  I King's Bench. Professor Goodhart, the learned editor of the Law Quarterly Review, has stated that Searle v. Wallbank must form the 558 starting point for any modern study of the existing law, and the speech in that case which is most quoted is the speech of Lord du Parcq, who was my master in the law, since I was his pupil when I went to the Bar and subsequently was in Chambers with him for many years. That case therefore has a particular interest for me. The second case has an interest for a different reason. The case of McQuaker v. Goddard is generally referred to as "the camel case." It was there that the Court of Appeal held that a camel is not a wild animal in any part of the world, and that the camel is a domestic animal. Professor Glanville Williams, in a learned and critical article about that case, contrasted that decision of the Court of Appeal with the rather charming words on the camel that appear in the Encyclopædia Britannica, which are as follows:He is from first to last an undomesticated and savage animal, rendered serviceable by stupidity alone … never tame, though not wide awake enough to be exactly wild.Although that is known as the camel case, I can never think of it as the camel case, for this reason. I remember a much earlier camel case which, alas! never reached the courts. I had been Herbert du Parcq's pupil and had remained in his Chambers and was helping him, and the camel in the case was a camel that the older noble Lords may remember because you may have seen it. It had a walking-on part in Chu Chin Chow, which was being performed at His Majesty's Theatre, in the Haymarket. This camel came along the highway daily to take its part in the performance of Chu Chin Chow. On one occasion, by a concatination of circumstances which I cannot precisely recall, it caused an accident in the Strand. One of the parties affected by that accident took legal advice, and Herbert du Parcq was consulted. I spent a considerable time studying the decided cases, and in my note prepared for du Parcq I dealt with the effect of Rylands v. Fletcher, Act of God, and the many other legal matters involved in this branch of the law which are discussed in this Report of the Law Commission. The advice given by du Parcq, after he had read my note, led to the deplorable result that the action was settled out of court. Now, thanks to the Bill that is before us, I shall never know to what 559 extent my speculations were correct. Nevertheless, I do not hold that against the noble and learned Lord on the Woolsack. On the contrary, I feel great gratitude to the Law Commission for their Report. which is I think quite fascinating, and to the noble and learned Lord on the Woolsack for introducing this Bill.
§ 4.32 p.m.
My Lords, I shall detain your Lordships for only a a very short time this evening in dealing with a case for which, so far as I can see, no provision has been made and which yet may have disastrous consequences. Perhaps I can best illustrate it by a cautionary tale. My farm lies on a private road. Cattle from a neighbouring farm came down and trespassed, by them entering on one of my fields. Fortunately, the field was empty at the time, but because I was fully accredited against brucellosis and the trespassing cattle were from a non-accredited herd, that field of eight acres was completely sterilised for 60 days: no cattle were allowed to be grazed on it because of the danger of transmitting brucellosis. That was a real danger, and it was a proper precaution to take; but. at the same time, in present circumstances, as one can realise, not only were cattle prevented from grazing on that field but, as rotational paddock grazing was in operation, the loss of that field for 60 days disorganised the whole of the grazing plan for the summer.
Circumstances may arise whereby stray cattle get into a milking herd. Is the whole of that milking herd to be prevented from entering any of the grazings, and to be isolated for the whole of 60 days? If such cattle get into a field and no steps are taken to protect the owners of that field, the cost may run into many thousands of pounds. I do not know the solution, but I think that we have somehow to find a solution; otherwise, there will be some tricky law cases concerned with consequential damages. My Lords, I hope that before the Bill is finally passed this matter will receive careful consideration, and that the necessary steps will be taken to protect the victim.
§ 4.34 p.m.
§ LORD LEATHERLAND
My Lords, I am afraid I cannot improve upon the camel stories told by the noble Lord, Lord Conesford, but I think they show, as do the points raised by the noble Lord, Lord Nugent of Guildford, that this Bill will have to get over quite a few humps before it passes into law. The noble and learned Lord on the Woolsack wondered whether there was still a public pound in existence. There is one within 100 yards of my house, but it is not used except by men who take their grandchildren there to climb up the railings.
I think this is a fine Bill. It puts right a number of things which have been uncertain for many years; and, what is more, everything is clearly explained from beginning to end. I think that almost anybody—whether lie be a farmer, a motorist or an ordinary resident—is capable of understanding it. I have only one criticism to make. This concerns Clause 8(2), which says:'… a person shall not be regarded as committing a breach of the duty to take care by reason only of placing animals on any common land or town or village green in any case where it is lawful for him to do so".My Lords, I live on the border of Epping Forest, and every day of the week, and during night-time as well, herds of cattle wander from the trees and grass on to the roads, many of which, in that vicinity, are main roads. Time after time, long queues of cars are held up, the drivers having to get out and act as amateur cowboys, trying to shoo these cows back into the forest. I myself know that many accidents have occurred there, a cow having suddenly walked into the very busy Epping New Road and a motor car colliding with it.
It is a difficult problem, I know. We in the locality have discussed it with the City of London authorities, who own Epping Forest, which is in the nature of a town, or village green or a stretch of common land. It is a place where many farmers have from time immemorial enjoyed the privilege of grazing their cattle. But something will have to be done to prevent cattle from wandering from these common lands on to the busy highways. Within the vicinity of Epping Forest there are at least 40 or 50 roads upon which these cattle stray. Some of them are within the Metropolitan area—the Borough of Waltham Forest and the 561 Borough of Redbridge. Surely, in one of the biggest metropolitan cities of the world, one would hardly expect that there should be cows wandering about the streets, causing damage not only to motor cars but to motorists as well.
My Lords, I do not know the remedy for this problem. As I have said, we have discussed it with the City of London Corporation. I certainly do not want to see such beautiful expanses of parkland enclosed, to the exclusion of city dwellers. This would destroy the whole nature of Epping Forest, which is a beautiful place. Nevertheless, I wonder whether some restriction could be placed upon farmers to hobble their cattle when they allow them to graze at large within the confines of the forest. That is my only criticism of the Bill. Otherwise, I think it is a grand measure.
§ 4.38 p.m.
§ THE LORD CHANCELLOR
My Lords, I am extremely grateful to the House for the reception they have given to this Bill. Indeed, apart from Clause 8, except on one point raised by the noble Viscount. Lord Massereene and Ferrard, the Bill has been accepted and no objection has been taken to any of it. The noble Viscount is right in saying that the effect of Clause 5(3) is that while one may keep a dog to bark, even in the case of a trespasser one should not have a dog which is trained to bite. With that exception, the only questions which have been raised have been on Clause 8—and all, quite naturally, have been in the interests of the farmers.
The noble Lord, Lord Nugent of Guildford, said that he accepted the logic of the case made in principle, but he is, I think, unduly fearful of what judges will decide. He instanced, for example, as also did the noble Lord, Lord Henley, circumstances in which cattle are determined to get out and nothing will hold them. But judges are men of good sense. No farmer is going to he liable unless he has failed to exercise reasonable care—that is to say, he has omitted to do what an ordinary, reasonable farmer would do. I do not know whether the noble Lord, Lord Nugent of Guildford, or other noble Lords, know how many judges have farms themselves. They are not unacquainted with these things. The noble Lord, Lord Nugent, said that they should not make the farmers responsible for what they 562 cannot themselves prevent. I agree with that. There is nothing in this Bill to place that burden upon them.
The only other point he raised was whether a complete exemption should not be made—and for all time—for all land which is not fenced now. But there are difficulties in doing that. The Law Commission refer to this in paragraph 42 of their Report. They say:As far as the nature of the adjoining land is concerned, we appreciate there are considerable areas in England and Wales which are more or less unfenced. where traffic is relatively slight, where the risk of accidents is small and where it would be unreasonable to impose an obligation in the circumstances to fence in or otherwise to keep animals off the highway, apart from the [...]sthetic objections to fencing in many beautiful areas of open countryside.In paragraph 43 they say:Moreover, apart from the question of definition"—they had said that it would be difficult to define "unenclosed land"—it would be extremely arbitrary to fix an exemption from liability for negligence only by reference to whether land was enclosed or unenclosed, irrespective of other considerations, such as fencing on the road concerned. Such an exception might also discourage fencing or other preventing measures where it would be reasonable to undertake them and perhaps even encourage the removal of existing barriers.The noble Lord, Lord Conesford, is right when he says that there is nothing in the Bill to make anybody do anything unreasonable. The only obligation put upon farmers in the Bill is to do that which is reasonable, taking all the circumstances into account. I think, therefore, that the fears of the farming interests are really quite unreasonable. I confirm that the provisions of Clause 8 apply to dogs straying as much as to other animals. This is important; for, as he said. a high proportion of the accidents in which animals are involved are accidents involving dogs.
Really, the farmers have been very lucky. The historical truth of the matter is that, whereas in nearly every walk of life we are all under a duty to take care to see that we do not injure our neighbours, their position has always been a complete exception. Farmers have been lucky to be in this exceptional position from the start; the dead and the injured have been unlucky. I hope that before the Committee stage the noble Lord, Lord 563 Nugent, will be good enough to consider the insurance position as between Scotland and England; because if my information is right it is true to say that in Scotland, where everybody who has animals is liable to exercise reasonable care to see that they do not stray on the road, insurance premiums for farmers are just about the same as they are in England. This again shows that the farming interests are unduly apprehensive about what the effects of the Bill will be.
I will certainly take into account the point raised by the noble Lord, Lord Rowallan. As to the observations of my noble friend, Lord Leatherland, that was a point to which the Bill is not really addressed. My noble friend's point really is: ought not something to be done to stop commoners from pasturing cattle on commons, and particularly on Epping Forest? There may be something to be said for that; but, of course, if a motorist goes past a common he knows the position. He knows it will not he fenced. As I have said, in the ordinary way there is no power to put up a fence round a common. Epping Forest, so far as I know—I remember being engaged in some Private Parliamentary Bill about Epping Forest—is mainly under the control of the City of London and it would be primarily a matter for them to consider. I believe that Clause 8 is right. I believe it is right to put on those who own animals the same burden which applies to everybody in most walks of life—that of taking reasonable care, which only means the degree of care which other people in this position would ordinarily take. It is no more than that. That obligation I think they ought at least to assume.
On Question, Bill read 2a; and committed to a Committee of the Whole House.