HL Deb 27 November 1969 vol 305 cc1388-400

3.20 p.m.


My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 1 agreed to.

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

On Question, Whether Clause 2 shall stand part of the Bill?


I should like to raise one point on the wording of Clause 2(2) of the Bill which causes me a certain amount of concern and anxiety. The words of the subsection as they stand provide that: Where any 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 … If I may pause there, the question I want to ask is, what is the meaning of the words "that kind"? To what does the word "that" relate back? It appears to me, on the face of it, that the word "that" clearly relates back to the opening words of the subsection, that is to say Where damage of any kind. If I am right about that, then one can read the subsection as it stands in this way: 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, then the owner or the keeper of the animal is liable in damages. I wonder whether that is really the intention behind this subsection, because, on the face of it, it seems to me that if a dog has characteristics which may cause "damage of any kind" at all, then you are making the owner of an animal belonging to a non-dangerous species liable in all circumstances for all kinds of damage that may result from the ordinary characteristics of that animal.

Supposing a dog barks—that being one of the ordinary characteristics of that domestic animal—and causes someone to be frightened, or possibly causes cattle to stampede and damage is done, is it the intention of the Act that the owner of that dog, which is behaving in the perfectly normal, characteristic manner of a domestic animal, should be liable for any kind of damage which ensues from the dog having barked?

I should think that the real object of this subsection was to provide for the case of an animal belonging to a non-dangerous species which, nevertheless, has some peculiar characteristic of its own, not normal to that particular type of animal, and to make the owner of the animal liable for damage caused as a result of that peculiar characteristic of which the owner is aware. Therefore I would invite the noble and learned Lord, if he can, to resolve the difficulty for me. It may be that there is a simple explanation and that I am being obtuse about it; but, as I see it and as I read the clause at the present moment and in my present comprehension of it, it seems to me to be too widely drawn.


The wording of this subsection puzzled me a little when I first read it, but it is submitted that it is right. Under subsection (1) the keeper of an animal which belongs to a dangerous species is made liable for any damage caused by the animal, subject only to the defences set out in Clause 5 and that of contributory negligence. Subsection (2) imposes liability on the keeper of an animal which is not of a dangerous species but which has dangerous characteristics known to the keeper.

In order to succeed under the subsection a plaintiff will have to show that the keeper of the animal had knowledge or imputed knowledge of the animal's dangerous characteristics, and that the damage of which the plaintiff complains is such as is likely to result from those characteristics, or that although damage may not be a likely result from these characteristics it is likely to be severe if it does nevertheless result from them. If a dog has a tendency to attack people, damage by biting will be likely to result. On the other hand, if a dog has a dangerous disease, which is transmissible by biting but the dog is of a quiet nature, damage by the transmission of the disease is not likely to result; none the less, there will be strict liability under the subsection if the dog does transmit the disease by biting because damage of the kind which may be expected from the dangerous characteristic, the disease, is likely to be severe.

The subsection does not impose strict liability for damage resulting from the normal reaction of a dog to an attack upon itself, although its keeper knows that all dogs react in this way. Spine actions of animals, which although they are characteristic of their species in certain circumstances are probably excluded from this form of liability under the present law, will in future be covered. Young horses are generally frolicsome, and bitches with litters are prone to bite strangers; but the fact that these are normal characteristics of otherwise harmless animals at present probably exempts their keeper from liability. In future, he will not necessarily be exempt from liability for their harmful acts, where he knew about the propensity at the time of the injury. The factors which constitute knowledge of an animal's characteristics are of course elaborated in Clause 6(5). I hope that that meets the question raised by the noble Lord.


I wonder whether I may ask the noble and learned Lord one question. Some dogs have in the past been kept as watchdogs for protection. If a dog, in the course of his ordinary training, attacks a burglar, can the burglar, although he has not actually, as yet, broken into the house, sue the owner of the dog if it bites him?


There are several defences open. It depends partly on Amendments that we are going to consider in regard to Clause 5. But of course it is a defence to any liability that the person injured brought the injury upon himself, or that he contributed to it by his own negligence.


I do not know whether it is permissible for me to follow up with just a couple of sentences. I am afraid that what the noble and learned Lord has said has not altogether removed my anxieties on this matter. As I understood him, he was saying that the clause, as he reads it, means that if an ordinary domestic animal, a dog, has some unusual propensity, of which the owner is aware, and in the exercise of that propensity causes damage of any kind, then the owner is liable. I entirely understand that. But it seems to me that, as the clause is drawn and because it refers to "damage of any kind", that would make the keeper liable for a dog which had no unusual propensity and was merely expressing its ordinary nature and characteristics. That was the cause of my anxiety, and I am afraid that what the noble and learned Lord has said has not altogether removed the anxiety.


May I come in for a moment in regard to this point? The noble Lord, Lord Foot, has certainly stirred up a doubt in my mind on this matter, too. I wonder whether the noble and learned Lord the Lord Chancellor can clear up the point now, or whether it is perhaps one to which we might return on the Report stage.


I thought I had covered it fairly fully, but I agree that it is a complex matter. Perhaps the noble Lord, Lord Foot, would be good enough to read in Hansard exactly what I said, and we can return to the point, if necessary, on the Report stage.

Clause 2 agreed to.

Clause 3 agreed to.

Clause 4 [Liability for damage and expenses due to trespassing livestock]:

3.30 p.m.

LORD NUGENT OF GUILDFORD moved Amendment No. 1: Page 2, line 17, after ("property") insert (("including animals")).

The noble Lord said: I beg to move Amendment No. 1 standing in my name and that of the noble Lord, Lord Henley. This is a very small point and is rather a probing Amendment. Clause 4 concerns the liability for damage and the expenses due to trespassing of livestock, and it is not entirely clear to me, and possibly perhaps to some other noble Lords, what the damage refers to. Clause 4(1)(a) reads: damage is done by the livestock to the land or to any property on it …". My difficulty is that I am not entirely clear what the word "property" covers. Therefore, my Amendment seeks to insert after "property" the words "including animals" in order to make quite certain that animals are included, and to hear perhaps from the noble and learned Lord the Lord Chancellor exactly what the meaning of "property" is in this context. I beg to move.


I can assure the noble Lord, Lord Nugent of Guildford, that there is no question at all but that the word "property", which is a very wide word, includes animals. Of course, as we have seen from the breathalyser cases, in criminal cases people will take any sort of point, and in a case in 1901 a sportsman sought to argue that a clase in the Larceny Act which included the word "property" did not include a dog. He did not get much sympathy from the court, and I cannot find that anybody has ever raised the question since 1901, so I feel safe in assuring the noble Lord and the Committee that "property" does include animals.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 4 shall stand part of the Bill?


This Bill affects so many interests and responsibilities in the countryside that in spite of the very clear explanation given by the noble and learned Lord at the Second Reading on the interpretation of this clause, as is the case in several others in the Bill to which I hope to refer later, I hope that in the course of the discussions on Committee the Government may find it worth while to give some elaboration of the words, "except as otherwise provided by this Act." In the event of incidents occurring which would call into question the operation of this Bill, it seems likely that people would depend on this clause which would, in turn, be dependent on all the subsequent clauses. For those familiar with the type of interests in the country which are aimed to be provided for in this clause, it would seem that, as with several other clauses in the Bill, it is the interpretation and the policing of the events which will possibly have to be dealt with under this Bill that will make it difficult for those interests in the countryside who frequently come across the problems which this Bill provides for.


May I ask the noble and learned Lord the Lord Chancellor whether he can enlighten me on the application of this clause? Suppose that a cow suffering from brucellosis strays and goes on to the road, and that some kind passer-by, finding a stray cow on the road, opens a gate leading into a field of another proprietor where the cows are clear of brucellosis, and that the infected cow goes in and infects the other cows. Who is to blame, and what redress has the owner of the cows which are affected? Has he redress under this clause?


I think the noble Lord is really raising the next Amendment, in the name of the noble Lord, Lord Rowallan, on which this very question will arise. The answer is that Clause 4 is, in substance, simply restating and modernising, in the form of the code, the existing law of cattle trespass, except that it removes an obsolete remedy for cattle trespass which was called distress damage feasant. Clause 4 provides for the circumstances in which the invading cattle may be detained and how the person whose land is trespassed on will get his money.

The answer to the brucellosis herd point is that there is at present no strict liability in that regard, and nothing in the clause alters that. Nor should it. Strict liability is very unusual in English law, and the reason why there has always been strict liability for cattle trespass (the noble Lord, Lord Nugent of Guildford, will know this very much better than I do) is that this is something that constantly happens in country districts, and therefore the law should be absolutely plain and not depend on varying circumstances. The damage which animals trespassing do is usually relatively small. There are very few actions about it, because farmers know what the law is and they agree between themselves what is the proper sum if compensation is payable. Wholly different considerations arise here, however. A very large sum of money might be payable if every farmer whose cattle strayed into land where there was a brucellosis-free herd was to be held liable. It has never been the law that, in the absence of negligence, he would be liable in such a situation, and there is nothing in the clause which would change the existing law.


I wonder whether my noble and learned friend could tell me whether Clause 4 will cover an incident such as the following. In field A there is a bull, a bull of very lowly birth, a scrub bull; in field B, adjoining, there are a number of cows, those cows being of the class that would be entered in the bovine Debrett. Let us say that the bull escapes from his own field into the cows' field, and that he makes certain advances to them. Let us then say that they do not resent those advances, and let us assume that the processes of nature carry on from there. Will the owner of the bull which has trespassed be liable for any damage which it may have caused, either physically or to the reputation of the cows in the second field?


Again I am sure that the noble Lord, Lord Nugent of Guildford, is more able to answer this question than I am; but under our existing law, and under the Bill, if the bull strays into the neighbouring farmer's land and causes damage to that farmer's cow, then the owner of the bull will be liable. What exactly causing damage amounts to in the circumstances dramatically narrated by my noble friend I am not sure. But the clause does not change the existing law.

Clause 4 agreed to.

3.40 p.m.

LORD ROWALLAN moved 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 onto 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 belongs shall be liable for any loss or expense occasioned thereby to the owner or occupier of the land.

The noble Lord said: This Amendment deals with an entirely new problem which, so far as I know, has not come before the courts, nor has it been seriously considered. It is important—vitally important—to those who have achieved the accredited status, after, in many cases, a long, expensive and frustrating period. The accredited status raises a very big problem. If cattle from another farm stray into the pastures of an accredited herd, those pastures which have been trespassed upon by the cattle from the non-accredited herd are immediately closed to all cattle for sixty days. To those of us who are engaged in rotational grazing, that in itself may lead to very considerable consequential loss.

I had an experience with my own herd this year. Fortunately, it did not go any further than the closure of the pastures for 60 days, but during those 60 days I was losing between 15 and 20 gallons per day, and owing to the unsuitability of the grass which I had to use I was also losing the quality bonus of 3d. per gallon. But it would have been far worse if any of my cattle had been in that field when the trespassing cattle committed the trespass. All those animals would have had to be completely isolated. I should not have been allowed to take them to any of the important shows; nor should I have been allowed to send them to any sale of accredited cattle. All the work that I had done and the expense it had involved would have been nullified by the fact that I could not get the bonus that I had, I consider, earned by achieving accreditation.

But it would have been even worse still if any of those cattle had developed brucellosis owing to the trespass. I was talking only yesterday morning to a young farmer, a very progressive young fellow, who had laid out £5,000 on new courts and a bottling plant on his farm. Through Many years of family attention he had developed a milk round of 400 gallons a day. That all went. The cattle suffering an abortion storm, he is having no calves born at the proper time. His cows, shortly after producing their calves, have gone dry, and there is no milk. What will happen to that young fellow in the end I do not know, but it looks very much as if the only way in which he can ever get out of the mess he is in now and over the loss that he is suffering is by selling all those cattle as they go dry to the cast-cow market, at a loss of probably £50 to £60 apiece.

That herd was built up through three or four generations of his family. It would come to an end. He will be able to graze on the pastures and consume the silage which he has made only by putting bullocks on the farm, and it will be at least 12 to 18 months before he can hope to build up a heard of dairy cows again. That milk round of 400 gallons has probably gone for ever. It is to meet a case like that, or at any rate to give those who have achieved accreditation some compensation for the risks that they run, owing to that accreditation, from trespassing cattle, that I move this Amendment.

I think I have already said enough to show your Lordships the great damage which can come to a young fellow without any fault on his part at all. He has done his best. He has done what Lady Summerskill has often, in this House, encouraged him to do, in clearing brucellosis from his farm. But all that has now gone. I ask your Lordships to consider whether this Amendment should not be passed to meet the few but very tragic cases which comes from trespassing cattle. I beg to mave.


I should like to support my noble friend in the case that he has made. The seriousness of it is without any question, and if we are to get rid of brucellosis, contagious abortion, and undulant fever in man, we must give every encouragement to the dairy farmer to do so. As things stand just now, the dice are loaded against the dairy farmer who is trying to become accredited. The clause proposed by my noble friend will go a long way to restore his confidence. The other thing that can be done to improve the confidence of the dairy farmer would be for the Government to proceed with the eradication scheme with more vigour than they are showing just now. If the eradication scheme were carried out with greater energy, we could be clear of the disease and these troubles generally within a relatively short time.


I should like to support the noble Lord, Lord Rowallan, in his plea that this clause should be added to the Bill. When my noble and learned friend the Lord Chancellor was speaking on Clause 4, he seemed to me to be saying that damages caused by this sort of straying on to land which was in the ownership of someone who had a brucellosis free accredited herd would not be damages that could be assessed under Clause 4. If that is the case, and if he did say that, then clearly the clause moved by the noble Lord, Lord Rowallan, should be added to the Bill.

It so happens that I was for a time connected with the Ministry of Agriculture. During the whole of that period I pressed very strongly that we should do something about brucellosis. That stemmed from the fact that at one time I was in joint ownership with my brother of a small hill farm, and we were nearly put out of business as a result of contagious abortion. The seriousness of that is clear to anyone who knows anything at all about livestock rearing. The very fact that a man has taken the trouble to establish a brucellosis-free accredited herd is surely an indication of his excellence as a livestock-keeper, and, in my opinion, he should be protected by the law in every way possible. I think that this clause, so well moved by the noble Lord, Lord Rowallan, should be added to the Bill unless we can be assured that this matter is covered elsewhere and that a man suffering in this way would receive some compensation for the damage flowing from the slackness of an adjoining cattle-owner.


I rise to support this Amendment, but it seems that one may be able to get only limited compensation. Suppose the owner at fault is a small man with one cow. It may be that he has a capital of only £100. What compensation can one expect to get? Would the Government or the Minister of Agriculture consider setting up an insurance scheme to allow accredited owners to insure against a contingency like that?


The new clause which was moved by the noble Lord, Lord Rowallan, has been seconded by the noble Lord, Lord Balerno. They are two of the greatest experts on animal husbandry in your Lordships' House. I very much hope that the Government will see their way to accepting this clause. Even if, for the technical reasons so often advanced, they cannot accept it in its present form, I hope that they can at least incorporate it in spirit into the Bill. Brucellosis is the same as contagious bovine abortion; and, unfortunately, just as bovine tuberculosis could be and often is communicated to humans so can brucellosis be communicated to humans. It is happening to-day to an ever-increasing extent. A considerable proportion of veterinary surgeons in this country are suffering from chronic brucellosis. I myself know of several extremely painful cases in my own area, cases not merely of veterinary surgeons but also of people quite unconnected with the direct ministration of animals who have contracted this disease and who are going on suffering from it for many years after they first got it.

If this clause is not to be incorporated in the Bill it will be a great deterrent to those who are preparing to clear their herds of brucellosis and in many cases it may well make them hesitate to do so. I am in the fortunate position of having cleared my Jersey herd and of not having a single reactor. I am also fortunate in that, for geographical reasons, the herd is unlikely to be infected from outside. There are a great many small dairy farmers who would like to get their herds clear but who are surrounded by other stock whose owners take no precautions whatsoever. What is the inducement to a young farmer with several reactors to get his stock cleared, when he knows that at any moment he may be re-infected from outside? This terrible disease, which is becoming more common all the time, must be eradicated. I am sorry that the Government have to date shown such reluctance to introduce the necessary measures for providing adequate compensation. It would be a step in the right direction if this worthy clause were incorporated into the Bill.


While I support the noble Lord, Lord Rowallan, and all the other noble Lords who have spoken on this point, I have two reservations. First, I wonder whether one should single out any disease in this way; and secondly, whether this is the correct way of dealing with brucellosis. Brucellosis is probably the most damaging disease current in cattle in this country at the moment. Since brucellosis is such a complex matter and since, from what has been said this afternoon, there is considerable concern felt at the moment about it, I hope that before too long we may be able to devote a debate to this subject alone.

If anything is to be done to cover consequential loss as a result of brucellosis or other diseases, I am sure that a suitable clause ought to be added to the Bill somewhere; but I feel that brucellosis, though the most damaging disease at the moment, should not be isolated in this way. Tuberculosis is another disease that might be spread; and there are many others—and not only diseases in cattle or livestock but also those in cats or dogs. This should be covered by some clause in the Bill.


I support this new clause but with one reservation. It appears to me that the owner of livestock is not covered for third party action. Take the case which happened this year of cattle being stampeded by low-flying aircraft. The herd smashed their way through a fence which was previously perfectly sound. It seems to me that while liability for that would be placed straight on the owner of the livestock, the damage could perfectly well have been caused through the action of a third party. I think this is a defect which should be cleared up.


May I say a word of support for the new clause moved so ably by the noble Lord, Lord Rowallan? As the noble and learned Lord the Lord Chancellor will have observed, the noble Lord has received a great deal of support from all sides of the Committee. I wonder whether the drafting of Clause 4(1)(a) does not already cover this point since, as the noble and learned Lord explained, "property" includes animals. But I think that the point was well made, at any rate with regard to accreditation of herds for brucellosis. There is a specific value there which should be protected and could be at risk in these particular circumstances. This is the kind of damage which could result in cattle straying on to other property and meeting an accredited herd. There is a specific point here and I hope that the noble and learned Lord will be able to meet us on it.


Perhaps this would be a convenient moment to move that the House do now resume in order to hear a Statement. I therefore beg to move.

Moved accordingly, and on Question Motion agreed to.

House resumed.