ANIMALS BILL [H.L.]

HL Deb 27 November 1969 vol 305 cc1409-76

4.20 p.m.

Committee stage resumed.

LORD CLITHEROE

I will not intervene for more than a minute or two. I support the principle of the Amendment moved by the noble Lord, Lord Rowallan. I think I should declare an interest, because not only have I a brucellosis-free herd but also I had the experience about thirty years ago of suffering from undulant fever. I therefore know something about the subject. I think it is extremely important to do everything we can to effect the object which the noble Lord, Lord Rowallan, has in mind, and I hope that the noble and learned Lord will consider the question of a possible insurance scheme as well as the actual terms of this Amendment.

I take it that the noble Lord, Lord Rowallan, in his Amendment means that the straying livestock is straying owing to the negligence of the owner. If two farms are adjoining, the fencing is the liability of one farmer or the other, and if the farmer who owns the brucellosis-free herd lets his fence down and the other farmer's cattle strays on his land, that is the fault of the owner of the brucellosis-free herd farm.

LORD ROWALLAN

The authorities are very strict about having double fencing where there is the differential between the two.

LORD CLITHEROE

I know that that is so. But it is an important point that the damage should he due to the negligence of the owner of the straying animal. Otherwise I entirely support the Amendment.

THE LORD CHANCELLOR

This is clearly an important, if highly specialised, topic. In the first place, I think that the noble Lord, Lord Burton, was right in believing that this is not a matter which can appropriately be dealt with in this Bill, which deals with the general law on the liability for animals. This issue is a specialised animal welfare issue, and if it calls for special legislation it would be better covered in a Bill relating to agriculture. Such legislation ought not to be confined to brucellosis but would, as the noble Lord, Lord Burton, suggested, have to cover also other kinds of potential infection.

As there seems to be some doubt about it, may we be clear as to what the law now is? Ordinarily, if you owe a duty of care to a neighbour it is a duty so to act as not to damage or injure your neighbour. Under our existing law, I apprehend that if you are living next to a man who has a brucellosis-free herd and you act negligently so that your livestock gets on to his land, you are liable to him. I think the noble Lord, Lord Rowallan, was under the impression that that is not so and that his Amendment would make it so. No Amendment to the law to provide for that is necessary. What this clause is discussing is something quite different, and it is this: in what circumstances, if at all, should a man be liable who has done absolutely nothing wrong and has exercised every care? This would be a very unusual thing to do.

Cattle trespass is an exceptional case, because in cattle trespass you do not have to prove that the other man has been negligent. If cattle trespass on your land, then the owner of the cattle is automatically liable. This, as I say, is very exceptional. The law exists as it is now, as I understand it, simply because it is something which happens in agricultural country. The damage is not much ordinarily. The fact that an ordinary herd strays from one person's land to another does relatively little damage. It has always been part of our law that a farmer whose herd trespasses should be liable for the damage. We used to have this old action of distress damage feasant to enable him to recover. This Bill makes no change at all in either case. All the Bill does is to set out a modern form of detaining the animal until you can get your money back: it provides for assessing the damages and so on. It does not alter the law on this point.

While many noble Lords have spoken (and I can well understand it) feelingly of the grave damage—because in this case the damage sustained would be very large—looking at it entirely from the point of view of the owner of the brucellosis-free herd, no noble Lord has given any sensible reason why a neighbouring farmer who has exercised every care, in spite of which, as sometimes happens, through accident or by the fault of third parties his cattle stray, should be liable for these large damages. He is not to-day liable unless he has been careless. Why should he be liable by an Amendment to this Bill? For these reasons, and because I think there has been some misapprehension on the matter, I hope the Committee will not accept the Amendment.

LORD ROWALLAN

I should like to point out that this is not exactly like the ordinary case of trespassing; it is trespassing of a very serious kind, with disastrous results. The noble and learned Lord says that it is covered by things as they are at present. I am no lawyer, and I admit at once that I am not familiar with these things, but I always understood that the prime responsibility was upon the landowner to fence his cattle in rather than to fence others out. Am I right in that, or not?

THE LORD CHANCELLOR

There is no such general law, and indeed the noble Lord, Lord Nugent, and other noble Lords protest very much at any suggestion that they should have to fence in any circumstances. The hill farms in many parts of the country have no fencing at all.

LORD ROWALLAN

In those circumcumstances, and on the understanding that the matter will be fully discussed, I ask leave to withdraw the Amendment.

THE LORD CHANCELLOR

We can certainly revert to it on the Report stage, but I am afraid I cannot give any undertaking to accept it.

LORD NUGENT OF GUILDFORD

Before the noble Lord, Lord Rowallan, withdraws the Amendment, would the noble and learned Lord the Lord Chancellor kindly answer the point that I put to him? Does not Clause 4(1)(a) cover damage of this kind?

THE LORD CHANCELLOR

No. It only covers damage done by the trespassing livestock to property, which may be land, or may be a motor car, or may be other animals on that land. There is no damage done by a herd which goes on to land which is brucellosis free but for the fact that it is not itself brucellosis free. It does not do any damage. Clause 4 covers the trespassing animal which has a contagious disease, but neither the brucellosis free herd nor one with brucellosis has what you would normally call an infectious disease. The person who creates the risk, in a sense, is the man who has the brucellosis free herd. If this Amendment were accepted, it would be a dangerous thing to have a farm next door to somebody with a brucellosis free herd. The thing that surprises me is that anybody who has a brucellosis free herd has not insured himself against the risk of non-free brucellosis cattle trespassing on his land. I dare say people do.

LORD NUGENT OF GUILDFORD

As we are in Committee, I should like to put this further point to the noble and learned Lord the Lord Chancellor. I accept his practical point that insurance may well be the best way of dealing with this matter. If there is a trespass of straying cattle which are not accredited within the brucellosis scheme, on to ground where a brucellosis-free herd lives, and those cattle have contact with the accredited herd, the accredited herd will then lose their accreditation and thereby will depreciate in value quite significantly. So a damage is incurred there. Is that not covered by Clause 4(1)(a)? It would seem to me that it was.

THE LORD CHANCELLOR

That is a loss incurred, but not damage. Clause 4(1)(a) is intended to reproduce the existing law which deals with the small amount of damage which trespassing cattle usually do. The amount of damage might be very considerable, as has been said. Ordinarily I should have thought that the herd owner would have insured against the danger of non-brucellosis-free cattle trespassing on his property.

LORD HENLEY

Does not line 25 cover that point? It says: … is liable for the damage or expenses …

THE EARL OF MANSFIELD

Before the noble Lord, Lord Rowallan, withdraws his Amendment, as I understand he intends to do, can the noble and learned Lord the Lord Chancellor assure us that as a result of this debate on the proposed new clause the Government are now prepared to tackle the subject of brucellosis which, up to date, they have singularly and reprehensively failed to do?

THE LORD CHANCELLOR

I am not qualified to give any precise undertaking about that, because it is a matter for the Ministry of Agriculture. That is why I intimated that this and other infectious diseases probably ought to be covered in a Ministry of Agriculture Bill dealing with animal welfare.

VISCOUNT COLVILLE OF CULROSS

I am not certain that. I am quite clear about the extent of damage that could arise legitimately under Clause 4(1)(a) of the Bill as now drafted. The noble and learned Lord the Lord Chancellor referred to the straying animal that had a contagious disease which it passed on to the animals in the field into which it strayed. Would not this be damage which fell within the meaning of Clause 4? Therefore, if you could prove that somebody else's cattle had come in and actually given brucellosis to your own herd—this might be very difficult to prove, but it is conceivable that you could do it—then Clause 4 would possibly cover the case and there would be the strict liability. If, on the other hand, it is the land that is damaged only because of the scheme, then I think the damage is too remote. Is this not the distinction that is to be drawn between negligence point and strict liability?

THE LORD CHANCELLOR

I think that is so.

LORD BALERNO

May I ask the noble and learned Lord whether the Bill, as it stands, does not provide that if a dog enters a field and frightens the cows there so that they abort, the owner of the dog is liable for the cows that have aborted and the calves which become non-viable? But if a cow bearing contagious abortion disease gets into that field and infects the cows which then abort, is there no redress?

THE LORD CHANCELLOR

I do not know enough about brucellosis to know whether it is immediately contagious or infectious. Perhaps the noble Lord could tell me.

LORD BALERNO

If the noble and learned Lord will allow me to say so, the first action of brucellosis is really to cause the cows to abort, and almost every cow infected in a clear herd will abort, and the calves are away. That is just as much of a dead loss as if a dog, or some other animal, were to get into the field and chase the cows and in that way make them abort. So there is an immediate physical loss sustained by the owner of the herd that is clear of brucellosis.

THE LORD CHANCELLOR

I see no reason why that should not be recoverable. That is quite a different issue from the damage suffered by a man who has a certificate that his herd is brucellosis-free and suddenly finds his certificate is vitiated.

Amendment, by leave, withdrawn.

Clause 5 [Exceptions from liability under sections 2 to 4]:

4.36 p.m.

LORD WILBERFORCE moved Amendment No. 3: Page 2, line 31, leave out subsection (2).

The noble and learned Lord said: I put down this Amendment suggesting the deletion of subsection (2) of Clause 5 in order to explore for a little time the scope of this clause, and the scope for it, on which the noble and learned Lord the Lord Chancellor had not the time to expand at Second Reading. I apologise to noble Lords for introducing a legal note into what promises to be a very pleasant, rustic debate. There are some legal points on the Bill, and this is one which one has to get right.

If noble Lords will look at Clause 2, what it does is this: it introduces what lawyers call the defence of volenti into this Bill. If you go into a boxing match and get punched on the nose you cannot complain at being injured—that is what the principle is. It introduces that as a defence in cases falling under subsection (2). If your Lordships look back at Clause 2, you will see that there are two cases: subsection (1), damage caused by dangerous animals; and subsection (2), damage caused by non-dangerous animals. The clause in question, Clause 5(2), deals with both cases—dangerous and non-dangerous animals. The reasons for this special defence are not really developed or explained in the Law Commission's Report. There are two passages in it which deal slightly with it. At the top of page 14 of the Report it says that there should be a defence: … that the plaintiff voluntarily assumed the risk of injury or damage arising from the dangerous animal … They limit it to dangerous, and they do not expand on why that is desirable.

As regards the existing law, the Law Commission deal with that on page 8, paragraph 9, where they say that under the existing law this defence of volenti may exist again in cases where the animal is fer[...] nature[...], that is to say, dangerous under the old law. In order to understand the importance of this clause one has to look at two others, first of all Clause 5(1), which gives a defence in the case of negligence on the part of the person injured, and that is fairly far- reaching. There is another curious clause which is tucked away, that is, Clause 6(6), which deals with employed persons who are not treated as having voluntarily accepted the risks where they take charge of dangerous animals.

In the light of these two clauses in the Bill, one would like to know what is the scope or need for this other defence in Clause 5(2). Taking dangerous animals first—that is the Clause 2(1) case—one would like to know what is meant by the expression "voluntarily accepted the risk of damage". What is involved in acceptance of the risk? There are cases where dangerous animals are led around on a string; there are people who have cheetahs on leads; people who have tame snakes in the house; people who have tame crocodiles. Surely, the great majority of dangerous animals in this country are kept in various places for show or for exhibition, such as zoos or circuses, or in the parks of stately homes. People go there to see these animals usually accompanied by small children. It is quite obvious, one would think, that to go and see them may in many cases involve the taking of some risk—that the animal may escape; that the keeper may be careless; that something unforeseen may happen; that the animal may bite; that the elephant may swing his trunk; that the lions in Wiltshire may roar and cause nervous shock. These are all the kind of things which may happen. The question raised, to which one would like an answer, is this. Should these members of the public, the spectators, who go on to these places have to bear this risk; and should they be deprived of damages because they are treated as having voluntarily accepted a risk? In such a case is not the defence of negligence, which is available under Clause 5(1), enough?

Of course, noble Lords will remember the case of the camel, to which we shall come later in the context of another clause. In that case an apple was fed to a camel in Chessington Zoo, and this defence was raised. I have the report here. It was raised in these terms: That in placing himself in close proximity to the camel and in feeding it the plaintiff voluntarily took the risk of being bitten. So this is not a theoretical point; this is the kind of point which does arise. People in feeding camels may do it very carefully, they may do it fully in accordance with whatever instructions are there, but they may still be bitten. But are they to be deprived of their remedy because they voluntarily accepted a risk?

What one wonders very seriously about this is whether the presence of this clause is not going to stand as an invitation to people who keep zoos, or parks with lions in them, to put up notices saying that the public is admitted only on the understanding that it is treated as having accepted the risk—the kind of thing against which, in our dealings with the public in consumer legislation, we are continually struggling to prevent. I would venture to suggest that this kind of liability, this kind of risk that people may be injured in circumstances of this sort ought to fall on the keeper of the place concerned—the zoo, the circus or the stately home—lie being the person who can protect himself by insurance.

Leaving dangerous animals and coming to non-dangerous animals, I have already made the point that neither as regards the existing law nor as regards the new law to be put into the Bill, does the Law Commission's Report, so far as I can make out, state any case for introducing this defence in relation to non-dangerous animals. I should again like to know, if the noble and learned Lord would be good enough to enlighten me, what is the meaning and scope of this clause in relation to that class of animal. Does not everybody who places himself in the proximity of a non-dangerous animal voluntarily accept some risk or other? Consider an animal of a non-dangerous species—a dog or a cat. Every time one feeds it, every time one plays with it, every time one strokes its claws, one accepts some risk or other. You think it is harmless, of course, but the owner (which is the hypothesis in Clause 2) knows in fact that it is possibly vicious and that it may cause some damage. In a case of that kind, what is it that this clause does? Does it deprive the person concerned of his remedy? If it does, ought it to do so?

Summing up, I formally propose the deletion of this subsection for these reasons: first, because the Law Commission's Report does not argue its merit or state a case for it; secondly, because the doctrine of volenti itself is an old- fashioned doctrine, shringing in its scope, is disappearing from the law, quite rightly—in factory legislation it now does not exist. Whoever heard of a defence being raised because a man put his hand into dangerous machinery? We have passed beyond it in civilised branches of the law, and one wonders whether it should not go here. My third reason is that when the Report deals with this defence of volenti it relates only to dangerous animals, whereas this clause applies it to both dangerous and non-dangerous animals; and I wish generally to have the benefit of learning from the noble and learned Lord the Lord Chancellor what is the case for keeping this defence side by side with the already existing defence in Clause 5(1) of negligence. I beg to move.

LORD LLOYD OF HAMPSTEAD

May I say a brief word in support of the noble and learned Lord, Lord Wilber-force, and his very cogent and lucid argument in favour of dropping this subsection. The defence of volenti is of course treated by the courts at the present day as a somewhat undesirable defence. It is extremely difficult to succeed on it, particularly when the courts usually strive as hard as they can to find that the person in question did not know the real nature of the risk. The other great disadvantage about this defence is that there is no scope for apportionment. if one establishes volenti, then one has a complete defence. This of course was the same position under our law of contributory negligence, and it was long thought to be unsatisfactory. The courts struggled hard over this difficult rule, and eventually Parliament intervened in 1945 and introduced the rule about apportioning in the case of contributory negligence.

One would have thought that in any case where volenti as a defence had any real validity at the present day it could be brought under the defence of contributory negligence, and in such a case the court would have a clear discretion to decide on the justice of the case whether this should have the effect of eliminating liability altogether, or whether it should be apportioned on a basis of 50/50 or 60/40, or whatever it may be. So one would have thought that, if this clause goes, there is still ample scope For a genuine defence on the lines that really the plaintiff brought the injury on himself. For instance, one could imagine a case where, perhaps at a circus, somebody is displaying some wild animal and invites a member of the audience to come up and hold the animal's paw, or something of this kind, and a person who does so is injured—the sort of case where there might be an argument of course for volenti. Here one would equally be able to employ the argument of contributory negligence, and the court would have a free hand to say, "Well, we think that he was 80 per cent. to blame himself", or whatever the proportion may be. Of course, if the court says he is entirely to blame, then there is no liability. Therefore, one has some considerable difficulty in seeing that Clause 2 as it at present stands really assists as a law reform measure. I would venture to submit, in respectful support of the argument of the noble and learned Lord, Lord Wilberforce, that it would be far better to drop this provision altogether.

LORD MOYNE

May I give an example without saying which way it cuts. We used to have an Arabian stallion—this House always likes practical instances, I know—and that Arabian stallion was quiet enough until people came and fed it across our fence with lumps of sugar. It then became dangerous because it looked for food and it wanted to bite. We then put up a notice saying: "Don't feed the stallion". People still came and did so; and then it became dangerous to us, dangerous to the people who looked after it. The people who were feeding it were endangering not only themselves but also the owners. I really do not know which way this instance cuts, but I throw it into the pool of our discussion.

4.49 p.m.

LORD FOOT

Might I add one further illustration to the very cogent argument of the noble and learned Lord, Lord Wilberforce. It relates to children. It appears to me that, under this doctrine of volenti, very particular difficulties arise when the person concerned who is supposed to have voluntarily undertaken the risk is a child. If a child, aged six, in a zoo approaches a wild animal, even a non-dangerous animal, can that child be reasonably said to appreciate the exact risk it is taking? It seems to me that, if we allow this clause to stand, the courts are going to be beset with many particular difficulties in the case of children in having to decide at what stage, at what age, it can reasonably be said that the child ought to have appreciated the nature of the risk it was taking.

VISCOUNT BARRINGTON

I should like to add one question. It concerns the adult who knows that he is at risk of being bitten by, say, a crocodile but who, because he is accompanying a child, goes to help that child, mistakenly or not, if he thinks it is in danger of being bitten by the crocodile. In such a case is the adult doing it voluntarily, or not? He has not done anything stupid, and I think it would be a pity to discourage a helpful attitude on the part of responsible adults in charge of children. The point occurred to me simply as a result of what my noble friend has just said. It is really the problem of the legal position of somebody who goes to the help of another who has done something stupid, when the person who is helping is not necessarily (although he may be) stupid himself.

THE LORD CHANCELLOR

Ordinarily, in acts of negligence the principle of volenti non fit injuria applies. This Bill is not doing anything peculiar. So far as dangerous animals are concerned, it seems that in the case of Bowater v. Rowley Regis Corporation, in 1944, the Court of Appeal proceeded on the basis that but for the fact that the plaintiff was a servant the defence of volenti would have operated. So from that point of view this does not suggest anything new. I am not personally much attached to volenti, and I do not know that judges to-day are attached to it. What situation amounts to a case of volenti is entirely a question of fact and depends on all the circumstances of the case. I cannot conceive of any judge holding that volenti applies to a small child. The tendency rather is not to apply it. Nevertheless, it is the law, and I can see no real reason why it should not apply where dangerous animals are concerned.

So far as independent contractors are concerned, as I understand it one never employs a lion tamer: he is an independent contractor. Or take a veterinary surgeon. He has all the knowledge of animals—unless the animal involved is unusually or in some strange way dangerous. But if you accept the profession of veterinary surgeon you take on yourself the risk that from time to time you may get bitten, or may sustain some injury. It is not the fault of the owner of the animal: if the animal is ill, what can the owner do but send for a veterinary surgeon? Of course nobody outside a lunatic asylum, I should think, would go into a lion's cage. If you choose to do this, then obviously you go in at your own risk. If a man is a lion tamer, obviously he cannot do his work without it. That is why, I think, they are usually independent contractors.

Having said all that—although, as I say, I am not a great admirer of volenti, and I should not be very sorry if it went—I should like, if the noble and learned Lord, Lord Wilberforce, agrees, to reconsider this point at the next stage of the Bill. I should like to do that partly for this reason: What I have done and what the Law Commission have done—and it is something that clearly eases the position—is to say, "We do not think volenti ought to apply to servants". So that is an amelioration. But when we come to Amendment No. 13 the noble Lord, Lord Nugent of Guildford, will say, I think, that we have to apply volenti there. So, as between the noble and learned Lord, Lord Wilberforce, who says that it should not be applied at all, and the noble Lord, Lord Nugent, who says that it ought to be applied more, while, as I have made plain, 1 secretly have some sympathy with the noble and learned Lord, Lord Wilberforce, I should like him to withdraw his Amendment to-day and I will consider it again when I know what happens to the Amendment in the name of the noble Lord, Lord Nugent.

LORD WILBERFORCE

I am completely satisfied with what the noble and learned Lord the Lord Chancellor has said. I suppose that the classic case of volenti in regard to lions is the case of Daniel, but I do not imagine that his case is repeated every day. I am entirely content with the proposal that the noble and learned Lord should look at this matter again, particularly when we see what has happened in the case of servants in Clause 6(6). On that basis, I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.57 p.m.

LORD NUGENT OF GUILDFORD moved Amendment No. 4: Page 2, line 36, leave out ("if it is proved") and insert (" unless the trespasser can prove").

The noble Lord said: By leave of the Committee I should like to discuss with this Amendment Nos. 5 and 7, which arc related. it may also be that Amendments Nos. 6 and 8 are also related, but I leave it to the noble and learned Lord the Lord Chancellor to advise the Committee as to whether they are nearly enough related for us to discuss them all together.

Proceeding to discuss the merits of my Amendment, its effect would be, where a trespasser has come on to premises on which an animal—whether of a dangerous species or a species that is not dangerous—is kept, to change the onus of proof from the owner, as defined in the Bill, to the trespasser. The first part of this combined Amendment refers to paragraph (a) of subsection (3) of Clause 5, which deals with the case where an animal is of a dangerous species and the owner, as the clause is now drafted, would have to prove that the animal was not kept there either to deter or to cause damage to trespassers. I do not place very great emphasis on this Amendment: the more serious one, in my view, relates to paragraph (b). At the same time, I think there is a point here in regard to guard dogs which on some properties are kept outside at night for the specific purpose of deterring trespassers or burglars. I suppose that guard dogs of that kind are, almost by nature, a dangerous species. In this case, it seems to me that the trespasser should have the responsibility of proving that the animal was in fact kept there to deter or to cause damage.

The more serious case with which I wish to deal refers to paragraph (b), where the animal does not belong to the dangerous species; and the animal I have in mind for my example is the ordinary house dog. The house dog is not kept primarily in order to deter or to do damage to trespassers: the dog is kept by the owner mainly as a companion. But there is no doubt that nowadays many people, especially people living alone, like to keep a dog in the house. Elderly ladies living alone, for example, are glad to keep a dog in the house which will give them some security, and while the animal is there primarily as a companion there is no doubt that if a trespasser came in with the intention of burgling the house and robbing the dog's mistress, the dog, if it was any good at all, would proceed to bite the burglar. I certainly hope he would. I am sure we should all hope that. It would seem that in such a case, as paragraph (b) is drafted, it would be for the dog's mistress to prove that the animal was not kept there to bite a trespasser in such circumstances; and I think she would have great difficulty in proving that.

It seems to me that it would be much more practical, and much fairer, if the onus was on trespasser to prove that the dog was kept there in order to bite him. I think that in most circumstances he would not be able to prove it; and I do not think he should be able to. So the effect of my Amendment would be to reverse the onus in both these cases. I am not putting great emphasis on paragraph (a); I think it is not a particularly good case there. But on paragraph (b) I think there is a very strong case, and I hope that the noble and learned Lord the Lord Chancellor will feel able to accept that part of the Amendment or, if he cannot accept it, at any rate explain in what circumstances the situation which I have described would be covered so that the ordinary house dog can perform its normal function. I beg to move.

THE LORD CHANCELLOR

I am not seeking to stop any noble Lord from addressing the Committee on this Amendment, but I would say this section is the only subsection in the Bill about which I have never been personally satisfied. It is as drafted by the Law Commissioners, so I thought I had better leave it as it was. But it does not seem to me really to apply the most practical test, and the fact that it has attracted Amendments Nos. 4, 5, 6, 7, 8 and 9 from four or five different noble Lords confirms me in my impression that it is not really quite right. I do not think this distinction between being kept there to deter and being kept there to cause damage really works out right in the case of the ordinary guard dog. I am at the moment engaged with the Law Commission in seeking a complete re-draft of the whole of that subsection. As I say, I have no intention of stopping any noble Lord from moving his Amendment or addressing the Committee, but I thought it might help if I made my position clear.

LORD BALERNO

Before the noble Lord withdraws the Amendment, may I ask the noble and learned Lord the Lord Chancellor whether the word "premises" includes fields as well as ground adjacent to a farmsteading?

LORD BURTON

Might I also ask the noble and learned Lord the Lord Chancellor—this may be defined in the Bill, but I cannot find it—what is the difference between a dangerous species of animal and a safe species of animal? It seems that a pet dog could be either.

THE LORD CHANCELLOR

That is defined in the Bill in Clause 6; it provides what a dangerous species is. In reply to the question raised as to premises, I think it is quite clear that premises include fields.

LORD BALERNO

That means that you have to watch out for the bull. Therefore, I would support my noble friend's point and illustrate it by the instance of the bull which is allowed out into the field. There are of course times when a bull which one is suspicious about, not as quiet as some, has for the purposes of efficient mating with cows to be turned out into the field, and so long as there is no right of way or public footpath through the field, there should be nothing done to prohibit or make it difficult for the owner of the bull, the farmer, so to do. Therefore, I do think that the onus should be put upon the trespasser to prove his case rather than upon the farmer.

LORD CONESFORD

What the noble and learned Lord the Lord Chancellor said seems to me so eminently satisfactory that I shall not delay the proceedings for more than two or three minutes. I would tell him what was in my mind. The subject is, of course, dealt with in a single paragraph of the Law Commissioners' Report, paragraph 58, and there they really make it clear that they do not wish to interfere with the general law as between occupier and trespasser in the particular case of animals. Nevertheless, they include in a footnote on page 27 the sort of considerations that they thought might be applied if we were considering animals. It seems to me, though I can quite understand the form in which it is now drafted, that subsection (3), as the Lord Chancellor has rightly concluded, is unsatisfactory, and I will, if I may, give a single example to show that it is unsatisfactory. Take the case of an old person in a rural district, possibly living in a cottage alone. A really well-trained watchdog can be an enormous comfort to such a person, and it is most desirable that such a person, who is liable to violent attack by criminals, should be protected. It may even be possible to have a dog trained to defend the household against intruders by attacking them, and I think that case must be met.

The only thing I would add is that as I came into the Chamber I received a memorandum generally in support of what I was endeavouring to do, a memorandum from the Chartered Land Societies Committee of the Royal Institution of Chartered Surveyors, Chartered Land Agents' Society, and Chartered Auctioneers' and Estate Agents' Institute, strongly making the case for the revision of this subsection as drafted. I need not elaborate on that because I see the welcome news that the memorandum has been sent to the noble and learned Lord the Lord Chancellor himself. I would therefore only say how glad I am that he has indicated that he is re-considering this matter, and of course I do not move my Amendment.

VISCOUNT MONCKTON OF BRENCHLEY

May I ask the noble and learned Lord his opinion of this example? The next door farm to mine is small and has suffered great depredations from burglaries and thefts. They have now two fierce dogs, and the notice on the door reads, "Danger, fierce dogs, survivors will be prosecuted".

LORD ALPORT

May I ask the noble and learned Lord the Lord Chancellor—because I was not clear from what he said —whether in fact the restricting of this subsection, which presumably will be taken in conjunction with the definition in Clause 6(2)(b), means that a dog that is kept in a household with the object of protecting it will be excluded from the operations of this clause? As the noble Viscount has just said, most of us who live in the country keep dogs with the specific object of protecting our property. We do not have to be old ladies living alone in cottages. Anybody who lives in a country district at the present time has to keep a dog, with the object not merely of warning the householder that intruders are about but preferably for preventing intrusion into the house, or, if an intrusion takes place, helping with the defence of the household, particularly of women when they are alone in the house, or of children, as the case may be. I am not quite clear whether the Lord Chancellor has said that this practice will not be subject to the liabilities which appear to me at the moment to be placed upon the householder.

VISCOUNT MASSEREENE AND FERRARD

In view of what the noble and learned Lord the Lord Chancellor has said, I will not move my Amendments. But may I ask him, when he is drafting his new clause, to take note of the words of my Amendment No. 9: that the person suffering damage ought to have known that the animal was to be "found", rather than "kept", on the premises? Many firms and individuals employ security firms to guard their premises, and the dogs are often not kept on the premises; they may be kept 20 miles away and brought to the premises at night; and of course it is possible that the dogs may be different dogs from one night to the next, and may even come from different kennels. Having made that point, I say again that, in view of what the noble and learned Lord has said, I shall not be moving my Amendments.

5.11 p.m.

LORD FOOT

While I agree that the clause as it stands is unsatisfactory in some particulars, I should like to issue a respectful word of warning against the suggestion that we should change the burden of proof from the keeper of the animal to the trespasser. It seems to me that, as a matter of principle that is wrong, because in considering the purpose for which a dog is kept the real issue is the intention and the state of mind of the keeper. Why he keeps the dog, whether he keeps the dog in order to do damage to trespassers, or whether he keeps it simply as a companion, is a matter which is peculiar to him and peculiarly within his own knowledge. In the great majority of cases, the trespasser will not in the nature of things, be able to produce any sort of evidence as to what was the real purpose of the keeper. Therefore, as a matter of principle, it seems to me that it would be quite wrong to throw on to the trespasser an onus of proof which, in the great majority of cases, it might be quite impossible for him to discharge.

I think I am right in saying (in the presence of noble and learned Lords I say these things with great diffidence) that in some cases, at any rate, of tĥe criminal law it is a principle which has long been recognised that where you have something which is peculiarly, possibly exclusively, within the knowledge of a particular person, then the burden of proving what the situation may be should rest upon him.

LORD NUGENT OF GUILDFORD

May I thank the noble and learned Lord the Lord Chancellor for his most accommodating reply, since when he has had a good deal of advice on what sort of Amendment he should make. May I say immediately that I do not necessarily favour the form of my Amendment? I think the point has been well made all round that there is here a practical point. A number of us feel that a dog owner should be allowed to keep a dog in order to give greater security to the household, whether it comprises an old lady living on her own or any one of us. At the end of the day, after all, if the dog does bite the trespasser, that is what you hope the dog will do; and it is something that we ought not to make illegal. This is really a practical point. I am sure that the great skill of the noble and learned Lord will be sufficient to find a way of putting this subsection into an acceptable form. In those circumstances, I would be happy to withdraw my Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 5 shall stand part of the Bill?

LORD CHAMPION

I did not quite understand what my noble friend said about this matter. Is he asking the Committee to vote this clause out of the Bill, so that on Report he may include an entirely new clause? Or is it his desire that we should leave the clause in and that he will come along later with a suitable Amendment to it? It seemed to me that he was telling us that he did not like the clause at all. If that is so, we ought to vote it out of the Bill at this stage, and force him to bring forward an entirely new clause on the next stage of the Bill.

THE LORD CHANCELLOR

It is not the whole clause; only subsection (3). I did not like it myself, and I am most grateful to noble Lords for all their views. I have rather felt that perhaps Lord Nugent's Amendment was not the right one, for the reasons given by the noble Lord, Lord Foot. It is always difficult to put on one person the onus of proving what was in somebody else's mind. But if I may think over everything that has been said. I hope that I may be able to come back on the Report stage with a complete re-draft of the clause.

LORD BARNBY

In regard to this clause I have some perplexity in interpreting some of the points that we have been discussing, particularly in relation to subsection (1) which refers to Clauses 2 and 4 and therefore includes subsection (3); and of course it also bears relation to Clause 5(5). What puzzles me is the question of liability. Again it appears to tie in with the question of problems under Clause 8, of animals straying on the highway. May I illustrate my confusion, which arises from experience, though not necessarily in a county predominantly agricultural, like Lincolnshire, where, in cases of proximity to large towns, circumstances have long existed which are easily interpreted.

To take a hypothetical case in the South of England, suppose one has a field containing in-lamb ewes, some horses and a donkey, and possibly some cattle. A dog gets into the field and causes damage by running the ewes. Severe damage may possibly be caused to the ewes by their being torn by the dog—and certainly there is the likelihood of damage at lambing time. As it happens, in this hypothetical case the horses and the donkey are severely scared by the dog running the ewes. They jump the fence, which happens to be alongside a road, and there they divide, the horses going in one direction and the donkey in another. In addition, the bullocks may move through the fence and go into somebody's garden. There, I think—although I should like the Lord Chancellor to confirm this—the position is perfectly clear: there is no liability for damage because the responsibility lies upon the owner of the garden who has not fenced his garden. The problem that I see now is in regard to the horses or the donkey.

Let us say that the donkey causes damage to a car coming along this road—it may not be a highway. Later on we shall talk about the situation in relation to animals on a bridle-path and so on; and the question then arises as to how one should interpret "highway". But in the case of more thickly populated areas there is the distinction created by a long stretch of passage which might be an unadopted road maintained by a body of private persons. Is that definitely a highway? What is the liability for the people who are damaging the car by the donkey that was on the passage? That is one of the problems that puzzled me.

Again, in the same considerations there seems to be absence of interpretation of what happens where stock pass out of the area where they should be and on to other areas, and then possibly on to a highway through gates being left open by other people. How will you find out who is responsible for leaving the gates open? That is very difficult to prove as reason for obtaining relief from the damage. Much straying of stock, not only in the vicinity of thickly populated areas but in the wider agricultural counties, comes through gates being left open, and as a result damage occurs. Problems of that sort are well within the knowledge of many noble Lords in this House.

After reading the Bill carefully, and even after the very helpful interpretation given by the noble and learned Lord the Lord Chancellor on Second Reading, I find myself in a good deal of perplexity. I raise the matter at this stage of the Bill because it seems to be referred to in all the other points that I have mentioned, but it may well be that we shall get a more complete interpretation from the noble and learned Lord when he comes to Clause 8. I record my perplexity about such phrases as those in Clause 5(1), "the fault of the person suffering it". In the recitation that I have given there are so many angles to the damage: damage to the owner of the in-lamb ewes; damage to the owner of the fences; possible damage—I think one noble Lord referred to it—not to bullocks but to a cow that would slip her calf; and damage caused by the donkey that got in the way of a car and possibly caused loss of life. These demands for compensation will come from different angles, and it is very difficult to see what would happen. realise that in the main compromise is not difficult, but legislation is intended to try to provide for the exceptional case. It is in that spirit that I raise these points on this clause, fully conscious that the noble and learned Lord may tell us something more about it.

Clause 5 agreed to.

Clause 6 [Interpretation of certain expressions used in sections 2 to 5]:

5.24 p.m.

LORD WILBERFORCEmoved Amendment No. 10: Page 3, line 23, leave out ("generally") and insert ("commonly").

The noble and learned Lord said: This Amendment is really an explanatory Amendment directed to the expression "generally domesticated". I make no apology for taking a little time on it because it is one of the key phrases used in the Bill, forming, as it does, the basis of the distinction between dangerous animals and non-dangerous animals. The question is, is this the best expression? As noble Lords know, the accepted distinction for hundreds of years in our law was that between animals feræ naturæ and animals mansuetæ naturæ, wild as against tame—the distinction being as between wild animals which may have some individuals that have been made tame, on the one hand, and animals which are not normally dangerous but of which individuals may be vicious, on the other hand.

That is the traditional division, and it was pretty well understood until in 1940 we had the case of the camel. I know my noble friend Lord Conesford is the expert in this House on the camel, and I should hesitate to take his animal were it not that he had been called away. I myself am slightly more sensitive at the present time about elephants. The classic case of McQuaker v. Goddard was concerned with a camel, and it is the case that is important. There it was held by a judge, Mr. Justice Branson, and by the Court of Appeal, that a camel in Chessington Zoo, a camel in England, is a domesticated animal. The word "domesticated" is used. It was held that there was no such thing anywhere as a wild camel; a camel was the oldest domesticated animal that we have. That is its nature.

It was argued that the animal was wild in the legal sense because "it has not become a domesticated animal in England". If noble Lords will look at Clause 6(2)(a) they will see the similarity of language. That is what was argued. The Court of Appeal rejected that and said, "No, that is wrong. If no camel was wild anywhere, no camel can be wild in England". Which seems a conclusive proposition.

What one wants to know, and this House has a right to know, is what the Government intend to do about the camel. Is it their intention simply to reverse McQuaker's case? That hardly seems worth while, because both the learned Judge and the Court of Appeal said it was a matter of evidence, and they gave a more or less open invitation next time to call some better evidence which would show that the camel is a wild animal. That appears to be what the Law Commission's Report wants to do, and noble Lords will find the argument in paragraphs 15(1) and (2) of the Commission's Report, which I venture respectfully to think is an extraordinary example of muddled writing and muddled thinking.

What they say in 15(1) is: The crucial question should be the danger which the species presents in the particular circumstances of this country, although a court should of course be entitled to look at experience elsewhere. In our view in the camel case insufficient attention was paid to the first consideration. How they would have got any further by considering the particular circumstances of the camel in this country I fail to see. Then, when they go on to deal with "general domestication" in paragraph 2, they seem to suggest that general domestication is inadequate, and yet in the end you will find it adopted as the test.

One would like to know what "general domestication" means. "Domesticated" means simply tame. If your Lordships look it up in the Oxford Dictionary you will find that the words are treated as synonymous. So the question is, what does "generally domesticated" mean? I venture to suggest that it is a very ambiguous expression. It could mean that if the animal is found in the United Kingdom at all it is not generally domesticated but is generally wild. It could mean that if the animal is found in the United Kingdom, though it is sometimes domesticated, it is not generally domesticated—that is to say, a commonly domesticated animal. It could mean that if the animal is domesticated in the United Kingdom it is not generally domesticated there but only in some parts of the United Kingdom, in Wales or Cornwall, or some barbarous island. It is really very ambiguous.

That brings one back to the camel. How general, one wants to know, is "generally" in relation to the camel? How many camels do there have to be in a state of domestication before they are treated as "generally domesticated"? We have a right to know the answer to these questions. How many camels are there in the country? Have the Government carried out any survey of camels to find out how many there are? How many are domesticated? How many are not domesticated? They might be surprised to find how many there are lying about in different places. Seriously, this raises great difficulties of proof, if the unfortunate man has to call experts to show how commonly, how generally, the particular animal is domesticated. Passing to the elephant, the present law is at any rate perfectly clear about elephants. It was laid down in 1890, in a case called Filburn, that it was a wild species of which individual animals may be tame. That is quite all right; that fits in with the conception. But if we are to have the test of what they are in the United Kingdom—and what is good for the camel must be good for the elephant—one will find only tame elephants in the United Kingdom; and again one wants to know how many elephants there have to be before they are "generally domesticated".

That is not the end of it, because one is faced with the problem of rabbits, pigeons and bees, and I appeal here to Professor Glanville Williams, who is a great expert on these things and who is quoted in the Law Commission's Report. He says, in an article: Rabbits, pigeons and bees may be wild in the sense that they are not generally domesticated, but they are not assumed to be dangerous". There you have it that rabbits, pigeons and bees are not "generally domesticated" animals, so they are within Clause 6(2)(a) of this Bill; and you have then to consider, in relation to rabbits, pigeons and bees, paragraph (b). You have to ask whether they have such characteristics that they are likely, unless restrained, to cause damage … and in this Bill "damage" includes damage to property; it is not confined to damage to individuals. Everybody knows that pigeons are very dangerous to crops. They cause a lot of damage if they are given a free run. Rabbits, if released, if they exist here, again can cause serious property damage. I do not know about bees, but I suppose they have habits which may be damaging both to individuals and to property in certain cases. I simply bring this in because these are difficulties raised by the expression "generally domesticated", and it seems to me that it is going to invite litigation and in any case make it difficult for persons who are injured by animals to prove whether the particular animal or species is or is not considered dangerous in the eyes of the law.

Two things, therefore, seem to emerge. One is that the old test seems rather better than this one, unless the noble and learned Lord can give us a satisfactory interpretation of this expression; and for the moment I am inclined to think that the word I suggest, "commonly", is at any rate clearer. It may not hit the right nail on the head, but it does at any rate give a slightly more precise colour to the phrase than the word "generally". If one takes "commonly" and applies it to rabbits, rabbits are "commonly domesticated", one would say, even though the majority of them are not domesticated; and that is all right. As regards camels, elephants, cheetahs, snakes or crocodiles, they are not "commonly domesticated" in this country, although there may be some that are. So I should think that "commonly" hits both of the limbs rather squarer than the word "generally"; but I should be glad to hear what the noble and learned Lord has to say about this because on Second Reading this was not fully expanded and it is really a key definition in the Bill. I beg to move.

LORD SOMERS

I should like to support the noble and learned Lord, Lord Wilberforce, because I, too, was worried about this definition. Take, for instance, the word "species". How are you to define that? For example, we have the species "cat". We have the ordinary domestic cat and we also have the Scottish wild cat. The domestic cat is not normally dangerous, but the Scottish wild cat, if you are unfortunate enough to have any encounter with it, most certainly is; but biologically they both come under the species "cat". The difficulty of definition is even greater when one comes to dogs, because dogs are very definitely individual characters, and whereas one may be perfectly harmless another of the same breed may be exceptionally dangerous. I cannot see how any broad definition of "species", or whether it is or is not domesticated, is going to meet the case. For instance, as the noble and learned Lord has already said, cerain animals are not "generally domesticated". For example, the badger is normally looked upon as a wild animal, but many badgers have been trained as domesticated animals, very happily; and the same is the case with other wild animals. I cannot see how the fact of domestication, which applies to all dogs, presumably, is going to lay down any guide as to whether it is or is not likely to be dangerous.

VISCOUNT MASSEREENE AND FERRARD

If I may intervene for one second, I would inform the noble and learned Lord, Lord Wilberforce, that camels are just as wild as elephants. There are large areas in Central Asia where there are many wild camels; and in the South of Spain, on the Guadalquivir delta, there are also a lot of wild camels. I understood the noble and learned Lord to say that camels throughout the whole world should be regarded as domesticated. In fact, there are a great many wild camels.

LORD WILBERFORCE

I am much obliged to the noble Viscount for that intervention. Of course, I was only repeating the decision of the Court of Appeal, and saying that they themselves left open the door to another finding if different evidence were produced. They made some remarkable statements, if I may say so. Mr. Justice Branson said that the camel cannot copulate without human assistance, which is directly contrary to the evidence of Herodatus.

VISCOUNT STONEHAVEN

I am in a frightful muddle about the status of the mouse. I should like to know what the mouse is. Is it a dangerous animal or not?

THE LORD CHANCELLOR

The mouse is simple: but at the end of his interesting speech the noble and learned Lord, Lord Wilberforce, produced a list of animals and invited the Committee to consider what their position was on the assumption that the word "commonly" was in the clause and not the word "generally". I thought, if I may say so, that all his findings were right, and that this division was correct. Here, under Clause 5, a species is dangerous if it: is not generally domesticated … and … whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause damage or that any damage they may cause is likely to be severe. I think that "generally domesticated" is the phrase which is more commonly used (perhaps at that point I should have said "generally"), but I have no objection to the word "commonly". If one looks at the Shorter Oxford English Dictionary, it says: Generally: So as to include all; as a whole, collectively. Universally; with respect to all or nearly all. For the most part, extensively. In a general sense or way; … As a general rule; commonly"; and, under "Commonly", the first meaning given is "Generally". I do not myself find that very helpful; but I have risen only to say that I have no objection to this Amendment.

On Question, Amendment agreed to.

5.40 p.m.

LORD AIREDALE moved Amendment No. 11:

Page 3, leave out line 32, and insert— (" (b) he is the head of a household of which a member under the age of sixteen").

The noble Lord said: I hope this change of mood on the part of the noble and learned Lord the Lord Chancellor is going to last for a little while. This is an Amendment to the subsection which answers the question, "Who is a keeper of an animal?" It arises again, as did the last Amendment, out of an ambiguity of language. The ambiguity, I submit, is the meaning of the words "his household" in paragraph (b) of subsection (3). I suggest that "his household" can have one of two separate and distinct meanings. It can mean the household that belongs to him, that is to say, he being the head of the household; or it can mean the household to which he belongs, that is to say, any member of the household from the oldest to the youngest member. I venture to think that it is the first meaning that I have mentioned which is intended here. I therefore put down this Amendment for the purpose of making it abundantly clear that that is what is intended.

I would merely observe that if the other meaning is intended it leads to rather an absurdity, because it would lead to the position that in every household where a child under 16 owns a pet animal every member of that household is deemed to be the keeper or a keeper of that animal, from the oldest to the youngest member, including all the younger brothers and sisters of the child. I venture to think it is absurd that that meaning should be intended. I have therefore put down this Amendment to make it clear that what is meant here is that where a child under 16 in a household has a pet animal, the head of the household as well as the child itself is deemed to be a keeper of it and that no other member of the household is intended to be a keeper of the animal. I beg to move.

THE LORD CHANCELLOR

I should be interested to hear any views about this Amendment. Really there are certain difficulties about the Bill as drafted and about the Amendment. My present impression is that the Amendment is an improvement. Of course, it is not intended to make everybody who lives in the house liable; it was always intended to refer to the person whose household it was. I think, therefore, that "head of the household" is clearer than "his household", which are the words in the Bill. Under both styles there are difficulties. I do not know whether it has occurred to the noble Lord, Lord Airedale, that the house may belong to and be run by two widowed sisters. Who is the head of the household then? But that point would arise equally under the words "his household". No doubt in both cases the words would be sensibly construed. Unless any member of the Committee has any contrary view, I would advise the Committee to accept the Amendment.

VISCOUNT COLVILLE OF CULROSS

Since under the Interpretation Act the single includes the plural, there could be two joint heads of the household within Lord Airedale's Amendment.

On Question, Amendment agreed to.

LORD NUGENT OF GUILDFORD moved Amendment No. 12: Page 4, line 6, leave out paragraph (b).

The noble Lord said: I beg to move Amendment No. 12, and with it I should like to discuss Amendment No. 13. Here perhaps I should warn the Committee that we are now returning to the rustic groves that we left a few minutes ago. This is a point which is of some importance in the farming world, because Clause 6 as drafted would make the owner of livestock—and for this purpose I will call him "the farmer"—have an absolute liability in all circumstances towards the stockman whom he employs to look after his cattle. This would mean that if a bull which was normally docile became cranky and dangerous—and this happens sometimes—and the stockman did not report the matter to the farmer, and the stockman suffered an injury from the bull, the farmer would still be absolutely liable for that injury to the stockman. If I have the interpretation incorrectly, then I am sure that the noble and learned Lord will tell me, but I believe that I am right. The fact that the stockman knew that the bull had become dangerous and kept it to himself without telling the employer is to be disregarded, and the farmer is to be presumed to be completely responsible for the injury. That, I think, is the effect of the clause as drafted.

I consider that that goes much too far. It would not only reverse the present position as we believe it to be in the farming world—the present position in Common Law according to the case of Rands v. McNeil—but places a far more onerous liability on the farmer-employer than on any other employer. I am sure that the noble and learned Lord will be able to tell us precisely what is the posi- tion; but I understand it to be that an employer is normally required to take reasonable care not to subject his men to unnecessary risk. If that is so, I suggest that this measure of responsibility as drafted in Clause 6 would place a duty on the farmer going far beyond what is placed on other employers.

I recognise, of course, that the Law Commission Report recommended that the law should be changed in this respect and that the noble and learned Lord has that on his side, but I suggest that they gave no very convincing reason why it should be so drafted. They merely said that the farmer could insure against this eventuality. My point, however, is this: why should the farmer-employer be asked to carry a liability so significantly greater than is normally carried by any other employer? This is the point of my Amendment, and I feel it is a strong point. I beg to move.

VISCOUNT MASSEREENE AND FERRARD

I should like to support this Amendment. Surely the question of whether the employee's knowledge of the dangerous animal should be imparted to his employer ought to be at the discretion of the court. There could be a situation where, for example, an employee is very fond of a certain animal. The animal could become dangerous and the employee could know that it had developed vicious characteristics; but he could be fearful of telling his employer lest the employer might have the animal destroyed. It would be hard lines on the employer to be blamed for any damage caused by that animal. There could be cases where the employer was abroad and where, the animal having turned dangerous—and domestic animals can do so very quickly—the employee might not have had any chance to pass this information to his employer. I can think of other cases—admittedly very unlikely—where an employee might have had a grudge against the employer. He might know the animal had become dangerous but he might not tell his employer, in the hope that his employer would get into trouble from this fact. Therefore, I support this Amendment.

LORD BELSTEAD

May I say a word in support of my noble friend Lord Nugent? I speak particularly of Amendment 12, which is an Amendment to strike out Clause 6(5)(b). It would seem that this refers back to Clause 2(2) whereby the keeper of an animal not belonging to a dangerous species is liable for such damage as the characteristics of that animal may render likely. That seems uncontroversial: you do not let your bull into a china shop or let your cattle into your neighbour's garden if you wish to avoid damages. But Clause 2(2)(a) adds that the keeper of such an animal is liable for damage likely to be severe. As the noble Viscount, Lord Massereene and Ferrard, has just said, a whole host of diseases can suddenly cause an illness in an animal. Often these will lead to symptoms of dejection, interspersed with bouts of vicious temper. This may occur time after time on the farm. The stockman will discern that there is trouble afoot and he may, for genuine reasons, be unable to inform the keeper or owner who will be liable under paragraph (b) which the Amendment seeks to delete.

Very briefly, in only half a minute, may I give one example of an animal we have not referred to this evening? A sow is an animal which has jaws of such strength that it can break a man's leg. Let us suppose that a sow has had a litter of piglets and then suffers from some post-natal trouble which causes a high temperature. The owner is genuinely absent and so the stockman sends for the vet. But in the meantime, knowing the state of the animal, the stockman allows an accident to occur. Perhaps he fails to warn a colleague against entering the sow's pen, or he allows the sow out and she goes for someone; or, worse still, he goes in with the animal himself without taking precautions. Of course, it may be that in such circumstances there is some item in the case which makes the owner liable; but I am assuming for the moment that this is not so.

There might be—topically at the moment—the tragic case where the owner of a dog was abroad and rabies occurred in his dog, which was being looked after by someone at home who was being paid. The person knew that the dog was ill, but allowed it to get out and to bite a passer-by. It seems that under Clause 6(5)(b) no discretion is to be allowed to courts, though surely a discretion should exist; and I feel it might be provided by the acceptance of Amendment No. 12. May I add one point more about Amendment No. 13? It strikes me, perhaps wrongly, that subsection (5)(b) and subsection (6), taken together, could produce an absurdity unless amended. It might be that the farmer genuinely had no knowledge of the dangerous characteristics of an animal, due to any of the reasons I have just deployed; but under subsection (5) (b) this knowledge would be imputed to him. An employee, who alone knew of the animal's condition, might be injured, but under subsection (6) the employer is the person who is to be strictly liable. For these reasons I support these two Amendments.

LORD AIREDALE

Whatever may be the merits of the first part of paragraph (b) I cannot see any merit at all in the second part of the paragraph which permits an inquiry into the characteristics of an animal in the past. It refers to characteristics which: were at any time known to a person who then had charge of the animal … This paragraph seems to me to proceed upon the basis that an animal is born with particular characteristics and retains these characteristics until the day it dies. That proposition certainly is not true of human beings, and I do not believe that it is true of animals.

Take the case of a docile old pony of 15 which is safe for paraplegic children to ride. One day the pony is stung by a bee and it throws a paraplegic child off its back. The parent of the child might sue the owner of the pony. The owner would have no difficulty in proving that at the time of the incident the pony was a quiet animal. But the plaintiff might say, "I am going to rely upon this paragraph (b)—what were the characteristics of the pony at any time in the past?—and I am going to call a witness who was the groom employed by the pony's owner 12 years ago when the pony was a young colt. He will say that the pony was a vicious young brute in those days and was quite unsafe for any child to ride". I cannot see that that serves the ends of justice at all. Surely the only characteristics of an animal which matter in a particular case are its characteristics at the time when the incident happened. Delving into the past, as is done in the second half of paragraph (b), does not serve any useful purpose at all, and will only lead to mischief. If we cannot get rid of the whole of paragraph (b) I hope that at any rate we can get rid of the second part of it.

5.55 p.m.

VISCOUNT STONEHAVEN

A vast number of cattle come through the marts every day of the week, and those cattle are unknown to anybody. The person who really knows their characteristics, or ought to know, is the farm employee who, if he has not learnt from the days when he was a halfling that an animal has to be treated with respect, would not be in that job. Animals are unloaded from the marts out of cattle floats, and it seems to me wrong that a farmer who purchases an animal should be liable. Probably he was not even present at the time it was purchased. He would know nothing about the characteristics of an animal he had bought, other than what it looked like, and so on. He could not tell the character of an animal, or whether it had been upset by the journey it had made, or any of the hundred and one things that could happen. The man who knows about this is the man who is trained to handle the animal, and it seems to me that it is up to him to take normal precautions. I do not think it is right to impute this to the farmer or owner who, as has been said, may not even be in the country.

LORD LLOYD OF HAMPSTEAD

May I, very briefly, put the argument the other way? So far we have been presented with an argument which rather suggests that the farming community will be treated very unjustly and unfairly and in a way which is somewhat different from other people in other connections. Is it not being overlooked that this provision in the Bill does no more than exemplify the long-established principle in our law of vicarious responsibility? That is to say, if you put a servant in charge of some operation, his negligence, or knowledge, or whatever it may be, is imputed to you as the employer.

For example, I may employ a chauffeur who is a very careful person with excellent references. If I send him out on a journey, and I give him the strictest instructions that he must not drive the car faster than the approved speed limit, and that he must take all proper care and so on; and if, suddenly, in a moment of aberration during a journey which he is carrying out for me he suddenly drives much too fast and dangerously, and is involved in an accident, I am responsible, Nobody ever questions that as being a perfectly valid principle because I am the person who, so to speak, is in charge of the operation. I am the person who may be expected to insure against the various risks involved. This principle runs through the whole of our law.

I should have thought that when one is dealing with the question of knowledge of a dangerous propensity, and has a servant in charge of an animal, he has the opportunity of ascertaining the exact condition of the animal. It is neither here nor there that the farmer, the owner of the animal, may be in Timbuctoo, or on holiday in the South of France. It is his animal; he put a person in charge of it, and that person's negligence or knowledge is treated as the negligence of the owner. It seems to me that this provision in the Act does no more than exemplify that particular position. I cannot, at any rate for the moment, see that it works any particular injustice, unless of course we are going to repudiate the whole principle of vicarious liability. I should have thought that, at any rate, is a well-established doctrine in our law which nobody, so far as I am aware, has suggested is incorrect or unjust.

As for the point raised by the noble Lord, Lord Airedale, I am wondering whether he has a completely valid point, because all that subsection (5) is dealing with is the question of knowledge; not the actual existence of characteristics of the animal. I think that if one looks at subsection (2), one has first to have the characteristics at the relevant time, which is the time when the accident occurred. Then knowledge must be proved, and that is done by showing that these characteristics were known to the person in charge, or, presumably, on the assumption that the characteristics had continued up to the moment when the injury occurred, that they were known at some previous time. It does not seem to me that Clause 6(5) is really seeking to say that we can impose liability by being able to show that the actual characteristics existed at an earlier date, even though they did not continue up to the moment when the accident occurred. If that construction is right, I should have thought that subsection (5)(b) is perfectly all right as it stands.

VISCOUNT COLVILLE OF CULROSS

I should be glad if the noble and learned Lord the Lord Chancellor could help me on two points. First of all, there is the question of damage being caused by an animal, which is known by the servant to be dangerous, although for various reasons the master of the servant may not know. I imagine that under the previous provisions of the Bill, particularly Clause 6(3), the servant is also a keeper of the animal, because in the circumstances he has it in his possession. Therefore, there is nothing to stop one suing the servant as well as the master—though it may not result in one getting a great deal of damages—and it may not necessarily be unfair.

I do not know whether liability goes too far in that it inevitably places a similar liability on the employer, even though he did not know, which is perhaps the point of the first Amendment. It would help if it were made clear that there is a concurrent liability on both master and servant as keepers. Clause 6(6) rules out the defence of volenti on behalf of the employer in the circumstance that my noble friend Lord Belstead gave, where the servant knew that a sow had become dangerous, could not tell his employer and went back into the pen and got himself hurt. I should have thought that the real question is whether he went back into the pen negligently and as a result of his negligence got himself hurt. The employer still has the defence of contributory negligence, so even though he does not have a defence under volenti, he can say that the servant was an idiot to go back and do what he did to the sow. The employer can say that his negligence was entirely counteracted by what the servant did and he should pay him only a farthing. If these two questions are right, I think that they are relevant to this discussion.

THE LORD CHANCELLOR

As my noble friend Lord Lloyd of Hampstead said, this is merely an example of the rule of vicarious liability. None of us can get out of liability by shunting what we have done on to somebody else. If you choose to employ someone, what your employee does in the course of his employment is your responsibility, and knowledge acquired by a servant in his employment is your knowledge. In this particular class of case, the possibility of imputing a servant's knowledge to his master was first suggested in dicta in a case decided in 1864—Stiles v. Cardiff Steam Navigation Company—and firmly established in 1874, in the case of Applebee v. Percy, when a publican was held liable for the vicious acts of a dog whose character was known to the barman and barmaid. Since then, the soundness of these decisions has not been questioned and it would be a far-reaching change of the law to alter the principle now.

A master's liability, of course, does not extend to animals kept as pets by servants in their private capacity. The servant must have charge of the animal as his master's servant. The Bill is not doing anything new and is not altering the law in this field. There has always been this distinction between liability for dangerous animals and non-dangerous animals—tame animals so to say—having dangerous characteristics which you know or could be presumed to know, and what "could be presumed to know" is your servant's knowledge. The Bill does not alter the law. On the contrary, the Amendment would be altering a law which has existed with general satisfaction for nearly a hundred years. Therefore, I hope that the noble Lord will be prepared to withdraw this Amendment.

LORD NUGENT OF GUILDFORD

I thank the noble and learned Lord for his answer to my Amendment and to the general argument that has been put to him by other noble Lords. Of course, I fully accept the point that the effect of these two Amendments would be to revise the normal doctrine of vicarious liability and I certainly would not be prepared to argue that this is exactly the right Amendment that should go into the Bill. I put the Amendment down because I wanted to make the point that, although I would accept, as I am sure everybody would, the normal doctrine of vicarious liability, I believe that in this case it goes too far. I was relying here, as I said in my opening remarks, on the leading case of Rands v. McNeil, where it was held that the defence of volenti was a reasonable ground for the employer to refuse responsibility for an accident which had occurred to his employee, especially where it was combined with knowledge in the employee which the owner did not share.

THE LORD CHANCELLOR

If the noble Lord will forgive me, I think he is addressing himself to Amendment No. 13, to which I have not yet spoken. No. 12 was called and other noble Lords started to discuss No. 13 but I have not actually addressed myself to it.

LORD NUGENT OF GUILDFORD

I did preface my remarks by suggesting that as the two Amendments are so closely related, it would be helpful to discuss them both together and then I could move them separately. It would be helpful to hear the noble and learned Lord on Amendment No. 13 as well before I reply.

THE LORD CHANCELLOR

In my submission, there is very little connection between these two Amendments. Amendment No. 12 raises the question of whether it is right, when a man delegates something to his servant, that the knowledge of the servant should be attributed to his master. If the barman or barmaid knows that the dog is in the habit of biting people, can the publican say that he never asked them and they never told him? We would get to a state of affairs in which the publican could say to his barman, "If the dog starts biting people, don't tell me"—a simple way of avoiding liability for ever.

Amendment No. 13 deals with quite a different point, with whether the doctrine of volenti non fit injuria (that the injured person took the risk on himself) ought to be applied to servants. The noble and learned Lord, Lord Wilberforce, says that it ought not to be applied to anybody because it does not do justice, if I may put his argument shortly. There is a sort of compromise in the Bill in that it applies in general but not to servants. The Law Commission said this in paragraph 20 of their Report. We also consider that there should be no rule that strict liability in respect of animals does not apply as between employer and employee. The case of Rands v. McNeil suggests that strict liability is severely limited as between employer and employee by the application of the maxim volenti non fit injuria, but we think that in these cases the employee should not be taken voluntarily to assume risks incident to his employment in connection with dangerous animals. The rationale of imposing strict liability for a peculiarly dangerous activity is that the person carrying [...] on is in the best position to take precautions against or to mitigate the damage which may flow from that activity. Insurance is one of the principal methods which he may ut[...]lize to minimize the harmful consequences of his activity, and we think that in this con[...]ext the employer is clearly in a better position conveniently to effect adequate cover against liability for his animal than is the employee to effect insurance against his injury. The change accords with the principles adopted in other cases. For example, under the Factory Acts, to which the noble and learned Lord, Lord Wilberforce, referred, the servant does not have freedom of choice to accept or reject this. He is often inhibited by his fear of losing his employment. Where the servant assumed needless risks or acted recklessly, the master would still have a defence under Clause 5(1) if it was the servant's fault, and also a defence of contributory negligence. On balance, I suggest that the clause as it stands is right and should survive.

I appreciate that the noble and learned Lord, Lord Wilberforce, says that there should he no principle of volenti at all. I think it is reasonable in general, but not really reasonable in a servant. Take the ordinary farmhand. There is a dangerous bull. Ought it to be held that he has taken the risk of being injured by the bull if he is not employed solely to look after the bull but as an ordinary farmhand? Who is the man who decides in what condition the bull is to be kept, and what the safety conditions are to be? The master. It is not the farmhand. I do not think it is fair in such circumstances to try to get out of liability, where it has net been the servant's fault, by saying: "Because you are a farmhand you have voluntarily taken that risk". I hope that on consideration the noble Lord, Lord Nugent, will not press this Amendment.

LORD NUGENT OF GUILDFORD

I thank the noble and learned Lord for dealing with the second point on Amendment 13 and, as usual, dealing with it so persuasively. I was not quite arguing the last point that he put to me. I was arguing the case where the stockman who was responsible knows of the changed condition of the animal—for the sake of example, the bull; and it does happen that an animal wh[...]ch has been perfectly docile and manageable sometimes becomes cranky and dangerous—and has not reported it to his employer, the farmer, and the farmer, therefore, has not taken the measures which he would take if he knew that he had to deal with a dangerous bull. The point that I was making was that in those circumstances the employer, the farmer, should not be made liable for the injury and the damages that might follow. I accept that this is a pretty fine point.

I certainly would not argue on the other line. I would quite accept that in the normal circumstances of employment the employer should be responsible for seeing that the conditions, and if necessary the insurance, with regard to his employees adequately covered all the risks involved. But my point goes a little further. In the paragraph in the Law Commission's Report to which the noble and learned Lord referred they mention the Rands v. McNeil case, which has, I think, held the field until now in this particular respect. The effect of the Bill as now drafted will be to place some additional responsibility on the farmer. If he is going to meet that adequately he will be obliged to extend his insurance policy in order to cover this risk as well, and this would be an additional cost to him.

I do not feel that I should press this Amendment at the moment, but I do feel some concern that the effect of what we are doing here will place that additional responsibility, and therefore additional cost, on the farmer; and I am particularly anxious that at the end of the day, when the Bill becomes an Act, it should be recognised that we have placed some additional cost on the farmer. My own personal feelings in this matter are that insurance policies should go to the absolute length, because there is nothing more tragic than for a farm worker who is injured not to be adequately covered by insurance. That is something that I have seen happen, not on my own farm but on some other farm, and it may have tragic results. So I am entirely in favour of the doctrine here. But I want to make the point—and I hope that the noble and learned Lord the Lord Chancellor will concede it before the end—that if we agree to this clause we are going to put an additional responsibility on the farmer, who will have to pay more. If the noble and learned Lord would acknowledge that point, I am prepared to call it a day and to ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 6, as amended, shall stand part of the Bill?

LORD HENLEY

The noble and learned Lord the Lord Chancellor said that he would say something about Lord Wilberforce's Amendment No. 3 in the light of what happened to Lord Nugent's Amendment No. 13.

THE LORD CHANCELLOR

I will certainly consider it. There have not been a great many views expressed as to whether volenti should remain in the Bill. I have no strong views about the point, and I will certainly consider everything that has been said.

LORD WILBERFORCE

I am perfectly happy. I understood that the noble and learned Lord was going to consider it, anyway. My only point is that I believe that if he reads again paragraph 20 of the Law Commission's Report he will see that the argument against volenti is just as good generally as it is in relation to servants. If I am in order in speaking on the Question that the clause stand part, may I also suggest that the drafting of subsection (5)(a) needs to be re-examined, in view of the Amendment moved by the noble Lord, Lord Airedale, to Clause 6(3), which was accepted. That is just a suggestion for a later stage.

Clause 6, as amended, agreed to.

Clause 7 [Detention and sale of trespassing livestock]:

On Question, Whether Clause 7 shall stand part of the Bill?

THE EARL OF MANSFIELD

Before this clause becomes part of the Bill, I should like the Lord Chancellor to give me some information upon one point. This is quite an important clause from the point of view of the hill farmer, and particularly the man who keeps sheep. Sheep often stray quite a long way from the farm to which they belong, sometimes into another valley or glen, and it may be twenty or more miles from their original home. It is incumbent upon the finder of such a sheep only to inform the police that he has done so, and not, so far as I can see, to advertise the fact. It may be that the police station in one particular valley has little or no communication with a police station 25 miles away in a different valley. Therefore, the fact that the stray sheep has turned up may not become known to the original owner. The question I should like to ask is this. If the new possessor of the sheep does not expose it for sale after 21 days but chooses to incorporate it in his own flock, after what period, if after any period, can it be regarded as his property, and when does the right of property of the original owner cease to exist?

THE LORD CHANCELLOR

Under the scheme notice has to be given within 24 hours to the police and also if the person knows who the true owner is. There is then a right of detention which ceases in any of the events set out in subsections (3) and (4). Subsection (4) relates to a sale at a market, not less than 21 days afterwards, and so forth. But while there is a right to sell if nobody turns up to claim it, I do not know that there is anything to stop the finder from keeping it, if he had reported it properly to the police. If he knew who the owner was, obviously somebody would turn up. Otherwise, I do not think that there is anything in the Bill, or in the existing law, to prevent the finder from keeping it.

THE EARL OF MANSFIELD

Do I understand that the original owner of the sheep, should he find it some miles away in someone else's flock after a period of 21 clays, could not claim it back?

THE LORD CHANCELLOR

No, I do not think that that is right. Unless it is sold, the ownership remains in the original farmer who owned the sheep.

THE EARL OF MANSFIELD

For how long?

THE LORD CHANCELLOR

Until anything happens to dispossess him of it. If it is sold under the statutory power contained in Clause 7(4) then his ownership is lost, and the true owner becomes the person who buys the sheep. If that does not happen, then, so long as there is nothing to deprive him of his ownership, he remains the owner. There is still a right of detention. I suppose that the longer the period before he claims it, the more expensive it may be for him, because he has not only to pay for any damage caused by the sheep, but also to pay for the keep of the sheep for all the time it remains with the farmer to whom it strayed.

THE EARL OF MANSFIELD

I am grateful to the noble and learned Lord, but I still think this is rather obscure.

Clause 7 agreed to.

Clause 8: [Duty to take care to prevent damage from animals straying on to the highway]:

6.22 p.m.

LORD NUGENT OF GUILDFORDmoved Amendment No. 14:

Page 5, line 18, at end insert— ("Provided that this section shall not apply to livestock straying on to public footpaths or bridleways.")

The noble Lord said: I beg to move Amendment No. 14, standing in the name of the noble Lord, Lord Henley, and myself. Clause 8 is one of the most important clauses in the Bill because it changes the law from the present common law position, where the farmer has virtually no responsibility if his animals stray on the highway, to a position where he will have this statutory responsibility as now defined. The effect of my Amendment would be to exclude from this change in the law footpaths and bridle paths. The Law Commission Report (which is our Bible in all these things) recommends in paragraph 47 that footpaths and bridleways should not be excluded, but should be included as highways, which technically they are, for this purpose.

Their argument (which, if I may say so, I thought in this case was rather a weak one; usually their arguments are extremely good) for saying this is that: … in the absence of vehicles the risk that the presence of an animal will lead to damage or injury is slight and therefore, save in exceptional cases, there will be no negligence and no liability. I suppose there is something in that view: that if there is any injury there it is going to be only very slight. But it does not seem to me entirely satisfactory from the point of view o[...] the farmer. Why should any liability, other than for a dangerous animal—like a dangerous bull in a field—be thrown on to the farmer in these circumstances?

These rights of way, as we all well know, in the nature of things run straight across farms, straight across the middle of fields, and they are very rarely fenced. Indeed, I do not know that anyone would particularly want them to be fenced; no one would seriously suggest that they should all be fenced. In the first place, the cost would be prohibitive; secondly, the effect of putting a couple of fences right across the middle would be to wreck the farming of the fields concerned. Thirdly, I think it would be very much against the amenity interest to have fences marking out all footpaths and bridle-ways all over our farms.

So I am sure that this thought cannot be in anybody's mind, and I assume that the noble and learned Lord the Lord Chancellor will confirm that when he replies to this debate. We are really up against the point: should the farmer be made liable for the possibility of damage occurring through his cattle, his livestock, straying across a footpath or bridle-way? I accept that the cases will be rare and that possibly the damage will be small. But it seems to me that there are no grounds whatever for making the farmer liable for anything. I sincerely trust that noble Lords in this Committee will agree with this view. I beg to move.

LORD BARNBY

Before the noble and learned Lord replies, I hope that he will be able to deal with some part of my problem that I put on Clause 5. I would just anticipate the answer in regard to gates being left open, and the trouble that causes with regard to stock straying. Of course the answer would be, "Well then, lock up the gates". The disadvantage of that is that if stock strayed from some other field a well-meaning neighbour or user of the highway, wishing to reduce the inconveniece of the stock straying on the road, might wish to put them into the nearest field and lock up the gate; and then this frustration and damage could be caused. This produces another angle of damage. That is why I hope that the noble and learned Lord the Lord Chancellor may deal with those hypothetical instances which I gave.

LORD BELSTEAD

I wonder whether the noble and learned Lord the Lord Chancellor might possibly agree that, leaving paragraph 47 of the Law Commission Report aside, some of the other arguments which are advanced seem to support the Amendment of my noble friend Lord Nugent. This Amendment might be consonant with paragraph 40 of the Law Commission Report, which recognises that the readjustment in the law, as now to be laid down in Clause 8, must—and I quote: … take account of the economic and social importance of keeping animals and of the burden and practical difficulties which may be involved in ensuring that they do not cause damage on the highway … I think that possibly it was some such words as these that my noble friend Lord Nugent had in mind when he referred to the prohibitive cost to which this Part of the Bill that he is seeking to amend might lead.

It is true that the Law Commission then added, in paragraph 40: … but against these considerations must be weighed the danger to life, limb and property of those who use the highway. On the Second Reading on November 11 (at cols. 537-8), the noble and learned Lord the Lord Chancellor, gave a compelling account of how times have outstripped the law with respect to animals and road safety. The noble and learned Lord also gave us some statistics of accidents involving animals, which make serious reading, and a description of legal opinions on this branch of the law. Nothing of what the noble and learned Lord said then affects this Amendment. The first part of paragraph 40 of the Law Commission Report, which I have quoted, is, however, relevant in that this Part of the Bill will place a heavier burden, and a heavier financial burden, on farmers.

Also, on Second Reading, the noble and learned Lord, describing roads before the advent of the motor car said this: … if you came across a horse or any kind of animal, there was no reason why this should cause a danger."—[OFFICIAL REPORT, 11/11/69; col. 537.] Public footpaths and bridleways fall precisely into that category and provide no reason for an alteration of the law in this respect.

THE LORD CHANCELLOR

I think that this Amendment, if accepted, would be contrary to the principle. I cannot say that it would really make a vast deal of difference. There is already a duty to take such care as is reasonable to see that an animal does not cause damage. That duty applies while the animal is on the farmer's own land under the existing law, and as a result of Clause 8 will equally apply where the animal wanders on to the highway. On roads carrying motorised traffic the mere presence of the animal creates danger. But the presence of an animal on a footpath or bridleway does not normally create any danger. A footpath can be used only on foot, while a bridleway (as defined in Section 295 of the Highways Act 1959) may also be used on horseback or for the purpose of driving animals along it. A person lawfully using these ways is not therefore likely to come to any harm on account of the presence of a stray animal. Accordingly, the duty of care owed to those using footpaths or bridleways is not likely to be any greater than the duty which the owner would in any event owe to persons who may be lawfully on his land.

Where footpaths or bridleways run along the side of fields the principles applying to them are the same as in the case of adjoining roads and the smallness of the risk is no reason for treating them differently. The smaller the risk, the smaller the duty of care. Where footpaths run through fields it is doubtful whether the rule of Searle v. Wallbank—that is, the rule which excused from liability owners of animals who let their animals go on to highways—ever applied to them. The exception to the general liability in negligence effected by the rule relates to animals wandering from adjoining land on to the highway and creating dangers by their presence on the highway. It can hardly be said that an animal grazing in a field which is crossed by a footpath, strays on to the footpath; nor does its mere presence there create a danger. The Law Commission, in paragraph 47 of the Report, reject an exception for footpaths, bridleways and driftways and point out that, save in exceptional cases, there could be no negligence and therefore no liability. I hope I may have satisfied the noble Lord, Lord Nugent, with that explanation.

LORD NUGENT OF GUILDFORD

I thank the noble and learned Lord the Lord Chancellor for his reply. I am bound to say that he has not satisfied me. He has repeated, in the most persuasive form, the argument that this is a very small risk and a very small danger and therefore footpaths and bridleways can safely be left in. What I am arguing is just the other point: that because it is a very small risk, we ought to take them out. It does not seem to be right in the general context of this Bill—which, if I may say so, is admirable in its intention in a very confused field of trying to make the law clear with Statute Law—to throw even a small additional liability on to the farmer unless it is really necessary.

On the short debate we had on the previous point, I was glad to agree w[...]th the Lord Chancellor that he had made out an argument that the liability must fall somewhere and the best place for it to fall was on the employer, although it would cost him more. But I do not think that that applies here, and I feel that bridleways and footpaths, in the very nature of things, ought to be out. I should like to press the noble and learned Lord the Lord Chancellor on this matter. I do not think, as he says, that it is going to make a very great difference at the end of the day, but it would add to the general confidence of the rustic world if this liability were out.

LORD HENLEY

Before the noble Lord presses the Amendment, which is in my name and his, I wonder whether he would agree to consider again a major point which I think the noble and learned Lord the Lord Chancellor made. That is that the rule of Searle v. Wallbank does not really apply to foopaths and never did. If that is correct—and it seems to me that it is an argument one may not have been aware of before—then I do not believe any additional burden is being placed on the agricultural industry in this respect. Before we press this point, I should very much like to consult with the noble Lord, Lord Nugent, a little further.

LORD NUGENT OF GUILDFORD

I think that the noble and learned Lord the Lord Chancellor has certainly wor[...] this set. There is now a slight division among noble Lords on this side, and of course I shall be only too happy to study again the point that the noble and learned Lord made—I took note of it when he made it. I do not think that I am going to change my mind, although I may, but in response to the interjection of the noble Lord, Lord Henley, I am only too willing to look at this matter again, and then, if we are not satisfied, we can put the Amendment down again for Report stage. In the light of the debate we have had, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.35 p.m.

LORD NUGENT OF GUILDFORD moved Amendment No. 15:

Page 5, line 18, at end insert— ("Provided that this section shall not apply to straying on to any special road being a motorway for which the Minister of Transport is the Highway Authority.")

The noble Lord said: I beg to move Amendment No. 15 standing in the name of the noble Lord, Lord Henley, and myself. My reason for this Amendment, which would have the effect of excluding from the effect of Clause 8 a liability for cattle which stray on a motorway, is that I believe that motorways by their nature fall into a special class. Indeed, they are called "special roads". For this reason, I think they should be excluded from the effects of this Bill. They are called "special roads" because they are in fact specially built to cater for fast, long-distance traffic. In order to keep them safe for this kind of traffic, certain classes of user are deliberately excluded and are not allowed to use them; for instance, pedestrians, cyclists, horse-drawn vehicles, L-drivers, and so on. Their construction has provided that they are driven straight through the countryside in order to give the best and shortest route between important centres, so inevitably they bisect farms and bisect fields.

In the course of construction special provision is made to link up again the farms that have been cut in two, and farmers are provided with either a bridge or an underpass so that they can continue to farm their farm although it has been divided into two; and, most importantly, so that they can have a connection to move either cattle or farm vehicles from one part of the farm to the other across the special road, the motorway, without moving on the surface, which would clearly be a very great danger. At the same time, in the construction of a motorway the Minister of Transport constructs top-grade cattle fencing at his expense. I would suggest that this type of construction, and the whole concept, is similar to the building of railways in this country in the last century, where the railway companies had put upon them by Parliament the responsibility for fencing the railway lines against cattle on the farms through which they went. This is precisely analogous.

In these circumstances I would say that the farmer should not have any liability with regard to his livestock straying on to these highways, and that the special roads should be taken out of the effect of the Bill. I am sure that this is inherent in the whole concept of these special roads, and I hope that the noble and learned Lord the Lord Chancellor will agree with this and that the Committee may be prepared to see that this Amendment is included in the Bill. I beg to move.

LORD HENLEY

The noble and learned Lord the Lord Chancellor used a very interesting argument when he was resisting the Amendment of the noble Lord, Lord Rowallan, about brucellosis. He pointed out that it is in fact the owner of a herd of brucellosis-free cattle who is putting his neighbours at special risk. The same argument applies here. It applies in fact over the whole field of Clause 8, in my opinion, but let us consider it in regard to special new roads. Here we have a state of affairs in which the public, wishing to transport itself very fast across land which was not formerly a road, has put the farmer and the landowner at a special risk, and I feel there is a strong case, as the noble Lord, Lord Nugent of Guildford, has said, for treating roads in exactly the same way as railways were treated.

There is the extra reason that the Ministry of Transport already take responsibility for these fences but, curiously enough, they do not take responsibility for an accident which might occur through their own fence being defective. I dare say one could get round this point by the owner of the cattle merely suing the Minister of Transport because his cattle had escaped over a defective fence and caused an accident, for which the owner of the cattle was liable. It may be possible to get over the problem in that way, but it seems to me to be a roundabout way of doing so when it could have been much better done by excluding special roads from Clause 8 altogether. Therefore I hope this Amendment will be accepted.

LORD AIREDALE

It occurs to me that the noble and learned Lord the Lord Chancellor might be a little more disposed to accept this Amendment if the word "directly" were included, so that it said, "straying directly on to a motorway". Motorways are served by subsidiary roads, many of them being country lanes, and if there is a situation where an animal is carelessly allowed to stray on to a country lane and then off that country lane on to a motorway, the poor Minister of Transport cannot be expected to be responsible. Subject to that, I hope that this Amendment will be acceptable.

THE LORD CHANCELLOR

I can well understand the National Farmers' Union feeling that the Minister of Transport ought to pay, but of course it is the Minister of Transport who provides the farm with a beautiful fence. As I understand it, the practice is that the Minister erects stockproof fences alongside motorways for which he is the highway authority, both to enforce the exclusion of prohibited classes of traffic and to protect users of the motorway from the risk of people or animals wandering on to it. Pedestrians, animals, cyclists and so on are not allowed on motorways. The Minister always covenants or otherwise arranges with adjoining landowners to erect and maintain a fence to prevent livestock straying on to the motorway, if such fencing is thought necessary at the time when the land is acquired. In practice, therefore, it is unlikely that a farmer would ever find himself in a position where he could be held liable for negligence for a straying animal on the motorway for which the Minister was responsible. This could occur only where he had become aware of a gap in the fence and had unreasonably failed to inform the highway authority to take temporary preventive measures.

In such circumstances, there is no good reason why there should be an exception to the general rule resulting from Clause 8. If an animal strayed from adjoining land on to the highway in circumstances in which the Minister, in accordance with his covenant, ought to have maintained a fence but had failed to do so, the adjoining landowner would normally have a right to recover from the Ministry any damages which might be awarded against him.

I ought perhaps also to point out that liability might arise where at the time when the motorway was built the land in question was used for crops and there was no livestock, and then the farmer suddenly decided to use the whole of his land as a chicken farm. No doubt this would put a liability on the farmer, probably for his own protection if he did not want to lose all his chickens on the highway.

LORD NUGENT OF GUILDFORD

I am afraid that I do not feel convinced by that answer. It is perfectly true, as the noble and learned Lord the Lord Chancellor has said, that the Government are to erect the stockproof fencing and it is most unlikely that cattle would stray on to the highway, but if a gap appeared in the fence and the farmer failed to report it, then it would be his own fault. However, it seems to me that this is placing the responsibility in the wrong place. We have decided as a nation that we want to have these motorways driven right through the land in the general interests of transport—right across all the farms and properties—and therefore the Minister has decided to build them in this special way. I think this takes them right outside the concept of the liability for straying on the ordinary highways.

I quite accept the point made by the noble Lord, Lord Airedale, and I am talking about straying directly. There could be circumstances in which a fence had collapsed due to some subsidence of the ground, or possibly a fall of snow and the cattle went up on a bank of snow and got over in that way. There could be an accident, and of course it would be a bad one. I should have thought that in the whole circumstances of a motorway this is a responsibility which ought to fall on the Minister of Transport. This is a responsibility which he—and we—undertook as a community when we decided to have these motorways.

I hope that the noble and learned Lord the Lord Chancellor will accept that there is a certain philosophical point here which has weight, and that we are dealing with something quite different from the ordinary highway. On the normal highway I accept what the Bill is doing and, with one or two small modifications to which I hope the noble and learned Lord will agree, I believe that is a proper and right change to make. I think this particular case is different. I hope that the noble and learned Lord has not said his last word on this, because I think my noble friends might wish to press this Amendment if he does not feel able to accept it.

THE LORD CHANCELLOR

I will certainly report to my right honourable friend what the noble Lord has said. I have no immediate authority to give way on this but I will confer with my right honourable friend and we will see what we can do.

LORD NUGENT OF GUILDFORD

I am obliged to the noble and learned Lord. In the circumstances, I think we should give the noble and learned Lord the opportunity to consult his right honourable friend. Perhaps between now and Report stage we can consult together and if necessary I can put the Amendment down again. I beg to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.48 p.m.

LORD NUGENT OF GUILDFORD moved Amendment No. 16: Page 5, line 39, after ("green") insert ("or on land which is proved by him not to have been fenced during the previous 20 years as between that land and the highway").

The noble Lord said: This Amendment in the name of my noble friend Lord Henley and myself deals with the point which we discussed at some length in the Second Reading debate. The problem is that of the liability of unfenced land which is private property in private ownership, mostly upland and almost invariably livestock-rearing land. There are many tens of thousands of acres of such land in the upland part of the country. Incidentally, I have been informed since our Second Reading that some 5,000 acres of this land are in the possession of the National Trust, who also are most anxious about what their responsibilities might be in this matter.

Briefly, if I may recapitulate, the annual value of this land is too low to support fencing; it is far too low for fencing to be economic. But we have decided nationally—and when I say "we" I mean noble Lords opposite, in their Government, and noble Lords on this side of the House, in our Governments—that we want this land farmed, and therefore the Minister of Agriculture gives special grants for livestock kept on the hills. In these circumstances it would be fair to say that it is in the national interest that this land should continue to be farmed. There is the additional point that in most of these areas it would be against the interests of amenity to erect fences. They would undoubtedly interfere with the view, and with the convenience of motorists who might like to stop to picnic at the side of the road.

As the Bill stands, common land is to be excluded, and my argument is that this land which is unfenced ought to be treated in the same way as common land. The definition which I have suggested for this land is: land which is proved by him"— that is the farmer— not to have been fenced during the previous 20 years as between that land and the highway". I should like, with the permission of the Committee, to amend my Amendment so that it would read as follows: or on land which is proved by him not to have been fenced during the 20 years previous to the Royal Assent to this Act". Clearly, it would not be right for a farmer to strip his fences down in order to avoid liability in the future; but if we made the period when there had been no fencing 20 years prior to the Royal Assent to this Act, it would ensure that it would apply to land which had not habitually been fenced.

The present position with reard to this land is that the farmer gets the benefit of the common law as it now stands, under the leading case of Searle v. Wall-bank, and has no liability if his livestock strays on the highway and an accident follows. In practice, motorists driving through these areas treat them just the same as they do common land areas, such as Dartmoor and the New Forest and so on. They know that they are not fenced and therefore they look out for cattle or sheep which may be straying on to the road.

During the Second Reading debate the noble and learned Lord the Lord Chancellor put forward certain arguments to justify retaining these areas of farm land within the scope of Clause 8(1). In the interval, naturally, I have studied all the noble and learned Lord's arguments and made such research as I could to see to what extent I could agree or produce counter-arguments. His main argument was that farmers could insure against this liability, and that the cost was liable to be small, if anything; and that the Law Commission Report took the same view. The noble and learned Lord supported the argument by referring to the position in Scotland, where the law is different, and he informed your Lordships that in Scotland the farmer who kept animals had a duty to take reasonable care to see that they did not escape on to the highway, and that there was no difficulty in Scotland about farmers insurance premiums in this connection. This was the point he made, I thought, very effectively, on Second Reading.

In the interval, as I say, I have been studying the material in connection with this. First of all, I wonder whether the noble and learned Lord the Lord Chancellor would agree with the view expressed in the 12th Report of the Law Reform Committee for Scotland—I am sure he is familiar with the Report. In paragraph 9, they say: As we have pointed out in the preceding paragraph, one increasingly important aspect of the law, that concerned with liability for damage caused by the presence of animals on the highway, is in a highly uncertain state. This paragraph seems to indicate that there is a considerable measure of doubt about what the position is in Scotland, too. It may be different here, but it is by no means crystal clear there. The practical point, I think, is this: that whatever measure of doubt or obscurity exists in Scotland, most of the Scottish farmers think it is enough to give them the benefit of it, so that, so far as I can discover, most Scottish livestock farmers, like the English, are not in the habit of taking out insurance policies against the risk of their stock straying on the highway.

The result is that the only solid point which can be taken is that if the Statute Law were changed, as in Clause 8(1), to apply to these unfenced areas, claims for damages would begin to arise, policies would have to be taken out, and the cost would inevitably rise, because the Statute Law would have defined where the liability lay. This is the general anxiety in the minds of farmers in England; and a significant additional cost would be thrown upon them if these unfenced areas were brought within the scope of the Bill.

I think there are very strong arguments for treating these areas in the same way as common land. That is what they look like to the motoring public when they drive through. We must all, I think, accept that fencing these areas is just "not on", so what we are really d[...]scussing is where the liability should lie: whether farmers should be saddled with the additional cost of insuring against this risk from which they cannot protect themselves, or whether we should say, "Let us accept the physical reality of this and treat these areas in the same way as common land, with whatever public notices we think are desirable in order to warn motorists that the land is unfenced and there is livestock there", so that accidents may be reduced to a minimum. I feel that the balance here is in favour of excluding these areas from the effects of the Bill. I hope that the Committee may agree with me, and that the noble and learned Lord will be a little more accommodating to-day than he was on Second Reading. I beg to move.

THE EARL OF SWINTON

I should very much like to reinforce my noble friend's appeal in this matter. I know all the Yorkshire moorlands very well; perhaps few people in this House know them better or have known them longer. I can assure the noble and learned Lord, the Lord Chancellor, that all over the Yorkshire Moors, the North Riding and West Riding, there are vast areas which carry sheep. They do not carry cattle but they carry sheep, and the farmers are subsidised to carry sheep on this land by the hill subsidy, which every Government has supported. Of course they are not fenced; the sheep move about and there is hardly ever an accident. Motorists are careful; there are notices, and they know what the areas are. If there were any sort of obligation to erect fences, it could not possibly pay the farmer, whom you subsidise in order to have the sheep there. The only result of insisting on fences would be that the whole of your hill farming subsidy, or a great part of it, would go by the board, and the farms would cease to be farms of the kind which successive Governments have subsidised and on which they have insisted. There are no politics in this. I hope the noble and learned Lord, the Lord Chancellor, will discuss this matter with the Minister, who, I feel sure, would have a clear understanding of what the needs and the facts are.

7.0 p.m.

LORD HENLEY

I do not know what arguments the noble and learned Lord is going to use to resist this Amendment, if he is going to resist it; but any arguments that he uses must apply to common land as well, and he has excluded common land. I do not know whether the Lord Chancellor is going to tell us that, as with bridleways and footpaths Searl v. Wellbank never applied to unfenced land anyway. I do not know whether he is going to tell us that the position is perfectly all right because under Clause 8(1) you have only to exercise such care as is reasonable. Or he may be going to say that under Clause 8(2)(a) or indeed under several of the other paragraphs, (b), (c), (d) and (e) the nature of the land and its situation in relation to the highway may be used in mitigation of the liability. As I say, whatever arguments he uses to resist the exclusion of unfenced land from the Bill must surely apply to common land, which it has been found easy enough to exclude. I should have thought that it was not difficult to accede to this Amendment and to cut out unfenced land altogether.

It is not true to say that all this land is used by sheep. A great deal of it carries cattle as well. So, unlike the case with bridleways and footpaths, the risk is considerable, and the insurance for it will be considerable as well. Therefore, I think, as was said often enough on Second Reading and has been said tonight, it is out of the question to fence this land. I have made a calculation of the cost of fencing any given piece of unfenced land. It would work out at something like twenty times the capital value. Moreover, there is the amenity question. So I hope that the noble and learned Lord Chancellor will give careful attention to this particular point.

Lastly, the noble Lord, Lord Nugent, pointed out that the Lord Chancellor had said that the law in Scotland was what he is proposing to make it here. The noble Lord, Lord Nugent, pointed out that the 12th Report had said that it was in a highly uncertain state. I would add that in the leading case of Fraser v. Pate in 1923, two of the Lords Justices expressed the view that the law of England and Scotland on this subject was the same, which seems to be a different view from that of the Lord Chancellor. I strongly support Lord Nugent's Amendment.

LORD KILBRACKEN

Can the noble Lord explain how he can calculate the cost of enclosing an area of a mountain when he does not know the size of the area? If it is a large area that is being enclosed, then the cost of fencing it is likely to be more than if it is a small area.

LORD HENLEY

I can tell your Lordships exactly. I did not take a long strip, I took an area which was approximately square or approximately round. I calculated the mileage of fencing needed just to enclose the outside at present-day prices and with the labour costs put on. I took into account the number of times that you would have to replace the fencing, which is approximately once every 25 years, that being about the lifetime of that kind of fencing, and I came to the conclusion that it would cost about twenty times as much to fence it as the capital value of the land itself.

VISCOUNT MASSEREENE AND FERRARD

I happen to have done a great deal of fencing, and the poorer the land the more expensive is the fencing, because on the poorer land one has rock. That is extremely expensive to deal with, because you have to blast and you usually have to put in steel standards. So it is quite impractical to fence the poorer hill land.

LORD ABERDARE

I should like strongly to support this Amendment of my noble friend. He said, perhaps inadvertently, that there was anxiety among the farmers of England. May I add "of Wales", too, because in the upland parts of Wales, which are quite remote areas, at many times of the year there will be more sheep than there are cars; and there should be no obligation on the farmer in areas of this sort to prevent his livestock from straying on to the roads. I think it is more up to the driver who is driving in areas of this kind to take reasonable precautions to avoid any sheep or cattle that may have strayed on to the highway. Certainly that was the view of the Goddard Committee. They spoke of such parts of a highway as pass over any common, waste or unenclosed ground. As I understand it, the only problem from the point of view of the Law Commission was that they had difficulty in accepting the definition of "waste or unenclosed ground". I hope that my noble friend's Amendment may satisfactorily define what we are after in excluding the farmer from liability in regard to these areas.

I am not a lawyer, but one learns a certain amount of the legal mind in this House. I was hoping that there would not be a case where a lawyer would argue that the Goddard Commission included common land, waste or unenclosed ground, Parliament having included the commons but excluded the waste or unenclosed ground for the moment, and that therefore it must be intended that the farmers had some kind of responsibility for their cattle straying on to these open spaces. I hope that that could not be argued. But I think we ought to try to make it perfectly clear that the farmer has no obligation in these cases. I do not think it is good enough just to say to him, "Never mind, old man, you are insured anyway". I do not think the farmer wants to feel in regard to any accident that occurs in these areas through his sheep straying on to the road that he is in any way responsible because he has not fenced it. I think this land should definitely be excluded, and I should like to support my noble friend's Amendment.

THE DEPUTY CHAIRMAN OF COMMITTEES

Before we proceed with the debate on this Amendment, may I make it clear that the noble Lord, Lord Nugent, moved the Amendment in a different form from that printed on the Marshalled List. I think that I should read out the Amendment. I got it wrongly, and having been informed of the real wishes of the noble Lord I should now like to correct it. Perhaps he will agree with me that this is the form his Amendment should take. The Amendment should read: After 'green' insert 'or on land which is proved by him not to have been fenced during the 20 years previous to the Royal Assent to this Act as between that land and the highway'". When I read out the Amendment before I omitted those last words. This [...] regret and I should like to make the position clear.

LORD NUGENT OF GUILDFORD

May I thank the noble Lord the Deputy Chairman.

THE LORD CHANCELLOR

With the greatest respect, I think that the National Farmers' Union are making an awful fuss about this. First of all, nobody is going to be liable unless the farmer has done something which no reasonable farmer would have done, or has omitted to do something which any reasonable farmer would have done. Liability can arise only if it is his fault. I think that from the very start the Union have been quite unnecessarily concerned about this problem of fencing. They have said. "Look at the liability of the farmer on a hill farm in Cumberland, or somewhere else, at having to fence everything". Of course, no judge outside a lunatic asylum would say in a case of that kind that a reasonable farmer would have fenced. A number of judges farm themselves, and I should have thought that the farmers ought to trust the judges to act reasonably.

What they have to do is to take into account all the circumstances—the kind of road it is, whether farmers [...]n the locality fence or not, the amount of traffic there is about, what it would cost to take whatever precautions it may be said should have been taken, and so forth. The farmer will be judged as a farmer, and there will be no liability if he has behaved as an ordinary, reasonable farmer would have behaved.

Various suggestions have been made which have been sympathetically considered by the Law Commission. Is there some way in which we can satisfy the farming community about this? This they were naturally anxious to do. What they wanted to do originally was simply to say in the Bill that there would be liability for negligence, leaving to the court to decide, as we do in nearly every other case, what negligence was, having regard to the facts of the case. It was largely to please the farmers that the Commission then set out in the Bill itself the list in Clause 8 of the matters that the judge is to take into account. Even that was not found to be satisfactory, and after the Report and the draft clauses of the Bill it was here, in order to please the National Farmers' Union, that there was specifically added the words, and, where it could have been avoided or reduced by fencing, the extent (if any) to which fencing is the normal practice in the area in which the land is situated". That was a further concession to the National Farmers' Union.

Various alternatives have been carefully considered by the Law Commission; for example, excluding certain land geographically. Should it be said that there was no such liability in Cumberland? Could it be done on that sort of footing? Or could it be done on a footing that the land had not been fenced for a particular period? Could it be divided between enclosed and unenclosed?

In paragraph 43 of their Report the Law Commission say: Moreover, apart from the question of definition, 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 traffic on the road concerned. Such an exception might also discourage fencing or other preventive measures where it would be reasonable to undertake them and perhaps even encourage the removal of existing barriers. I feel that the difficulty about this 20-year proposal is, first, that it would cast on an injured person the onus of proving from which particular field the animal had come, a matter which it might very well be difficult for a stranger to show in a district in which some fields are enclosed and others are not. Proof of the existence of a fence throughout 20 years, although simple enough where roads run across completely open land, might give rise to difficulty and argument in areas of mixed enclosed and unenclosed land, or where fences and ditches maintained in earlier periods have been allowed to fall into decay. This applies particularly where it is the stranger who has to prove it, and I do not think an arbitrary choice of 20 years is really a sensible way of providing for this.

If I may respectfully say so, I think really what the farmers ought to do is to trust the judges, because you cannot lay down a set of rules as to when somebody is being negligent or not. Even in the driving of motor cars, everything depends on the circumstances, and if the judges take all the relevant circumstances into account a farmer is not going to be liable unless, judged by farming standards, he has done something which no reasonable farmer would have done. I am quite prepared to consider this point again with my right honourable friends the Minister of Agriculture and the Minister of Transport, but I am afraid I agree with the reasons why the Law Commission did not really think this was a logical way of dividing liability.

I forgot to say anything about insurance. The position, as I understand it, is that nearly all farmers have an insurance policy. I am told that if they will look at their policies they will find that they contain a clause indemnifying them against third party claims. If that is right their existing policy will cover them against this new liability. If we have added a new third party right, then they are already covered, and next time the premium is due, the only question will be whether it should be larger or not. So far as I could ascertain, the probability is that it would need to be increased by little, if at all.

The Scottish position is that it is quite true that at the time when the Law Reform Committee for Scotland produced a Report the law was much like here—well, it was very uncertain actually, and indeed in paragraph 35 of their Report the English Law Commission say: In Scotland, where the law takes an intermediate position between the Civil Law and the Common Law, it appears that at least when the Law Reform Committee for Scotland made its Twelfth Report in 1963, it was uncertain whether the principle behind Searle v. Wall-bank was recognised in Scotland. That is what the noble Lord was quite rightly saying. Then they say this: However, the Committee suggested that the Scottish courts might later rule that this principle was not applicable in Scotland, a forecast which seems to have been confirmed by Gardiner v. Miller."— that was a case in 1967— Lord Thomson said in that case: 'In my view there may be, and in certain circumstances there is, a duty to take reasonable care to prevent … animals from straying on to the highway where there is a foreseeable risk of such straying causing injury to people using the highway.' If that is right, Scotland has already got this law, and so far as I know it has not resulted in any increase in premiums.

LORD HENLEY

The question I wanted to ask the noble and learned Lord the Lord Chancellor was about the unfenced roads. I listened very carefully to his arguments and I confess they have very great weight. But if they have this weight why does that not also apply to common land? Why make a distinction of common land at all if the argument is sound with regard to unfenced land?

THE LORD CHANCELLOR

I think the answer is that with common land there is of course a right for commoners to pasture their cattle on the common, but there is no legal right—they do not own it—to drive a fence into it. That is as I understand the position. They have no legal right to fence. If they have no legal right to fence, obviously you cannot make them liable for not fencing.

LORD HENLEY

The noble and learned Lord has said that he quite agreed there was no question of fencing land that was at present unfenced. He accepted the argument, both on the grounds of amenity and of expense, that it was not sensible to fence it, so he cannot rely on the argument that the reason that the commons have been excluded is merely because they are not allowed to fence.

THE LORD CHANCELLOR

I did not mean excluded from the Bill. They always have been excluded. In any case, commoners could not be included, because if they cannot fence then they cannot be liable for not fencing. So far as other precautionary measures are concerned, motorists know when they go by a common that it is a common, and they take precautions accordingly. If circumstances arose in which a commoner had some cattle on a common (which naturally being a common would be unfenced) and when there was a lot of traffic about he shouted at them and pushed them into the highway, I cannot see any reason why he should not be liable.

LORD HENLEY

Some commons are in fact fenced; I know of some. Motorists do not necessarily know that a common is a common; so far as they are concerned they are going across a piece of unfenced land, and whether it is a common or whether it is not a common is not immediately apparent to any motorist, and I still cannot see that this makes any difference to the argument at all. I am still quite unconvinced that there is any difference between common land and unfenced land, that both ought not to be treated the same. If you exclude commons you should exclude unfenced land, and if you cannot see your way to exclude unfenced land then you ought not to exclude commons. Neither the argument about the ownership of the land nor the argument about the fences seem to me to apply.

LORD NUGENT OF GUILDFORD

I must thank the noble and learned Lord the Lord Chancellor for his answer to our debate on this point, and especially for his undertaking that he would be prepared to consider this rather difficult problem further with his right honourable friends, the Minister of Agriculture and the Minister of Transport. We are all very grateful to him for being willing to do that. I take the point about the difficulty of definition by reference to a 20-year period. Obviously, this is not a perfect definition. I take the point that great efforts are being made in Clause 8(2), especially in paragraph (e), to try to meet this point. I also accept the noble and learned Lord's assurance that judges are reasonable men. But it is the normal stance to take that one would much sooner see it in the Bill.

There are two points here. First, should something more go into the Bill? And, second, if so what should it be? I hope that the noble and learned Lord will accept that there is a strong feeling, not only in the National Farmers' Union but also in the Country Landowners Association, that something more is needed here. The noble Lord, Lord Henley, has argued most cogently the logic of the case of treating these areas the same as common land. I thought that my noble friend Lord Swinton also put a very powerful argument. So I hope that the noble and learned Lord will, with his customary generosity, have his mind open to the fact that there is some weight in this Amendment and will be willing to look at it to see whether some way can be found to give a little more certainty in the Bill than subsection (2)(e) of Clause 8 now gives. It has gone quite a bit of the way, but we should like it a little clearer. But after the noble and learned Lord's undertaking, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.20 p.m.

LORD NUGENT OF GUILDFORD moved Amendment No. 17:

Page 5, line 40, at end insert— ("( ) For the avoidance of doubt, it is hereby declared that the mere fact that an animal was upon the highway shall not in itself be sufficient evidence of a breach of the duty to take care referred to in this section.")

The noble Lord said: I move this Amendment mainly in order to get from the noble and learned Lord the Lord Chancellor a few words of explanation as to how he sees subsection (2) working in practice, and particularly to calm the anxieties that still remain in my mind, and also perhaps in the minds of some other noble Lords, that the mere fact that cattle are found straying on a highway will not of itself be presumed to be evidence that there has been negligence on the part of the defendant. We have put the Amendment down in this form in the hope of getting a clearer understanding of just how the farmer will stand in this matter. We should like to know what will his prospects be when dealing with the sort of circumstances mentioned by my noble friend Lord Barnby, where a gate has been opened by a trespasser, or where the cattle have perhaps been driven by some unforeseen circumstance and have gone through a good fence; or where there has been snow and they have been able to walk over it—all the various circumstances which may occur where a farmer has made perfectly reasonable provisions with stockproof fences but his cattle are still on the highway. We want to ensure that in these circumstances there will not be an immediate presumption that the farmer has himself been negligent. I beg to move.

LORD BELSTEAD

In supporting my noble friend Lord Nugent of Guildford, may I ask the noble and learned Lord the Lord Chancellor a particular point? —it is one in which I have no personal interest whatsoever. What is the situation under this Bill if the rider of a horse on a road comes off and the horse makes off, riderless? I should have thought that the very factor of road safety, which lies behind this Part of the Bill, is relevant here. Your Lordships may recall that recently a T.V. advertisement has warned drivers against speeding past ridden horses: the noble and learned Lord may have seen it. The advertisement ended with the girl falling from her horse, and the camera stopped at the moment at which the girl's head hit the ground. This point is not special pleading, but I think it is a factor in road safety, touching this Part of the Bill.

There may also be the occasion when a horse slips on a wet road or on a road which has been made greasy by vehicle oil, and again the rider is thrown. If such a rider is then to be held responsible for the riderless horse there will be concern among thousands of parents, whose children seem to be riding in increasing numbers these days, and also of course among the riding schools. Paragraph 28 of the Law Commission Report says: … it is not necessary or desirable to reverse the burden of proof in the cases affecting animals which turn upon negligence;… I must apologise to the noble and learned Lord, but I am not sure how this view, or the Bill as drafted, affects the case I have put forward. Many people who ride, or whose children ride, will be grateful for some guidance from the noble and learned Lord on this point.

THE LORD CHANCELLOR

If I may deal with the last point first, it there is a horse lawfully on a road then the question of negligence is entirely a question of fact. You may have two motor cars on the road, and the judge has to consider whether either driver, or both, has or have been negligent. If there are a horse and a motor car, he judges it in exactly the same way. We all know that accidents can happen without anybody being to blame. The only obligation, both on a motorist and on somebody riding a horse, is to do so with reasonable care—regard being had to the fact that the man with the motor car has the easier thing to control.

What this Amendment would do would be to take away from this branch of the law what lawyers call res ipsa loquitur. This is simply a doctrine which provides that, where something is entirely under the control of A and something happens which does not usually happen unless somebody has been careless, those facts are in themselves enough to call on A for an explanation; that is all. The onus of proof, of course, always remains on the injured person until the end of the case. One of the earliest cases of res ipsa loquitur was that of a man walking along a pavement underneath a flour mill when a barrel of flour fell out of an upstairs window and hit him on the head. Of course he did not know what had caused that. In properly conducted warehouses, unless somebody has been careless barrels do not usually fall out of windows. But, of course, a rope might have broken which the owners would have no reason to suppose would break; and at the end of the day it is always for the injured person to prove that what happened was due to the negligence of the defendant. There was another case in which, I think, a man broke his tooth on a stone when eating a bun; and of course ordinary, properly made buns do not have stones in them.

The only result here is that if an animal which is under a farmer's control escapes on to a highway, that is enough, prima facie, to enable the injured person to say, "This calls for an explanation from you as to how the animal came to be on the highway". But, of course, at the end of the day the onus remains with the injured person to prove that the accident was caused by the negligence of the farmer. One would not like this to be otherwise, because it is a commonsense provision of the law that the person who knows all the facts should in some circumstances have a duty to give an explanation. For example, if you write to a farmer and say, "How did your horse come to be on the road?", you do not want to get back a letter saying, "The National Farmers' Union's insurance company say I am not to say anything".

Before your Lordships say that this is fanciful, may I say that the noble Viscount, Lord Colville of Culross, and I know perhaps more about insurance companies, and the way they actually go on in real life, than most people do. I remember a client who went into an operating theatre for a simple operation on the uterus, and when she came out she had a permanently withered forefinger on her right hand. As she earned her living by doing a particularly delicate form of embroidery this was a serious matter for her, so she went to a solicitor.

He said, "What an extraordinary thing to happen. I will write and ask the surgeon what happened." So he wrote and asked the surgeon what happened, and the surgeon replied, "The Medical Defence Union say that I am not to say anything". So the solicitor said, "Well, this is an extraordinary thing. The only thing I can think of is that the anæsthetist must have used a very corrosive form of anæsthetic, and carelessly let some of it drop on your finger. Now who is the anæsthetist?" She replied, "Well, he came the evening before." This was not a National Health operation; she was paying for it all in a nursing home. Naturally, she had left the choice of anæsthetist to the surgeon, and so she did not know who the anæsthetist was. The solicitor told her: "Don't worry. I will find out." So he wrote to the surgeon and said, "Will you kindly let me know the name and address of the anæsthetist? "The surgeon said that the Medical Defence Union had said he was, "not to say anything". So, ultimately we sued the surgeon at the nursing home, the only person we could sue.

It has always been my experience in medical negligence cases that you win them only on the documents you get on discovery. As soon as we got the discovery it was perfectly obvious. There it all was: the cause of the trouble was a hot water bottle burn. When Legal Aid started we had a great many actions on hot water bottle burns. I remember a dreadful case of a small girl being terribly burned. As a result of the publicity over this case—although there was a great fuss by the doctors—they now taught nurses: "Don't forget this most important thing: if you apply a hot water bottle to an unconscious patient, you must test it to ensure that it will not burn." As I say, I do know the ways of insurance companies. I remember—but I should not be detaining your Lordships.

May I just say this? More remarkable, perhaps, than the last, is the case of a client who broke his right arm on a defective winch. He went to hospital; they set his right arm. He was there rather a long time. When he came out his right arm was perfectly all right, but his left arm was absolutely useless. And they said to him, "It would be much better to have, it off; it will never be any good to you." So he went to a solicitor and the solicitor wrote to find out what had happened. The hospital said, "Oh, the Medical Defence Union say that we are not to say." I was not then concerned with the case; but I think the solicitor should simply have sued the surgeon at the hospital. But the solicitor said to his client: "I do not see whom we can sue. We cannot think how this could have happened. All I can suggest is that you sue your employer and say, 'I broke my right arm on your defective winch. I went to hospital. I did what they told me—and this is the result.'" So he did that.

They then sent Sir Hugh Griffiths along to the hospital, and the hospital told him through the "old boy network" —saying, "Don't tell the patient"—that what had happened was that the Egyptian anæsthetist, when the patient's right arm was being set, had put pentathol into an artery instead of into a vein; and he had no idea of what had to be done when the patient collapsed. The young house doctor remembered having read an article in the Lancet about a year before saying what should be done when this happened. It was to inject something called hevrin—which he did, thereby saving the patient's life: but, unfortunately, at the expense of the left arm.

It demonstrates, if I may say so, the patient's difficulties in these cases. We could not find an anæsthetist in London who was prepared to go into the witness box and say that it was negligent to put pentathol into an artery. Sir Hugh Griffiths said so, because, as he said, the artery is at quite a different level and you can see the moment you test it that the colour of the blood is entirely different. After a couple of days in court they settled it and made up. I heard afterwards that the reason why they had made up was because the Medical Defence Union could not find an anæsthetist in London who was prepared to say that it was not negligence.

LORD NUGENT OF GUILDFORD

We are obliged to the noble and learned Lord for giving us such an interesting bonus on that particular Amendment. In any event, I was not intending to press it. I have certainly learned a great deal about the problems of dealing with insurance companies, and in the circumstances I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

LORD BESWICK

I think that this Bill has been looked at with most extraordinary care and thoroughness. I am sure that all concerned have shown remarkable stamina, not least the noble and learned Lord the Lord Chancellor. I wonder whether now might be a good time to resume the House. I think the remainder of the Bill can be completed, if all would agree, on Tuesday.

House resumed.