§ 4.37 p.m.
§ Debate resumed.
My Lords, perhaps I ought at the commencement to declare a vested interest in the Bill which is now before the House, in that I attempted on eight occasions in seven years in another place to introduce a Bill similar to Clause 8 but was unable to get a Second Reading for it. I consider the introduction of this Bill to be an extremely important matter. The question of the damage that can be done by animals to human beings is something which has been raised by Commissions and in the courts of our country for very many years. Learned judges have commented on the bad state of the law. I am not going to trouble your Lordships with many quotations to-day, but I am sure that everybody in this House is well aware that the situation is a very serious one from the human standpoint. While people may argue about certain aspects of the situation, in so far as those other than the injured are concerned, the main purpose of a Bill of this nature must nevertheless be, and indeed is as I see it, to protect people from being either killed or injured by animals.
219 Clause 2, which deals with dangerous or exotic animals, is a clause to which I should like to refer before coming to the main purpose of my speech this afternoon. I think that while we are considering this we ought to consider very seriously how damage can be prevented, so that a question of damages being sustained will not arise. We have had an illustration in the last few days of an exotic animal, a puma, doing extremely serious damage to a youngster. I do not know whether everybody in the House realises that, if the reports in the Press are correct, some twelve or fourteen months ago that same puma attacked a dog, with very serious consequences.
The matter was raised in another place by myself and others, and I am sorry to say that the answer given there was that whether there was any need to amend the law was questionable, that the problem was extremely small and that there was always recourse to the civil law. The same puma about which that question was raised has now caused extremely serious damage to a young person. At that time it was to a dog: now it is a young person. Of course, a situation of that description is absurd; and, if I may, I should like to ask the Government, when they are considering what further steps to take in regard to this measure, to consider the possibility of putting something into it to deal with such a situation.
At present, this measure deals with the question of liability for injury or damage caused by wild animals, and the remedies which may be invoked by the victims of the attacks. I think that everybody in this House is aware of the increasing number of such accidents. At least 22 or so have been reported in the Press in recent months; and we have been reminded of the urgency of this question by the savage accident which occurred to the young boy to whom I referred. Other similar accidents have been equally distressing: a child was mauled by a lion in a safari park; another was injured by a leopard in a small zoo; and in a private collection of animals two children have been injured by tigers. It is clearly becoming urgent, I submit, that the question of prevention of accidents, and not only the question of compensation, should be seriously considered. Increas- 220 Ingly animals appear to be being kept by those who cannot properly control them, and the public are too concerned to allow matters to be left as they are. In the opinion of most people there should be some form of licensing of zoos, of dealers in animals and of all keepers of wild animals.
In this context, the damage that can result not only from mauling by animals but also from the possible transmission of disease from wild stock to domestic stock and from wild stock to man, ought not to be overlooked. Wild animals can transmit dangerous and fatal diseases. This has been made abundantly clear, for example, in recent years by the deaths caused by herpes, virus B and "Marburg's" disease, which are transmitted to man from imported monkeys. There is clearly something wrong with the way in which the question of dangerous animals is being dealt with. Although I agree that possibly it may not come within the context of this Bill I sincerely trust that the Government will take note of these things and that some steps will be taken (if possible in this Bill but, if not, in some other way) to deal with this position.
Now I come to the matter to which I referred when I opened my speech. I cannot for the life of me understand what on earth happens when, time after time, the question is raised of no compensation being paid to a person who has been injured, or to the relatives of a person who has been killed, by straying animals and the position is not dealt with. It is all very well to bring forward points about who should be responsible for the fencing of the land. The real point here is: who is going to pay compensation where the breadwinner of a family is killed, or where people are injured, as they have been in very many cases (it is not a question of one or two cases; it is one of very many cases) in recent years, and when everybody who has any real authority to speak, or is accepted as an authority, has said that this position must be remedied?
I have already intimated that I tried to do something about this in the other place year by year for seven years, and other people have tried before. Each year I managed to get permission for a Bill under the Ten-Minute Rule, but there it finished. Somebody or other objected 221 each time when the Bill came up for Second Reading on a Friday, and eventually that was the end of it. I am glad, nevertheless, that the noble and learned Lord the Lord Chancellor has seen fit to make this Bill a non-Party matter, after my noble friend Lord Gardiner had introduced it under the auspices of a different Government. It is a non-Party issue: there is no question about that. Perhaps I may be permitted to say that during the very many years that I had the experience of being a Member of the other House I came into contact (and many noble Lords have had similar experiences) with the man in the street and with the people who had actually received injuries, or who had actually complained about other difficulties in consequence of incidents that had occurred to them.
It is now some eight years since a lady whose daughter was killed in the course of a motor accident caused by a horse which strayed on to the roadway—a daughter with an excellent future, who was a teacher, and had great ability—came to me and asked me whether I would do something, not for them but in consequence of the accident which had occurred. The anguish which came to that family was indescribable. They then realised that other people who were dependent, or might be dependent, upon a person injured or killed were placed in the difficulty of not being able to get any compensation.
Of course, the situation is just nonsensical. It is as ridiculous as the position I referred to with regard to the keepers of dangerous animals not being compelled to have a licence, or something of that sort, in order to protect the community against them. This point is being dealt with in the Bill, and I do not intend to elaborate on it. But what I do want to ask is that those noble Lords who have some questions to raise with regard to the difficulties that will be encountered by farmers should realise that, whatever steps may be taken in the direction of dealing with those difficulties, there is no question at all that a person who is injured, or the relatives of a person who is killed, should not in any way suffer loss of damages in consequence of any bars that they may put in the way of the passing of this Bill with regard to fencing.
I should like to draw the attention of noble Lords to the fact that when parts 222 of the New Forest were fenced in the statistics given by the Hampshire and Isle of Wight Constabulary for accidents on one of the lengths of trunk road so fenced showed a fall in the number of accidents in which animals were involved. The figures for 1961 were 81 accidents; for 1962, 94; for 1963, 80. In 1964, the number was reduced to 35; in 1965, the first full year of fencing, the number fell to 3; and in 1966 to 1. It indicates that there must be fencing. It is perfectly true that there may be difficulties. It may be that the local authorities or some other authority ought to come forward, or be called upon to come forward, to help; but the farmers' main duty is to see to it that animals shall not stray. They should not be negligent in that regard. Whatever steps have to be taken—and I put it most respectfully—in the way of protecting them are ancilliary and not the main matter.
I hope that noble Lords will forgive me if perhaps I have spoken for too long; but I feel very keenly about this subject. I am a little disturbed that the date of coming into force of the Act is so late. We have had ample time to consider what should be done, and I certainly think that this Bill should become an Act very speedily. I hope that the Government will try to arrange for the date on which it comes into force to be brought forward. I believe that the country as a whole would regard a step of that nature to be very commendable indeed.
§ 4.52 p.m.
§ LORD CLITHEROE
My Lords, I shall not detain the House for more than a few minutes. I am sure that all noble Lords have sympathy with much of what the noble Lord, Lord Janner, has been saying. With regard to the question of fencing all the roads in the country, I think it is possible to have a difference of opinion. There are very large moor-land areas in the North of England and in Scotland which have never been fenced and which do not as a rule have many accidents. I do not think it would meet with the approval of the greater number of people who use those roads if they were to be fenced. But those are the exceptions.
Clause 8 is the clause which has been most under discussion in the early part of this afternoon. I should like to reinforce the points made by the noble Lords, Lord Henley, Lord Clifford of 223 Chudleigh and Lord Margadale. There were really two points of importance: one with regard to unfenced roads and one with regard to fenced roads. If I may, I will just deal with the question of fenced roads. The point has been made by the noble Lord, Lord Henley, that new roads are now being driven through open farmland. There is one at present near my home consisting of seven or eight miles of a new road (a much-needed by-pass) and it is being driven through open farmland. On that new road many miles of fences are being erected which will become the liability of the landowners and farmers on either side of it. This is a totally new liability for these farmers. It is not like a small road being widened, where there is already a liability for the farmer to fence. It is a case of a completely new road being driven through his land.
It is already greatly to his disadvantage that the road should be driven through his land and that it should divide it—and he is compensated for that so far as it is possible to compensate in money—but the question of liability for maintaining these miles of new fences should, I think, be borne by the road authorities. In the case of motorways they do so; in the case of roads not motorways which may be just as big and just as dangerous, they have not so far accepted the liability to maintain them. Therefore, if one of these farmers who has already been put to great expense in maintaining these long fences has sheep or lambs by the side of that fence and they cross through it or possibly it is broken down by a careless motorist, as is often the case, his sheep or lambs or cattle escape on to the road and may cause an accident for which he is not at all responsible.
I agree with the noble Lord, Lord Janner, that so far as possible those responsible for accidents should be liable for them. I do not think it is fair that those who are not responsible should be liable. Therefore, I beg the noble and learned Lord the Lord Chancellor to see whether it is possible to make some amendment to Clause 8 which will meet some of these difficulties.
§ 4.58 p.m.
§ VISCOUNT INGLEBY
My Lords, I should like to support those who ask for 224 the complete exemption of traditionally unenclosed land. My home is on the North Yorkshire moors where there is a great deal of open land that has never been enclosed, on which considerable numbers of sheep graze completely un-tended. As Clause 8 now stands, looking at it as a layman—I was going to say, as an intelligent farmer; I am not a farmer but I hope I have a reasonable amount of intelligence—it seems as if there may be a liability on many farmers under that clause. I would ask whether this is in fact what the Government want. If not, would it not be simpler to say so and to leave out of this clause all land which has traditionally been unenclosed whether it is common land or not?
§ 5.0 p.m.
§ VISCOUNT MASSEREENE AND FERRARD
My Lords, I should like to says a few words on two clauses in this excellent Bill. I put one or two Amendments down to the almost similar Bill when the last Government were in power, and the noble and learned Lord, Lord Gardiner, was kind enough to put right some of my objections. But I should like to say a few words about Clause 5. In moving an Amendment that I put down on the earlier Bill, I indicated that I was rather worried about the words "kept" and "keeping", because in Clause 5(3) it states:(a)that the animal was not kept there for the protection of persons or property; or (b) (if the animal was kept there for the protection of persons or property) that keeping it there for that purpose was not unreasonable.My Lords, my dilemma is that premises are often guarded by dogs which may be brought from quite far away each night; they are not kept on the premises. I should have thought that in those circumstances the word "kept" does not amount to a defence under this clause. As I read the Bill the definition of "keeping" will not cover this and a defence will not be available. The keeper has to be the person who is the owner or occupier of the property. I may be wrong, but that is how I read the Bill and I should have thought that the word "found" or, where appropriate, "finding", would be more suitable. But I will not dwell on that point now, as it is a Committee point.
A number of noble Lords have spoken about Clause 8. I was pleased to hear my noble friend Lord Clitheroe say that 225 he thought the authorities should be responsible for fencing roads where necessary, and I agree with him. Where a farmer's land is unenclosed and lies alongside a very busy road, even if he does enclose it his insurance company will charge him a higher premium for his insurance than if his land lies alongside a road which is not so busy. I should have thought that in all fairness, if unenclosed farm land alongside a road has to be fenced, either the Department of Agriculture should grant a 100 per cent. subsidy or the responsible authority should provide the fencing.
Clause 8(2)(e), referring to fencing and to the risk of an accident, states:… 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 situate.That could be interpreted very widely, and I should prefer to have clearly defined what unenclosed land need not be fenced. During the Second Reading debate on the earlier Bill I suggested that such land could be defined by saying that it should be land which had not been enclosed for 50 or even 100 years—but perhaps that was too long a period. We might define unenclosed land as land that had not been fenced for 30 years. But if the appropriate authority would fence roadside land anyway, that point would not arise, because there would be no liability on the farmer to fence the land.
I should like again to point out, as was pointed out during the debate on the previous Bill, that fencing is not a complete protection from liability on the part of the farmer. If there is drifting snow which freezes, animals can sometimes get over a fence and on to a busy road. If the farm is situate in an area where there are heavy falls of snow, an insurance company would probably require a heavy premium from the farmer. So I come back to the point made by my noble friend, that it would be fairer to the farmer if the appropriate authority would pay for all the fencing. It is no doubt possible to provide financial compensation by insurance in the case of a fatal accident, but that would be poor compensation for the parents of a child who was killed, and it would be far better if the responsible authority fenced all land which should be fenced and the liability removed from the farmer.
226 My Lords, there is one other point which I should like to raise in respect of Clause 9. I consider it an excellent clause and one that I heartily endorse. I understand that cats cause a considerable number of road accidents and, of course, kill poultry. But I do not see any reference to cats in the Interpretation clause. There is a reference to such odd animals as "hinnies", which I believe has something to do with donkeys, but there is no mention of cats. They apparently do not come under the definition of "livestock", but I sincerely hope that cats will be covered by the provisions of this Bill. I agree that it is difficult for cat owners to control their cats, and I know that it would be a difficult matter to legislate for; but compared with dog owners, the owners of cats get off lightly.
Before sitting down I wish to allude to what was said by the noble Lord, Lord Janner, who was rightly concerned over accidents which have happened recently in which dangerous animals in captivity have been involved. This matter is covered in Clause 5(1) where it states:A person is not liable under sections 2 to 4 of this Act for any damage which is due wholly to the fault of the person suffering it.If you are driving through a game park and you have been told to keep your car windows closed, if you open a window and tickle the nose of a lioness you can expect to get a "swipe", especially if that lioness is in a bad mood. Members of the public must obey the instructions which they have been given.
Having said that, I should like to give a warm welcome to the Bill, though I hope that the noble and learned Lord the Lord Chancellor may perhaps look at Clause 5(3)(a) and (b) and change the word "kept" to "find", and the word "keeping" to "finding".
§ 5.10 p.m.
§ LORD DENNING
My Lords, most of the cases relating to animals finish up in the court over which I have the honour to preside, the Court of Appeal. Only one has reached this House in its Judicial capacity, and that decision was the notorious decision that if animals strayed on to a highway and did damage, the farmer was not liable. It is a very good thing that that decision of the House is now to be reversed by this Bill.
227 May I first give a welcome to the excellent work which the Law Commission have done in producing this Bill, which clears up many doubtful and wrong points in the law? There is, for example, the distinction between a wild animal and a tame animal. A tiger, of course, is a wild animal, but the law says that a bull is a domesticated animal. The law said that the owner of an animal was liable absolutely for the escape of any danger-our animal but was liable in respect of a domesticated animal only if he was guilty of negligence. This Bill preserves a distinction—not the distinction between a wild animal and a tame animal but that between a dangerous and a safe animal.
As I understand the first few clauses, the law still is that for a dangerous animal, whether it be a tiger or a puma, or any other kind of animal, the householder or person who has control of it is absolutely liable. Surely that is right. Even if it is a bull—and most people should know that it is likely to be dangerous—the owner is under an absolute duty to see that it is safe. There is nothing about negligence in the Bill. In all other cases the keeper of an animal is under a duty to use reasonable care to see that it does not escape and do damage.
I should like to say a word about cattle trespass, a very ancient head of our law, under which anyone whose cattle escaped or trespassed from his land on to that of another was liable for any damage to crops or property that they did. That, in principle, is being preserved. Farmers know that if their animals escape, they must get them back. But there are two subsections in the Bill, Clause 5(6) and (7), which not only depart from the Law Commission's recommended subsections but seem to me to leave an ambiguous and uncertain position to farmers, such as my noble friend Lord Ingleby mentioned, who have their sheep out on the moorland. We had a case on this in the Court of Appeal only this year.
On the vast moorlands of Yorkshire over the centuries, the farmers have enclosed with their stone walls the fields in which they keep their cattle and their hay, but at the same time those farmers have a right to put so many sheep—20, 30 or 40—on to the vast moorland. The 228 tradition and custom has been for the farmers to fence against animals; there is not a duty on the moorland sheep owner to fence his sheep in. They are not bound to fence the whole of the moorland. The wife of a bank manager came to live in Yorkshire and, not knowing their custom, she contended that a farmer who owned sheep was bound to keep them in at his peril and was liable for damages when they got over the wall into her land. It was really her duty to fence. The Court held that the farmer was not liable for the sheep getting over her wall.
I raise this point because Clause 5(6) and (7) speak of a duty to fence but nowhere tell anyone what it is—I fancy because they could not tell themselves. In an appendix, the Law Commission say:The law relating to the obligation to fence and its effect upon the present liability for cattle trespass is exceedingly complex."—so complex that they could not state it. I wonder whether this clause, at least, should not be further considered, so that farmers in such a situation as I have described on the moorlands should know whether or not they are under a duty to fence. As I read the Bill at the moment, the farmer would be held liable for his sheep getting over the wall.
My Lords, surely in the case the noble and learned Lord described the farmer would not be held liable because the case would be excluded from the Bill. If it was land on which he had a right to graze cattle—stinted land—then it would be common land.
§ LORD DENNING
My Lords, it was not common land in the case to which I referred. I cannot go into all the details of the case now, but so far as I remember it was unenclosed land, on which every farmer had a right to put so many sheep, but it was not common land. At all events, I think that the duty to fence ought to be made clear, so that people in such a position should know where they stand.
I have been talking about trespass between adjoining owners, but there is also the question of the duty to fence as against the highways. Then there is the question of negligence. The Bill tries to provide for it by saying that the owner of animals is liable only if he is 229 guilty of negligence, and that in considering whether he is guilty of negligence the courts can consider whether it has been normal practice to fence or not. I venture to suggest that this is a very uncertain guide. Lord Goddard's Committee suggested that it should not be extended to unenclosed land. But whatever be the right test, I would suggest that for the courts, in particular, and for the farmers in general this Bill should make it clear when and when not a landowner is under a duty to fence, so that he can know beforehand and put up his fence rather than wait until an accident happens and have to be carried through the courts to know whether or not he was negligent. My Lords, subject to these matters, which no doubt are matters more for a later stage, I would say that this Bill is to be wholly welcomed.
§ 5.20 p.m.
§ THE LORD CHANCELLOR
My Lords, I think I can thank the House for a reasonably friendly welcome to these proposals. I should like to assure the noble Lord, Lord Henley, whose title, I believe, emerged at an earlier date from the Woolsack, that there is no conspiracy in this matter between the Lord Chancellor and an ex-Lord Chancellor. The noble and learned Lord, Lord Gardiner, and I have been rather different kinds of animals, he being mansuetae naturae, and I am not perhaps the same. We have arrived at the same conclusion by different routes. It is, however, the same conclusion. The fact is that law reform, as such, ought to be something in which Parliament has a positive interest. Otherwise it will not get through. It usually gets through this House fairly simply because we have time. But unless Parliament takes a positive and constructive interest in the promotion of law reform, however well intentioned the Lord Chancellor or indeed his predecessor may be, it will not get through Parliament. I speak now from thirty years' experience in one place or the other. I would say that of all types of law reform which are difficult to get through Parliament that relating to animals is one of the most intractable, because almost everybody likes talking about animals, either on their behalf or against them. Therefore it is extremely difficult for a law reformer to get through a Bill about animals, and I think it indicates good will 230 on my part that I have undertaken this, from a legislative point of view, technically difficult task.
There is also the problem that there is an almost total want of communication between the lawyers and the farmers. The farmers do not understand what the lawyers say to them, and the lawyers do not sympathise with the farmers' difficulties. I have been a farmer for 14 years and know something of their difficulties, and I am also in a kind of way a lawyer. So I am hoping, so to speak, to bridge the gap.
If I may deal with the speeches which have fallen from your Lordships, I should like first of all to thank the noble and learned Lord, Lord Gardiner, for his general welcome to the Bill. I was particularly grateful when he agreed that the general point about the interpretation of Statutes which was raised in what I may call, without, I hope, any offence to the noble and learned Lord on the Cross Benches, the Wilberforce Amendment to the Bill when it came before the House before, was not really appropriate to so specialised a Bill about liability for animals. It is a matter for general debate. The noble and learned Lord asked me about a debate on the subject. I think that in this House my answer is perfectly simple. If the noble and learned Lord puts down a Question or a Motion, then I think I have to answer it. There is no question, as there is in another place, of the Government finding time: time has to be found. We are at the service of the House in these matters, and if the noble and learned Lord wants to discuss the matter, it is up to him and his noble friends, and it is my duty to do my best to give some sort of answer, satisfactory or otherwise.
The noble and learned Lord criticised the new subsection (7) of Clause 5 as inelegant, and, I think by implication, obscure; and a similar criticism fell from the noble and learned Lord, Lord Denning, whom I am sure the House was delighted to hear speaking from the wealth of his judicial experience. I have considerable sympathy for this criticism; indeed, I voiced it myself in a more private connection. But when Lord Chancellors are bold enough to criticise as being obscure the drafting of a Bill for which they are responsible, they are nearly always asked to think of a better 231 phrase themselves. This is a difficulty that I cannot pass on to noble and learned Lords, although of course I should be grateful if the noble and learned Lords could think of a better phrase.
Nor can I answer out of hand the complicated question about the moors of Yorkshire and the imprudent banker's wife that fell from the noble Lord, Lord Denning. I understand that the position is really this. A duty to fence may arise by reason of a variety of different circumstances. The purpose of subsection (7), in order to meet criticism which was directed to the old subsection (6) in the previous Bill, is to limit the special defence to cases where a duty is owed to a particular class of person, whom one might broadly refer to as the owner of the land from which the animal has strayed, or those from whom he claims his title, probably by reason of contract. So that a mere abstract duty to fence was not sufficient to attract the special defence in the Statute. It may be that it could be more elegantly expressed and, having regard to the criticism, I shall ask my advisers to look at it again. If the noble and learned Lord can think of a better phrase, and will put it down, I can assure him that it will receive a very warm welcome from the Lord Chancellor.
A similar criticism, but a slightly different one, was levelled at Clause 5 by my noble friend Lord Massereene and Ferrard. He objected to the word "kept" in connection with another of the special defences—I think subsection (3) of Clause 5. The answer to that objection is that the word is adequate to cover the kind of case which my noble friend had in mind. It would cover the case where the animal was kept for any period of time on particular premises, however short. The reason why the word is used in that connection is because it ties in with the word "keeper" in Clause 6. At any rate, the noble Lord made his point, and I hope that I have given him an adequate answer. If I have by any chance not given him an adequate answer, I shall try to correct it by writing.
The noble Lord, Lord Henley, and a number of other noble Lords from various parts of the House were more robust in their criticism of Clause 8 than I feel is altogether fair to that clause. It is at this moment of time that I think 232 I ought to say a word on behalf of Clause 8 as it stands, fortified as I am by the enthusiasm of the noble Lord, Lord Janner, whose earlier endeavours in the same direction in another place deserve all our sympathy and respect. Incidentally, I think the noble Lord will realise that in introducing, as he quite legitimately did, the possibility of preventive action in this connection, or possibly criminal liability for the owners of pumas and other wild beasts who may keep them in unsuitable places with disastrous results, he is quite outside the scope of the Bill. But I have noted carefully what he said. I have no doubt that the matter will be raised in another place, and I will certainly draw the attention of my right honourable friend the Home Secretary, who is responsible for this, to the noble Lord's remarks.
To come back to Clause 8, I think we have to face this dilemma. I think that it should be put in this way. If damage occurs to persons or property—that is to say, if somebody is killed or hurt, or their property is injured—you can do one of three things. You can say that the loss, the injury, the pain, the suffering and the damage must He where it falls, upon the person who suffers it, as it does when a thunderbolt falls from the sky and kills a person without anybody's fault. That is one solution and is, roughly speaking, what happens now under the existing law when cattle stray on to the highway from a farm, as the noble and learned Lord, Lord Denning, indicated under a decision of this House some time ago. That is the law now. The loss must be suffered by those who suffer it. Nobody else is to pay compensation. That is one possible solution, and it is the present situation, broadly speaking.
Another possible solution is to say that the loss must be suffered by the person who causes it, without regard to the degree of his fault. That is not what is proposed in Clause 8. It is what is proposed under the other branch of the Bill, in Clauses 2 to 4 in respect of dangerous animals. If you keep a puma you must pay for any damage it does. That is, broadly speaking, what is the law now, and that is not what is proposed in this Bill. We are talking about damage on the highway caused by livestock, mainly sheep or cattle—though not limited to 233 them—which get out and then cause an accident. The law as it is proposed does not follow that second solution; it does not propose any kind of absolute liability on the farmer. I must say, with the greatest respect to some of my noble friends, to the noble Lord, Lord Henley, and, for instance, my noble friend, Lord Margadale, that much of the argumentation which they presented against Clause 8 would have been a serious criticism of Clause 8 only if that clause had proposed the second solution and not the solution which it does propose.
Clause 8 imposes liability for negligence on the owner of the animal which escapes on to the highway. What is negligence? Negligence is fault; it is a failure to take reasonable care. When I heard some of the speeches to-day I sent for a book which contains the classical definition of negligence because I thought it might interest the House. This was given in this House in a very different type of case, by Lord Atkin in the case of Donoghue v. Stevenson. It is a very famous passage, known to lawyers, but it is so very good and so very simple that I venture to read it to your Lord-ships before going on to discuss its application to Clause 8 of the Bill as it stands. Lord Atkin said:The rule that you are to love your neighbour becomes in law you must not injure your neighbour, and the question who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question".That is the definition of negligence, and now I seek to apply it to the facts of the present Bill. The question which the House has to answer is: supposing a farmer is guilty of fault in that sense, if he fails to take reasonable care for his neighbour in letting his animals out on to the highway, ought he to pay for the damage that they do or ought he not? Forgetting for a moment whether you are a lawyer or whether you are a farmer, I believe the answer to that question is, "Yes, he ought, in modern conditions". The answer given by the law as it stands is, "No, he ought not". In answer to that, 234 the noble Lord, Lord Henley, the noble Lord, Lord Margadale, and, I think, the noble Lord, Lord Clifford of Chudleigh, put forward a number of what they think are hard cases. By far the hardest case put forward by all three of them was the case where the fencing is provided by the local authority, and one day a wicked motorist, at the dead of night—midnight or four o'clock in the morning—drives into the fence and makes a hole in it. A cow gets out on to the road and causes an accident. "Surely, the farmer ought not to pay then", they say. Well, of course not. Incidentally, may I say to one noble Lord who asked that the motorist should be made to report the accident, that he certainly ought to do so. If a motor car causes any kind of damage to property, and fencing is property, it ought to be reported to the police.
The answer to the question is that the farmer ought not to pay. The reason why he ought not to pay, and will not be made to pay under this Bill, is that he has committed no kind of fault. In the supposed case there is no want of reasonable care on the part of the farmer, no omission to do something which he could have done by taking reasonable care, and which he ought to have done. There is no act which he did which he ought not to have done. As I see it, there is in the Bill no liability on the farmer unless there can be attributed to him something which is his fault. In such a case, unless the motorist can be traced I regret to say that the injured person would be without a remedy. But the farmer would not be liable.
I would agree that there are much more difficult cases than that, which I should not like to pronounce about without very careful consideration, because if Lord Chancellors start predicting the results of litigation they will do the noble and learned Lord, Lord Denning, a great disservice when he comes to disagree later. That is why if you look at the terms of the subsection in Clause 8 you will see that the courts are told to have regard to certain circumstances.
Circumstances vary almost indefinitely. Some land has become unenclosed by neglect; some land has never been, enclosed—moorland—and the courts would want to see what was done. If you live in a mountainous part of Wales, 235 where there is nothing but unenclosed land for miles around, nobody is going to say that the farmer on adjacent land is ordinarily in any way to blame for the straying of his sheep on the highway. When they sit down on a warm patch of tarmac, as was graphically described by one noble Lord, the farmer will not be responsible—motorists must look out for that kind of situation. On the other hand, it may be very different where the road is a busy one and where the ordinary man would say, "If you want to take due care for the safety of your neighbour your paddock should be fenced, even if it it has not been fenced before"—
Will the noble and learned Lord give way for one moment? If what he says is true, why then does his Bill propose to exclude common land from the province of the Act?
§ THE LORD CHANCELLOR
Because, my Lords, the owner of the common land cannot be ascertained for this purpose. If it is a village green, or common land—and I was going on to that point in reply to the noble Viscount, Lord Massereene and Ferrard—there may be a right to depasturage, but there an obligation to fence cannot be placed upon the person who happens to exercise that right, because he does not own the land. It is true, I think—although I am speaking beyond my brief now—that in a case like that of Epping Forest, where the rights of depasturage are very close to a big town, there would be a case for a hybrid Bill, because those property rights are of great danger on occasion to individuals who may be driving through the roads there; but they could never be taken away by a general Bill because they are rights of property. There would have to be a hybrid Bill to buy them out in order to do it within the law and custom of Parliament.
In essence, one must face the dilemma that either the loss lies where it falls, or you impose strict liability, or you say that the person who is to blame, if any, must bear the loss to the extent that he is to blame, because if there is contributary negligence his liability is reduced. For the life of me, I cannot see why the third solution is not the right one in this context. Of course, it may well be that in the course of the Committee stage on 236 this Bill noble Lords with a greater turn of ingenuity than I have will be able to think of a more precise definition in parts of the guidelines we have provided. If they can, I shall be only too glad. I have already asked my own staff to see whether something more precise cannot be invented. But, in the meantime, I think I can honestly claim this solution to be right in principle for the purposes of the Second Reading of the Bill, and also the best we have thought of hitherto. With these words, I commend the Bill to the House.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.