Animals Act Consultation

Annex A – Consultation on changes to the
Animals Act 1971
Response form
Date: 18 June 2009
Please use this form to address specific questions relating to the proposals contained in
this consultation.
The closing date for the submission of responses is 19 June 2009.
Responses can be returned by email (preferable) or post.
Email address: [email protected]
(clearly mark the subject field ‘Animals Act Consultation’)
or by post to:
Amy Barry,
Rural Policy Division,
Area 3B,
Nobel House,
17 Smith Square,
London,
SW1P 3JR.
In order to help us analyse responses, please provide details of your organisation
below. In line with Defra’s policy of openness, at the end of the consultation period
copies of the responses we receive may be made publicly available through the Defra
Information Resource Centre, Lower Ground Floor, Ergon House, 17 Smith Square,
London, SW1P 3JR. The information they contain may also be published in a summary
of responses. If you do not consent to this, you must clearly request that your response
be treated confidentially. Any confidentiality disclaimer generated by your IT system in
email responses will not be treated as such a request.
You should also be aware that there may be circumstances in which Defra will be
required to communicate information to third parties on request, in order to comply with
its obligations under the Freedom of Information Act 2000 and the Environmental
Information Regulations.
Further information can be found at:
http://www.defra.gov.uk/corporate/opengov/index.htm
Animals Act Consultation - Kennedys' response.doc
1 of 7
Animals Act Consultation I – Respondent Details
Name
Organisation / Company
Organisation Size (no. of employees)
Job Title
Department
Address
Kathy Dwyer
Kennedys Solicitors
Email
Partner
Liability Division
Victoria Court
17-21 Ashford Road
Maidstone
Kent
ME14 5FA
[email protected]
Telephone
01622 625 625
Fax
01622 625 600
Organisation Type
NGO
Please give details as appropriate
Public Sector (e.g., local / central government,
hospitals, universities) (please give details)
Retail Sector (e.g., supermarkets) (please give
details)
Service Sector (e.g., cinemas, hotel chains,
banks, law) (please give details)
Industry / Manufacturing
Land/Property Management
Trader
Research Institute
Other (please give details)
Solicitors
NB: on the form below, please leave the response box blank for any questions that you
do not wish to answer. All boxes may be expanded as required.
Animals Act Consultation - Kennedys' response.doc
2 of 7
Animals Act Consultation II – Specific Questions
1. Do you agree that there is a case for amending section 2(2)(b) of the Animals
Act 1971?
Comments:
Yes, most definitely. An inordinate amount of time and costs have been wasted in attempts to
interpret s.2(2) of the Act (as well as the underlying intention of the Act, per the Law
Commission’s report).
Expert evidence is often used in these cases, and legal costs are often disproportionate to the
amount at stake. The amendments may however not avoid the need for expert evidence to be
obtained.
Further, whilst the House of Lords’ decision in Mirvahedy provided some clarity/guidance in the
interpretation of s.2(2)(b), the Law Lords were not required to deal with s.2(2)(a) or (c), and so
did not debate the operation of s.2(2) in the round. That judgment has therefore had limited
application and, in any event, has proved hugely unpopular amongst animal owners/their
insurers. This has resulted in yet further litigation being pursued, in order to distinguish given
cases from Mirvahedy, and thereby avoid a finding of liability.
At present parts of s.2(2)(b) are open to such varied interpretation that it is something of a lottery
(for both claimants and defendants) as to whether liability will be established under the Act in
any given case.
As solicitors acting for the animal owner/their insurers, we are certain that this legislation has
caused an increase in insurance premiums to the various establishments affected by it, for
example horse riding stables. Further, the owners of those establishments, which are usually
only small to medium sized businesses, are often overwhelmed by the administrative burden in
defending a claim under the Act, and dispirited by its seemingly erratic interpretation, causing
them to consider whether it is worth them continuing in that line of business.
In an age where children’s parks and play areas are closing because of a lack of insurance/fear
of litigation, it is sad also to see riding stables etc. closing their doors for fear of being sued in the
event of an “accident”. Accidents happen when dealing with animals (given their unpredictable
nature), and it appears that the Law Commission never intended that this legislation should give
rise to liability in such wide circumstances.
2. Do you have views regarding the expected benefits of the proposals as
identified in Chapter 3 of this consultation document and addressed in the Impact
Assessment at Annex C?
Comments:
We believe the intention behind the proposed amendments is good and, if achieved, will produce
the converse of the above, namely legal certainty, and therefore reduced legal costs/insurance
premiums, and increased rural enterprise. Further, we believe the proposed amendments will
make clear the legal position with regard to damage caused by animals with “unusual”
characteristics, where those “unusual” characteristics were known to the keeper etc.
Animals Act Consultation - Kennedys' response.doc
3 of 7
3. Do you have any views on the possible adverse impacts of this proposal as
identified in Chapter 3 of this consultation document and addressed in the Impact
Assessment at Annex C?
Comments:
Notwithstanding our perceived benefits as set out at paragraph 2 above, we believe that the
proposed wording in respect of liability for damage caused by animals with “conditional
characteristics” remains unclear, and is therefore open to interpretation (and thus litigation). In
particular, it is unclear in what circumstances the proposed “defence” at s.2(5)(b) will be effective
(see further below).
4. Do you agree that the proposed approach will achieve the objective of
clarifying the law in order to limit the application of strict liability where harm or
damage is caused by animals to cases where the animals involved are known to
be dangerous either permanently or in the specific circumstances known to apply
at the time the damage was caused?
Comments
Yes, with regard to animals with permanently dangerous characteristics (“unusual
characteristics”), but no, with regard to animals whose dangerous characteristics arise only in
certain circumstances (“conditional characteristics”). See below.
5. Do you agree that the proposed Parliamentary resolution procedure (as
outlined in Paragraphs 54-57) should apply to the scrutiny of this Proposal?
Comments:
Yes.
6. Do you think the proposals will remove or reduce burdens as explained in
Chapter 6?
Comments:
Whilst we believe the proposed amendments will remove some burdens, we do not believe they
go far enough, as currently drafted.
7. Are there any non-legislative means that would satisfactorily remedy the
difficulties, which the proposals intend to address?
Comments:
None in our opinion.
8. Are the proposals put forward in this consultation document proportionate to
the policy objective?
Comments:
No, we still believe that litigation will flow with regard to liability for “conditional characteristics”.
(See below).
Animals Act Consultation - Kennedys' response.doc
4 of 7
9. Do the proposals put forward in this consultation document taken as a whole
strike a fair balance between the public interest and any person adversely
affected by it?
Comments:
Where the animal is known to have dangerous characteristics (“unusual characteristics”) then
those injured will have the benefit of the strict liability provisions of the Act, which is clearly in the
public interest.
However, it appears that the Law Commission did not intend to convey an automatic right to
compensation on those injured by animals where the keeper did not know/could not have known
that his animal might display a dangerous “conditional” characteristic. Nor are we clear that this
is what DEFRA intend in proposing these amendments. However, as set out below, we believe
the proposed wording of s.2(5)(b) could well give rise to a finding of strict liability in such
circumstances. If yes, this cannot be said to strike a fair balance between public interest and
those persons adversely affected by the proposals.
10. Do the proposals put forward in this consultation document remove any
necessary protection?
Comments:
As above/below, we believe the proposals will still be interpreted to impose strict liability upon
the keeper of an animal where that animal has never previously displayed any dangerous
characteristics (and where the keeper has taken all reasonable steps to prevent any damage
being caused by that animal). We do not believe this was ever the intention.
11. Do the proposals put forward in the consultation document prevent any
person from continuing to exercise any right or freedom which he might
reasonably expect to continue to exercise. If so, please provide details.
Comments:
Whilst we believe the amendments ought to open up the freedoms enjoyed by land and animal
owners, by making the legal position as to their rights and responsibilities more clear, we do not
believe they will do so as currently drafted.
12. Do you consider the provisions of the proposals to be constitutionally
significant?
Comments:
No.
13. Do the proposals put forward in the consultation document make the law
more accessible and easily understood?
Comments:
Yes, in part, but please see below.
Animals Act Consultation - Kennedys' response.doc
5 of 7
Animals Act Consultation III – General Comments
Please provide any other comments on the proposed LRO
1. Our main concern is with the proposed wording in relation to the “defence” being
afforded to keepers of animals with “conditional characteristics”, in s.2(5).
(a)
As the law stands at present, per the House of Lords’ decision in Mirvahedy, strict
liability will be established (under s.2(2)(b)) where an animal displays
characteristics which, while not normal for animals of that species, are normal for
that species at particular times, or in particular circumstances.
Prior to this decision, the Court of Appeal had already confirmed that it is the
keeper’s knowledge of the characteristic that will be taken into account, and not
his knowledge of the circumstance giving rise to the characteristic. Further, that
“knowledge” of that characteristic can be imputed to the keeper.
The litigation which has followed this case has essentially argued whether a
characteristic is a general one (i.e. at particular times/in particular circumstances),
and therefore falls within the Mirvahedy definition, thus giving rise to strict liability.
The proposed amendments seek to give the keeper a defence, depending on his
knowledge of the circumstances giving rise to the animal’s characteristic in any
particular case.
We consider it appropriate that strict liability should arise in the case of an animal
with unusual characteristics that are known to the keeper, and therefore agree
with the proposed amendments in this respect. However, we do not consider it
appropriate for strict liability to continue to arise in cases of “conditional
characteristics” (which we believe is likely to occur on the basis of the wording
currently proposed). Nor do we believe that that was the Law Commission’s
intention when initially drafting this legislation.
In our opinion, liability for conditional characteristics should only arise where the
keeper knows of that conditional characteristic in that animal, and has failed to
take reasonable steps to prevent damage arising as a consequence of that
conditional characteristic.
On the basis of the amendments currently proposed, it is unclear how the
“knowledge” defence will work. For example, will strict liability be imposed where
a bitch with pups bites someone, when it has never bitten before in such
circumstances, or a horse escapes from a field due to a storm, when it has never
done so before in such circumstances, or (per Lord Scott at paragraph 114
onwards in Mirvahedy), someone provokes a police horse at a demonstration, and
someone else is injured by that horse kicking out. (The reason for liability would
be that the police know that horses in general may be provoked at such
demonstrations, and may kick out in those circumstances).
Another example discussed in Mirvahedy was the horse that “spooks” at a plastic
bag blowing in the wind. Would an owner be liable if he knew it was a windy day,
or would he need to know that it was a windy day and that there was a risk of
plastic bags blowing in the wind nearby? Likewise, in the case of a horse that
spooks/breaks its field in a storm, would the owner be liable only if he knew a
storm was imminent, or only if he knew this and that his horses tended to spook in
a storm?
(b)
Lord Scott also points out the anomaly (on the Act as currently drawn), between
wild animals and captive animals. For example, a wild deer that panics in a
vehicle’s headlights and causes an accident will result in no liability, whereas a
Animals Act Consultation - Kennedys' response.doc
6 of 7
deer that has somehow escaped from a park, and causes a similar accident, may
result in a finding of strict liability against its keeper. This problem was raised in
Breeden v Lampard, and Lord Scott queries why the Act (as currently drawn) is
not explicit in this respect, if indeed the intention were to impose strict liability in
such circumstances.
As Lord Scott points out, there is always a possible remedy available in
negligence.
We believe the proposed wording allows this anomaly to persist, and anticipate
that expert evidence will still probably be called in future cases (i.e. costs will
continue to be substantial, and probably disproportionate to the value of the
claims).
(c)
We also anticipate difficulties in the interpretation of s.2(5)(b), in particular the
words “no particular reason”. Is this meant to cover a keeper where he has taken
all reasonable steps to avoid the circumstances giving rise to the characteristic
from occurring, or where the animal has not previously displayed that
characteristic in those circumstances (albeit that characteristic can be present in
the species generally, in those circumstances)? Again we raise the examples of
the bitch with pups that has never bitten anyone when with previous litters/the
horse that has never previously broken out of its field in a storm (i.e. in similar
circumstances to those in Mirvahedy).
Lord Scott in Mirvahedy (at paragraph 113) criticises the word “particular”, and
quotes the trial judge at first instance as saying that, “all times and all
circumstances can be said to be ‘particular’. One can always find particularity
attaching to any time or to any circumstance.”
Unfortunately, however, if the word “particular” is removed, doubtless claimants
will endeavour to find a reason why the keeper ought to have had “knowledge”,
and therefore argue that the keeper cannot take advantage of the defence
provided.
(d)
Another potential anomaly with the proposed amendments to s.2(5)(b) is that a
novice keeper of animals may escape liability where an experienced keeper will
not, the novice keeper arguing that his lack of experience is a “particular” reason
why he did not expect the circumstances to arise.
2. In our opinion, all the above anomalies ought to be satisfactorily resolved if, at s.2(2)(c)
the amendment reads “that characteristic was known to that keeper…”, as opposed to
limiting this sub-section to cases of “unusual characteristics”, and if at s.2(5)(b) the
amendment reads “does not apply by virtue of a conditional characteristic if the keeper
shows that he took all reasonable steps to prevent the damage arising as a
consequence of that conditional characteristic”.
Animals Act Consultation - Kennedys' response.doc
7 of 7