Dogs - Animals Act 1971 - Consultation on Strict Liability

[TrueBlueTerrier]

Letter to Branches




No. 924/11
Ref P18
Date: 1 November 2011

To: All Branches,

Dear Colleagues,


Dogs - Animals Act 1971 - Consultation on Strict Liability - CWU 'Bite-Back' Campaign:

Whilst the Union's 'Bite-Back' Campaign has rightly been concentrating its attention on replacing the Criminal Law, Dangerous Dogs Act 1991, a problem has developed with the Animals Act 1971 which is an Act to make provision with respect to civil liability for damage done by animals and with respect to the protection of livestock from dogs;
and for purposes connected with those matters.

The background is that in a House of Lords judgement in the case of Mirvahedy v Henley, the Law Lords interpreted the wording of the Act, to mean that strict liability should apply to the keepers of all animals. Shortly after midnight on the night of 28-29 August 1996 Mr Mirvahedy was driving home from his work along a dual carriageway road when his car came into collision with a horse when it ran across the road and crashed into the car. He suffered serious personal injuries. The Henleys, the horses owners were held strictly liable for their horse's actions which, and thus for Mr Mirvahedy's injuries, under section 2(2)(b) of the Animals Act 1971. The decision confirming that the keepers of animals could be held responsible for any damage caused by their animals

In order to satisfy animal owners and businesses who keep and utilise such animals, such as farms, riding schools, livery yards, zoos and pony trekking establishments. The Defra Ministers of the last government launched the Consultation aimed and changing the Law to reduce the number of instances under the Animals Act 1971 when,
following an accident involving certain types of animal, an owner of the animal is found strictly liable (that is, liable to pay compensation regardless of whether there is any fault on the owner’s part). The proposal was to amend Section 2 of the Animals Act 1971 to clarify the application of strict liability to the keepers of animals that cause harm or damage and the possibility of doing this through a Legislative Reform Order (LRO).

Branches and Representatives will recall that in 2009 the CWU Health, Safety & Environment Department responded to a consultation undertaken by Defra opposing the proposed changes and supporting the application of 'strict liability' to the keepers of animals that cause harm, injury or damage to people, property and other animals. We stressed the fact that it is perverse to enable irresponsible dog owners who's dog attacks and injures a postal worker to escape liability, simply by claiming it's out of character for the dog or it's never bitten a person before which is what was happening before the Mirvahedy v Henley judgement under what was known as the “first bite” rule.

Responses to the 2009 consultation were evenly split 50/50 and the law remained
unchanged.

Defra Ministers have recently decided that they would like to reopen this matter and the Health, Safety & Environment Department received a letter from Defra informing us that Ministers in the new Coalition Government want to reopen the matter and look into the possibility of making the changes which the Union opposed in 2009 again through the Legislative Reform Order (LRO) route. Defra informed us that if it is decided
that this should be pursued again, Defra will be conducting a further formal public consultation exercise in due course. However, Defra wanted to inform us of the current position, and invite our comments and input. The letter from Defra is attached.

The CWU remains extremely concerned about this matter and remains totally opposed to the 2009 Government proposal which was to amend section 2(2) of the Act in order to restrict the application of strict liability to a more narrowly defined range of circumstances in cases where damage and personal injury is caused by animals of
so-called non-dangerous species including 'Dogs'.

We have stressed that 6000 Postal Workers are attacked and injured by Dogs in the UK every year. The total inadequacies of the Law (both the Dangerous Dogs Act 1991 and the Animals Act 1971) often leads to situations where irresponsible owners escape criminal prosecution and civil liability for compensation to the injured victim.

In some cases where liability is established, severely injured Postal workers still receive no compensation because Dog Insurance is not compulsory in the UK and if the owner has no assets then personal injury compensation is not forthcoming.  

The CWU believes strongly that the House of Lords were correct in the Mirvahedy v Henley case judgement, which confirmed strict liability applied under the Act to the keepers of all animals.

If the Government's intention is to clarify the legislation that has long been considered confusing and subject to judicial criticism then it should be clarified  in favour of strict liability applying to animal keepers, particularly dogs, in order to strengthen the onus on people to become responsible owners and to assist those animal injury victims
in being able to pursue a claim for compensation from the keepers under strict liability.

The CWU Health, Safety & Environment Department have made that point that and changes to the Animals Act 1971 should be consistent with guidance issued by the Home Office in its Circular 67/1991, which specifically refers to 'dog attacks on Postmen and Women' in relation to the Dogs Act 1871, a Civil Act. This enables a Court Order under section 2 of the Dogs Act 1871 to be issued (for a dog to be kept under proper control or to be destroyed) to be made whether or not a dog has previously caused injury. This ensures that there is no “first bite” rule for Orders made under the Dog Act 1871 and there is no requirement to establish the dog had bitten before
and was dangerous. Therefore Defra are in danger of making the situation worse should they decide to proceed with changes to the Animals Act as the conclusion would be that two Ministries - Defra and the Home Office would be giving opposing advice.!

A copy of the letter from Defra and our reply are attached for your information.

Yours Sincerely


Dave Joyce
CWU National Health, Safety & Environment Officer

[TrueBlueTerrier]

Communication Workers Union
Dave Joyce National Health & Safety Officer
150 The Broadway, Wimbledon, London SW19 1RX
Tel: 020 8971 7365/7308 E-Mail: djoyce@cwu.org

26 September 2011


Tony Williamson
Head of Rural Fairness Policy
Defra
Rural Communities Policy Unit
Area 3B
Nobel House
Smith Square
London SW1P 3JR
Telephone: 0207 238 5640
E-mail: tony.t.williamson@defra.gsi.gov.uk


Dear Tony,

Animals Act 1971 - Consultation on Strict Liability:

Please note we are the Communication Workers Union and not the Commercial Workers Union.

Many thanks for your 19 September 2011 letter regarding the above.

We note that Ministers have returned to the issue considered in the 2009 public consultation regarding a proposal to amend Section 2 of the Animals Act 1971 to clarify the application of strict liability to the keepers of animals that cause harm or damage and the possibility of doing this through a Legislative Reform Order (LRO).

The CWU remains extremely concerned about this matter and remains totally opposed to the 2009 Government proposal which was to amend section 2(2) of the Act in order to restrict the application of strict liability to a more narrowly defined range of circumstances in cases where damage and personal injury is caused by animals of so-called non-dangerous species including 'Dogs'.

6000 Postal Workers are attacked and injured by Dogs in the UK every year. The total inadequacies of the Law (both the Dangerous Dogs Act 1991 and the Animals Act 1971) often leads to situations where irresponsible owners escape criminal prosecution and liability for compensation to the injured victim.

In some cases where liability is established, severely injured Postal workers still receive no compensation because Dog Insurance isn't compulsory in the UK and if the owner has no assets then personal injury compensation is not forthcoming.

The CWU beleives strongly that the House of Lords were correct in the Mirvahedy v Henley case judgement , which confirmed a broad interpretation of the wording, bringing within the scope of strict liability under the Act the keepers of all animals. The Henleys were held strictly liable for their horse's actions, and thus for Mr Mirvahedy's injuries, under section 2(2)(b) of the Animals Act 1971. The decision confirming that the keepers of animals could be held responsible for any damage caused by their animals. It is perverse to suggest otherwise in our view.

If the Government's intention is to clarify the legislation that has long been considered confusing and subject to judicial criticism then it should be clarified in favour of strict liability applying to animal keepers, particularly dogs, in order to strengthen the onus on people to become responsible owners and to assist those animal injury victims in being able to pursue a claim
for compensation from the keepers under strict liability.

The changes to the Animals Act 1971 should be consistent with Home Office Circular 67/1991 paragraphs 48 - 50 and Annex A, Section 3, paragraphs 5 to 7 which specifically refers to 'dog attacks on Postmen and Women' in relation to the Dogs Act 1871 which is intended to provide a remedy regarding controls on dangerous dogs in and around private homes to people like postmen and women who are regularly at risk of attacks from dogs in front gardens. Annex A, Section 3, Paragraph 5 states; It is hereby declared for the avoidance of doubt than an Order under section 2 of the Dogs Act 1871 (Order on complaint that a dog is dangerous and not kept under proper control) -
(a) may be made whether or not the dog is shown to have injured any person; and
(b) may specify the measures to be taken for keeping the dog under proper control, whether by muzzling, keeping on a lead, excluding from specified places or otherwise.
(c) enables action to be taken against dogs even in situations where no offence has
been committed or can be established.
(d) The Act is not confined to a public place, so enables controls to be exercised over, for instance, dogs which attack postmen or behave in such a way as to frighten neighbours in their gardens.
(e) enables an Order under section 2 of the Dogs Act 1871 (for a dog to be kept under proper control or to be destroyed) to be made whether or not a dog has previously caused injury. This ensures that there is no “first bite” rule for Orders made under the Dog Act 1871. (i.e. not having to establish the dog had bitten before and was dangerous).
(f) clarifies the powers of the court to make an Order under the Dogs Act 1871 to specify how this control might be exercised, for instance by requiring a dog to be muzzled or kept on a lead, or excluded from specific places.
(g) The reference in section 1(3) of the Dangerous Dogs Act 1989 c.30 (penalties) to failing to comply with an Order under section 2 of the said Act of 1871 to keep a dog under proper
control shall include a reference of failing to comply with any other Order made under that section.

If it is decided that this should be pursued, and you conduct a further formal consultation in due course we will respond as before and our observations and comments at this stage are set out above.

Yours Sincerely


Dave Joyce
National Health, Safety & Environment Officer




CC: Lord Henley Parliamentary Under-Secretary
Jim Paice Minister of State

[TrueBlueTerrier]

Department for Environment, Food and Rural Affairs

Rural Communities Policy Unit
Area 3B Nobel House
Smith Square
London SW1P 3JR


Website http://www.defra.gov.uk" onclick="window.open(this.href);return false;


Dave Joyce
Commercial Workers Union






Date 19 September 2011



Dear Mr Joyce

Animals Act 1971

In 2009 you responded to a consultation undertaken by Defra on a proposal to amend section 2 of the Animals Act 1971 to clarify the application of strict liability to the keepers of animals that cause harm or damage through a Legislative Reform Order (LRO).

Defra Ministers have recently decided that they would like to reopen this matter and I am writing to inform you that they have asked me to look into the possibility of doing this again through the LRO route.

If it is decided that this should be pursued, we will be conducting a further formal consultation in due course. However, I wanted to let you know the current position, and I would, of course, welcome any observations or comments you would like to make at this stage.


Yours sincerely


Via e-mail


Tony Williamson
Head of Rural Fairness Policy

Telephone: 0207 238 5640
E-mail: tony.t.williamson@defra.gsi.gov.uk

[dbrooks76]

Interesting posts.

Currently it is not illegal for a dog to bite a person that has entered someone's private land, which is actually the reason why most dog attacks go without "justice".

However, I've recently had a disagreement of sorts with my line manager on this very matter. His view (and I'm not saying its the view of the Royal Mail etc) is that if there are notices warning of dogs and/or a post box separate from the main door, then if we deliver it is at our own risk as they resident has mitigated their obligations by taking what measures they can to "protect" a postman or woman.
He went further and said that - and indeed this was the case - I was nervous of making a delivery where I knew there to be dogs, I was in breach of our safety standard and therefore has taken the risk upon myself.

I don't think its as clear cut as you make out on your posts - but I'm still trying to get hold of a standard that says how we handle the situation and who's responsible. Safety talks are one thing...

Does anyone know the standard or policy I should have a look at - I'd like to beat my line manager in this one!! ;p

[brothermagrew]

With regards to the illegality part of your post that would be applicable in England and Wales but not in Scotland and Northern Ireland where the law has changed.