Defra - Publication of Responses to Consultation Animal Act

[TrueBlueTerrier]

LTB 778/09 Defra - Publication of a summary of responses to the Consultation on proposed changes to the Animals Act 1971 to clarify the application of

No. 778/09
Ref P18
Date: 14 September 2009

To: All Branches

Dear Colleagues

Defra - Publication of a summary of responses to the Consultation on proposed changes to the Animals Act 1971 to clarify the application of 'strict liability' to the keepers of animals that cause harm or damage. (27 March - 19 June 2009).

Further to LTB 547/09 dated 25 June 2009 reported to Branches, Regional Health and Safety Forums and Health and Safety Representatives, the Union's response to the Defra consultation to obtain views on a government proposal to amend section 2 of the Animals Act 1971 regarding the application of 'strict liability' to the keepers of animals that cause harm or damage.

The effect of what the government were proposing would be to introduce new wording into the Law that in effect limits the application of 'strict liability' by providing a defence for the animal owner or keeper of the animal whereby following an incident or attack on a person, if the owner or keeper can show that there was no particular reason for them to expect it to happen or the circumstances that provoked to arise at that time, then they were free from any responsibility! The CWU response expressed the view that the government's proposal to limit the application of 'strict liability' is flawed. It is common knowledge that dogs have a mind of their own. It is often this "independence" that causes the problem. In the many of dog attacks on postal workers the owner immediately says the "dog has never done that before".

In line with the CWU "Bite-Back" Campaign the CWU response strongly rejected the government proposals and criticised the Defra consultation document which to our shock and surprise included a number of profound errors when referring to the UK the Dangerous Dogs Act 1991 and the Criminal Courts (Sentencing) Act 2000 in respect of postal workers.

Demonstrating the problem with the Animals Act - in a recent case an owner allowed his dog, a 12-stone Great Dane to run free off the lead. The dog then lunged at a passer by knocking him down and breaking his ankle. The County Court awarded £15,000 Damages to the victim only for the Court of Appeal to overturn the judgement, accepting that the owner didn't expect his dog to cause any physical harm or damage as a result from letting it off the lead and so the victim got nothing for his pain, suffering and losses. The perverse judgement also indicates to dog owners that they can allow their dogs to run free, out of control with impunity and that they need not worry about acting responsibly or exercising any duty of care in preventing possible personal injury or damage caused by their dog to other persons or their property! The government's proposal intends to consolidate the Appeal Court Judgement into the Law instead of correcting it!

Another highly flawed argument presented by the Government in favour of change is that although there may be a cost to the National Health Service, it only involves a relatively small number of cases where people are injured in incidents involving animals. The CWU response pointed out that around 500,000 people are treated in A&E Hospital departments, GP Surgeries and minor injury clinics each year for dog attack injuries and the majority go unreported. The total and significant cost of all this to the NHS falls on the tax payer with irresponsible dog owners and Insurers walking away "scot free". Strict Liability and the need to maintain adequate Insurance Cover backed by a "Motor Insurers Bureau (MIB)" type Insurance Scheme may well focus people's minds on the risks associated with irresponsible or reckless dog ownership.

Another Government argument in favour of the proposed change was to "restore business confidence". The CWU response criticised this statement pointing out that it would not restore any business confidence to Royal Mail and would do the reverse by giving dog owners a licence to continue with inadequate controls over their animals. If owners are forced to take more care and responsibility and dog attacks reduce then Royal Mail would not have so many employees, injured and off work sick, recovering from dog attack injuries with Royal Mail suffering loss of productivity and having to pay out sick pay etc plus the government having to pay out various benefits.

Another glaring problem with the consultation document is that it includes dog ownership along with owners and businesses that keep and utilise animals, such as farms, riding schools, livery yards, petting zoos, pony trekking establishments and equestrian centres. The CWU response pointed out that Dogs in particular need to be looked at separately from Horses, Pigs, Cows and Sheep etc as Dogs, in the main are kept in private and commercial premises and currently present a big threat and risk of injury to postal workers. There is a significant difference here which the government has overlooked in their weak arguments!

The CWU response strongly supports the view shared by many in the legal profession, including the CWU Lawyers that 'strict liability should apply to all cases' where harm or damage is caused by animals, in particular dogs. Worryingly, the Government lack any coherent strategy on these matters and is facing both ways. The Minister recently issued a statement that he is "determined to crack down on irresponsible dog ownership and ensure that those who use dogs to injure people are dealt with rigorously" but this consultation document declares that "it does not accept the principle that all animal keepers should be automatically liable for the actions of their animals when they cause injury or damage". The CWU's view on Liability in negligence as it should apply in cases where damage is caused by animals is a simple one and that is that if a person wishes to keep an animal then they have a duty to ensure that it doesn't cause personal injury and damage to property. With animals, the keeper must expect the unexpected on the side of caution.

The CWU response viewed the statement on responsible animal keeping and irresponsible ownership as pure 'gobbledygook'. The Government has done nothing to foster responsible animal keeping and irresponsible ownership is increasing as there is a lack of criminal and civil sanctions to deal with irresponsible, reckless, negligent and criminal animal keepers. The government's proposals to change and 'water down' the Animals Act will make things worse.

The Government consultation document wrongly stated that "In the case of Postmen, injured when they are attacked by dangerous dogs, the animals owners can be prosecuted under the Dangerous Dogs Act 1991, a disqualification order and a destruction order could be made by the Court plus under section 130 of the Criminal Courts (Sentencing) Act 2000 compensation could also be awarded to the victim following a successful conviction."

In the CWU response we had to correct the Government, pointing out that the Dangerous Dogs Act does not apply on private property and as 70% of the 6000 Postmen and Women attacked by dogs every year occur on private property, neither does the Dangerous Dogs Act protect them and neither does the Criminal Courts (Sentencing) Act 2000 compensate them. Therefore we found ourselves correcting the government on its own Laws following this amazing public display of ignorance as Defra clearly doesn't even understand the Law as it currently stands in the UK and how the law is enforced and discharged.

Our response called on government to deal with cases where injury compensation is not recovered in many cases of injuries caused by animals, mostly dogs with uninsured or untraced owners or people with no money. The CWU suggested that the Government should introduce an MIB type scheme, supported jointly by government and the Insurance Industry backed by a Dog Registration/microchipping, Compulsory Insurance Scheme whereby the injured victims of Animal attacks can claim compensation in cases of uninsured or untraced owners.

The CWU consultation response also strongly criticised the admission in the consultation document that the proposed changes would bring about a situation whereby some victims who are currently able to pursue successfully a claim for compensation after being injured by an animal might not be able to do so in future under the amended Act. Our response stated that this is totally unacceptable to the CWU as its difficult enough as it is and needs to be made easier not more difficult if the owners of these animals are to be made more responsible.

In the concluding part of the consultation document the Government wrongly concluded that the proposal is "not highly controversial" and our reply to that was that as far as the CWU is concerned and as far as CWU members employed by Royal Mail as delivery Postmen and Women, suffering 6000 Dog Attacks a year are concerned it is controversial and members of the Government are out of touch and 'not living in the real world'.

The Defra General Summary, they report that 35 responses were received in total, from a variety of sources, including legal firms and insurance companies, national organisations, riding schools and equestrian businesses, representative bodies, educational establishments and individual members of the public. A list of all respondents (excluding private individuals) can be found at Annex A (reproduced below). Overall, a large majority of responses (27 or 77%) agreed that the Act needed clarification, but only 37% of respondents agreed with the Government's proposed wording for the amendment. A further 40% of respondents agreed that the Act needed clarifying but did not agree with the Government's proposed wording, with several offering alternative suggestions for amending the Act. A total of 6 respondents (17%) disagreed that the Act needed amending and preferred to see the Act remain as it was. 6% did not express a strong opinion either way. The Government is now considering all available options in the light of the responses received. A more detailed summary of the consultation responses together with an indication of the Government's proposed way forward will be published as soon as possible they say.

Annex A
Respondents
Allianz Insurance
Association of Areas of Outstanding Natural Beauty
Association of British Insurers
Association of British Riding Schools
Association of Personal Injury Lawyers
Berrymans Lace Mawer Solicitors
British Driving Society
British Equestrian Federation
British Horseracing Authority (BHA)
British Small Animals Veterinary Association (BSAVA)
Brown Jacobson Solicitors
Cilan Riding Centre
Communication Workers Union
Companion Animal Welfare Council
Country Land and Business Association
Countryside Alliance
Dogs Trust
Farmers Union of Wales
Harper Adams University College
Health and Safety Executive
Kennedy's Solicitors
Kennel Club
Keogh's Solicitors
Knight's Solicitors
Llanthony Riding and Trekking Centre
Martineau Solicitors
National Farmers Union
NFU Mutual Insurance
Royal Society for the Prevention of Cruelty to Animals
South Essex Insurance Brokers
Tenant Farmers Association
Thompsons Solicitors
Trading Standards Institute
World Horse Welfare

Yours sincerely


Dave Joyce
CWU National Health, Safety & Environment Officer

Proposed Changes to the Animals Act 1971.doc

[Thunderthighs]

On my last attack, the dog chased/attacked/backed me up onto a road. This was when my injury occurred. I assume this isn't Private land, but is in fact a Public place, run/overseen by the local Council as it is a normal thoroughfare. It is in fact the only main road along the estate, with houses either side to deliver to.

Sorry for being "selfish", but this may be a very important point to clarify any Legal positions down the line.

This was the 4th such attack in 10 months, all the other 3 taking place within front gardens etc. However, the first owner admitted liability, but is unemployed, on benefits and doesn't have home insurance etc. It seems that whatever the Law may be, people will ignore/flout it, either intentionally or through ignorance.
Still off sick...