One of the first fruits of the Law Commission was the Animals Act 1971 – based on its 13th Report, published in 1967, two years after its creation. A year later this led Peter North, later a Law Commissioner himself, to write The Modern Law of Animals – a concise commentary on the new law, with explanations as required of how and where it differed from the old. Forty years later, Sir Peter North (as he now is) has produced Civil Liability for Animals. This is a revised edition of the earlier work. As well as updating the commentary on the individual sections of the Act by showing how those provisions been interpreted in the courts it gives some retrospective views on the reform.
As North reminds us, the Animals Act was a conservative reform. Previous reformers had preached the abolition of the common law on liability for animals and argued for bringing it within the framework of the general law of negligence; but the Law Commission had thought otherwise, arguing that the old law should be retained and subjected to fine tuning, which is what the 1971 Act then did. The only radical change resulting from the exercise was the reversal of the rule in Searle v. Wallbank (1946), the House of Lords decision holding that no one could be liable in negligence for letting his animal stray from his land into the road, there to cause a traffic accident – a decision widely criticised, provoking the comment that in stating this to be the common law the author of the judgment, Viscount Maugham, had thereby shown himself the equal of his brother (Somerset Maugham) in the world of fiction. As North reminds us, the Law Commission's caution, and the conservative nature of the resulting Act, produced its own crop of cutting comment, some of which he quotes. These comments can be summed up in the words of a critic of another project: ‘The Law Commission was meant to be the architect of the new law – not the jobbing builder to the old’.
How should we judge the 1971 reform after 40 years? In two well-known respects it clearly made a mess of things, or at least, failed to correct a mess that was already there. One is section 2(2) of the Animals Act, which provides for a limited degree of strict liability for the harm done by a domestic animal. The general idea behind this provision was to make the keeper of domestic animal strictly liable for the harm it does if, contrary to the nature of its kind, it has a vicious streak, and the keeper knows of it: a rule which is quite sensible. But the effect of it as literally interpreted by a majority of the House of Lords in Mirvahedy v Henley (2003) is to make the owner strictly liable where his animal behaves in just the sort of way that animals of this type behave when challenged, scared, or teased, if this is why the beast in question bolted, kicked or bit: a rule which, by contrast, appears to make no sense at all. This decision is analysed in chapter 2, together with the various unsuccessful attempts that have been made to reverse the effect of it by legislation. The second oddity is section 3, which – reproducing the strange rule first enacted in the memorably-entitled Dogs Act and Dogs (Amendment) Act – makes the owner of a dog strictly liable if it kills or injures livestock, but not if it kills or injures human beings. This anomaly is discussed in chapter 7, where the author also tells us how the Republic of Ireland, where the same rule also formerly applied, has now changed the law to make dog-owners strictly liable for dog attacks on humans too.
On the other sections of the Act there have been few reported cases and little academic comment. This suggests that the rules contained in them are clear and the results which they produce are not perceived to be unjust. And from this the correct deduction, I believe, is that the 1971 reform was mainly a success. From this lack of discussion, law teachers wanting to reduce the size of syllabuses sometimes deduce that liability for animals can be safely dropped. But if this part of the law works smoothly, that surely does not mean that it should be dismissed as unimportant. With an estimated million horses, 10 million cats, 10 million dogs and 900 million farm animals in this country, damage done by animals must be a significant area of legal business, even if the resulting cases never reach the courts, let alone the law reports. So the new edition of North's book will be a useful addition to the lawyer's library.
Provided, that is, they are prepared to buy it. Whereas the original, a hardback, cost £3.20p for 229 pages, the new one, a paperback, costs £55 for 210: a high price for a small book, even if it is a good one.
