Notwithstanding the usefulness of animals, their propensity for harm may well justify imposing on the owner a duty to protect the community, at his peril, against the typical risks involved in keeping them for his own benefit. Ordinarily, the owner of animals is liable under the general law of tort in negligence for the damage they inflict. There are however, cases where liability for animals is strict i.e. where negligence need not be proved. These are;
1. Liability for cattle trespass
2. Liability under Scienter rule.
Both the cattle- trespass rule and liability for dangerous animals are (but instances of the wider principle )of strict liability which, attaches to the control of all exceptionally dangerous things.
See, Winfield & Jolowicz on Tort, 11th Ed. Pg 433-443; 15th Ed. Pg569-582
John G. Fleming, The law of Torts, 6th Ed. Ps 324-337
Cattle Trespass.
This is not an ordinary trespass, since trespass is ‘direct intentional interference’
It is not nuisance since;
1. Substantial interference need not be proved
2. The defendant’s conduct need not be unreasonable
This head of claim is normally relied on where the invasion by cattle is not intentional on the cattle-owner’s part. Where it is intentional or as a result of negligence, it is more sensible to proceed in trespass and negligence respectively.
Cattle trespass is also different from Rayland’s vs. Fletcher because;
1. It is irrelevant whether land from which animals escape is being put to natural use
2. It is actionable per se (no need to prove damage)
3. It only arises when the land owner also has interest in the cattle
4. It is possible to have cattle trespass without cattle
Ingredients of cattle trespass
The keeper of cattle is bound at his peril to keep them from trespassing and to prevent harm from animals of whose dangerous tendencies he has actual or presumed knowledge.
1. There must be cattle: The definition of cattle extends to cows, bulls, goats, swine, sheep, horses, asses, domestic birds (hens, geese, ducks, turkeys peacocks). But it does not include cats and dogs.
Read; Tallents vs Bell [1944] 2 ALLER 474
The appellant kept rabbits for the purpose of selling them to butchers. It was proved that on two occasions dogs broke into the rabbit hutches and did considerable injury to his rabbits. On the second occasion only two dogs belonging to the respondents were actually found in the hutches. The appellant contended inter alia that the damage came within the meaning of the Dogs Act 1906, ss 1 and 7:
Held – the expression “cattle” did not include rabbits kept for commercial purposes and, therefore, the Dogs Act 1906, ss 1 and 7 did not apply. )
Buckle vs Holmes [1926]2 K.B 125
Theya vs Purnell [1918] 2 K.B 333
Searle vs Wallbank [1947] A.C 341
2. The defendant need not have intended the trespass and need not have acted negligently
3. There need not be damage suffered.
Liability for straying animals.
Brock vs Richards -as a general proposition, the owner of animals is under no liability to prevent them from straying, even though the straying may take a form of leaping over or through hedges. No liability attaches to the owner of such animals simply because he has allowed them to escape from his land. There is no obligation in such circumstances to fence one's land and to keep one's domestic animals in. The rule although found in earlier common law is usually referred to as the rule in Searle v. Wallbank[1947] A.C 341
In Searle v. Wallbank[1947] A.C 341 the plaintiff was injured when at 1.30 a.m. on 1 April 1944 the bicycle which he was riding collided with the defendant's horse on a public highway. The plaintiff's front light was masked in accordance with war-time regulations at the time of the accident. The field, in which the horse was kept, with other animals, adjoined the highway and the horse escaped because of a defective fence. The House of Lords in dismissing the plaintiff's appeal held that the owner of a field adjoining the highway is under no prima facie legal obligation to users of the highway so to keep and maintain his hedges and gates along the highway as to prevent his animals from straying onto it. Nor is he under any duty to users of the highway to take reasonable care to prevent any of his animals, not known to be dangerous, from straying onto the highway.
The justification for the rule in Searle v. Wall bank seems to be mainly historical. It has been stated that “in early times, very few roads were fenced off from the adjoining land, and it would have been a considerable imposition on the owner of cattle if he had been compelled to prevent them from straying”. Moreover, road users were usually taken to have accepted the risks inherent in road travel and this seems to have included the possibility of the presence of straying animals. In recent years, however, because of the increasing speed with which road traffic moves, because of the increasing number of wide and fast-surfaced roads, and because of the serious consequences which may occur nowadays if fast moving traffic collides with animals on the highway, a great deal of dissatisfaction has been expressed about the rule in Searle v. Wall bank. Judicial precedents have put limits on the scope of the rule viz;
1. First, it seems that it does not apply in Ireland, if the animals are straying on the roadway in sufficiently large numbers to cause an obstruction.
2. Second, it was held in Brock vs Richards [1951] 1 K.B 529 at p.535 that the rule does not apply to wild animals or to domestic animals who show peculiar characteristics or where scienter is proved. Thus, if a person knows that his dog has a mischievous propensity to chase passing motor-cyclists he may be liable in scienter if he allows his dog to stray onto the highway.
3. Third, it was held in Gomberg vs Smith [1963]1Q.B 25 it does not apply if animals are brought onto the highway.
4. Fourth, in Howard v. Bergin, O'Connor & Co. O'Connor J., was inclined to limit the application of Searle v. Wallbank to rural conditions. He was of the opinion that the defence that there was no obligation on adjoining owners to fence and that there was no liability for any damage caused by straying animals in any circumstances, was too wide a proposition to be accepted as law. Although it was unnecessary for him to decide the question in the case before him, and although he could find no authorities to support him, he was inclined to the view that the common law which relieves occupiers of land adjoining the highway from fencing does not apply to cities. City dwellers, should according to O'Connor's view, be obliged to fence.
Lastly in the case of Ellis v. Johnstone [1963] 2 Q.B. 8 it was stated that where there were special circumstances such as peculiar topography or where the animal was engaged in an activity which could only be carried on under a high degree of human control it has been suggested that liability might also arise. See also Bativala v. West [1970] 1 Q.B. 716
Liability for dangerous animals (Liability under the Scienter rule)
When an animal of harmless species betrays its own kind by perpetrating damage, its keeper will not be held to strict liability unless actually of its dangerous disposition. This proof is known technically as ‘the scienter rule’.
This head is concerned with liability for damage done by animals which are in the control of the defendant when he knows or is presumed to know of their tendency to do harm of the type.
In the case of Behrens & Anor vs Bertram Mills circus Ltds [1957]2 QB 1
Lord Devlin. J stated that the law as follows; a person who keeps an animal with knowledge (scienter retinuit) of its tendency to do harm is strictly liable for damage that it does if it escapes; he is under absolute duty to confine or control it so that it shall not do injury to others.
* Unlike Rylands vs Fletcher, no escape need have occurred.
* Secondly, it basically deals with personal injuries.
* Thirdly unlike Rylands vs fletcher rule that is based on the occupation of the land, scienter rule is based on the possession of the animal, see Bertram’s case.
For purposes of this tort, animals are divided into;
1. Ferae naturae; Animals which are dangerous by nature
2. Mansuetae naturae; ordinarily harmless animals
“Harmless” animals are of two kinds;
Those harmless by their very character e.g rabbits, and those shown by long experience to be harmless e.g sheep, horses and dogs.
All animals in the second class (mansuetea naturae) are conclusively presumed to be harmless until they have manifested a savage or vicious propensity; proof of such manifestation is proof of scienter and serves to transfer the animal, so to speak, out of its natural class into the class ferae naturea( Behrens & Anor vs Bertram Mills circus Ltds [1957]2 QB 1)
On the other hand, all animals, ferae naturae ie all animals which are not by nature harmless or have not been tamed by man and domesticated are conclusively presumed to have such tendency to do harm so that the scienter need not in their case be proved. Lord Macmillan in regard to liability for such animals stated in Read vs Lyons & Co. Ltd [1946] 2 ALLER 471 at p.476 that a person is under absolute duty to confine or control ( a dangerous animal) so that it shall not do injury. There must be failure to control.
Whether or not an animal is harmless under the scienter rule is a question of law. From decided cases, elephants, zebras, bears, bees, and lions are ferae naturae. In the case of Filburn vs Peoples Palace & Aquarium Co. Ltd (1890) 25 QBD 258 the court of Appeal held as a matter of law that an elephant is an animal ferae naturea. This decision was followed and considered to be binding by Lord Devlin j in Behrens & Anor vs Bertram Mills circus Ltds [1957]2 QB 1. Lord Devlin J further stated that the reason why this is a question of law and not a question of fact is because it is a matter of which judicial notice has to be taken and no evidence is required to prove it. This doctrine has from its formulation, proceeded on the supposition that knowledge of what kind of animals are tame and what kind are savage is common knowledge. However, common knowledge about the ordinary course of nature will extend to knowledge of the propensities of animals according to their different genera, but cannot be supposed to extend to the manner of behavior of animals of the same genus in the different parts of the world.
The classification being a question of law the precedent suffices to justify the classification for the future. The balance of English authority before 1971 seemed to favour the view that whether an animal was to be classed as a ferae naturea or not depended on whether the animal belonged to a species which was a danger to mankind. See Buckle v Holmes [1926]2 K.B 125, although in determining the issue the courts may have regard to the experience of other countries with the animal. It seems that this was the reason why the English Court in McQuaker v. Goddard [1940] 1 K.B 687 classified a camel as mansuetae naturae.
It seems that once a species has been judicially classified as dangerous, then, subject to the doctrine of precedent, there is no room for distinctions based upon the fact that some variants or individual animals within the species may not in fact be at all dangerous.
Cases:
1. M’Quaker vs goddard [1940] 1 K.B 687 at 700-1
2. Yesero Mugenyi vs Securicor (U) Ltd [1972] 1 ULR 80
3. Securicor (U) Ltd vs Yesero Mugenyi [1973]1 ULR 61(EACA)
4. Fulburn vs Peoples Palace Co. [1890]25 QBD 258
5. Glanville v. Sutton [1928] 1 K.B. 571.
Mischievous propensity or viciousness
When an animal ferae naturae causes injury, liability on the part of the keeper thereof automatically arises. But when the animal is ‘harmles’ (mansuetae naturae), then the plaintiff must prove scienter i.e. the dangerous propensity of the animal by showing;
1. That the animal had previously committed or attempted to commit an act showing that particular trait of viciousness complained of
2. That the defendant knew of the act or attempt
* Knowledge of one particular act of biting is sufficient. It is not necessary that the dog has been going around snapping at everybody. It is irrelevant that it is long since the animal last committed the kind of act.
* The kind of harm inflicted on the defendant must be direct and physical.
* Knowledge of particular propensity may be imputed to the defendant
General knowledge of the tendencies of a harmless species – e.g. bulls will attack red, or greyhounds will chase running children – will not be sufficient evidence of mischievous propensity. The evidence must be specific; it must relate to the particular animal in question as well as the particular kind of damage complained of.
The mischievous propensity need not be a chronic or permanent element of its nature, but may be a passing or temporary phase of the character or temper of the particular animal in question. Accordingly, a bitch with pups(female dog with its young ones) may have a mischievous propensity to bite, and a cow with calf afoot may have a mischievous propensity to attack. In Howard v. Bergin, O'Connor & Co. Kennedy C.J. put the matter in the following way:
“In my opinion, however, what is called a “mischievous propensity” may be as well a passing or temporary phase of character or temper of the particular animal as a chronic or permanent element of its nature. If this opinion needs any authority to support it, reference may be made to, inter alia, Turner v. Coates; Manton v. Brocklebank.
I understand by the expression “a mischievous propensity”, a propensity to do mischief, a tendency to do harm or cause injury, whether, in one case, by some single characteristic action such as kicking or goring or biting or, in another case, generally when mischief may be done in any of a variety of ways.”
The defendant must have the knowledge of the vicious propensity before he will be liable in scienter. To summarize the law,
1. Knowledge means actual knowledge, but it is immaterial whether it be acquired,
2. From personal observation or by hearsay, whether
3. By the defendant himself or by his servant who has general charge of the animal, and
4. A long time before or only shortly before injury complained of
5. Both the vicious act and the defendant’s knowledge of it may be proved by an admission of a very general nature.
In Bennet & Another vs Walsh knowledge of a mischievous propensity by a nine year old girl was sufficient to render her father liable in scienter. In Brock vs Richards 1951] 1 K.B 529 the Court of Appeal of England (Sir Raymond Evershed MR) stated that in order to impose liability, the characteristics must be those of viciousness or mischievousness. That the word “vicious” as applied to animals is well understood and indicates a savage disposition, a propensity to attack people. The Master of Rolls (MR) further stated that an animal though not savage, which is dangerous because of its frolicsome behavior, must equally be taken to have propensities against which (if known to the owner) the owner has a duty to guard.
The Proper Defendant: Owner or Keeper?
Liability in scienter is by possession rather than by ownership. The problem becomes acute only where possession and ownership are separated as where, for example, a person lends an animal to another or gives it to another under a contract of bailment. The word used in the old writ – scienter retinuit – also supports the view that possession should be the crucial factor in determining liability rather than ownership. In Walker v. Hall (1876) 40 J.P 456 the trainer of a horse which he knew was accustomed to bite was held liable simply because he had control over the animal. Although it is doubtful whether the owner is liable as such, a master who obliges a servant to keep an animal in the course of his employment, may be vicariously liable in scienter, or at any rate in negligence
Reference cases,
1. Knott v. London County Council [1934] 1 K.B. 126;
2. North v. Wood [1914] 1 K.B. 629.
3. In Crean v. Nolan & Others sheep belonging to the plaintiff were killed by some beagles(small smooth-haired dog ), which had strayed after the termination of a drag hunt organized by the Festival of Kerry Committee. It was held that although a prima facie principal-agent relationship existed between the Festival Committee and the owners of the beagles, this relationship had ended at the time when the beagles had killed the sheep some considerable time after the hunt was over. It is clearly suggested in this case that the defendants might have been liable either in trespass, in negligence or if scienter was proved, if the damage was inflicted during the hunt. During the hunt the Festival Committee it seems would have had sufficient control to attract liability.
1. What is the distinction between ferae naturae and mansuetera naturea animals?
2. What exactly amounts to a “mischievous propensity” on the part of a mansueturea animal?
3. Who is the proper defendant in the sceinter action; the owner of the animal or its keeper?(walker v halls)
4. What defences are available to the defendant in such an action?
