Liability for Animals as Per Text (1)

7/25/2019 Liability for Animals as Per Text (1)

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LIABILITY FOR ANIMALS

Tortious Liability for animals may be classified thus:Liability for cattle tresass

Liability for dan!erous animals "the scienter action#

Liability for do!sLiability in ne!li!ence

Note: In the $aribbean% the common la& rinciles ha'e been modified by statute incertain (urisdictions:

Animals "$i'il Liability# Act )*+,% $a )*-A "Barbados# has codified much of the la&

relatin! to liability for animals% usin! as its model the Animals Act )*.) of /n!land and

0ales1Tresass Act% $a 2*3 "4amaica# has amended the la& relatin! to cattle tresass in that

country1

Le!islation imosin! strict liability for harm by do!s has been introduced in some(urisdictions i1e1 "5uyana% 4amaica% Barbados% British 6ir!in Islands#

One can incur tortuous liability by:7eein! i!s and !oats &ho create a stench% causin! ri'ate nuisance if it interferes &ith

the nei!hbours en(oyment of his land "0al&yn ' Broo8s#

Liable in ublic nuisance if the animals are allo&ed to obstruct the hi!h&ay and therebycause articular dama!e to the laintiff1

One &ho deliberately set his do! uon a erson &ill be liable for battery as if he hadstruc8 the erson a blo& &ith his fist1

One &ho trains his arrot to defame someone may also be liable for slander

LIABILITY FOR $ATTL/ TR/S9ASS

One of the oldest causes of action in the common la& is &here: $attle in ossession or

control of the are either intentionally dri'en on to the laintiff;s land or stray onto such

land indeendentlythe o&ner? is bound to ta8e care that it does not stray onto the land of my nei!hbour@

and I am liable for any tresass it may commit% and for the ordinary conseuences of that

tresass@ &hether or not the escae of the animal is due to my ne!li!ence is alto!ether

immaterial1 "$o ' Burbrid!e#1C

The owner of cattle (which, at common law, includes not only cows and bulls, but

also horses, donkeys, sheep, pigs, goats and poultry) is strictly liable for all damage

done by such cattle when trespassing on the land of another.

ama!es are reco'erable not only for harm caused to 9;s land and cros but also in(ury tohis animals and chattels and for any in(uries inflicted uon the laintiff himself1


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East Coast Estate Ltd. v. ingh

$attle belon!in! to strayed onto 9l;s land and dama!ed Dan!ola !rass;1 alle!ed that

he &as dri'in! cattle alon! road% rain be!an to fall and &as forced to dri'e cattle into a

nearby common &hence% throu!h no fault on his art% they strayed onto the 9l;s land1Eeld: liability in cattle tresass is strict% and the &as liable irresecti'e of any intention

or ne!li!ence on his art1

Note the distinction: You may not be liable for dama!es caused by an animal that 'eers

o'er onto nei!hbourin! lands from the road1 Eo&e'er% liability may be imuted uon the

if the cattle tresasses onto another;s roerty% comin! from the field &here they &ere8et1

Statutory defence

ection !" of the Trespass #ct ($amaica) provides a defence for the owner of

trespassing livestock who has properly fenced his land.

This section ro'ides a &ider defence to cattle tresass than the defences at common la&%

and sho&s that liability is far from strict1

At common la&% in Salmond;s 'ie&% the only established defences are 'olenti non fit

in(uria% laintiff;s o&n default in failin! to erform a duty to fence by la& or by

rescrition% and Act of 5od@ and &ei!ht of authority is a!ainst admittin! act of a third

arty and other forms of ine'itable accident as defences1

%est v &eynolds 'etal Co.

It &as held that% &here the ;s land bordered on the 9;s on t&o sides% north and east% andboth &ere enclosed by !ood and sufficient fences;% this &as not sufficient to brin! him

&ithin the rotection of the section &hen his cattle escaed on to the 9;s land% since the

;s lands &as not enclosed on all sides1

9arties to an action in cattle tresass

#s in other forms of trespass to land, the right to sue arises from occupation of land

and only a person with an interest in land can sue1

#i v ingh "scienter action#The ;s steers had tresassed uon Y;s land% &here the 9;s steers &ere tethered &ith Y;s

ermission% and there inflicted fatal in(uries uon the 9;s animals1 The 9;s action

succeeded on scienter but% not as re!ard to cattle tresass1 It &as established that the

&as found to ha'e 8no&led!e of the 'icious roensity of his steers to attac8 otheranimals and therefore held liable for fatal in(uries inflicted by them on the 9;s steers1

6erity $4 held that:The mere acuisition of ermission to tie animals uon the land of another confers uon

the holder no interest in or ri!ht to ossession of the land sufficient to !round an action in

cattle tresass% nor could the 9 lead that he &as entitled to dama!es for the harm he had

sustained as a conseuence of a tresass on the land of a third arty1


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In the Tresass Act "4amaica#% the ri!ht to sue for cattle may not be restricted to a ersonha'in! an interest in land uon &hich the offendin! cattle ha'e tresassed% for s )3 !i'es

a ri!ht of action in resect of Dany in(ury; done by stoc8 enou!h to include in(ury to non

occuiers and their roerty1

0ho is the roer efendantG

Sect )3 of the Act ro'ides that:

It shall be the duty of the rorietor of any stoc8 to ta8e roer and effecti'e measures to

re'ent such stoc8 form tresassin! on to the land of other erson% and sub(ect to thero'ision hereinafter contained% such rorietor shall be resonsible in dama!es in

resect of any in(ury done by such stoc8 tresassin! on to the land of other ersons1

n inclair v Lindsay:The 4amaican $ourt of Aeal held that &here cattle had deastured onto another

erson;s land and causes dama!e then the o&ner of the cattle is liable in dama!es1 Note%

ho&e'er% that in Thomson ' A5% a erson in ossession or control &ho is not the o&nerof the cattle may be liable@ and such ossessor &ill be the occuier of the land on &hich

the cattle are laced and from &hich they ha'e strayed1

Note that at common la&% a erson in ossession or control that is not the o&ner of the

cattle may be liable@ and such ossessor &ill normally be the occuier of the land on

&hich the cattle are laced and from &hich they ha'e strayed1 To them liability is

imuted1

Trespass from the *ighway

At common la&% there is no liability in cattle tresass &here animals la&fully on the

hi!h&ay% &ithout ne!li!ence on the art of the erson brin!in! them there% stray there

from on to the 9;s land and do dama!e1 If a erson has land near a road it is said that theyha'e deemed to ha'e consented to run the ris8 of animals enterin! uon it1 (Tillett v

%ard)

Section )2 of the Tresass Act reroduces this rule in statutory form &ith themodifications that

The immunity does not aly &here the 9 has fenced his land to 8ee out li'estoc81

The onus is on the to sho& that his stoc8 &ere bein! la&fully dri'en alon! thehi!h&ay% and not on the 9 to sho& the unla&fulness of the ;s conduct1

L#+LT -& /#01E&2 #0'#L (cienter)

In this area% the common la& classifies animals into t&o cate!ories:

Animals ferae naturae: Those belon!in! to a naturally fierce% &ild or dan!erous secies%

such as lions% ti!ers% bears% !orillas and elehants1

Animal mansuetae naturae: Those belon!in! to a naturally tame% harmless and in most

cases% domesticated secies% such as horses% don8ey% co&s% shee% !oats% cats and do!s1


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The o&ner or 8eeer of and animalferae naturaeis strictly liable for any harm &hich it

causes% and it is irrele'ant &hether or not the articular animal has sho&n a roensity for

that 8ind of harm in the ast1

In Tillet v %ardthe 8eeers of a Dtame; elehant in a circus &ere held liable &hen the

animal% &ithout a!!ression% 8noc8ed do&n and in(ured the 91

The o&ner or 8eeer of an animal mansuetae naturae% ho&e'er% is liable for harm caused

by the animal only if:The articular animal has sho&n a articular roensity in the ast to do harm of that

8ind1

The o&ner or 8eeer is ro'ed to ha'e had 8no&led!e of such roensity1

3roof of knowledge of an animal4s vicious propensity is called 5scienter41 Burden of

roof is on the 91

The follo&in! rinciles of liability under the scienter action ha'e been established by

the cases:

0hether a secie of animal is to be classified as ferae or mansuetae naturae is a uestion

of la& for the (ud!e% to be decided on (udicial notice or on eert e'idence1

The reuisite 8no&led!e of an animal;s 'icious roensity must relate to the articularroensity that caused the dama!e1 For instance% if a do! attac8s a man% it must be sho&n

that the animal had a roensity to attac8 humans@ it &ould not be sufficient to sho& a

roensity to attac8 other animals1

In establishin! scienter% it is not necessary to sho& that the animal had actually done the

articular tye of dama!e on a re'ious occasion: it is sufficient to ro'e that it hadehibited a tendency to do that 8ind of harm e1!1 To sho& that a do! habitually rushes out

of his 8ennel% attemtin! to bite assersby1

7no&led!e of an animal;s 'icious roensity &ill be imuted to the &here it isacuired by someone to &hom the dele!ated full custody or control of the animals e1!1

husband to &ife to maid1

For the urose of the scienter action% it is immaterial &here the animal;s attac8 too8

lace@ &hether% for eamle% on the 9;s land% on the ;s remises% on the land of a third

arty% or on the hi!h&ay or other ublic lace1

In the case of harm caused by an animal of mansuete naturae% the roensity of the

animal must be sho&n to be 'icious or hostile1 The &ill not be liable if the animal &asmerely indul!in! in a roensity to&ards layfulness or some other nona!!ressi'e

beha'iour% esecially &here such roensity is common to most animals of that secies%

for instance% the frolic8in! of hi!h sirited horses% or do!s chasin! each other or runnin!

across traffic1

'cntosh v 'cntosh


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The 9 &as ridin! his (enny alon! a bridle trac8 &hen the ;s (ac8ass (umed on to it in anattemt to ser'e it% causin! in(uries to both the 9 and the (enny1 There &as e'idence that%

on a re'ious occasion% the (ac8ass had attemted to ser'e the (enny &hile it &as in a

lyin! osition and had 8ic8ed it% and that the 8ne& about this1Eeld: The &as not liable% since the (ac8ass% in attemtin! to ser'e the (enny% &as

merely dislayin! a natural roensity1

The don8ey% as the learned (ud!e has held% is a domesticated animal% and the authorities

sho& that &here a domesticated animal% does somethin! &hich is merely an eercise of

its natural roensity% dama!e caused as a result is not reco'erable1

60ote on negligence6

Cooley v $ames

Hnli8e the scienter action% in an action for ne!li!ence in resect of harm caused by an

animal% the o&ner or 8eeer &ill be liable for dama!e caused by the animal in follo&in!

its natural roensities% since such dama!e &ill be foreseeable and not too remote1

$on'ersely% if the animal ehibits an unnatural tendency and causes dama!e thereby% the &ill not be liable% since the dama!e &ill then be too remote1

%ho Can +e ued7

Liability under the scienter action rests on the person who harbours and controls it.In most cases% the o&ner of the animal &ill be its 8eeer% but this is not necessarily so1

Eo&e'er% the mere fact that an occuier has tolerated the resence of someone else;sanimal on his land does not fi him &ith resonsibility for its mischief1 Thus:

In 0orth v %ood:The father &as not liable for an in(ury inflicted by a do! o&ned and fed by his ))year

old dau!hter1

Or in 8nott v London

A school authority &as not liable &hen a do! 8et on school remises by the careta8erattac8ed and in(ured a cleaner1

efences

Hnder scienter

efault of the 9laintiff: It may be a !ood defence to sho& that the 9% at the time he &as

in(ured by the animal% &as tresassin! on the ;s land "unless the animal &as 8et there&ith the deliberate intention of in(urin!#

efault of the 9 &ill also be a defence &here the 9 brin!s the in(ury uon himself by% for

eamle% stro8in! a ebra at a oo "'arlor v +all#

OR

Teasin! a do! "ycamore v Ley#$ontributory Ne!li!ence


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6olenti Non Fit In(uria: &ill aly &here ersons &hose li'elihoods it is to deal &ithdan!erous animals% such as a oo 8eeer and animal trainers% are in(ured in the course of

their &or81

Act of a Stran!er: In +aker v nellit &as held that the 8eeer of a fierce do! &as notliable for in(uries caused &hen a tresasser maliciously let the animal off its chain% but

more recent cases seem to ha'e decided that act of a stran!er is no defence to a claim in

scienter% on the !round that the inter'ention of a stran!er should be ta8en to be &ithin theforeseeable ris8 created by the ossession of a dan!erous animal1

In +rown v *enryThe 4amaican $ourt of Aeal referred the 'ie& of certain tetboo8 &riters that the

defence of act of a stran!er is a'ailable but ualified% and can succeed only if the

e'idence sho&s that the o&ner of the animal too8 all reasonable care to re'ent third

arties form meddlin! &ith it1

'is a'is "comarison &ith% in relation to% in reference to#1

cienter in the Caribbean

Not many cases arise in the $aribbean under scienter action due to the fact that liability

for do!s is no& !o'erned in se'eral (urisdiction by statutory ro'isions imosin! strict

liability1

Scienter action &as successful in #i v ingh" ha'in! 8no&led!e of his steer;s

roensity to attac8 !oes uon 9;s land and fatally in(ures 9;s steer#1

%illiams v 'artin (1uyanese case)

The o&ner of a horse% &ho 8ne& of its 'icious roensity to attac8 other horses &as held

liable for in(uries inflicted on the 9;s horse% &hich had been astured &ith it1

#brose v 9an (Trinidad and Tobago)

Eere% the 9;s so& &as attac8ed in its en and 8illed by the ;s boer do!1 There is

e'idence that on at least three re'ious occasions% the do! had attac8ed other animals andthat the &as a&are1 Accordin!ly% the $ of A found liable for the 'alue of the so&1

$ontra case "ims v 'c8inney#Scienter action &as not successful &here t&o mon!rels "otca8es# attac8ed and bit a

tourist1 It &as held that no scienter action lie because the o&ner did not 8no& of the

roensity of the do!s 'icious nature to attac8 others rior to the incident1

LIABILITY FOR O5S

There are se'eral reasons &hy the la& has treated as a secial tye of animal mansuete

naturae:

Ei!h oulation of do!so!s are 8et for a number of uroses "!uard do!% ets% hunters#

They are notoriously ener!etic and difficult to 8ee under restraint and are rone to stray1


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o!s are not &ithin the definition of Dcattle; at common la&1

Some $ommon&ealth $aribbean (urisdiction ro'ide for forms of strict liability for harm

caused by do!s1

S 3 of the o!s "Liability for In(uries by# Act of 4amaica ro'ides for strict liability on

the o&ner of the do! &here in(ury is caused to = erson% cattle or shee by his do!% and it

shall not be necessary for the party seeking such damages to show a previous

mischievous propensity in such dog, or the owner4s knowledge of such previous

propensity, or that the in:ury was attributable to neglect on the part of such owner 1C

0ote departure from the common law, where it was necessary to prove that the

owner knew of its mischievous propensity in order to establish liability1

Note% ho&e'er that the can still use certain defences e1!1 6olenti non fit in(uria%

$ontributory Ne!li!ence% 9laintiff a tresasser1

+rown v *enry

The 9% a )3 year old boy% brou!ht an action to reco'er dama!es for in(uries recei'ed as aresult of an attac8 uon him by the ;s do!1 The do! &as seied uon the boy by thero'ocation of t&o boys% unbe8no&n to the 1

Eeld: Strict Liability &as imosed by the o! "Liability for in(ury# La&

efence of act of a stran!er could only arise &here the o&ner of the do! had done

e'erythin! he could ha'e done to re'ent third arties from meddlin! &ith it% &hich &asnot the case1 ama!e caused by a third arty can be raised% but as er Sa'ary 4:

=But in our oinion it can be raised successfully only &here the o&ner of a do! has done

e'erythin! he reasonably could be eected to do to re'ent third ersons from meddlin!&ith it1C

almon v tewart (Court of #ppeal, $amaica)The 9 &as ridin! his bicycle alon! a ublic street &hen the ;s do!% &hich &as sittin! on

a &all beside the road% (umed on the 9;s 8nee and caused him to fall off his bicycle and

fracture his foot1 It &as not 8no&n &hether the do! intended to attac8 the 9 or &hether

the do! &as actin! in frolic1Eeld : the &as strictly liable under the Liability for In(uries by o!s La&1

#nderson v Ledgister (Court of #ppeal, $amaica)

The resondent;s do! entered the aellant;s land and there 8illed the aellant;s !oats1

There &as no roof of any mischie'ous roensity in the do!1

Eeld: the resondent &as strictly liable under s 3 of the Liability for In(uries by o!s

La&1 The &ord cattle as used in the section &as &ide enou!h to include !oats1

%ilson v ilvera (Court of #ppeal, $amaica)

One $hristmas ay% the aellant called at the resondent;s house to lea'e a resent for a

friend &ho resided there as a ayin! !uest of the resondent1 The !ate to the remises

&as closed but the front door of the house &as oen1 Ea'in! called out se'eral times% the

aellant entered% and% &hile she &as standin! on the stes leadin! to the front door% sheheard a 'oice say% D$ome in; or D$omin!;1 Immediately% t&o do!s belon!in! to the


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resondent dashed throu!h the oen door and sa'a!ely attac8ed her% causin! se'erein(uries1 Three uestions &ere to be determined:

0hether the Liabilities of In(uries by o!s La& created an absolute liability for in(uries

by do!sIf it did not% &hether the aellant &as a tresasser% and if so% &hether the resondent

could rely on this as a defence@

0hether the aellant &as !uilty of contributory ne!li!ence1Eeld: The Law did not create an absolute liability. t merely relieved a 3 from proof

of scienter and negligence1 Other defences% such as Dlaintiff a tresasser; and

contributory ne!li!ence% could be raised% as a common la&1

Note: No erson is to be accounted a tresasser &ho enters in order to hold any manner

of communication &ith the occuier or any other erson on the remises% unless he

8no&s or ou!ht to 8no& that his entry is rohibited1 "Salmond on Torts#

It is uite true that many householders disli8e tract distributors% edlars and trams% but

common la& usa!e aears to sanction their 'isits ecet &hen they are eresslyrohibited@ for eamle% by a notice% DNo can'assers% ha&8ers or circulars;1

LIABILITY FOR N/5LI5/N$/

Juite aart from any liability in cattle tresass or under the scienter rule% the 8eeer of an

animal o&es a duty to ta8e care that it does not become a source of harm to others1 n

most cases, it will be unnecessary for a person harmed by an animal to establish

negligence on the part of its keeper, but if, for any reason, an action under the

scienter rule or in cattle trespass is not available, the plaintiff may still recover in

negligence1

/raper v *odderThe bred 4ac8 Russell terriers1 Ee had 2, do!s on his remises% includin! uies1 A

ac8 of se'en terriers rushed throu!h the un!ated bac8 yard of the remises across the

lane to the un!ated bac8 yard of the house of the 9;s arents1 The 9% an infant% &as

attac8ed and badly in(ured by a ac8 of 4ac8 Russell terrier do!s &hich suddenly dashedout of the ;s remises% the 3 could not recover in cattle trespass because dogs are notincluded within the definition of 5cattle4; nor under the scienter rule, because he

could not prove that the defendant had knowledge of a vicious propensity on the

part of any particular dog.Ee did succeed in ne!li!ence% ho&e'er% on the !round that

the 8ne& or ou!ht to ha'e 8no&n that 4ac8 Russell terriers could be dan!erous if

allo&ed to roam about in ac8s% and yet he had ta8en no stes to fence them in or

other&ise re'ent them from escain! and doin! dama!e1 0ote that damage to 3 wascaused by bites.

$onditions for Ne!li!ence:

The 9 can not succeed unless they can sho& that there &as a secial ris8 of in(ury to

others1

That the eculiar 8ind of in(ury that occurred &as foreseeable1


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0ith re!ard to b% if% for eamle% a horse bit a human% it &ould not be sufficient for the'ictim to sho& that the horse &as hi!h sirited and% therefore% li8ely to 8noc8 eole

do&n% for harm from a bite is of a totally different 8ind form harm by accidental

collision1

Rule in Searle ' 0allban8

The occuier of remises ad(oinin! a hi!h&ay is under no duty to users of the hi!h&ay tore'ent his domestic animals% not 8no&n to be dan!erous% from strayin! onto the

hi!h&ay and causin! accidents1 Thus at common la&% there is no duty uon the o&ner of

land to maintain a fence or other obstacle around the roerty to 8ee his animals in"unless they are 8no&n to be 'icious#1

BHT

/cetional circumstances may reuire fencin!@ for eamle% &here a do! dashed on tothe road so often that it became Dmore li8e a missile than a do!;1

If the actually brin!s% leads or dri'es an animal on to the hi!h&ay% he is under a duty to

ta8e reasonable care that it does not cause dama!e there1$oley ' 4ames:

The ;s ser'ant brou!ht a co& onto a busy suburban hi!h&ay and ne!li!ently left itunattended so that it trotted off home and% in the course of doin! so% collided &ith anddama!ed the 9;s car1

Eeld: the &as held liable in ne!li!ence1

$ontra case:

+lackwood v Chen:

The aellant;s mule &as bein! led alon! a road &ith a roe by the aellant;s ser'ant1 It&as dar8 and% bein! startled by the li!hts of the resondent;s 'an% the animal reared u

and struc8 and dama!ed the hood of the 'an1

Eeld: It &as held that the aellant &as not liable% since his ser'ant had made e'ery effortto control the animal and &as in no &ay ne!li!ent1

Note that the burden of roof that the aellant;s boy &as !uilty of ne!li!ence &as on the

resondent1 The resondent had to establish that the aellant;s a!ent% ha'in! brou!ht ananimal on to the hi!h&ay% had not ta8en reasonable care to re'ent it form doin! dama!e

to ersons or roerty thereon1

In *enry v Thompson"5renadian case#

0here a co& &ith a chain around its nec8 ran throu!h a !a in the fence on the

defendant;s ad(acent land onto a busy hi!h&ay% and there collided &ith and dama!ed the

9;s car% 9atterson 4 held the liable on the !rounds that:To 8ee a cattle on land abuttin! a busy urban lin8 road &as a Dsecial circumstance;%

dislacin! the !eneral rule that there &as no duty to re'ent the strayin! of domesticanimals onto the hi!h&ay1

The fact the had in'ested this articular co& &ith a lon! chain around his nec8 &as

e'idence of his 8no&led!e of the animal;s mischie'ous tendency to Descae onto the

hi!h&ay &ith !reat seed1;


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The dan!er in modern times of lar!e animals such as a co& or bull strayin! fromunfenced land onto the hi!h&ay and comin! into contact &ith fast Kmo'in! 'ehicles has

romted some (urisdictions to abolish the rule of Searle ' 0allban81

In the $ayman Islands% s 2) of the Animals Act )*. imoses strict liability on the o&ner

of li'estoc8 for harm caused by their strayin! onto the hi!h&ay1

In ims v 'c8inneyAs an alternati'e to the claim based on scienter action% the 9 leaded that the &as liable

in ne!li!ence for failure to secure his remises to re'ent the escae of his do!s onto theublic road% and failure to restrict the freedom of mo'ement of the do!s in the interest of

safety1

5eor!es $4 found for the on both claims1

Hnder the common la&% there &as an imortant ecetion to the !eneral rinciles of

ne!li!ence1 It &as that% in the absence of secial circumstances relatin! to the beha'iour

of an animal% &hich &as 8no&n to the lando&ner% there &as no duty to fence or maintaineistin! fences on land ad(oinin! a hi!h&ay so as to re'ent an animal strayin! on to it1

$omare the case of ims v 'c8inney to /raper v *odder1There is no e'idence that the in Sims ' Mc7inney &as a breeder of do!s to &hom

mi!ht be imuted any secial 8no&led!e of their roensities1

9otca8es are erhas the most common of do!s in the island of Ne& 9ro'idence and itcannot be said that there is any secial ris8 of attac8 from otca8es &hen &anderin! in

airs or lar!e numbers1

Documents

Liability for Animals as Per Text (1)