in the ears of goats or other animals, where they too could be associated with mites.

Cottew, G . S. and Lloyd, L. C . (1980) - Aust. A d v . vet. Sci. p.26. Cottew, 0. S. and Yeats, F. R. (1981) - Aust . vet. J . 57: 52. Domrow, R . (1980) - Proc. Linn. SOC. N.S. W. 104 (1979): 183. Lavoioierre. M. M. J. and Larsen. P . H . (1981) - Calif. Vet. 35: . . . .

Acknowledgments 23. Quintero, M . T. C . , Bassols, I . and Acevedo, A . (1980) - Vet. We wish to thank the staff at the Maribyrnong Experiment Station

of CSlRO Division of Animal Health for management of the goats. Mex. 11: 17.

References Adler, H . E . , Da Massa, A . J . and Brooks, D . L . (1980) - A m .

Clyde, W. A . (1964) - J. lmmunol. 92: 958. Cook, R . W. (1981) - Aust. vet. J . 57: 72. Cottew. G . S. (1974) - INSERM (Inst. natl. Same Rech. med . )

J . vet. Res. 41: 1677.

~ 0 1 1 0 9 . 33: 357. (Accepted for publication 1 June 1982)

Liability for harm done by domestic animals

J . HILL

Alexandra House, Flinders Mall, P.O. Box 479, Townsville, Queensland, 4810

Wild Animals Animals generally fall into 2 categories from a point of

view of legal liability. There are those animals which are wild by nature and there are those which are considered tame by nature. The group to which a particular species belongs really depends on the common usage of those animals and therefore varies from one community to another. For exam- ple, the dingo belongs to the wild group whereas the domestic dog belongs to the tame group.

People who keep animals from the wild group as domestic pets in our society do so entirely at their own risk. The animal does not assume the nature of a tame animal simply because it is kept as a domestic pet. In the case Fischer v. Stuart (1979) evidence was heard about a person in the Northern Territory who kept a dingo as a domestic pet. The dingo bit another person who sued the owner of the dingo for damages. A ruling was given that the dingo was still a wild animal even though it was kept as a pet and therefore the owner was absolutely liable for any injury that it may cause even though he may take reasonable care to restrain it and keep it under control. This applied even though the dingo may have shown no previous propensity to be vicious, That, basically, is the law as it applies to harm done by wild animals.

Domestic Animals The situation with regard to harm done by tame or

domestic animals is quite different as legal considerations relate to a combination of medieval laws and normal liability for damage to property or personal injury. The situation is in a state of f lux as endeavours are made to bring the old laws into line with modern social, rural and urban conditions. Liability falls into the 5 broad categories of scienter, cattle trespass, negligence, nuisance, and occupier’s liability. Many situations arise in all of these categories which are applicable to farmers.

Scien ter Scienter means the knowledge of a propensity of a

particular animal to do a particular kind of vicious or hostile act. The requirements are that the person in control of the animal have a fore-knowledge of a propensity and that the propensity of that particular animal be one of a vicious or hostile nature. Under these conditions, the owner of the

Australian Veterinary Journal, Vol. 59, September, 1982

animal has absolute liability for any damage or injury that it may cause if it again perpetrates the same vicious act. In fact, the animal concerned is now considered in the eyes of the law as a wild animal because it has this known propensity. By way of example, i f a person has a bull that has previously gored another person, and it can be shown that the owner knew of this incident, he is fully liable for the injury resulting from a subsequent attack by that bull on another person. This liability would apply even though the other person may have contributed to the incident by his own carelessness, for instance by walking through the bull pen.

There are various provisos. The propensity must apply to this particular animal and not just to the class of animal.

The owner must have actual knowledge of the vicious propensity and it is not just a case that he “ought to have known”. This is a grey area, because it has been held that fore-knowledge is attributed to the owner if his wife knew of the propensity or i f i t was known to the stockman or servant to whom care of the animal had been entrusted.

The lapse of time beween the first vicious attack and the subsequent vicious attack from which the claim for damages arose, is unimportant. The fact that the animal had previously exhibited the tendency, even though years beforehand, and that the owner knew of it is sufficient to allow liability to arise by scienter.

There is a requirement that the action by the animal concerned be vicious or hostile. Thus the court is attributing human characteristics to animals and i t is necessary to look at the intention of the animal. It is almost as if criminal law now applied. Injury caused by a playful or high spirited kick probably does not give rise to a claim under the heading of scienter. That situation could rise with a “poddy” foal where it is well known that it takes a nip. Provided that this nipping takes place in a friendly fashion, then no liability will rise on the basis of scienter, as the attack must be vicious or hostile. Liability may still arise on the basis of negligence, occupier’s liability, or perhaps even nuisance, but these can be harder to establish than the strict liability associated with scienter.

There is probably no claim against an owner in scienter if the injured person was well warned beforehand of the propensity of the animal but continued in his dealings with the animal despite this warning. This situation could apply to a lion tamer or a horse breaker.

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It would be a defence to a claim for damages arising under the heading of scienter if it could be shown that the injury resulted from the injured person deliberately provoking the animal, for instance by teasing or unnecessary spurring.

Some years ago I had an old Cessna 172 parked on an airstrip south of Mt. Isa. Upon returning after doing work for a grazier we found that the aircraft had been extensively chewed by an old horse whose name was Leather. The owner laughed and exclaimed: ‘‘Isn’t that a funny thing, old Leather chewed the last aeroplane that was here too. He must like the paint covering aeroplanes. I had meant to warn you and to stable him.” In hindsight, that would appear to have been a perfect

scienter situation applicable to property damage rather than personal injury, although of course 1 did not realise that a t the time. I t is of course possible that a judge may have thought that scienter did not apply and ruled that Leather was being friendly and was making me feel at home, and that his liking for aeroplanes was neither vicious nor hostile.

Cattle Trespass Cattle trespass is the term that applies to livestock straying

on to land occupied by someone else. The law applying to cattle trespass was known to have operated as far back as the 14th century and has its quaint aspects from antiquity. The term “cattle” in this context is a general word applying to many types of domestic livestock including horses, sheep, goats, but not cats or dogs. This again is a situation where the owner of the livestock is totally liable for any damage that the straying stock may cause to the property of the occupier of the land. It is not necessary for that occupier to show negligence on the part of the owner of the livestock. A person who keeps cattle (in this general terminology) is bound to prevent them from trespassing or making any unjustifiable intrusion on to the land of his neighbour. If they do trespass, he is liable for any resulting damage to that neighbour’s person or property. That may include damage to crops, other animals, etc. It may also include loss of value due to unwanted pregnancies that may result from the wanderings of a bull or stallion. This right of action under the heading of cattle trespass only applies to the occupier of the land and not to the property of any guests that he may have there unless it can be shown that this property was entrusted to the occupier for safe keeping in what is known as a “baileeship”.

Liability can arise for disease introduced by straying stock even though the owner of the straying stock was not aware that his own animals were carrying the disease, as there is no requirement to show negligence.

On the face of it, the owner of stock is duty bound to keep his stock from straying on to neighbouring property and it is up to him to make sure that the fences are not defective. This situation is subject to any prior agreement that may have been reached with regard to maintenance of the fence or alternatively, it is subject to any laws that may apply to the maintenance of that particular fence such as the Dividing Fences Act or laws that may have application if the fence is a barrier fence against marsupials.

The tort of civil wrong of cattle trespass has no application to cats and dogs. Thus if a dog wanders and eats another’s pet guinea pigs in a backyard, then the owner of the guinea pigs does not have an action aganst the owner of the dog under the heading of cattle trespass. This anomaly apparently stems from the concept that no man is truly the master of dogs and cats.

The law of cattle trespass has bearing i f one is caring for someone else’s animals. The liability does not necessarily rest with the owner of the stock but rather with the person having custody and control of those stock. Cattle on agistment do not normally bring this level of liability to the property owner or agister. This was discussed in the case of H e l m v Sullivan (Queensland 1968) in which it was held that an agistment arrangement was usually only a licence to use the land for depasturing stock, and that i t imposed no duty with regard to caring for those animals. Hence the standard

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catchphrase: All care but no responsibility. Responsibility may be transferred to the agister i f this has been set out in a formal agreement. In this case the relationship becomes one of bailment, where the agister has agreed to be entrusted with the care and control of the stock.

Under the old common law of England, the owner or occupier of land was entitled to seize and detain trespassing animals as security for damage done to his property by them. However, this was often a shortsighted remedy as it was a bar to court proceedings for the recovery of such damages. In the above case it was ruled that the agister was not allowed to retain cattle as security against unpaid mustering and branding dues as no lien had been created by the agistment agreement. Such a lien generally only arises in the case of prior agreement to that effect or where the agister has actually done substantial work on the stock to improve them.

Negligence Liability arising under the heading of negligence has no

special connotations because livestock are involved. It arises in the same manner as liability for property damage due to any other cause. The basic law is that any person in control of animals has a duty to take reasonable care to prevent them causing injury or damage to other people or their property. Liability will only arise where the injury or damage complained of was reasonably foreseeable and there was a significant risk of the type of incident happening that caused the injury or damage. For example, such liability could arise where someone ties up an excitable horse in a public place, or where a young child is put on a strong, spirited horse and allowed to rise on a busy roadway. In this second example, both the child and any pedestrian or driver injured by the horse may have an action in negligence against the person putting the child on the horse. Driving horses freely down a road has led to successful actions in negligence.

Thus, liability arises from the failure to take reasonable care and becomes actionable when the accident happens. I t is not the accident itself that creates the liability but rather the lack of reasonable care beforehand.

One is not held responsible for sudden unforseeable lapses in the behaviour of animals which are otherwise well behaved under reasonable conditions, provided always that the animal was not known to have a propensity for that sort of behaviour.

There is no liability in negligence i f all reasonable precau- tions have been taken to prevent foreseeable problems. The question has frequently arisen as to who is responsible for damage arising as a result of livestock that have strayed on to public roads. The cases on this question have followed the English common law, although new statutory laws have been passed in England to update most of this common law. Such statutory alterations are gradually coming about in Australia but the basic law is still held to be that a landholder is not responsible for damage resulting from his animals straying on to adjoining roads. An example of this ruling is shown in the case of Trigwell v Kerrin (South Australia 1978) in which a car collided at night with sheep on a road and then collided with another car resulting in injury to the occupants of the second car. These injured occupants sued the land- holder for damages caused by the straying sheep. The Chief Justice of the High Court, Sir Garfield Barwick, ruled that the landholder was not responsible having regard to old English law, even though this law may be inappropriate under today’s conditions. He foreshadowed that the law needs changing in this area. The landholder only becomes liable if it can be shown that he had actually been negligent or that the stock had a propensity for vicious actions, or that “special circumstances applied”.

It is hard to know what may constitute such special circumstances. I t has been held that special circumstances are not present just due to defective fencing or to the knowledge that these livestock were apt to stray on to the road, or to the black colour of the stock as in Bagshaw v Taylor (1978). Special circumstances may arise where the stock have deliberately been put on the road. I n the case of

Australian Veterinary Journal, Vol. 59, September, 1982

Bribane v Cross (Victoria 1978) a motor cyclist collided with a steer on a country road. The owner of the steer knew that the steer had a propensity to escape on to the road. The presiding magistrate found the owner of the steer was negligent and had taken insufficient precautions to prevent forseeable injury. However, the case went on appeal to a higher court and the ruling was again given on the old common law doctrine that there was no duty to prevent animals straying who were not known to be otherwise dangerous. Incidentally, this does not necessarily mean you are totally blameless i f your animals stray on to roads, as other laws may apply. For instance, in New South Wales there is the Country Roads Act and Summary of Offences Act which have application under certain conditions. This lack of liability simply means that, in the absence of negligence or special circumstances, the user of the road probably has no right of private action against the owner or custodian of the livestock.

Looking to Queensland law, the question of stock on roads was discussed by Mr Justice Andrews in a 1978 case, Stevens v Nudd in the Full Court. Mr Justice Andrews expressed the opinion that an obligation could arise to fence off roads and so prevent animals from straying on to them but that failure to fence or failure to keep animals off the road would only constitute negligence in certain cases. These certain cases presumably coincide with the “special circumstances” that have previously been referred to.

Special cases may arise in the case of oft-used roads in city areas. However, the civil wrong of negligence requires that an injury be reasonably foreseeable. Perhaps it may arise in the case of large livestock in suburban areas where their care and control has been grossly inadequate, and where their presence is unexpected. In the case of Stevens v Nudd i t was held that it was not negligent to have allowed a small dog to run out on to that particular road which was in a suburban area because it was common for dogs to be on that road and road users must expect to encounter dogs on it. Reasonable users of the road should take account of this fact and of the fact that dogs may act unpredictably when confused or afraid.

In summary, the situation with regard to animals on roads stems from a conflict of the rights of a person to use a road and the rights pertaining to the owner of livestock adjacent to the road. The situation in Queensland is dependent on the facts of the individual case such as which road, how frequently i t is used, and the expectation that the particular class of livestock may be found on that particular road at that particular place.

Nuisance The liability for damage caused by animals through

nuisance rests on the notion that a neighbour is entitled to enjoydent of his land free of unpleasant interference from livestock on adjoining land. This right of the neighbour is in conflict with the right of the animal owner to use his land as he sees fit. In our society there must be a balance of these rights so that the neighbour is not unreasonably disturbed by such nuisance factors as flies, smell or noise. At the same time, there must not be too much restriction on how an occupier will use his own land. The test that applies to these cases is whether or not there has been substantial interference of the neighbouring property and whether or not the interference is reasonable according to the ordinary usages of land in that particular society at the present time. No liability arises in the category of nuisance just to placate abnormal sensitivities on the part of the neighbour.

The legal remedies that are available where grounds of nuisance can be sustained are firstly by way of an injunction to prevent further carrying on of the objectionable activity and secondly by way of damages in monetary recompense for such factors as loss of value of the property, or loss of past and future enjoyment of the property.

Australian Veterinary Journal, Vol. 59, September, 1982

Occupier’s Liability There are various circumstances under which liability for

personal injury or property damage under the heading of “occupier’s liability” due to livestock may arise. The occupier of land has a duty to care for people coming on to his property and for the property belonging to someone else that may be on his land. For example, if A has property on B’s land, and animals belonging to C come on to B’s land and damage A’s property, then A may have an action against B, irrespective of whether or not B has care and control of C’s animals.

A duty of care and therefore a legal liability also arises due to any hazards that an occupier of land may have on his property. The degree of liability varies with the reason for which people are on his property. On this basis visitors to the property are divided into 5 classifications. There are contractual visitors, invitees, entrants as of right, licensees, and trespassers. The liability of the occupier to each category of visitor varies considerably.

Contractual Visitors A contractual visitor is a person who pays for the privilege

of coming on to the property, such as people attending a show. They are entitled to expect the property to be as safe as reasonable care and skill on anyone’s part can make it, having regard to the contemplated purpose of their visit to the property. The occupier of the land, which may be a country race club committee, has a duty to make the premises and area safe for both participants and spectators. This duty may be subject to prior arrangements or contracts. The protective value of clauses excluding liability, such as may sometimes be seen on the back of tickets, should be looked at carefully as they are often no safeguard to the occupiers of the property.

Entrants as o f Right and lnvitees Entrants as of right include such people as police or other

government officials who by virtue of their position have a right to be on the property. Invitees are guests of the occupier. The degree of occupier’s liability is about equivalent to both entrants as of right and invitees. The occupier is required to take reasonable care to prevent damage to the persons or property in these categories that may arise from any circumstances constituting a n unusual danger of which the occupier knows or ought to have known, which is not usually found in the circumstances in which, or for which, guests or entrants as of right are on the property. Giving good warning of the unusual danger reduces the liability of the occupier. Thus occupier’s liability may arise in these categories of visitors where a dangerous bull breaks out of a poorly constructed sale pen (Higgins v William lnglis and Sons Pty . Ltd.).

Licensees A licensee is someone who is on land with permission of

the occupier but not as a guest or under any other right. Persons camping who have made prior arrangement to be on the property may well be in this category and are there at their own request but not as guests. The duty of the occupier is to warn the licensees of known dangers and to safeguard them against situations which may appear to be safe and which could reasonably be expected to be safe, but which are in fact not. An example of this may be the presence of a horse near a roadway or picnic areas which is apparently quiet but which is known to turn round and kick when approached.

Trespassers The last category of visitors to whom the occupier has

some liability is the trespasser. The law firstly says that an occupier should not deliberately inflict harm nor wantonly create a danger for trespassers; dingo traps would constitute such a potential danger.

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A higher level of liability exists where the trespassing is of an’ habitual nature and the occupier is aware of, and acquiesces to this constant trespassing. This situation may exist with children walking through someone’s paddock on their way to school or with persons camping habitually being on the property without actual permission. In this situation, the occupier’s liability is on a similar level to that which applies to licensees. The occupier must a t least warn the trespassers of known dangers and he must endeavour to give them adequate protection. The level of liability is higher if the occupier himself has created the dangers and is responsible for their continuance. Such a situation may arise where it is known that children play in the dump on someone’s property and where dangers arise from such sources as smouldering fires or old refrigerators. Dingo bait trails should also be advertised for this reason.

Future Changes Mention should be made of the areas of change which are

likely to be made in the old law of liability pertaining to damage caused by livestock. Changes in laws are considered following changes in social factors such as density of population, place of livestock in the community and means of transport.

The basis to these reforms in the United Kingdom is that those special areas of law related to livestock such as scienter, cattle trespass and the right to detain animals, have been deleted, leaving negligence, nuisance and occupier’s liability as the headings under which action may be taken. This brings liability or damage due to livestock into the same categories as liability for damage from other causes. However, M r Justice Andrews in the case of Stevens v Nudd, held that scienter was still good law in Queensland as was the common law attitude to livestock on roads.

References North, P. M . (1972) - The Modern Law of Animals, Butterworths. Pannam, C . L. (1979) - The Horse and the Law, Law Book Co. Cases Cited Bagshaw v Taylor (1978) - 18 South Australian State Reports 564. Brisbane v Cross (1979) - Victorian Reports 49. Fischer v Stuart (1979) - 37 Federal Law Records 46. Helton v Sullivan (1968) - Queensland Weekly Notes. Higgins v Willam Inglis and Sons Pty. Ltd. (1978) - 1 New South

Stevens v Nudd (1978) - Queensland Reports 96. Trigwell v Kerrin (1978) - 19 South Australian Slate Reports 280.

Wales Law Reports 649.

(Accepted for publication 3 June 1982)

Prevalence of leptospiral titres in normal horses

D. H. SLATTER*t and C. D. HAWKlNSt

Animal Research Institute, Dept. of Primary Industries, Yeerongpilly, Queensland, 4105 and tMurdoch University Veterinary Hospital, Murdoch University, Perth, Western Australia. 6150

SUMMARY: Serum samples were collected from 479 cilnicaily normal horses from 11 different locations in Queensiand. Uslng a microscopic agglutination test, 157 serums (33%) reacted to one or more serovars of Leptospira interrogans at a minimum serum dilution of 1/30. The prevalences of reactors among all horses to the serovars tested were pomona 30.5% icterohaemorrhaglae 23.9%, tarassovi 18.8%’ hardlo 12.2%, canlcola 8.6%’ grippotyphosa 3.6%, and australis 2%. There was a significantly hlgher prevalence of reactors in tropical areas than In sub-tropical areas, but no difference In prevalence between coastal and non-coastal areas. Ausr. vet. J . 59: 84.

Infection with Leptospira interrogans has long been asso- ciated with recurrent uveitis in horses although leptospires have not been demonstrated in affected eyes (Bryans 1955). Although increased titres have been demonstrated in samples of aqueous from affected eyes when compared to serum from the same horse, the significance of this finding is questionable (Bryans 1955). These inconsistencies and inability to fulfil Koch’s postulates have caused the etiologic significance of leptospires in equine recurrent uveitis to be questioned.

Recently Williams et a1 (1973) succeeded in reproducing the lesions of equine recurrent uveitis in horses with Leptos- pira interrogans serovar pornona. The ocular lesions were not apparent for 12 to 18 months after infection, possibly accounting for previous inability to recover leptospires from affected horses or to demonstrate them in sections of affected eyes (Jubb and Kennedy 1971). The pathogenesis of the ocular lesions remains uncertain but immunological involve- ment has been suggested (Kathe, et a1 1952; Williams 1973). This present study was undertaken to determine the prevalence

t Present address: Murdoch University Veterinary Hospital, Perth, Western Australia, 6150

a4

in clinically normal Queensland horses, of serological reac- tions to different leptospiral serovars as a basis for interpre- tation of samples submitted from horses with ocular disease. Additional serovars to those normally monitored in domestic animals (Elder and Ward 1978) were included in this study because of their known presence in wildlife in tropical Queensland (Doherty, et a1 1956).

Samples (479) for testing were submitted by government veterinary officers and private practitioners throughout Queensland (Figure 1) and freighted by air to the laboratory. Due to extensive flooding in Brisbane in December 1974, records relating details of other species of domestic animals on farms from which the samples came and previous exposure to leptospirosis were lost. The microscopic agglutination test (agglutination lysis test) (Winks 1962) was used for all tests in this survey. Titres to Leptospira interrogans serovars pomona, canicola, tarassovi, australis, grippotyphosa and hardjo were determined. Reactions at serum dilutions of 1/30 or greater in the microscopic agglutination test were accepted as being positive, consistent with previous studies (Twigg et a1 1971). Type cultures were obtained from the World Health Organisation Pacific Leptospiral Regional Reference Centre,

Australian Veterinary Journal, Vol. 59. September, 1982