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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