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Dr JB Fanning
LAW209: Law of Tort
2018-19
LAW OF TORT
Animals
1. INTRODUCTION
This topic concerns the strict liability which is imposed on the ‘keeper’ of an animal that
causes injury, loss or damage to another person or his/her property.
Common law
Animals Act 1971
2. COMMON LAW
Long-standing interest
Animals may attract liability across range of torts
Gould v McAuliffe [1941] 1 All ER 515
Wheeler v JJ Saunders [1996] Ch 19
League Against Cruel Sports v Scott [1986] QB 240
Roberts v CC of Kent Police [2008] EWCA Civ 1588
Fardon v Harcourt-Rivington (1932) 146 LT 391 HL
Markesinis and Deakin (2013)
Modern society necessitated change in the law; see e.g., Searle v Wallbank [1947] AC 341
Updated and supplemented by Animals Act 1971
Residual function: Draper v Hodder [1972] 2 QB 556
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Dr JB Fanning
LAW209: Law of Tort
2018-19
3. ANIMALS ACT 1971
‘Dangerous’ and ‘non-dangerous’ species
No need for an escape or an attack
Liability imposed on animal’s ‘keeper’ (s 6(3))
3.1.
‘Dangerous’ species
Defined by Animals Act 1971, s 6(2)
Includes tigers, elephants, lions, and the like.
Strict liability (s 2(1))
General background: Mirvahedy v Henley [2003] UKHL 16
Behrens v Bertam Mills Circus Ltd [1957] 2 QB 1
McQuaker v Goddard [1940] 1 KB 697
3.2.
‘Non-dangerous’ species
Animals Act 1971, s 2(2): a keeper will be liable for damage caused by a non-dangerous
animal if:
(a) the damage is of a kind which the animal, unless restrained, was likely to cause or
which, if caused by the animal, was likely to be severe; and
(b) the likelihood of the damage or of its being severe was due to characteristics of the
animal which are not normally found in animals of the same species or are not
normally so found except at particular times or in particular circumstances; and
(c) those characteristics were known to that keeper or were at any time known to a person
who at that time had charge of the animal as the keeper’s servant or, where that
keeper is the head of a household, were known to another keeper of the animal who is
a member of that household and under the age of sixteen.
3.2.1. Section 2(2)(a)
Foreseeability implies objective test
Two limbs
Mirvahedy v Henley, per Ld. Scott
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Dr JB Fanning
LAW209: Law of Tort
2018-19
Smith v Ainger The Times 5 June 1990, per Neill LJ
3.2.2. Section 2(2)(b)
Complicated wording! See: Cummings v Grainger [1977] QB 397, per Ld. Denning at 404;
Turnbull v Warrener [2012] EWCA Civ 412, per Maurice Kay LJ at [4]; and Curtis v Betts
[1990] 1 WLR 459, per Slade LJ at 462
Objective test
First limb concerns ‘permanent characteristics’ (Curtis v Betts, per Stuart-Smith LJ at 469)
Second limb refers to normal characteristics which arise at particular times or in particular
circumstances (Mirvahedy v Henley)
Cummings v Grainger
Curtis v Betts
Welsh v Stokes [2007] EWCA Civ 796: ‘sensible’ horse
Clark v Bowlt [2006] EWCA Civ 978, per Sedley LJ
3.2.3. Section 2(2)(c)
Subjective: did the keeper know of the characteristic?
Hunt v Wallis [1994] PIQR P128
Glanville v Sutton [1928] 1 KB 571
Welsh v Stokes
McKenny v Foster [2008] EWCA Civ 173
3.3.
Liability for dogs
Animals Act 1971, s 3
Special defence: Animals Act 1971, s 5(4)
Animals Act 1971, s 9
3.4.
Liability for straying livestock
One of the oldest forms of strict liability
Animals Act 1971, s 4
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Dr JB Fanning
LAW209: Law of Tort
2018-19
‘Livestock’ defined by s 11 of 1971 Act
The concept of ‘straying on to land’ (s 4(1)); see also Ellis v The Loftus Iron Co (1874) LR
10 CP 10
This liability has a limited scope (s 4(1)(a))
3.5.
Detention and sale of straying livestock
Animals Act 1971, s 7(1): detention
Detainer’s duty (s 7(6))
Statutory right of sale (s 7(4))
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Dr JB Fanning
LAW209: Law of Tort
2018-19
4. DEFENCES AND REMOTENESS
4.1.
Remoteness
1971 Act is silent on this.
The Wagon Mound (No 1) [1961] AC 388
4.2.
Defences
1971 Act’s regime of strict liability does not preclude defences
4.2.1. Fault of the victim
Animals Act 1971, s 5(1)
For example, where C is bitten by D’s dog, which he has just kicked
4.2.2. Voluntary acceptance of the risk
Animals Act 1971, s 5(2)
Cummings v Grainger
Overlap between ss 5(1) and (2): Dhesi v Chief Constable of West Midlands Police The
Times 9 May 2000
Turnbull v Warrener
Goldsmith v Patchcott [2012] EWCA Civ 183
4.2.3. The victim is a trespasser
Animals Act 1971, s 5(3)
Cummings v Grainger
5. CONCLUSIONS
Mirvahedy v Henley makes things easier for claimants
Courts have expressed misgivings about the way the law in this area has developed (e.g.,
Turnbull v Warrener, per Lewison LJ at [43])
North (2012): change may only come via a Private Member’s Bill
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Dr JB Fanning
LAW209: Law of Tort
2018-19
READING
P Giliker, Tort (6th ed., London: Sweet and Maxwell, 2017), 360-367
WE Peel and J Goudkamp, Winfield & Jolowicz on Tort (19th ed., London: Sweet and
Maxwell, 2014), 519-533
S Deakin et al, Markesinis and Deakin’s Tort Law (7th ed., Oxford: Clarendon Press, 2013),
524-540
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