LIABILITY FOR ANIMALS
Tortious Liability for animals may be classified thus:
Liability for cattle trespass
Liability for dangerous animals (the scienter action)
Liability for dogs
Liability in negligence
Note: In the Caribbean, the common law principles have been modified by statute in
certain jurisdictions:
Animals (Civil Liability) Act 1980, Cap 194A (Barbados) has codified much of the law
relating to liability for animals, using as its model the Animals Act 1971 of England and
Wales.
Trespass Act, Cap 392 (Jamaica) has amended the law relating to cattle trespass in that
country.
Legislation imposing strict liability for harm by dogs has been introduced in some
jurisdictions i.e. (Guyana, Jamaica, Barbados, British Virgin Islands)
One can incur tortuous liability by:
Keeping pigs and goats who create a stench, causing private nuisance if it interferes with
the neighbours enjoyment of his land (Walwyn v Brooks)
Liable in public nuisance if the animals are allowed to obstruct the highway and thereby
cause particular damage to the plaintiff.
One who deliberately set his dog upon a person will be liable for battery as if he had
struck the person a blow with his fist.
One who trains his parrot to defame someone may also be liable for slander
LIABILITY FOR CATTLE TRESPASS
One of the oldest causes of action in the common law is where: Cattle in possession or
control of the D are either intentionally driven on to the plaintiff’s land or stray onto such
land independently…
“[the owner] is bound to take care that it does not stray onto the land of my neighbour;
and I am liable for any trespass it may commit, and for the ordinary consequences of that
trespass; whether or not the escape of the animal is due to my negligence is altogether
immaterial. (Cox v Burbridge).”
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.
Damages are recoverable not only for harm caused to P’s land and crops but also injury
to his animals and chattels and for any injuries inflicted upon the plaintiff himself.
East Coast Estate Ltd. v. Singh
Cattle belonging to D strayed onto Pl’s land and damaged ‘pangola grass’. D alleged that
he was driving cattle along road, rain began to fall and was forced to drive cattle into a
nearby common whence, through no fault on his part, they strayed onto the Pl’s land.
Held: liability in cattle trespass is strict, and the D was liable irrespective of any intention
or negligence on his part.
Note the distinction: You may not be liable for damages caused by an animal that veers
over onto neighbouring lands from the road. However, liability may be imputed upon the
D if the cattle trespasses onto another’s property, coming from the field where they were
kept.
Statutory defence
Section 14 of the Trespass Act (Jamaica) provides a defence for the owner of
trespassing livestock who has properly fenced his land.
This section provides a wider defence to cattle trespass than the defences at common law,
and shows that liability is far from strict.
At common law, in Salmond’s view, the only established defences are volenti non fit
injuria, plaintiff’s own default in failing to perform a duty to fence by law or by
prescription, and Act of God; and weight of authority is against admitting act of a third
party and other forms of inevitable accident as defences.
West v Reynolds Metal Co.
It was held that, where the D’s land bordered on the P’s on two sides, north and east, and
both were enclosed by good and sufficient fences’, this was not sufficient to bring him
within the protection of the section when his cattle escaped on to the P’s land, since the
D’s lands was not enclosed on all sides.
Parties to an action in cattle trespass
As 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 sue.
Aziz v Singh (scienter action)
The D’s steers had trespassed upon Y’s land, where the P’s steers were tethered with Y’s
permission, and there inflicted fatal injuries upon the P’s animals. The P’s action
succeeded on scienter but, not as regard to cattle trespass. It was established that the D
was found to have knowledge of the vicious propensity of his steers to attack other
animals and therefore held liable for fatal injuries inflicted by them on the P’s steers.
Verity CJ held that:
The mere acquisition of permission to tie animals upon the land of another confers upon
the holder no interest in or right to possession of the land sufficient to ground an action in
cattle trespass, nor could the P plead that he was entitled to damages for the harm he had
sustained as a consequence of a trespass on the land of a third party.
In the Trespass Act (Jamaica), the right to sue for cattle may not be restricted to a person
having an interest in land upon which the offending cattle have trespassed, for s 12 gives
a right of action in respect of ‘any injury’ done by stock enough to include injury to nonoccupiers and their property.
Who is the proper Defendant?
Sect 12 of the Act provides that:
It shall be the duty of the proprietor of any stock to take proper and effective measures to
prevent such stock form trespassing on to the land of other person, and subject to the
provision hereinafter contained, such proprietor shall be responsible in damages in
respect of any injury done by such stock trespassing on to the land of other persons.
In Sinclair v Lindsay:
The Jamaican Court of Appeal held that where cattle had depastured onto another
person’s land and causes damage then the owner of the cattle is liable in damages. Note,
however, that in Thompson v AG, a person in possession or control who is not the owner
of the cattle may be liable; and such possessor will be the occupier of the land on which
the cattle are placed and from which they have strayed.
Note that at common law, a person in possession or control that is not the owner of the
cattle may be liable; and such possessor will normally be the occupier of the land on
which the cattle are placed and from which they have strayed. To them liability is
imputed.
Trespass from the Highway
At common law, there is no liability in cattle trespass where animals lawfully on the
highway, without negligence on the part of the person bringing them there, stray there
from on to the P’s land and do damage. If a person has land near a road it is said that they
have deemed to have consented to run the risk of animals entering upon it. (Tillett v
Ward)
Section 13 of the Trespass Act reproduces this rule in statutory form with the
modifications that
The immunity does not apply where the P has fenced his land to keep out livestock.
The onus is on the D to show that his stock were being lawfully driven along the
highway, and not on the P to show the unlawfulness of the D’s conduct.
LIABILITY FOR DANGEROUS ANIMALS (Scienter)
In this area, the common law classifies animals into two categories:
Animals ferae naturae: Those belonging to a naturally fierce, wild or dangerous species,
such as lions, tigers, bears, gorillas and elephants.
Animal mansuetae naturae: Those belonging to a naturally tame, harmless and in most
cases, domesticated species, such as horses, donkey, cows, sheep, goats, cats and dogs.
The owner or keeper of and animal ferae naturae is strictly liable for any harm which it
causes, and it is irrelevant whether or not the particular animal has shown a propensity for
that kind of harm in the past.
In Tillet v Ward the keepers of a ‘tame’ elephant in a circus were held liable when the
animal, without aggression, knocked down and injured the P.
The owner or keeper of an animal mansuetae naturae, however, is liable for harm caused
by the animal only if:
The particular animal has shown a particular propensity in the past to do harm of that
kind.
The owner or keeper is proved to have had knowledge of such propensity.
Proof of knowledge of an animal’s vicious propensity is called ‘scienter’. Burden of
proof is on the P.
The following principles of liability under the scienter action have been established by
the cases:
Whether a specie of animal is to be classified as ferae or mansuetae naturae is a question
of law for the judge, to be decided on judicial notice or on expert evidence.
The requisite knowledge of an animal’s vicious propensity must relate to the particular
propensity that caused the damage. For instance, if a dog attacks a man, it must be shown
that the animal had a propensity to attack humans; it would not be sufficient to show a
propensity to attack other animals.
In establishing scienter, it is not necessary to show that the animal had actually done the
particular type of damage on a previous occasion: it is sufficient to prove that it had
exhibited a tendency to do that kind of harm e.g. To show that a dog habitually rushes out
of his kennel, attempting to bite passers-by.
Knowledge of an animal’s vicious propensity will be imputed to the D where it is
acquired by someone to whom the D delegated full custody or control of the animals e.g.
husband to wife to maid.
For the purpose of the scienter action, it is immaterial where the animal’s attack took
place; whether, for example, on the P’s land, on the D’s premises, on the land of a third
party, or on the highway or other public place.
In the case of harm caused by an animal of mansuete naturae, the propensity of the
animal must be shown to be vicious or hostile. The D will not be liable if the animal was
merely indulging in a propensity towards playfulness or some other non-aggressive
behaviour, especially where such propensity is common to most animals of that species,
for instance, the frolicking of high spirited horses, or dogs chasing each other or running
across traffic.
McIntosh v McIntosh
The P was riding his jenny along a bridle track when the D’s jackass jumped on to it in an
attempt to serve it, causing injuries to both the P and the jenny. There was evidence that,
on a previous occasion, the jackass had attempted to serve the jenny while it was in a
lying position and had kicked it, and that the D knew about this.
Held: The D was not liable, since the jackass, in attempting to serve the jenny, was
merely displaying a natural propensity.
The donkey, as the learned judge has held, is a domesticated animal, and the authorities
show that where a domesticated animal, does something which is merely an exercise of
its natural propensity, damage caused as a result is not recoverable.
*Note on negligence*
Cooley v James
Unlike the scienter action, in an action for negligence in respect of harm caused by an
animal, the owner or keeper will be liable for damage caused by the animal in following
its natural propensities, since such damage will be foreseeable and not too remote.
Conversely, if the animal exhibits an unnatural tendency and causes damage thereby, the
D will not be liable, since the damage will then be too remote.
Who Can Be Sued?
Liability under the scienter action rests on the person who harbours and controls it.
In most cases, the owner of the animal will be its keeper, but this is not necessarily so.
However, the mere fact that an occupier has tolerated the presence of someone else’s
animal on his land does not fix him with responsibility for its mischief. Thus:
In North v Wood:
The father was not liable for an injury inflicted by a dog owned and fed by his 11-yearold daughter.
Or in Knott v London
A school authority was not liable when a dog kept on school premises by the caretaker
attacked and injured a cleaner.
Defences
Under scienter
Default of the Plaintiff: It may be a good defence to show that the P, at the time he was
injured by the animal, was trespassing on the D’s land (unless the animal was kept there
with the deliberate intention of injuring)
Default of the P will also be a defence where the P brings the injury upon himself by, for
example, stroking a zebra at a zoo (Marlor v Ball)
OR
Teasing a dog (Sycamore v Ley)
Contributory Negligence
Volenti Non Fit Injuria: will apply where persons whose livelihoods it is to deal with
dangerous animals, such as a zoo keeper and animal trainers, are injured in the course of
their work.
Act of a Stranger: In Baker v Snell it was held that the keeper of a fierce dog was not
liable for injuries caused when a trespasser maliciously let the animal off its chain, but
more recent cases seem to have decided that act of a stranger is no defence to a claim in
scienter, on the ground that the intervention of a stranger should be taken to be within the
foreseeable risk created by the possession of a dangerous animal.
In Brown v Henry
The Jamaican Court of Appeal preferred the view of certain textbook writers that the
defence of act of a stranger is available but qualified, and can succeed only if the
evidence shows that the owner of the animal took all reasonable care to prevent third
parties form meddling with it.
vis- a-vis (comparison with, in relation to, in reference to).
Scienter in the Caribbean
Not many cases arise in the Caribbean under scienter action due to the fact that liability
for dogs is now governed in several jurisdiction by statutory provisions imposing strict
liability.
Scienter action was successful in Aziz v Singh (D having knowledge of his steer’s
propensity to attack goes upon P’s land and fatally injures P’s steer).
Williams v Martin (Guyanese case)
The owner of a horse, who knew of its vicious propensity to attack other horses was held
liable for injuries inflicted on the P’s horse, which had been pastured with it.
Abrose v Van (Trinidad and Tobago)
Here, the P’s sow was attacked in its pen and killed by the D’s boxer dog. There is
evidence that on at least three previous occasions, the dog had attacked other animals and
that the D was aware. Accordingly, the C of A found D liable for the value of the sow.
Contra case (Sims v McKinney)
Scienter action was not successful where two mongrels (pot-cakes) attacked and bit a
tourist. It was held that no scienter action lie because the owner did not know of the
propensity of the dogs vicious nature to attack others prior to the incident.
LIABILITY FOR DOGS
There are several reasons why the law has treated as a special type of animal mansuete
naturae:
High population of dogs
Dogs are kept for a number of purposes (guard dog, pets, hunters)
They are notoriously energetic and difficult to keep under restraint and are prone to stray.
Dogs are not within the definition of ‘cattle’ at common law.
Some Commonwealth Caribbean jurisdiction provide for forms of strict liability for harm
caused by dogs.
S 2 of the Dogs (Liability for Injuries by) Act of Jamaica provides for strict liability on
the owner of the dog where injury is caused to “ person, cattle or sheep by his dog, and it
shall not be necessary for the party seeking such damages to show a previous
mischievous propensity in such dog, or the owner’s knowledge of such previous
propensity, or that the injury was attributable to neglect on the part of such owner.”
Note departure from the common law, where it was necessary to prove that the
owner knew of its mischievous propensity in order to establish liability.
Note, however that the D can still use certain defences e.g. Volenti non fit injuria,
Contributory Negligence, Plaintiff a trespasser.
Brown v Henry
The P, a 12 year old boy, brought an action to recover damages for injuries received as a
result of an attack upon him by the D’s dog. The dog was seized upon the boy by the
provocation of two boys, unbeknown to the D.
Held: Strict Liability was imposed by the Dog (Liability for injury) Law
Defence of act of a stranger could only arise where the owner of the dog had done
everything he could have done to prevent third parties from meddling with it, which was
not the case. Damage caused by a third party can be raised, but as per Savary J:
“But in our opinion it can be raised successfully only where the owner of a dog has done
everything he reasonably could be expected to do to prevent third persons from meddling
with it.”
Salmon v Stewart (Court of Appeal, Jamaica)
The P was riding his bicycle along a public street when the D’s dog, which was sitting on
a wall beside the road, jumped on the P’s knee and caused him to fall off his bicycle and
fracture his foot. It was not known whether the dog intended to attack the P or whether
the dog was acting in frolic.
Held : the D was strictly liable under the Liability for Injuries by Dogs Law.
Anderson v Ledgister (Court of Appeal, Jamaica)
The respondent’s dog entered the appellant’s land and there killed the appellant’s goats.
There was no proof of any mischievous propensity in the dog.
Held: the respondent was strictly liable under s 2 of the Liability for Injuries by Dogs
Law. The word cattle as used in the section was wide enough to include goats.
Wilson v Silvera (Court of Appeal, Jamaica)
One Christmas Day, the appellant called at the respondent’s house to leave a present for a
friend who resided there as a paying guest of the respondent. The gate to the premises
was closed but the front door of the house was open. Having called out several times, the
appellant entered, and, while she was standing on the steps leading to the front door, she
heard a voice say, ‘Come in’ or ‘Coming’. Immediately, two dogs belonging to the
respondent dashed through the open door and savagely attacked her, causing severe
injuries. Three questions were to be determined:
Whether the Liabilities of Injuries by Dogs Law created an absolute liability for injuries
by dogs
If it did not, whether the appellant was a trespasser, and if so, whether the respondent
could rely on this as a defence;
Whether the appellant was guilty of contributory negligence.
Held: The Law did not create an absolute liability. It merely relieved a P from proof
of scienter and negligence. Other defences, such as ‘plaintiff a trespasser’ and
contributory negligence, could be raised, as a common law.
Note: No person is to be accounted a trespasser who enters in order to hold any manner
of communication with the occupier or any other person on the premises, unless he
knows or ought to know that his entry is prohibited. (Salmond on Torts)
It is quite true that many householders dislike tract distributors, pedlars and tramps, but
common law usage appears to sanction their visits except when they are expressly
prohibited; for example, by a notice, ‘No canvassers, hawkers or circulars’.
LIABILITY FOR NEGLIGENCE
Quite apart from any liability in cattle trespass or under the scienter rule, the keeper of an
animal owes a duty to take care that it does not become a source of harm to others. In
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
negligence.
Draper v Hodder
The D bred Jack Russell terriers. He had 30 dogs on his premises, including puppies. A
pack of seven terriers rushed through the ungated back yard of the D premises across the
lane to the ungated back yard of the house of the P’s parents. The P, an infant, was
attacked and badly injured by a pack of Jack Russell terrier dogs which suddenly dashed
out of the D’s premises, the P could not recover in cattle trespass because dogs are
not included within the definition of ‘cattle’; 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. He did succeed in negligence, however, on the ground that
the D knew or ought to have known that Jack Russell terriers could be dangerous if
allowed to roam about in packs, and yet he had taken no steps to fence them in or
otherwise prevent them from escaping and doing damage. Note that damage to P was
caused by bites.
Conditions for Negligence:
The P can not succeed unless they can show that there was a special risk of injury to
others.
That the peculiar kind of injury that occurred was foreseeable.
With regard to b, if, for example, a horse bit a human, it would not be sufficient for the
victim to show that the horse was high spirited and, therefore, likely to knock people
down, for harm from a bite is of a totally different kind form harm by accidental
collision.
Rule in Searle v Wallbank
The occupier of premises adjoining a highway is under no duty to users of the highway to
prevent his domestic animals, not known to be dangerous, from straying onto the
highway and causing accidents. Thus at common law, there is no duty upon the owner of
land to maintain a fence or other obstacle around the property to keep his animals in
(unless they are known to be vicious).
BUT
Exceptional circumstances may require fencing; for example, where a dog dashed on to
the road so often that it became ‘more like a missile than a dog’.
If the D actually brings, leads or drives an animal on to the highway, he is under a duty to
take reasonable care that it does not cause damage there.
Coley v James:
The D’s servant brought a cow onto a busy suburban highway and negligently left it
unattended so that it trotted off home and, in the course of doing so, collided with and
damaged the P’s car.
Held: the D was held liable in negligence.
Contra case:
Blackwood v Chen:
The appellant’s mule was being led along a road with a rope by the appellant’s servant. It
was dark and, being startled by the lights of the respondent’s van, the animal reared up
and struck and damaged the hood of the van.
Held: It was held that the appellant was not liable, since his servant had made every effort
to control the animal and was in no way negligent.
Note that the burden of proof that the appellant’s boy was guilty of negligence was on the
respondent. The respondent had to establish that the appellant’s agent, having brought an
animal on to the highway, had not taken reasonable care to prevent it form doing damage
to persons or property thereon.
In Henry v Thompson (Grenadian case)
Where a cow with a chain around its neck ran through a gap in the fence on the
defendant’s adjacent land onto a busy highway, and there collided with and damaged the
P’s car, Patterson J held the D liable on the grounds that:
To keep a cattle on land abutting a busy urban link road was a ‘special circumstance’,
displacing the general rule that there was no duty to prevent the straying of domestic
animals onto the highway.
The fact the D had invested this particular cow with a long chain around his neck was
evidence of his knowledge of the animal’s mischievous tendency to ‘escape onto the
highway with great speed.’
The danger in modern times of large animals such as a cow or bull straying from
unfenced land onto the highway and coming into contact with fast –moving vehicles has
prompted some jurisdictions to abolish the rule of Searle v Wallbank.
In the Cayman Islands, s 31 of the Animals Act 1976 imposes strict liability on the owner
of livestock for harm caused by their straying onto the highway.
In Sims v McKinney
As an alternative to the claim based on scienter action, the P pleaded that the D was liable
in negligence for failure to secure his premises to prevent the escape of his dogs onto the
public road, and failure to restrict the freedom of movement of the dogs in the interest of
safety.
Georges CJ found for the D on both claims.
Under the common law, there was an important exception to the general principles of
negligence. It was that, in the absence of special circumstances relating to the behaviour
of an animal, which was known to the landowner, there was no duty to fence or maintain
existing fences on land adjoining a highway so as to prevent an animal straying on to it.
Compare the case of Sims v McKinney to Draper v Hodder.
There is no evidence that the D in Sims v McKinney was a breeder of dogs to whom
might be imputed any special knowledge of their propensities.
Potcakes are perhaps the most common of dogs in the island of New Providence and it
cannot be said that there is any special risk of attack from potcakes when wandering in
pairs or large numbers.