Author: Nishica Srivastava, a B.A.LLB(H) student at Amity University Kolkata
INTRODUCTION
The concept of keepers being responsible for the damage caused by animals owned by them is not new. In fact, the origin of this concept can be traced back to ancient times. The nascent stage of English common law also incorporated the concept of legal liability for harm done by animals, which can be, in particular, be observed by the inclusion of the tort of scienter and cattle trespass. Apart from these, recovery of losses from damages caused by animals can be found in alternative torts such as nuisance, negligence etc.
Thus, the liability of defendant for damage caused by animals can be categorized into the following heads: –
- The Scienter Rule
- Cattle Trespass
- Ordinary Liability in Tort
1. The Scienter Rule
The term ‘scienter’ is a legal term which is used to indicate the knowledge of wrongness or illegality of the act or omission. In tort, the doctrine of scienter is often used to determine the liability of the defendant for damage done by animals. The liability depends on the fact whether he had or ought to have the knowledge of the dangerous tendencies or propensities of the animal. Under this doctrine, animals have been divided into two categories: –
- Animals ferae naturae – This includes animals which have a feral nature and are vicious or dangerous such as lions, tigers, wolf, monkeys, bears, hyenas etc.
- Animals mansuetae naturae – This includes animals which are domesticated or are tame or harmless by nature such as horses, sheep, cows, rabbits, cats, dogs etc.
The keeper is accountable for his animals especially when they are of a dangerous nature. When the defendant is unable to control an animal which he knows or ought to know to be a dangerous one, he shall be liable for the destruction caused by such animal.
For the first category, i.e, animals ferae naturae, scienter or the knowledge of the savage nature of the animal is presumed and the keeper shall be held liable for the damage caused without the requirement of proof of negligence on the keeper’s part. In Stephen May v. Burdett, Lord Denman CJ observed that any person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril and if it does mischief, negligence is presumed without express averments. In Read v. Lyons & Co., the Queen’s Bench laid down that a person keeping a dangerous animal was under an absolute liability to confine and control it so that it should not do harm and where injury was caused by such an animal whilst out of control, the rule of absolute liability will be applied. Thus, it is a well-established principle of law that any person who keeps a dangerous or feral animal shall do so at his own peril.
However, the question arises as to whether the keeper shall be liable if the damage by a savage animal is caused by the wrongful or negligent act of a third party. In Behrens v. Bertram Mills Circus Ltd., the Queen’s Bench ruled that the wrongful act of a third party shall not act as a defence to liability of keeper for the damage or injury caused by a dangerous animal. It was further observed that the keeper of a dangerous animal is under an absolute duty to confine and control it so that it does not harm and hence if injury was caused by such an animal whilst out of control, the rule of absolute liability would be applied whether or not the injury resulted from the animal’s vicious or savage propensity.
For the keepers of animals belonging to the second category, i.e, animals mansuetae naturae, the defendant shall be held liable only when the following two conditions are fulfilled:
- The concerned animal had a savage propensity which is uncommon to the animals of that specific species; and
- The defendant possessed actual knowledge of the vicious disposition of the said animal
In Behrens v. Bertram Mills Circus Ltd., Devlin, J. observed that the animals in the second category are presumed to be harmless until they show or manifest a vicious or savage propensity and evidence of such manifestation is proof of scienter and serves as evidence enough to transfer the concerned animal from its natural class into ferae naturae. This indicates that if the keeper knows of the animal’s savage tendency, then liability for damage caused by such animal shall be the same as in the case of animals ferae naturae, i.e, strict.
To further elaborate, in the case of Buckles v. Holmes the defendant’s cat had killed thirteen of the plaintiff’s pigeons and two bantams after entering the plaintiff’s land. The King’s Bench Division held that the cat had followed the natural instincts of its species and there was no “vicious propensity” which was uncommon in the concerned species. Thus, the plaintiff was not held liable.
However, in case the defendant’s dog attacks and injures the plaintiff and the same dog had previously shown a tendency to attack humans and the owner was aware of it, the defendant shall be held liable.
Coming to the question of liability for wild animals and relief to victims of attacks by wild animals, in State of Himachal Pradesh v. Halli Devi, the plaintiff while going to feed her cows was attacked by a black bear. She was badly wounded and had fractures in several parts of her body and lost complete vision in her left eye. As ex-gratia relief, the State granted her 5000 rupees. A suit for 1,00,000 rupees as relief was filed by her. She maintained that the bears and other protected animals had been let loose in the forest by the Divisional Forest Officer, under the scheme for wildlife protection. It was held that the mere fact that the killing of wild animals was prohibited under law did not mean that the State had become the owner of those animals nor did it create the liability of the State for the death or injury caused by such animals. Further, there was no provision in the Wildlife Protection Act, 1972 for providing relief to victims of wild animals. Moreover, providing ex gratia relief in such cases did not amount to admission of liability by the state and also did not create any liability on the state to pay compensation in such cases.
2. Cattle trespass
Cattle trespass involves the unauthorised entry of livestock onto the land of another person, constituting a violation of the property owner’s rights. When cattle or livestock enter onto another person’s property without permission it constitutes as trespassing and the owner of the cattle may be held liable for any damages which arise directly from the trespass.
Cattle usually includes livestock like bulls, cows, sheep, pigs, horses, poultry etc. Dogs and cats cannot be classified as cattle. Liability for cattle trespass is considered a strict liability which indicates that the owner is responsible for the actions of their animals regardless of whether they were aware of the trespass and whether any negligence on the owner’s behalf occurred. In Ellis v Loftus Iron Co., the defendant’s horse attacked the neighbour’s horse through the wire fence dividing their lands. This damage could not have been caused without the horse’s body having crossed the boundary. It was agreed that cattle trespass had occurred and the defendant was held liable, even though there was no negligence or knowledge of the savage propensity in the animal.
The defendant may resort to certain defences such as proving that the landowner permitted the cattle to enter or that the cattle trespass due to the property owner’s failure to maintain proper fencing. Remedies in cases of cattle trespass include compensation for damages caused by the life stock.
Action for cattle trespass can only be initiated by the owner or occupier of the property. Other family members, guests, staff or even strangers on the land can action under the scienter rule or for negligence but not under cattle trespass.
3. Ordinary Liability in Tort
Liability for damage done by animals can be imposed on the defendant through various other torts not just scienter or cattle trespass. Torts of negligence, nuisance, or even assault and battery can be committed by not taking enough precautions or reasonable care to keep the animal under control and preventing foreseeable harm.
Liability in such cases often depends on whether the owner could reasonably foresee the harm or damage that the animal may cause and failed to take appropriate precautions. However, in certain cases imposition of strict liability for certain animals or activities where the owners can be held liable despite taking reasonable precautions.
In the case of Stern v. Prentice Bros, the defendants were manure manufactures and a heap of bones on their property attracted a huge number of rats who escaped from the defendant’s property and ate the corn on the plaintiff’s adjoining property causing a substantial loss to the plaintiff. The prosecution was not able to prove that the defendants had kept excessive or unusual quantity of bones on their land and hence they were not held liable.
CONCLUSION
When any form of animal induced harm such as trespass of livestock, attack by a domestic animal or any other form of animal damage takes place, the principles of tort law serve as a framework for addressing the same. The primary goal is to strike a fair balance between compensating the injured party and promoting responsible animal ownership. The animal owners need to aware of the existing legal framework and must consciously adhere to it in order to mitigate the risk of potential harm caused by their animals. It is imperative that both animal owners and the people affected be aware of their rights and responsibilities under the present legal framework.
