Liability For Injury Done By Animals
A person may become liable in more than one mode for injury to another by an animal in his possession or control. He may be liable for the damage done by his animals:
(1) On the general principle, in trespass, nuisance, and negligence.
(2) Cattle trespass.
(3) Under the rule of scienter.
The Scienter Rule
There is an absolute duty to confine or control a mischievous animal so that it shall not do injury. This duty is based upon “scienter”, i.c., knowledge, presumed or actual, of the animal propensity to do harm. Mischievous animals according to Blackburn, J., in his famous Ryland’s judgment passed into the company of escaping fumes, filth, water and cattle. The scienter action was one of the historical antecedents of the Rylands rule. But there is one sharp difference. “Scienter” did not matter in Rylands v. Fletcher whether the defendant knew or did not know of existence of the peril; but no one can be liable under the scienter rule without knowledge express or implied of the mischievous disposition of the animal. “Again, there need be no “escape” of the animal from the defendant’s land for the purpose of scienter rule. if the animal gets out of control the plaintiff may recover whether the injury has occurred on or off the defendant’s land. For this purpose animals are divided into two classes:
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(a) Animal Ferae Naturae or Ferocious Animal: If from the experience of mankind a particular class of animal is dangerous, though individuals may be tamed, a person who keeps one of this class takes the risk of any damage it may do. A lion, a wolf, a monkey, and an elephant are regarded as savage animals. In India elephant is regarded as tame animal and proof of scienter is required to recover damages for injury dore by an elephant (Moung Kyaw Dun v. Ma Kyin). Winfield’s suggestion was that in general an animal would be reckoned ferae naturae(a) it is of a species not indigenous to this country, or if indigenous, is not ordinarily kept in confinement, and (b) individuals of the species are likely to do considerable mischief, if they get out of control. He who keeps a savage animal does so at his own peril. He is bound to keep it so far under control as to prevent it from indulging in its propensity and inflicting injury. If the animal escapes and hurts any one, it is not necessary for the plaintiff to prove that the owner knew the animal to be specially dangerous. It is immaterial whether the owner knows it to be dangerous or not proof of negligence is not required.
It is no defence that the harm which the animals of this class do is such as stems from their dangerous nature and it is also no defence in the case of a particular member of tribe that it was in fact tame.
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In May v. Burdett, Burdett kept a monkey; it bit Mrs. May Burdett was held liable without proof of negligence in the control of the monkey or otherwise.
In, Behrens v. Betram Mills Circus Ltd, a Burmese elephant of a breed notoriously tame (and which was in fact circus trained) belonging to the defendant’s circus, out of fright occasioned by a chance meeting with a foxterrier, fell into momentary panic and knocked down a circus booth, thereby injuring the plaintiff. The rule governing animals ferae naturae was strictly applied against its owner; and neither the fact that it was actuated by timidity rather than vice nor the fact that, as Devlin, J. Said it was tame as cow; sufficed to exonerate him form liability. The defendant was held liable.
In the case of Arun Kumar v. Union of India. where a tigress injured a three years old child, consequently his hand was amputed. The Court held that zoo authorities was under an absolute duty to keep the persons safe from the animals.
(b) Animals Mansuetae Naturae or Tame Animals: If the animal belongs to a class which according to the experience of mankind, is not dangerous, and likely to do mischief, a person may safely keep such an animal, unless he knows that the particular animal that he keeps is likely to do mischief. The law presumes that animals of this kind are not dangerous and liability will only be imposed where scienter is proved. This means that it must be shown that the owner knew of the mischievous propensity which was in fact displayed by the animal when it did the damage complained of.
In Backle v. Homen. it was held that for mischief done by a cat in following the common instinct of its owner is not liable, in the absence of evidence that he had knowledge of some special vicious propensity on the part of the cat: that is to say, in effects scienter must be established.
In the case of Behrens v. Bertram Mills Circus Ltd. there the defendants operated a circus. Ther Burmese elephant, which was circus trained was frightened by the barking of small dog. The elephant ran after the dog towards a booth, the booth was knocked down and the plaintiff, who was inside the booth, although not injured physically received a considerable shock and had to be confined to bed for a week. The elephant is an animal ferae naturae,
Proof of scienter
The essence of scienter is knowledge of the propensity in question. Liability can only be based on the defendant’s past conduct. A single instance of the ferocity of such an animal is sufficient notice to the defendant. Where a man complains of being bitten by a dog he will be well placed if he can show that the dog had bitten another person or himself to the knowledge of the owner on some previous occasion. It may also be enough if he can establish knowledge on the part of the owner by some other means, e.g., that the owner kept a notice. “Beware of the dog.”
Scienter will not established by proof that in doing the mischief, the animal was acting upon the normal instinct of its kind. Proof of scienter must relate to the particular animal, therefore it was held that it was necessary to prove that the defendant’s dog was likely to chase and kill rabbits as it had done before and not that dog in general would do so. Proof of scienter must also relate to the particular harm caused; the fact that a horse was prone to bite other horses is not evidence when it bit a man, knowledge of members of his family or his servant is knowledge of the defendant. knowledge of the servant unconnected with the custody of the animal is not sufficient. It is actual knowledge that should be proved and not mere means of knowledge.
In Hudson v. Roberts, -The Plaintiff was attacked by defendant’s bull while he was walking along the highway wearing a red handkerchief. Defendant having subsequently remarked that he knew the bull would run at anything red. Held: This remark was sufficient evidence of defendants’ knowledge of the mischievous propensities of the animal to hold him liable.
In Mangal Singh v. Lehna Singh, a fight between two buffaloes belonging to different owners, one was killed. It was held that the owner of the buffalo which killed the other was not liable to make compensation in the absence of neglect, or carelessness on his part in keeping animal.
In McQuaker v. Gooddard, a visitor to a zoo was bitten by a camel while giving an apple. It was held that he was not entitled to damages from the owner of the zoo in the absence of proof of the particular animal’s vicious tendency. The Court of Appeal held that a camel is not
a wild animal. “Camels are nowhere in the world, to be found in a wild state.”
The nature of liability under scienter action can be understood under the following points laid down by Devlin, J. In B. M. Circus Ltd. – (a) that as a matter of law, all elephants were dangerous and that, it made no difference that the elephants were highly trained and tame and no more dangerous that cow for the harmfulness of an offending animal was to be judged not by reference to its peculiar training and habits, but by reference to the general habits of the species to which it belongs: (b) that as the elephant was out of control the rule of absolute liability applied, and it was no defence that it was acting out of fright and not viciously, and that the damage was caused not by a savage attack but only indirectly (c) conception of mens rea and malvolence were irrelevant, nor could animals that are ferae naturae by virtue of their genus to put on the same footing as those which become so by the exhibition of a particular disposition: (d) that, on the facts, the defendants could not avoid themselves of the defences of volenti non fit injuria and contributory negligence; (e) that even if the manager was stranger for the purpose of the rule of Rylands v. Fletcher, his wrongful act afforded no defence to liability for injury done by a savage animal.
Persons liable under scienter rule
It is not only the owners but also the person who harbours dangerous animals is liabel. In North v. Wood, the defendant and his daughter lived together. The daughter owned a savage dog.
Dangerous Animals
Section 2 (1) of The (English) Animals Act, 1971 Act imposes liability where any damage is caused by an animal which belongs to a dangerous species. Section 6 (2) defines dangerous animals as:
(1) “One which is not commonly domesticated in the British Island”.
(2) “Whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe.”
Liability is imposed on the keeper of an animal belonging to a dangerous species. The species which are commonly domesticated in India cannot be regarded as dangerous and it is not decisive that they are domesticated abroad. Thus camels and elephants are within the
category of dangerous species.
Other Animals: Section 2 (2) imposes liability for an animal which does not belong to the dangerous species. The provisions of this section are as follows:
(1) The damage is a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and
(2) 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
(3) 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 that keeper’s servant, or, where that keeper is the head of household, were known to another keeper of the animal who is a member of that
household and under the age of sixteen.
Defences
Section 5 provides that a person will not be liable in following circumstances:
(i) for any damage which is due solely to the person suffering it;
(ii) for any damage suffered by a person who has voluntarily accepted the risk thereof;
(iii) for any damage caused by an animal kept on any premises or structure to a person trespassing there, if it is proved either that the animal was not kept there for the protection of persons or property; or if the animal was kept there for the protection of persons or property that the keeping it there for that purpose was not unreasonable.
Liability for Trespassing Livestock
Section 4 imposes liability on a person in possession of livestock where;
(a) damage is done by the livestock to the land, or to any property on it which is in the ownership or possession of the person; or
(b) any expenses are reasonably incurred by that other person in keeping the livestock while it cannot be restored to the person to whom & belongs or which it is detained in pursuance of Section 7 of this Act or in ascertaining to whom it belongs.
Negligence and Nuisance
It is negligence to try an unruly horse in a crowded place, to take an unbroken colt in a highway where it is likely to be frightened by cars or lights, or allow a dog to run about in a crowded street, to leave a horse unattended in or near a highway thus allowing it to escape into the highway and do damage, to leave a milkcart and pony unattended on the road with the result that the pony caught a passerby and bit her, to keep the beehives near a neighbour’s land with knowledge that the bees fly into it.
Merely to take cattle without light on a highway, to leave a dog with no vicious propensities inside a saloon car on the road in the owner’s absence during shopping when the dog jumped about and broke the glass pane from which a bit flew and hurt the eye of a passerby, or to take out racing grey hounds, merely because they, like other dogs, are likely to chase cats or bite rescuer thereof is no negligence.
Cattle trespass
An owner of cattle is held strictly responsible to the owner or the occupier of land for damage resulting from their trespass upon that land and neither negligence nor scienter need be proved. For this purpose “cattle” include such farm stock as bull, cows, sheep, pigs, donkeys and poultry, but not dogs and cats.
The owner of the animals is held responsible for ‘all’ the direct consequences of the incursion, and among these consequences the law includes damage which animals do as the result of their natural propensities. Moreover liability of cattle trespass extends to ‘any’ direct cnsequence of the trespass, e.g., infecting the plaintiff’s cattle with disease.
The Animals Act, 1971, has introduced following changes:
(i) Although liability for cattle trespass remains strict, it is no longer actionable per se; but damage consequent upon entry must be proved.
(ii) It is not possible for the plaintiff to recover for personal injuries through cattle trespass unless he proves negligence.
(iii) There is no longer liability in respect of damage by trespassing cattle to the chattels of a person not in occupation of the land.
Position in Indian Law: Here in this country the Cattle Trespass Act governs the law relating to cattle-trespass.
The owner of the animal may also maintain a suit if it is found that animal was dead or received injury due to negligence of the other party. It was laid down by Rajasthan High Court in R.S.E.B. Jaipur v Shiv Charan Lal. The Court ruled that the touch of electricity wire even voluntary is enough to take a life and the fact is that buffalo came in contact by rub and died. If the chattels are allowed to pass by that area then natural activities of chattle are to be presumed and assumed. The Electricity Board should ensure that such a safeguard by bar or otherwise. that no body can come in contact with it and if they do not do so it would come under the category of negligence.
Reason for liability
The common law relating to the responsibility of people who keep animals was stated concisely by Banks L.J., in the case of Buckle v. Holmes, as follows:
“The responsibility of the owners of animals for damage done by them has developed along two main lines, one a brance of the law of trespass, and the other a branch of the law which imposes upon the owner of a dangerous animal or things a duty to take measures to prevent if from doing damage. With respect to this second branch there are two classes of animals. The first includes animal ferae naturae, for example, a tiger or a gorilla, which are obviously of a dangerous nature, although individual may be more or less tamed. A person who keeps animal of this class keeps it at his peril. If he looses control of it and it does damage he is responsible. The second class includes dogs, cows and horses which are not naturally dangerous to mankind. Of this class individuals may develop dangerous propensities, but unless and until they do so they are not treated as belonging to the class of animals which the owner keeps at his peril and the owner is not responsible for damage which these animals do when there is not trespassing. An individual of this class, however, may cease to be one for whose damage its owner is not responsible, if it has given him indications of a vicious disposition. When the animal has been found by its owner to possess such a nature it passes into the class of animals which the owner keeps at his peril”.
As regards responsibility for trespass, generally speaking, the owner of an animal is responsible if it trespasses, but the common law in tis common sense admits of exceptions to this general rule, among the exceptions is the dog, and there is no distinction between a dog and cat.
Question:- Discuss the liability of a man for his negligence in respect of animals which he keeps.