LIABILITY IN TORT FOR ANIMALS A PROJECT REPORT Submitted to the FIVE YEAR LAW COLLEGE University of Rajasthan
Jaipur (As per requirement of fifth th semester) for the
B.A.LLB.(HONS). Examination2010
Paper-III (LAW OF TORTS)
Under Supervision of
Submitted by
Prof. T. BHATTACHARYA Faculty Lecturer FIVE YEAR LAW COLLEGE
AJIT YADAV B.A.,LL.B (Hons.) V Semester (07)
FIVE YEAR LAW LAW COLLEGE
UNIVERSITY OF RAJASTHAN JAIPUR
CERTIFICATE
This is to certify that AJIT YADAV , a student of B.A LL.B (hons.) V Semester, Five Year Law College, Rajasthan University, Jaipur has written written this project entitled "LIABILITY IN TORT FOR
ANIMALS" under my supervision and guidance.
It is further certified that the candidate has done a sincere efforts in this work on the topic mentioned above.
Prof. T. Bhattacharya Supervisor
ACKNOWLEDGEMENT
I have written this presentation entitled ""LIABILITY IN TORT FOR ANIMALS" " under the supervision of Prof. T. Bhattacharya, Faculty Lecturer, Five Year Law College, University of Rajasthan, Jaipur.
I find no words to express my sense of gratitude for Prof. T. Bhattacharya, Faculty lecturer for providing the necessary guidance and constant encouragement at every step of his endeavour. The pains taken by him in the scrutiny of the rough draft as well his valuable suggestions to plug the loopholes therein have not only helped immensely in making this work see the light of the day, but above all, have helped in developing an analytical approach approach to this work.
I am grateful and thankful to Prof. P rof. (Mrs.) Mridul Srivastava, Director of Five Year Law College, University of Rajasthan, Jaipur for her cooperation and guidance.
Further I am grateful to my learned teachers for their academic patronage and persistent encouragement extended to me.
I am highly indebted to the office and Library Staff of the Five Year Law College, University of Rajasthan, Jaipur for the support and cooperation extended by them from time to time. I cannot conclude with recording my gratefulness to my friends for the assistance received from them in the preparation of this project for which I am indebted to them.
Ajit Yadav. B.A.,LLB. (hons.) V Semester Roll No. 07 Five Year Law College
University of Rajasthan, Jaipur
CONTENTS
Sr.no.
Topic
Page no.
1.
Certificate
i
2.
Acknowledgement
ii
3.
Introduction
1
4.
Scienter Rule
2
5.
Cattle Trespass
5
6.
Defence to an action in cattle trespass
6
7.
General Liability in Tort
7
8.
Conclusion
9
9.
Table of Cases
10
Bibliography and Webliography
INTRODUCTION
People who keep animals whether they are dangerous or non-dangerous animals are under a duty of care to prevent harm to other people by their animals. This is a civil liability and is governed by the law of tort of tort meaning that it is concerned with a dispute between two parties, in this case between two individuals and is therefore governed by a civil court. The owner of a wild animal that is of a dangerous species, is liable for injuries sustained from their animal. There is no requirement for negligence or intent because it is a form of strict liability. Moreover, in order to impose liability upon an owner, the vicious nature of the animal needs to be abnormal to the class in which the animal belongs be longs if the animal is domestic. The rationale for the strict liability is to impose liability upon an owner because they have knowledge that a vicious act is likely to result from their animal. However, there is a defense available for an owner when the plaintiff assumes the risk of the danger related to the vicious animal. Strict liability may be imposed upon owners of domestic and wild animals as long as there is knowledge of the vicious characteristics the animal po ssesses. In addition, the vicious behavior needs to be the efficient, and proximate cause of the injury incurred to the plaintiff. In comparison, injuries to wild animals have an a ssumed responsibility whereas domestic animals may not. When an owner has a wild animal, there is a presumption of awareness that the animal has vicious behavior and tendencies. Moreover, proof of vicious behavior is more difficult when discussing domestic animals. Liability may be imposed upon a third party employee when they possess knowledge as to the violent disposition of the animal. Here, when k nowledge is passed on to an agent, there is a duty imposed to protect third persons. Owners of vicious animals have an additional duty to protect individuals they have a relationship with. Liability can be absolved if the owner warns employees of the dangers the animal carries. However, if an owner fails to warn another employee of the dangers, the owner will be held liable. An employer duty is limited in regards to liability of vicious animals. Thus, the employer does not need to give specific descriptions d escriptions regarding the possible dangers. When an employee is warned of an animal's behavior, and an d continues working, they may not hold ho ld the employee liable for damages. Additionally, liability cannot be argued that the animal is unusually vicious and that the employee did not appreciate the full extent of the danger, unless u nless the employer knew of the danger, for if the employer was not aware aw are of the danger.
The liability for the damage done by animals can be studied under the following three heads : 1. SCIENTE SCIENTER R RULE. RULE. 2. CATTLE CATTLE TRESPA TRESPASS. SS. 3. ORDINARY ORDINARY LIABILITY LIABILITY IN TORT.
1. SCIENTE SCIENTER R RULE RULE - One of the specific rules of animal liability depends on a distinction made between wild animals (ferae naturae) and domestic animals (mansuetae naturae). The keeper of a wild animal is said to be strictly liable for the damage such an animal causes and a person who keeps such an animal is said to keep it at his peril. Negligence does not have to be proved by an injured plaintiff when he is injured by such an animal. To recover for injuries caused by a domestic animal, however, the plaintiff must prove that the animal in question had a vicious propensity to do the kind of injury that is the subject of the complaint, and further, it must be shown that the defendant knew of this propensity. Put another way, the defendant is only liable for injuries caused by domestic animals when he knows of the vicious propensity, but in the case of wild animals the knowledge of a vicious propensity is irrebutably presumed. The scienter action, therefore, extends not only to damage caused by domestic animals known to be vicious but also to wild animals presumed to be vicious. The scienter principles is described by Williams in the following language: “The general principle in present-day English law is that, apart from cases in cattle-trespass and the ordinary torts of nuisance, negligence, and so on, liability for damage caused by one's animal depends on previous knowledge of its vicious nature. Such knowledge had originally to be proved in all cases, but in modern law it is presumed if the animal in question is one of a dangerous class. The principle is known as the scienter principle (from the words scienter retinuit in the old form of the writ), and proof of knowledge is called, somewhat ungramatically, proof of scienter.”
In Kelly v. Wade1 the defendant kept a dog which attacked and killed the plaintiff's sheep. An averment by the plaintiff that the defendant negligently kept such an animal was held to be insufficient; since the animal an imal was not ferae naturae, the plaintiff p laintiff was obliged to allege scienter.
In Quinn v. Quinn2 the plaintiff and the defendant occupied the same yard and had joint use of a stall in which the plaintiff kept a cow and the defendant kept two sows. The cow was separated from the pigs by a timber partition. The plaintiff's sows were allowed to get over to the cow's side of the stall where they ate off two of o f the cow's paps. The cow died as a result of the injuries. The plaintiff recovered as there was evidence that the pigs had previously attacked and killed certain cocks and hens to the knowledge of the defendant. (There was also some evidence that the plaintiff had previously asked the defendant to strengthen the partition.) In the case of a wild animal no such proof is necessary to establish liability. So where injury was caused by a bear, b y an elephantand elephant and by a zebra it was not necessary in any of these cases to allege or prove the vicious propensity of the animal in question.
In State of Himachal Pradesh v. Halli Devi Dev i3 The petitioner through this petition claimed compensation in tort for damages by injuries sustained by the claimant as a result of attack by a ferocious wild animal i.e., black bear. The question before the Court to adjudicate was whether the Wild Life Protection Act 1972 provides any sort of compensation in the form of damages to be awarded as a result of attack by wild animals? Whether the State is liable under the Law of Tort for payment of compensation? The respondent, was a resident of the District of Chamba and while going to her cattle shed for the purpose of feeding her cows, was attacked by a black bear as a result of which she sustained the serious injuries: like loss of complete eye sight, compound fracture of left mandible, nasal bone, left forearm etc., her permanent disability disability was assessed assessed at 100 % by medical authorities. authorities. Thus a claim of Rs. 1,00,000 was made against the Divisional Forest Officer. It was averred that the Divisional Forest Officer, under the scheme for the preservation of wildlife, had let loose the Bear and other protected wild animals in the Jungle and unfortunately killing of such animals is also prohibited by the State Government. 1
(1848) 12 ILR 424.
ii. 39 ILTR 163 iii. A.I.R. 2000 H.P. 113.
2 3
As a result of the attack by the black Bear, the respondent suffered grievous injuries and sustained 100% permanent disability. She has spent about Rs. 50,000 on her medical treatment. In claiming damages, the respondent alleged that she suffered due to the acts of omission and commission of the defendants.
The defendants on their part, denied liability for the damages, and for letting loose the black Bear. They raised raised several several objections objections to the petition, including including one of jurisdiction. jurisdiction. They further further claimed that Sec. 60 of the Wildlife [Protection]Act, 1972, provides that no suit, prosecution or other legal proceeding shall lie against any officer or employee of the Central Government or State Government for anything which is done in good faith. Hence this suit is hit by the above section. The Court while admitting the petition under the civil provision, held that claiming damages for the injuries sustained as result of attack by a wild an imal would not be an action ac tion for damages caused by an Act which has been done in good faith by the State or its officers/ employees under the Act. Further the Court held that to succeed in claiming damages under un der the tortuous liability of the defendant, the onus on us was heavily on the plaintiff to show that damages was sustained by her due to some act of omission o mission or commission of the defendants. The plaintiff had miserably failed to discharge such onus. There is no provision under the Wild Life [Protection] Act, 1972 for providing relief to a victim attacked by wild a nimals. Decision of the State Government to grant gratuitous relief to victims was a welcome sign of a democratic Government, but providing for such relief would not tantamount to admission ad mission of liability by the State, for tort or death or injuries by wild animals.
2. CATTLE TRESPASS - Apart from scienter the other special rule relating to animal liability is known as Cattle Trespass. Here too, as in the scienter action, the owner is, in the appropriate circumstances, strictly liable for damage caused by his trespassing cattle.
At the very outset a distinction must be made between Cattle Trespass on the one hand and the personal trespass which one may commit through the medium of one's animals. If, for example, my cattle stray from my land and go onto the land of another, this is properly called cattle trespass. If, on the other hand, I drive my cattle or deposit them onto another's land, then this is not cattle trespass, but trespass to land committed by me through the instrumentality of my cattle. The fact that it is cattle which I drove onto my neighbour's land is of no more consequence than if it was a load of stones which I deposited on the land.
In Brady v. Warren 4 the defendant inherited a demesne in 1898 on which there were rabbits and deer. These animals trespassed on the adjoining lands which were in the occupation of the plaintiff. In an action grounded in trespass, negligence and nuisance the court held that the defendant could not be liable in respect of damage done by the rabbits as they were wild and did not belong to the defendant. Evidence that the defendant's predecessor had brought onto the demesne foreign rabbits to improve the strain of the breed and that the rabbits were trapped, killed and exported, did not alter the fact that they were wild and did not belong to the defendant. With regard to the deer, however, the court took a different view, and on the facts (e.g. there was some evidence that the defendant used to feed them in the winter), it was prepared to hold h old that the deer were in fact tame and under the defendant's control. The defendant in these circumstances was liable for the trespass to the plaintiff's crops. The tamed d eer owned by the defendant were treated seemingly (the court is not explicit on the matter) as cattle for the purpose of the cattle trespass rule. If cattle are straying and they come onto another person's property it does not matter if they have come co me from an adjoining field or from the highway. Strict liability will attach in either event. It should be hastily added that this is the case only when the cattle have strayed onto the property (i.e. cattle trespass properly so called). If the cattle are being driven and through mis-handling they break onto another person's property then whether the owner of the cattle is liable or not depends on principles of negligence or ordinary trespass. This applies whether the c attle are being driven or managed on private property from which they break out or whether they are being driven along the highway and break onto adjoining property. The owner of cattle which are lawfully on the highway is not liable without negligence for trespasses which his cattle commit to adjoining property. This is not an exception to the cattle trespass rule because 4
[1900] 2 I.R. 63
in cattle trespass the animals are by definition straying on the road and are not on the highway for a lawful purpose. In Dalton v. O'Sullivan 5 the cattle in question were in the possession of an agister, who had placed them on his lands in pursuance of an agistment agreement. The cattle escaped and caused damage to the plaintiff's property. An action against the defendant as owner of the cattle failed, as it was clear on the facts that the defendant was neither in possession of the cattle nor in occupation of the land. In fact, the defendant lived in Killarney nearly 100 miles from the land in question. Dalton's case, therefore, in deciding n egatively that the defendant was not liable merely because he owned the cattle, did not decide whether primary responsibility responsibility rested in the case of cattle trespass on the person who was in possession of the cattle at the material time or the occupier of the land from which they escaped.
DEFENCES TO AN ACTION IN CATTLE TRESPASS
Act of Third Party- Although there used to be some doubt about it, it seems now to be well settled by two Irish cases that the act of a third party is a good defence to an action in Cattle Trespass. In Moloney v. Stephens 6 the plaintiff and defendant owned adjoining a djoining property and a third party had a right of way over both farms. The third party in exercising his right of way failed to close a gate as he was obliged to do with the result that the defendant's horses trampled on the plaintiff's land. Judge O Briain in following an earlier Irish case, McGibbon v. McCorry 7 said in quite unequivocal language “that the defendant has established a good defence in law to this action by showing that the trespass complained of was caused by the wrongful acts of a third party.”
a ction of a third party affords a defence then Act of 1. Act of God - It would seem that if an action God should also immunize the defendant d efendant from legal liability. So if the fence or gate through which the cattle trespassed was blown down by an extraordinary gale no liability should attach to their owner.
2. Plaintiff’s Own fault and Contributory Negligence - Where the plaintiff is the sole author of his own misfortune then, of course, co urse, he cannot complain. So, for example, if the cattle have trespassed because the plaintiff in breach of an obligation to fence allows the defendant's cattle on to his own property he cannot complain at law. If he has, however, 5 6 7
[1947] Ir. Jur. Rep. 25. [1945] Ir. Jur. Rep. 37. 43 ILTR 132.
been only partly responsible for the trespass then the appo rtionment provisions of the Civil Liability Act 1961 should apply.
3. Inevitable Accidents - The defence of inevitable accident appears to be available in some limited cases at least. It seems to be recog nized at least where the cattle trespass is necessary to secure the reasonable fulfillment of the defendant's rights.
3. GENERAL LIABILITY IN TORT : negligence, nuisance and trespass :
The owner or keeper of an animal may become liable under the general principles of tort law just as the owner of any chattel may become so liable. If, for example, a person brings a dog onto the highway he may be liable in Negligence if he does not exercise reasonable care controlling the dog. Again, if a person keeps animals in such numbers that they unreasonably interfere with his neighbour's enjoyment of his property then the owner of the animals may be liable in Nuisance. Similarly, will the owner be liable if the noise or stench which such animals emit unreasonably interferes with the quiet enjoyment of adjoining property. In trespass too the owner who commands a dog to attack a person or who drives a beast onto another's land may be liable. The occupier of premises may be liable if, for example, injury is caused to a lawful entrant by the occupier's dog. Finally, within the principle expressed in Rylands v. Fletcher 8, if animals are collected on property, in such a way as to amount to a non-natural user of the land, and, if they are likely to do damage if they escape, the owner may then be liable for all injuries caused by such an escape.
(a) Negligence - In Howard v. Bergin, O'Connor & Co. 9 the defendants purchased cattle in the country and sent them by train to Dublin. The defendant's drovers in unloading the cattle allowed two bullocks who “got wild” to escape onto the highway where they eventually knocked down and injured the plaintiff. The following facts were proved in the case: although an unloading platform with pens was provided at 8 9
1868 L.R. 3 H.L. 330. [1925] 2 I.R. 110. 118.
the station this platform was not always used and was n ot used in the instant case; a gate on the public road was not closed during the unloading operation; one drover who followed the animals and who located them in a yard off a laneway before the accident, left them unguarded to report their location and to get assistance.
The Supreme Court held that the defendants were liable in Negligence. Apart Ap art from dicta on scienter all three judges in the Supreme Court were of the opinion that in circumstances such as those present the defendants should be liable. Kennedy C.J., and O'Connor J., thought that there was sufficient evidence of negligence on the part of the defendants whereas Fitzgibbon J., while n ot satisfied that the jury had found negligence on the part of the defendants agreed with the legal proposition that if the jury had made such a factual finding the defendants would be liable in law.
(b) Nuisance - The defendant may also be liable for injuries caused by his animals under the heading of Nuisance. If the defendant by keeping or managing animals wrongfully interferes with a public right or with another landowner's reasonable use of his property, then in the latter case the injured party, and in the former case a member of the public who suffers special damage, can sue the defendant. That the instrument causing the Nuisance happens to be an animal or animals does not exempt the defendant from liability; whether the defendant is liable u nder any special rule is another question entirely.
(c) Trespass - The defendant may also be liable for the Trespass of his animals under the general tort of Trespass. Thus, if a person throws an animal or drives an animal onto another's land he will be liable just in the same way as if he threw a stone or drove a car onto another's land. That the object through which the trespass is committed happens to be an animal does not alter the legal situation. Similarly, Similarly, if a person sets a dog at another person he will be liable for trespass to the person. Liability for trespass, however, must of course be distinguished from the strict liability to be found in the specific rule of Cattle Trespass which will be dealt with at a later point. An
illustration may help to mark the difference between the two cases. If I drive my cattle unlawfully onto my neighbour's land, my neighbour, as already noted may sue me under the general rules of trespass. If, however, my cattle, because of defective fencing on my land, stray onto my neighbour's neighbou r's land this is more properly called cattle trespass. In the former case, my actions in driving the cattle, constitute the gist of the action and the role played by the cattle in comparison to my part is small; in the latter case, however, the cattle's actions are more directly in focus, whereas my actions (or omissions) are only indirectly in question.
CONCLUSION
First, in so far as liability may arise under the general principles of tort it may be based either on the fault concept concep t (Negligence, Trespass to Person, etc.) or it may be based on notions of strict strict liability. Second, the scienter rule when it it applies imposes strict liability on the keeper of the animal. Similarly, strict liability arises by statute for injury done by dogs to cattle. Third, the law imposes strict liability for cattle trespass. And fourth, the law confers immunity on the owner of cattle which cause injury while straying on a public highway. If one ignores this last immunity for a moment, the overall picture that emerges from even this brief sketch, therefore, is one where the owner of animals is liable for his negligence in their management and in many cases is held to be strictly liable even wh en there is no fault on his h is part.
TABLE OF CASES
1. Kelly v. Wade. 2. Quinn v. Quinn. 3. State of Himachal Pradesh v. Halli Devi. 4. Brady v. Warren. 5. Dalton v. O’Sulliva. 6. Moloney v. Stephens. 7. McGibbon v. McCorry. 8. Rylands v. Fletcher. 9. Howard v. Bergin, O'Connor & Co.
BIBLIOGRAPHY AND WEBLIOGRAPHY
1. Law of Torts by R.K.BANGIYA. 2. Law of Torts by S.P.SINGH. 3. Law of Torts by RATANLAL AND DHIRAJLAL. 4. Law of Torts by SALMOND.
1.www.google.co.in. 2.www.wikipediaencyclopedia.in.
