CRITICAL ANALYSIS FOR LIABILITY FOR ANIMALS AND CHATTELS By- Saisha Chitkara
CRITICAL ANALYSIS FOR LIABILITY FOR ANIMALS
SCHOOL OF LAW, NARSEE MONJEE INSTITUTE OF MANAGEMENT STUDIES,
BENGALURU
LAW OF TORTS BATCH - 2022-2027
Prof. Alisha Thomas SAISHA CHITKARA
Assistant Professor of Law SAP ID-81012200016
NMIMS (SOL), Bengaluru BA. L.L.B. 1ST Year
INDEX
SR. NO.
TOPIC
Pg. No.
1.
ABSTRACT
6
2.
INTRODUCTION
6
3.
LITERATURE RIVIEW
7
4.
STATEMENT OF
PROBLEM
9
5.
RATIONALE OF
STUDY
9
6.
RESEARCH OBJECTIVES
9
7.
RESEARCH QUESTIONS
10
8.
RESEARCH METHODOLOGY
10
9.
CHAPTER 1: MEANING
NATURE AND SCOPE
OF LIABILITY
10
10.
CHAPTER 2: JUDICIAL PRECEDENTS
25
11.
CHAPTER 3: JUDICIAL VIEW IN 21ST CENTURY
28
12.
CHAPTER 4: CHALLENGES THAT ARE NOT COVERED IN THE
31
13.
CHAPTER 5:
CRITICAL ANALYSIS
32
14.
CHAPTER 6:
SUGGESTIONS AND CONCLUSION
33
15.
BIBLIOGRAPHY
35
ABSTRACT
INTRODUCTION
In 1971, the United
Kingdom passed an Act and in response
to which a research was conducted on civil liability for animals conducted
by the
English Law Commission1. The study's stated goal was
to "offer proposals for modernising and simplifying the common
law."
When
someone keeps an animal with the full knowledge that it may hurt others, should
the animal ever go free, that person
assumes full responsibility for any harm the animal
does. This person
has a legal responsibility to domesticate the animal and keep it under control
at all times so that it
does not cause damage to anybody else. The general public agrees wholeheartedly that wild or untamed animals are more
likely to have this tendency than domesticated ones. Since it is already known that these
creatures have this tendency, the scientist's theory
does not need to be verified in this situation. In
other words, if this phenomenon can be shown, it demonstrates scienter and moves the animal from the natural
class to the feare naturae class. All animals of the second category, mansuetae naturae, are considered to be benign until they show
symptoms of having a wild or evil propensity, at which point the presence of
such indicators is considered to constitute proof
of scienter.
This part of the law is in an intolerable mess, with rules being applied and
distinctions being made that make
little sense in light of modern realities, is a fact that is commonly accepted. This is due to the fact
The topic of law being examined here is complicated and has far-reaching
effects on people's daily lives.
Individuals whose livelihoods or hobbies depend on animal care, those who are particularly vulnerable to animal
cruelty, and those
whose jobs (such
as highway maintenance or insurance provision) may oblige them to participate in animal practises.
LITERATURE REVIEW
Ø JOURNAL ARTICLESo ‘Liability in Anglo-American Law for Damage done by Chattels’2
Regarding
the law of the land, two generalizations appear to be justified when the author discusses
the culpability under
Anglo-American law for injury caused
by chattels, i.e.
o ‘Pit Bull Bans: The State of Breed-Specific Legislation’3
The
author in this journal article talks about the topic of ‘breed’ bans, which is
also known as “pit bull bans” or “breed-specific legislation”. Who Has Passed BSL? Hundreds
of municipalities of all sizes and geographic locations throughout the country have adopted BSL.
o ‘The Animals Act’4
The author
in this article states the various liability and defenses under The Animal Act 19715. Author mentions about animals straying
onto the highway, liability for dangerous animals, harmless species, defenses,
cattle trespass, detention
and scale of trespassing livestock, damage done by dogs to livestock, and finally he mentions shooting dogs worrying sheep.
Ø
BOOKS
o ‘The Law of Torts’ by Ratanlal & Dhirajlal6
There are three methods
in which a person may be held legally responsible for damage caused
by their dangerous animals,
as discussed by the author.
o ‘Law of Torts’ by B.M. Gandhi7
The term "animal" is used to describe any kind of life other than humans.
In common law, there were restrictions regarding
animal culpability, and these regulations may be roughly
categorised into two broad classes: (i)
the general criteria for determining negligence when it comes
to animals, and (ii)
responsibility under specific
rules called scienter rules.
o
‘Law of tort: Including
Compensation Under the Consumer Protection Act’ S.P. Singh8
4Alec Samuels, The
Animals Act 1971, The Modern Law Review , Sep., 1971, Vol. 34, No. 5 (Sep.,
1971), pp. 550-556. ISSN: 1468-2230
STATEMENT OF PROBLEM
According to the law, an animal is liable for the following types of injuries:
Even while the law has created specific strict
responsibility guidelines for some animal-related damages, these guidelines are by no means the only ones
that apply; the general tort liability guidelines also apply to
animal-related harm.
RATIONALE OF STUDY
As
per common law, the owner of an animal is fully responsible for any harm his
animal produces. The Animals Act, 19719 says that, damage
caused by a caretaker's animal
in England is subject to strict responsibility. The custodian
of such creatures bears a duty of care to the
general public, which
is why stringent responsibility has been imposed
on them. The obligation of care is to prevent
others from being harmed by the animal in any way. This obligation often includes the care of other
people's belongings and animals.
RESEARCH OBJECTIVES
1.
To understand how are animals
classified under the law of torts.
9 Supra note 5
RESEARCH QUESTIONS
1.
How are animals
classified under Law of Torts?
RESEARCH METHODOLOGY
The
methodology that would be applied for carrying out this research is a doctrinal
research. Primary resources of this
research paper are The animal act 197110,
Journal articles in the Literature review,
textbooks like Ratanlal & Dhirajlal, S.P Singh, and B.M Gandhi.
Secondary resources such as
textbooks, journal articles, and online resources has been used.
CHAPTER 1:
MEANING NATURE
AND SCOPE OF LIABILITY FOR ANIMALS
AND CHATTELS
Ø IMPOSITION OF LIABILITY ON THE KEEPER
OF DANGEROUS ANIMALS
10 1971 c. 22
o DUTY OF CARE
It
is important to understand what is meant by the term "Duty of Care"
before we can completely grasp the duty that rests
on the shoulders of the person in charge of any potentially harmful animal. To further grasp this idea, let's consider
a hypothetical situation
in which "A," the animal's owner or caretaker, is obligated to pay
"B," a victim of A’s animal's actions, monetary damages.11
o BREACH OF DUTY
In
the case of Whippey v. Jones12, Mr. Jones, popularly known as C,
was out for a run in Kirstall, Leeds,
beside the River Aire when Hector, a fully grown 12.5-stone Great Dane puppy, leaped out from behind a bush. A
gung-ho Hector smashed into C, stumbled, and fell down a steep hill to the river, seriously injuring his ankle.
Hector's owner was Mr. Whippey, D, an
inspector for the RSPCA. C filed a lawsuit against D, claiming that on that
day, D had negligently handled Hector
while walking him in the garden by the river, causing C to suffer damages.
For C, it was D's treatment of Hector that caused his wounds.
Held: D wasn't negligent. The closest Hector
has ever been near somebody
was barking at them from a distance; he has never shown any
tendency to jump at anyone. D, an experienced dog trainer, had no reason to suspect that Hector, off leash, would approach an unsuspecting human,
bite him, and do further serious harm. D's failure to exercise the kind
of care that would be expected of a
reliable keeper puts her in violation of the aforementioned condition. D must have opted against
what a prudent keeper would
do in order for them to be below average.13
As long as D managed, watched,
and treated the animal that contributed to the event
correctly, there will be no
evidence of negligence. This is because they are all actions that are generally regarded
as standards for managing cattle or other animals.
11 Liability for Animals, Cambridge
university press,
o PROVING THE BREACH
The
defendant must act justly and reasonably for such standards and expectations to
absolve him of guilt. The physical
facilities used to keep the animal captive have been accused of unethical
behaviour.14
When
Mirvahedy
v. Henley 15 was pitched, C ran into D's horse as it bolted
over a double highway through
Torquay and Exeter on his journey home from work in Devon.
The collision resulted in serious head and facial
injuries for C as well as the death of the horse and the destruction of the top of his vehicle.
One of the three horses
who fled from Dr. Henley's
ranch, this specific horse's
departure was caused by its anxiety at an unknown object. The distance between
D's residence and the incident
location was 1.5 km. By leaping over an electrical wire fence and a
wooden barrier, trampling through a patch of thick bracken and foliage, climbing a 300-yard stretch of track, and
eventually galloping for over a mile down a side road before approaching the busy dual highway, the horses were able to flee the field. Therefore, it may be said
that D's acts were not careless. D fenced the whole area where the horses were
kept in anticipation of the
transfer.
o CAUSATION
It
is the responsibility of the defendant (B) to prove that the claimant's (A)
damages resulted from B's negligent
monitoring, treatment, or constant monitoring of the animals
when A alleges that
they had been injured by animals.
In Hole v Ross-Skinner16,
Mr. Hole, 28, was harmed after he t-boned a horse on a two-lane road's shoulder. Mr. Ross-Skinner, (D), had a sizable piece of land and a house in the country.
On his land were horse stable. Due to the absence of a stock-proof rail, hedges, or gates along the fields'
boundaries, particularly close to the road, C alleges that D was negligent. D's lack of accountability rendered
his acts inappropriate, according to C's other argument.
The horses had been placed in a ground in Middle Park the previous
evening, but it was found the next morning that the barbwire fence enclosing the
field had already
who
intended to hunt deer on D's land in
the past broke in, destroyed fences, and unlocked gates. D was determined to have shown no negligence. It
was not his fault that the invaders got in, even though the entrance
had been left open and the fencing
had been cut. The fences enclosing the fields
on each end of the road were solid, as far as anybody could determine. The poachers' activities were the sole reason the animals were able to escape. Even if D had taken additional precautions by installing more locks on the gate,
there was no guarantee that the burglars
could have been kept out. The probability that a third party stopped
the offender animal
from fleeing or from being released, however,
does not alter the fact that D's breach caused
C's damage.
In a situation involving irresponsible behaviour, C must demonstrate that the loss or harm was not too
remote from the perspective of the law in order to
be entitled to compensation.
o REMOTENESS
Assuming C was injured
by the animal's actions, it is not necessary that C's specific
manner of damage
or the severity of that injury have been reasonably foreseeable, in accordance with the general standards of remoteness. This is
because C was injured in a way that could not have been caused by the animal's actions. Needed damage must be of a
kind that can be anticipated with some degree of certainty.17
o DEFENCES TO NEGLIGENCE
Contributory
negligence, among other defences, may be used in situations involving injuries caused
by animals.
By
disregarding his own safety and putting himself in risk by coming into contact
with the animal, C may be
accused of contributing to
the accident.
17 Supra note 11
In Bodey v Hall19, Mrs. Bodey (C) and her passenger, Mrs. Hall (D), were riding in a pony and trap
on a rural road not far from Newbury, Berkshire. Mrs. Bodey was making use of
the road so that she might be
transported to Newbury. Mrs. Hall's horse, Pepper, developed nerves not long after turning off the farm road into
the railroad's side. Due to the trap's forward tilt as it followed the attack, both were propelled
out of it and onto the land. Both C and D were taken off guard. C had a brain damage as a result of the vehicle
accident. C, an experienced horsewoman, knew without a doubt that the horse in question
was the one in question
since she had driven
with D six to eight times before.
She had decided against wearing a riding cap on the day of the accident,
which proved to be a fatal error.
C's lack of riding helmet
use was ruled to not be contributory negligence. Evidence suggested that wearing a riding cap while managing
a pony or a trap would have been suitable,
but this was not the common practise. When it came to whether or not riders
should wear hats while operating
carriages, "clearly distinct schools of thought" existed, with the
final decision coming down to
individual preference. If driving a carriage need a riding cap, yes or no? Although ther1e were no regulations or
suggestions for carriage driving, it was advised that one not wear a
hat.20
o PROBLEM OF STRAYING ANIMALS
Straying onto the highway-
When D's animals wandered
into a public roadway, the previous common
law protection for D in irresponsible situations was eliminated by section 8(1)21 of the Animals Act 197122. Therefore, if animals strayed onto a
road, the typical rules of negligence would apply. If the animals strayed due to D's inability to
exercise reasonable protection and C was hurt as a consequence, D will
be held responsible.23
In the case of Searle
v. Wallbank,26 which took place in 1971, he was not required
to exercise any duty of care to make repairs
to the hedges or to keep the animal in the field. As a consequence of the Animals Act 197127,
section 8(1)28, the general rule is that the keeper of an animal has an obligation to take such care as is reasonable to ensure that it does not wander
on to a roadway and cause damage. This duty comes as a
result of the fact that the Animals Act 197129 was passed.
o STATUTORY CAUSES
OF ACTION UNDER THE ANIMALS
ACT 1971
Animal
owners may be held liable for any damage their pets cause under the
"Act," which is short for the
Animals Act of 197130. This law is meant to augment others
that establish civil culpability (via things like fines, jail time, or confiscation) for harm caused
by hazardous animals. It is
supplementary to laws that compel animal caretakers to have insurance and get licences. In most cases, insurance
programmes are relied upon more than legal proceedings to compensate accident victims.31
o PRE-REQUISITES32
·
Precondition-1
Subject to subsection (4) of section
633, a person
is a keeper of an animal if:
The Act does not specify
who is eligible to bring
a claim, thus anybody who has suffered
losses due to animal behaviour
is allowed to do so. The wounded
party may have been a client at D's equestrian centre, but they could just as well have been an employee, a friend, or even someone
D has never met. A keeper may sue another keeper for breach of contract
under the Act. An admissible
suffering under the Act is an injury sustained by a keeper as a direct
consequence of the animal's actions.
The Act does not mandate
that an eligible C ought to be a "stranger" to the keeper in order to qualify.34
·
Precondition-235
Type of animal which caused injury
Notably,
the term "animal" is not defined either in the Animals Act of 197136.
Consequently, the Act's potential scope is not
entirely clear.
caused by domesticated animals (mansuetae
naturae). But the legislative breakdown
is what we have today, and how things are divided up is
a question of interpretation. Any animal of a dangerous species is included by
the law's provision in section 2(1)38. All animals of a species
that "is not commonly domesticated in the British
Islands" and "fully-grown animals of the species normally
have such characteristics that are likely,
unless restrained, to cause severe damage or that any damage they may cause is likely to be severe" are considered
dangerous wild animals under Section 6(2)39. Any animal seeking protection under this provision
must satisfy both of these conditions. Obviously, subsection (1) of section
240 only applies in
certain cases.41
· Precondition-342
The legal theory under which compensation may be sought.
Specifically, section
1143 of the Act defines
"damage" as "the death of, or injury to, any person
(including any disease
and any impairment of body or mental condition). This term encompasses every possible meaning.
Case law demonstrates that the Act may be used to seek compensation for a wide range of
injuries, regardless of whether liability is alleged under Section
2(1)44 or Section
2(2)45, for example:
• physical injury to plaintiff
caused by the animal directly
(for example, plaintiff being thrown off a horse or being bitten by a dog);
• consequential
economic loss flowing from property damage (e.g., arising from plaintiff's inability
to sell his crops in the example above);
or
• loss of
amenity damages, compensating for intangible inconveniences to him, arising
from the smell or noise of
defendant's animals.
o ANIMALS BELONGING TO A DANGEROUS SPECIES
Damages
produced by animals of a dangerous species may result in a person being held
liable for such damages regardless of whether or not they were negligent
or knew what they were getting into. Section 2(1)46 of the act states: Where any damage
is caused by an animal
which belongs to a dangerous
species, any person who is a keeper of the animal is liable for the damage,
except as otherwise provided by this Act.47
The
offender is held severely accountable regardless of whether or not he knew the
animal presented a harm to people or
took every reasonable precaution to prevent the escape of the dangerous
animal. Responsibility is thus not an absolute
idea, even when the animal
in issue is a member
of a dangerous species, due to the statutory defences
available under the Act, which
will be explored below. According to common sense, the 'damage'
mentioned in subsection 2(1)48 might include either
personal harm or property loss. This was the conclusion reached by the English Law Commission49: ‘although
there is no direct authority
on the point, statements of principle in a number of cases suggest that, provided an animal is a danger to mankind,
there is strict liability
for any damage which it may cause to property’.50 So far as the
author can ascertain, this provision has never been litigated
in English law to date.51
o ANIMALS BELONGING TO A NON-DANGEROUS SPECIES
A
person may be held accountable for injuries caused by a non-dangerous
(harmless) animal that acted
abnormally in some regard, even though the owner took all the steps that might reasonably be anticipated to prevent the
animal from escaping or harming another person. It makes no difference who caused the accident; the owner must pay
for repairs.
Section 2(2)52 of the act states: Where damage is caused by an
animal which does not belong to a dangerous
species, a keeper of the animal is liable for the damage.
Unfortunately, the drafting of this provision
is extremely convoluted. That is unfortunate, given that it
operates far more widely than s 2(1)53 does – far more accidents
involve ‘harmless’ animals than ‘dangerous’ ones. 54
-
Element#1: Satisfying the
opening words S 2(2)55- The damage to plaintiff must have been caused by owner’s animal. In Bodey
v Hall,56 facts previously, held: plaintiff’s head injury was caused by the actions of
the horse, and him being thrown out of the trap onto her head when the horse unexpectedly shot forward, tipping
the trap over.
-
Element#2: Satisfying
condition S (2)(a)57- As Lord Hobhouse put it in Mirvahedy
v Henley,58 this
condition deals with the animal's ‘dangerousness’.59 This
requirement corresponds broadly
with what had been called,
under the scienter
doctrine at common
law, proof of a ‘vicious propensity’ on the part of the
animal
-
Element#3: Satisfying condition S 2(2)(b)60- This condition refers to ‘ the source
of the animal's dangerousness’ (per Lord Nicholls in Mirvahedy
v Henley61). The provision
is obfuscatory, and had been described judicially as being ‘opaque’
and ‘tortuous’.62
-
Element#4: Satisfying
condition 2(2)(c)63- To satisfy the third legal requirement, the keeper or those associated with the keeper
must be familiar with the animal's relevant traits.
Ø
DAMAGE DONE BY AN INDIVIDUAL’S STRAYING
LIVESTOCK
o
Straying onto plaintiff’s land
Under section
464 of the Act, a defendant is held strictly
liable for damages
and expenses caused
by trespassing livestock if the defendant is in possession of livestock
(other than horses) and the livestock
trespasses onto land owned or occupied by the plaintiff and either damages the land or the property of the plaintiff. There is no need to prove
that he was careless. Any horse that is "on any land in England without
legal authorisation" is also in violation of section 4A65 of the Act. Horses "on
any land in England without
legal authorization" are within the purview of this
clause.
The
cattle trespass doctrine of common law has been replaced by these guidelines,
although the common law principle of
strict liability has been maintained. We believe that a fresh explanation of the principles
of
strict responsibility for wandering animals is preferable to attempts to patch up elements of the
current legislation dealing to cattle trespass, since there can be no doubt that this area of the law is burdened by outdated and questionable standards.66
o Straying onto a highway
Plaintiff,
who is wounded when travelling along a road while meeting D's animal, is
required to establish that D did not exercise reasonable care as the keeper of that animal,
which resulted in C's injuries. This is necessary in
order to win the case. Because of the decision in Searle v. Wallbank67, cases such as Mirvahedy
v. Henley68 were allowed to be litigated based on the theory
of negligence.
o Combining the scenarios
The
provisions of the Animals Act 197169
and the case law covered previously do not do as well a job as the graphic on the preceding page does of
conveying the subtleties, nuances, and complexity
of this area of tortious duty for animals. Seeing as how the figure is superimposed on the prior page, this makes sense.
Graphically, this goes against what the English Law Commission, which claims that the new theory would "provide
a very clear norm" in lieu of the antiquated cattle trespass idea, has to say.70
Ø
REMOTENESS
Whether C's damage
or loss must have been fairly foreseeable in order for there to be a chance of recovery in an action based on strict liability
brought under Section
2, Section 3, or Section
471 of the Act is currently up for debate. Prior to this
report's publication in 1967, the English Law Commission72 did not
66 Supra note 11
discuss
the prospect of irreparable injury in cases involving the Animals Act
of 197173.74
Ø
STATUTORY
DEFENCES FOR DEFENDANT’S LIABILITY UNDER S 2
There
are three statutory defences available to a defendant under the Act if the
defendant is prima facie culpable under section 275. Whether the animal
in question belongs
to a potentially dangerous group, the defendant is always entitled to raise these defences.
o
DAMAGE WHOLLY DUE TO THE FAULT
OF PLAINTIFF
Defendant
is not responsible for damages if the plaintiff is found to be "wholly at
fault" for them. It is hard to onclude
that the claimant was "wholly at blame" after it is shown that the defendant, as the animal's caretaker, is responsible for some "fault," whether
in carelessness or otherwise.
Defendant's negligence or other kind of culpability renders the defence moot.
This defence is provided by s 5(1)81. It applies
to liability arising under S 2, 3,
4 and 4A82.
o VOLUNTARY ACCEPTANCE OF RISK
If
the plaintiff can show that he or she "voluntarily accepted the
hazard" of being injured by the defendant's animal, the defendant
will have a difficult time proving liability. Although it is a
complete defence, the defence of volenti in
common law is not entirely analogous to the defence
of volenti under statute. Section
5(2)83 provides the applicable defence, and it applies only
to the duty stated in Section
284.
o TRESPASSERS
If
the plaintiff is injured by a defendant's animal while trespassing on property
where the defendant's animal was kept,
the defendant is completely protected from liability if either (1) he did not keep the animal there to
protect persons or property, or (2) he kept the animal there to protect persons or property, and it
was reasonable for the defendant to keep the animal for that purpose.
o STATUTORY DEFENCES FOR DEFENDANT’S LIABILITY UNDER S 3
Under subsection 386, the plaintiff is strictly liable to the defendant (the owner of the livestock) for the damage that was caused by the defendant's dog (the
keeper of the dog responsible for the death or injury), subject to three
statutory defences.87
If
any of the following circumstances is true, the defendant will have a defence
to any obligation imposed by section 388:
• the
plaintiff's livestock strayed onto land, where the offending dog either
belonged to the occupier of that
land, or the dog's presence on the land was authorised by that occupier, per s 5(4)89; • the common
law defence of contributory negligence applies, per s 1090; or
Ø
OLD COMMON
LAW DOCTRINES: Scienter
Rule and Cattle
Trespass
If a "wild animal" caused harm, its owner had all responsibility under the scienter
theory (ferae naturae). The custodian had complete and whole understanding of the feral animal's potentially lethal tendencies, therefore this was the case. If the animal
in question was a "domesticated animal"
or "tame animal" (mansueta
naturae), and its keeper knew that it had a horrible propensity to do the type of injury that was committed to C,
then the keeper would be held harshly
accountable regardless of guilt. The idea could only work if the keeper was aware
of the animal's bad tendencies; in
the case of wild animals, this knowledge might be assumed without
evidence, but in the situation
of domesticated animals,
evidence would be required.
According to McQuaker v Goddard91, Because they were not tamed, wild
animals were considered to be hazardous
to humans, in contrast to domesticated animals,
which were thought
to be secure. The scienter
hypothesis protects domesticated animals including cats, dogs, cattle,
horses, pheasants and
partridge, bees, as well as camels.
There
were many other kinds of wild creatures that might be discovered, including
elephants, bears, zebras, lions, tigers,
and monkeys, to mention a few. However, "there is substantial dispute
as to the standards applied in
categorising these species," 92
CHAPTER 2:
JUDICIAL PRECEDENTS
# CASE-1
# CASE-2
Flack
v Hudson96 (2000) explains what's behind a peculiar
characteristic. When Mrs. Flack's horse saw an approaching tractor, it became
quite nervous and bolted down the road in front
of her. Mrs. Flack's fall caused her to sustain
injuries that ultimately proved deadly. The abnormal behaviour of this horse was clearly in violation
of subsection 2(2)(b)97. Not all horses will run away if they see a tractor, but if they
are frightened, their instinct is to go away as quickly as possible. Since Sebastian's source of concern
is not one that many horses often feel, his behavior—namely,
racing away—was seen as peculiar. These examples, such as Breeden and Fox v. Kohn, show that stable owners are
not responsible for injuries their horses cause while behaving normally. This allows the counterargument that keepers are not subjected to an undue share of the
regulatory burden as a consequence of the Animals Act98.
# CASE-3
In Mirvahedy
v Henley99, (2003)
By a vote of 3 to 2, the House of Lords decided that if a non- dangerous animal causes damage by acting
in a way that is not typical
of the species as a whole
but
is typical of the species under certain
circumstances, the animal's
keeper will be held strictly
liable under section
2(2)(b)100 of the Animal Welfare
Act. Due to the fact that this is not typical behaviour for the species as a whole,
this choice was chosen. Since all horses react similarly when sufficiently terrified, a horse that rushes away because it
is fearful of something it has never seen before is deemed to be responding properly given the circumstances. Since this is a violation of the second prong of
subsection 2, (2)(b)101. The House of Lords also restated that section 2(2)(b)102 had two
potential paths to liability. The judgement in the case of Mirvahedy might be interpreted to mean that owners
are now liable for damage caused by their animals while acting normally. Due to the closeness of the vote tally,
the opinions of their Lordships must
be considered; in particular, the views of Lord Scott and Lord Slynn, who were among the Lords who voted against the judgement.
The majority opinion, given by Lord Nicholls,
took into account the contrasting
findings of Lords Cummings and Breeden.
#CASE-4
In
Clark
v Bowlt103 (2006) Injuries were sustained by the claimant
when his automobile was struck by the
defendant's horse, Chance, as he attempted to pass two horses being ridden by the defendant. The defendant was found guilty
at first instance
for exhibiting the propensity to behave
in a way that deviated from the court's instructions, which the judge deemed
sufficient to establish liability
under section 2(2)(b)104. The Court of Appeals ruled that the judge
erred in his application of Mirvahedy when he decided
that clause 2(2)(a)105 was met because
of the fact that Chance's weight was likely to inflict significant
injury (b). Since a horse's weight is an
inherent quality of the species, this provision could never have been met. The
opposite of what was intended by the Act would happen
if weight was considered an abnormality in horses. The court said that the case "has
restricted the meaning of section 2106 by underlining the necessity
for a homogeneous reading of subsections (a) and (b)." Because the
99Mirvahedy v Henley per Lord Nicholls
at para.48.
desire to deviate from the prescribed course of action
cannot be considered a trait within the meaning of subsection 2(2)107, the Court of Appeal sided with the appellant (b). Sedley LJ held that the
purpose of section 2(2)108 was not to make pet owners habitually
responsible for harm caused by the
species's innate tendencies. The absence of the necessary element to hold the keeper responsible in this case is a significant limitation on the scope of the
claim.
#CASE-5
Welsh v Stokes109 (2007) Defendants' 17-year-old employee was wounded
when a horse leaped out of the water and fell on top of her.
All three conditions of subsection 2110 were found to have been satisfied, as the Court of
Appeal upheld the trial judge's decision. A fall from a rearing horse is very dangerous and may result in severe harm,
as stated in Section 2(2)(a)111. Specifically,
the accused argued that the trial judge had improperly interpreted Sections 2(2)(b)112 and 2(2)(c)113.
107 Supra note 37
CHAPTER 3:
#CASE-1
#CASE-2
In Jones v Baldwin125 (2010) When the claimant rode too closely
to the defendant's horse from behind,
the
horse
kicked him, causing bodily harm. The animal then reared up and kicked the claimant
as a result. All three of Section
2's requirements had been completed, but it was crystal
clear that the defendant had a defence available under that section's fifth
prong (1). This was because the claimant had brought about his own injuries via his own actions.
Two important points are reinforced by this case: first, that horse keepers
are not responsible for actions that
are inherently equine, and second, that those who choose to engage in the extremely dangerous activity of horseback
riding are fully responsible for their own actions, no matter how they
turn out.
#CASE-3
In
Bodey
v Hall126 (2011) At the time of the incident, the claimant
was serving as her friend's groom as
she drove her horse in a trap. The trap tipped over and the claimant was hurt
when the horse became scared and ran. Because of the high probability of serious harm, subsection
#CASE-4
In Goldsmith v Patchcott131 (2012) The plaintiff was riding a horse named
Red when the steed was frightened and bucked. After the
claimant fell from the horse, Red kicked her in the face. Initially, the court ruled that Section
2's requirements had been completed, but he also ruled that the defendant
might raise the willing acceptance of risk defence.
Following an appeal,
the Court of Appeals affirmed
the lower
court's ruling
that all three
of Section 2's requirements had been
fulfilled. The second half of criterion 2(2)(b)132 is met since
bucking is a behaviour that all horses
display under certain
situations, especially when they are frightened by anything. All horses have the ability
to buck when startled. The Court of Appeals also upheld the trial court's
ruling that section
5(2)133 applied. Claimant
said that although
she understood there was a
chance Red may buck, she did not realise he could buck as hard as he did.
Despite her awareness of the
potential for Red to buck, she continued. "the fact that Red bucked more violently than predicted cannot carry this
case beyond s.5(2) in order to defeat the defendant's defence," said Jackson LJ. It may be shown that the
defendant insurers' exposure to the possibility
that a claimant would be held liable for the animal's normal behaviour would be much reduced
if they took a broad reading of section 5(2).134
#CASE-5
In Turnbull v Warrener135 (2012) The defendant's bitless
horse, named Gem, was being ridden by the claimant. After taking Gem for a walk in a ring, the two females agreed
that he responded well to a
bridle. Due to Gem's uncontrollability, the claimant fell off as the horse
deviated through a hole in the hedge.
Nothing in section 2(2)136 had been shown, and even if it had, the defendant might have utilised subsection
5(1)137 to claim that the victim was solely to blame for the injury. In response to the
claimant's appeal, the defendant argued that the claimant had voluntarily accepted risk in violation of Section 5(2)138. As the Court of Appeals
explained, the judge improperly interpreted Section 2(2)139.
Since horseback riding is inherently dangerous, subsection (a)of that law must be applied.
The judge considered whether or not it was common for horses to disobey directions when he
arrived at his conclusion about Section 2(2)(b)140. Maurice Kay LJ stated that this
consideration was ‘too simplistic’141 and that as the judge had held that the claimant could not stop
the horse because of the bitless bridle, he should have instead asked whether
it was normal for horses not to respond to instructions in circumstances where they are wearing a bitless bridle
which they are unaccustomed to.
CHAPTER 4:
CHALLENGES THAT ARE NOT COVERED IN THE ACT
In
response to a rise in dog attacks in recent years, the House of the Kanpur
Municipal Corporation (KMC) has approved
a resolution to outlaw the breeding of pit bulls and rottweilers inside municipal
limits.147
On the other hand in Cubbon Park,
Residents who love their pets are fuming
because, beginning of July 1, the city's Horticulture Department will no longer let them to bring them into Cubbon Park. In response to widespread public
outcry and demonstrations, the department reversed a restriction it had previously placed on bringing pets to
the park over five years ago.
In Kanpur, over the course of the previous two months, pit bulls have
been responsible for attacking half a
dozen individuals across three states. An old woman died of her wounds in Lucknow in July. This month, a pit bull attacked
a 10-year-old child in Ghaziabad, requiring 150 stitches.
A teenager was severely mauled
by a pit bull and taken to the hospital
in Meerut. A pit bull attacked a lady, leaving her
with significant injuries in Gurugram. In Kanpur, one dog attacked a cow.
The
Kanpur resolution said that the reason pit bulls and Rottweilers get stressed
and attack people is because their
owners do not have a big enough home or farm house to properly care for them.
CHAPTER 5:
CRITICAL ANALYSIS
Case
law decided in recent years shows that the Animals Act of 1971149 does
not require updating since
it adequately safeguards and defends the rights of caretakers.
The
major substance of Section 2150 would be deleted if the Bill were to
become law, along with the phrases
"except at particular times or circumstances" and "characteristics of the animal
not typically found in animals of the same species". According to
the bill's original intent, "damage
related to an animal's unusual or conditional characteristic" would have
replaced section 2(2)(b)151. "Uncommon" here implies "not shared by animals
of that species
generally." A conditional characteristic "is commonly
shared by organisms
of that species,
but only under
particular conditions."
The case law that emerged in response to the Mirvahedy judgement suggests
that the answer is likely not
positive, as it applies in most situations when the voluntary acceptance of
risk defence provided by Section 5(2)152
of the Act is at issue. This claim may be contested, nevertheless it is not completely nonsensical. Once the dangers posed by the animal are known by all parties, "serious hurdles for claimants beginning
lawsuits" arise. This could be significant in certain
ways.
The need that the accused be "scienter," or
"knowing," is what makes accountability possible under the rule in question. Researchers distinguished between
animals of the ferae naturae and
mansuetae naturae. One related
to wild animals and the other to pets and livestock. A mansuetae naturae
animal's keeper
would only be held responsible for any hurt or damage the animal caused if they knew of the
animal's violent propensities, while the keeper of a ferae naturae animal
would have been found severely guilty for any harm or injury the animal caused.
CHAPTER 6:
SUGGESTIONS & CONCLUSION
o Suggestions:
Other
issues, such as calculating the risk of harm and how owner ignorance may serve
as a defence in establishing
responsibility for damage or injury caused by domestic animals, were explored
in the study of section 2153 of the Act.
Furthermore,
case law since 1971 emphasises the uncertainty involved in trying to show such guilt. Because of this, the judgement in
Mirvahedy is both a boon and a bane; it has provided long-overdue authority and clarity, but it is also open to much
criticism, and its outcome may be
more indicative of the widespread "compensation culture" of the
twenty-first century than of any genuine desire to see justice
done.
These worries may have been allayed by subsequent rulings,
since it seems that the courts may now assess the particulars of a case before
establishing blanket rules.
However, it is maintained that no matter which way the judge ruled in
Mirvahedy, someone would have found fault: either the negligent pet owners would have been punished or the victim
would have been left defenceless.
This case is thus expected to provide enough future certainty. Even said,
as the fields of genetics, breeding,
and fashion continue to develop, it is probable that Parliament may realise the current legislation is not well
equipped to deal with such contemporary occurrences and will be pushed to amend the law.
Based on the information provided in this article, it is politely
stated that there are still problems with civil responsibility for animals even after Mirvahedy, and that only time will tell whether
Mirvahedy has had a stabilising effect or if Parliament will be forced to modify
the legislation.
o Conclusion:
With the help of various case laws and judicial precedents we get a basic understanding of this act and
various propensities of animals and
their liability.
The theory of scienter rule states that owners or keepers who are aware
of the dangerous propensities of
their animals will be held fully responsible for any harm caused by such animals.
BIBLIOGRAPHY
§ BOOKS:
§ CASE LAWS:
·
Whippey v. Jones
[2009] EWCA Civ 452, [13]
·
Turnbull v Warrener
[2012] EWCA Civ 412, [17] (Maurice Kay LJ).
§ COMMITTEE REPORTS:
Ø JOURNAL ARTICLES:
· Liability for Animals, Cambridge
university press,
· Juliet Chevalier-Watts,
Civil Liability for Animals,
§ NEWSPAPER ARTICLES:
§ STATUTES:
CRITICAL ANALYSIS FOR LIABILITY FOR ANIMALS
AND CHATTELS
Authored By- Saisha
Chitkara
SCHOOL OF LAW, NARSEE MONJEE INSTITUTE OF MANAGEMENT STUDIES,
BENGALURU
LAW OF TORTS BATCH - 2022-2027
SUBMITTED TO: SUBMITTED BY:
Prof. Alisha Thomas SAISHA CHITKARA
Assistant Professor of Law SAP ID-81012200016
NMIMS (SOL), Bengaluru BA. L.L.B. 1ST Year
INDEX
|
SR. NO.
|
TOPIC
|
Pg. No.
|
|
1.
|
ABSTRACT
|
6
|
|
2.
|
INTRODUCTION
|
6
|
|
3.
|
LITERATURE RIVIEW
|
7
|
|
4.
|
STATEMENT OF
PROBLEM
|
9
|
|
5.
|
RATIONALE OF
STUDY
|
9
|
|
6.
|
RESEARCH OBJECTIVES
|
9
|
|
7.
|
RESEARCH QUESTIONS
|
10
|
|
8.
|
RESEARCH METHODOLOGY
|
10
|
|
9.
|
CHAPTER 1: MEANING
NATURE AND SCOPE
OF LIABILITY
FOR ANIMALS AND
CHATTELS
|
10
|
|
10.
|
CHAPTER 2: JUDICIAL PRECEDENTS
|
25
|
|
11.
|
CHAPTER 3: JUDICIAL VIEW IN 21ST CENTURY
|
28
|
|
12.
|
CHAPTER 4: CHALLENGES THAT ARE NOT COVERED IN THE
ACT
|
31
|
|
13.
|
CHAPTER 5:
CRITICAL ANALYSIS
|
32
|
|
14.
|
CHAPTER 6:
SUGGESTIONS AND CONCLUSION
|
33
|
|
15.
|
BIBLIOGRAPHY
|
35
|
ABSTRACT
The term "Liability of animals and chattels" covers a wide range of subtopics, such as the two types of animals in tort law, the strict
liability of the person who domesticates or keeps any animal for commercial purposes or any other purpose, and "An
Act to make provision with respect to
civil liability for damage done by animals and with respect to the protection
of livestock from dogs; and."
Topic of this investigation is the "Animal Act 1971," which entered into
force on 1st
October of that year.
It also talks about old doctrines such as scienter
rule, and judicial
precedents.
Several examples were investigated in the course of my research for
this paper, and I will use one of them as an example
to offer a thorough analysis
of responsibility in a variety
of contexts.
Keywords: Liability, Animal Act 1971, Scienter
rule, feare naturae,
mansuetae naturae.
INTRODUCTION
In 1971, the United
Kingdom passed an Act and in response
to which a research was conducted on civil liability for animals conducted
by the
English Law Commission1. The study's stated goal was
to "offer proposals for modernising and simplifying the common
law."
When
someone keeps an animal with the full knowledge that it may hurt others, should
the animal ever go free, that person
assumes full responsibility for any harm the animal
does. This person
has a legal responsibility to domesticate the animal and keep it under control
at all times so that it
does not cause damage to anybody else. The general public agrees wholeheartedly that wild or untamed animals are more
likely to have this tendency than domesticated ones. Since it is already known that these
creatures have this tendency, the scientist's theory
does not need to be verified in this situation. In
other words, if this phenomenon can be shown, it demonstrates scienter and moves the animal from the natural
class to the feare naturae class. All animals of the second category, mansuetae naturae, are considered to be benign until they show
symptoms of having a wild or evil propensity, at which point the presence of
such indicators is considered to constitute proof
of scienter.
This part of the law is in an intolerable mess, with rules being applied and distinctions being made that make little sense in light of modern realities, is a fact that is commonly accepted. This is due to the fact
1 Civil Liability
for Animals (Rep 13, 1967) [29]–[59].
https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/08/LC.-013-CIVIL-
LIABILITY-FOR-ANIMALS.pdf
that disagreements in this area of the law persist
despite the fact that they make
no sense under the present set of conditions. And this, despite the fact that
plenty of others have looked
into this before.
The Commission believes that modernising and standardising the industry
is vital despite the fact that there is opposition to change in
the sector.
The topic of law being examined here is complicated and has far-reaching
effects on people's daily lives.
Individuals whose livelihoods or hobbies depend on animal care, those who are particularly vulnerable to animal
cruelty, and those
whose jobs (such
as highway maintenance or insurance provision) may oblige them to participate in animal practises.
LITERATURE REVIEW
Ø JOURNAL ARTICLES
o ‘Liability in Anglo-American Law for Damage done by Chattels’2
Regarding
the law of the land, two generalizations appear to be justified when the author discusses
the culpability under
Anglo-American law for injury caused
by chattels, i.e.
1.‘The governing principle in all cases is strict liability or liability without
fault’
2.‘The general
principle of strict liability is properly regarded
as liability ex delicto’
o ‘Pit Bull Bans: The State of Breed-Specific Legislation’3
The
author in this journal article talks about the topic of ‘breed’ bans, which is
also known as “pit bull bans” or “breed-specific legislation”. Who Has Passed BSL? Hundreds
of municipalities of all sizes and geographic locations throughout the country have adopted BSL.
2 Fowler V.
Harper, Liability in Anglo-American Law
for Damage done by Chattels, The University of Toronto Law Journal , 1938, Vol. 2, No. 2 (1938),
pp. 280-297, ISSN:1710-1174
3 Dana M. Campbell, Pit
Bull Bans: The State of Breed-Specific Legislation, American Bar
Association, GP Solo , JULY/AUGUST 2009, Vol. 26, No. 5, Animal Law (JULY/AUGUST 2009), pp. 36-41.
ISSN:0747-0088
o ‘The Animals Act’4
The author
in this article states the various liability and defenses under The Animal Act 19715. Author mentions about animals straying
onto the highway, liability for dangerous animals, harmless species, defenses,
cattle trespass, detention
and scale of trespassing livestock, damage done by dogs to livestock, and finally he mentions shooting dogs worrying sheep.
Ø
BOOKS
o ‘The Law of Torts’ by Ratanlal & Dhirajlal6
There are three methods
in which a person may be held legally responsible for damage caused
by their dangerous animals,
as discussed by the author.
(a) Tort law and responsibility for injuries
b) Always at-fault liability when the animal's
destructive character is at issue.
(c)
Cattle trespass may be at fault if the defendant
knows that an animal that is not normally dangerous is there.
o ‘Law of Torts’ by B.M. Gandhi7
The term "animal" is used to describe any kind of life other than humans.
In common law, there were restrictions regarding
animal culpability, and these regulations may be roughly
categorised into two broad classes: (i)
the general criteria for determining negligence when it comes
to animals, and (ii)
responsibility under specific
rules called scienter rules.
o
‘Law of tort: Including
Compensation Under the Consumer Protection Act’ S.P. Singh8
4Alec Samuels, The
Animals Act 1971, The Modern Law Review , Sep., 1971, Vol. 34, No. 5 (Sep.,
1971), pp. 550-556. ISSN: 1468-2230
5 1971 c. 22
6 Ratanlal
and Dhirajlal, The law of Torts, 27th edition, pg. 557, published
by: Lexis Nexis, 2016. ISBN: 978-93-5035-741-5.
7 B.M Gandhi, Law of Torts, 4th edition, pg- 377,
published by: Eastern Book Company, 2016. ISBN:9789388206402
8 S.P Singh, Law of Tort: Including Compensation Under the
Consumer Protection Act, pg. 299-302, published by: Universal Law Publishing, ISBN:
9788175349438, 8175349433
According to the author,
an animal's keeper
is strictly liable
for any harm caused by an animal
belonging to a dangerous species, i.e. ferae naturae, or by an animal belonging to a non- dangerous species, such as a dog, horse, cow,
rams, etc., if the keeper is aware of the animal's vicious nature.
STATEMENT OF PROBLEM
According to the law, an animal is liable for the following types of injuries:
Even while the law has created specific strict
responsibility guidelines for some animal-related damages, these guidelines are by no means the only ones
that apply; the general tort liability guidelines also apply to
animal-related harm.
When the particular rules of animal culpability apply, the defendant is
often subject to strict liability, in contrast to the standard
rules of tort liability, which
sometimes demand the plaintiff to establish the defendant's negligence.
It makes sense therefore why plaintiffs would first try to have the unique rules applied to their cases.
RATIONALE OF STUDY
As
per common law, the owner of an animal is fully responsible for any harm his
animal produces. The Animals Act, 19719 says that, damage
caused by a caretaker's animal
in England is subject to strict responsibility. The custodian
of such creatures bears a duty of care to the
general public, which
is why stringent responsibility has been imposed
on them. The obligation of care is to prevent
others from being harmed by the animal in any way. This obligation often includes the care of other
people's belongings and animals.
RESEARCH OBJECTIVES
1.
To understand how are animals
classified under the law of torts.
2.
To know about
the different kinds
of compensation awarded
for vicious propensities of animals.
3.
To learn about the liability of animals and chattels.
4.
To analyse what is the rationale of imposing liability on the keeper of the animal.
5.
To know about
the current position of this law in India.
9 Supra note 5
RESEARCH QUESTIONS
1.
How are animals
classified under Law of Torts?
2.
What are vicious
propensities of animals?
3.
What is Liability
of animals and chattels?
4.
What is the rationale of imposing liability on the keeper?
5.
How is liability of Animals and Chattels interpreted with respect to current scenario?
RESEARCH METHODOLOGY
The
methodology that would be applied for carrying out this research is a doctrinal
research. Primary resources of this
research paper are The animal act 197110,
Journal articles in the Literature review,
textbooks like Ratanlal & Dhirajlal, S.P Singh, and B.M Gandhi.
Secondary resources such as
textbooks, journal articles, and online resources has been used.
Descriptive Legal Research,
efforts to stick to the facts of the cases cited issues
involved rather very much judgmental about it. The author
has not given too many personal opinions on the issues involved.
Analytical
Legal Research, with the help of available facts and information, has
critically analyzed the whole range
of facts and information.
Applied Legal Research, an attempt has been made to find the solution to
the issues and problems with the
available facts and information. Basing the practical problem, the author aimed
to find the solution
through action research in a practical
context.
CHAPTER 1:
MEANING NATURE
AND SCOPE OF LIABILITY FOR ANIMALS
AND CHATTELS
Ø IMPOSITION OF LIABILITY ON THE KEEPER
OF DANGEROUS ANIMALS
10 1971 c. 22
o DUTY OF CARE
It
is important to understand what is meant by the term "Duty of Care"
before we can completely grasp the duty that rests
on the shoulders of the person in charge of any potentially harmful animal. To further grasp this idea, let's consider
a hypothetical situation
in which "A," the animal's owner or caretaker, is obligated to pay
"B," a victim of A’s animal's actions, monetary damages.11
o BREACH OF DUTY
In
the case of Whippey v. Jones12, Mr. Jones, popularly known as C,
was out for a run in Kirstall, Leeds,
beside the River Aire when Hector, a fully grown 12.5-stone Great Dane puppy, leaped out from behind a bush. A
gung-ho Hector smashed into C, stumbled, and fell down a steep hill to the river, seriously injuring his ankle.
Hector's owner was Mr. Whippey, D, an
inspector for the RSPCA. C filed a lawsuit against D, claiming that on that
day, D had negligently handled Hector
while walking him in the garden by the river, causing C to suffer damages.
For C, it was D's treatment of Hector that caused his wounds.
Held: D wasn't negligent. The closest Hector
has ever been near somebody
was barking at them from a distance; he has never shown any
tendency to jump at anyone. D, an experienced dog trainer, had no reason to suspect that Hector, off leash, would approach an unsuspecting human,
bite him, and do further serious harm. D's failure to exercise the kind
of care that would be expected of a
reliable keeper puts her in violation of the aforementioned condition. D must have opted against
what a prudent keeper would
do in order for them to be below average.13
As long as D managed, watched,
and treated the animal that contributed to the event
correctly, there will be no
evidence of negligence. This is because they are all actions that are generally regarded
as standards for managing cattle or other animals.
11 Liability for Animals, Cambridge university press,
12 Whippey v. Jones
[2009] EWCA Civ 452, [13]
13 Ibid
o PROVING THE BREACH
The
defendant must act justly and reasonably for such standards and expectations to
absolve him of guilt. The physical
facilities used to keep the animal captive have been accused of unethical
behaviour.14
When
Mirvahedy
v. Henley 15 was pitched, C ran into D's horse as it bolted
over a double highway through
Torquay and Exeter on his journey home from work in Devon.
The collision resulted in serious head and facial
injuries for C as well as the death of the horse and the destruction of the top of his vehicle.
One of the three horses
who fled from Dr. Henley's
ranch, this specific horse's
departure was caused by its anxiety at an unknown object. The distance between
D's residence and the incident
location was 1.5 km. By leaping over an electrical wire fence and a
wooden barrier, trampling through a patch of thick bracken and foliage, climbing a 300-yard stretch of track, and
eventually galloping for over a mile down a side road before approaching the busy dual highway, the horses were able to flee the field. Therefore, it may be said
that D's acts were not careless. D fenced the whole area where the horses were
kept in anticipation of the
transfer.
o CAUSATION
It
is the responsibility of the defendant (B) to prove that the claimant's (A)
damages resulted from B's negligent
monitoring, treatment, or constant monitoring of the animals
when A alleges that
they had been injured by animals.
In Hole v Ross-Skinner16,
Mr. Hole, 28, was harmed after he t-boned a horse on a two-lane road's shoulder. Mr. Ross-Skinner, (D), had a sizable piece of land and a house in the country.
On his land were horse stable. Due to the absence of a stock-proof rail, hedges, or gates along the fields'
boundaries, particularly close to the road, C alleges that D was negligent. D's lack of accountability rendered
his acts inappropriate, according to C's other argument.
The horses had been placed in a ground in Middle Park the previous
evening, but it was found the next morning that the barbwire fence enclosing the
field had already
been broken, a gate that had been shut
the evening beforehand was open, and the horses had across a chalk pit
and walked onto the road. The horses
have spent the night in a pasture in Middle Park. Poachers
14 Supra note 11
15 Mirvahedy v. Henley,[2003] UKHL 16, [2003]
2 AC 491.
16 Hole v Ross-Skinner [2003] EWCA Civ 774.
who
intended to hunt deer on D's land in
the past broke in, destroyed fences, and unlocked gates. D was determined to have shown no negligence. It
was not his fault that the invaders got in, even though the entrance
had been left open and the fencing
had been cut. The fences enclosing the fields
on each end of the road were solid, as far as anybody could determine. The poachers' activities were the sole reason the animals were able to escape. Even if D had taken additional precautions by installing more locks on the gate,
there was no guarantee that the burglars
could have been kept out. The probability that a third party stopped
the offender animal
from fleeing or from being released, however,
does not alter the fact that D's breach caused
C's damage.
In a situation involving irresponsible behaviour, C must demonstrate that the loss or harm was not too
remote from the perspective of the law in order to
be entitled to compensation.
o REMOTENESS
Assuming C was injured
by the animal's actions, it is not necessary that C's specific
manner of damage
or the severity of that injury have been reasonably foreseeable, in accordance with the general standards of remoteness. This is
because C was injured in a way that could not have been caused by the animal's actions. Needed damage must be of a
kind that can be anticipated with some degree of certainty.17
In
Draper
v Hodder18, It was conceivable that the Jack Russell
terriers may cause minor injuries to a baby or toddler,
like scratches, for example. Although
it was not fairly predictable, being bit more than 100 times was an injury that may have happened. Similar to this, the court ruled
that it was more likely that a kid would be trampled than bitten if D had
carelessly permitted plenty many
horses to approach a tiny field where a school picnic was being held. However,
being bitten would fall under the category
of foreseeable personal
harm.
o DEFENCES TO NEGLIGENCE
Contributory
negligence, among other defences, may be used in situations involving injuries caused
by animals.
By
disregarding his own safety and putting himself in risk by coming into contact
with the animal, C may be
accused of contributing to
the accident.
17 Supra note 11
18 Draper v Hodder, [1972]
2 QB 556 (CA) 573 (Edmund Davies
LJ).
In Bodey v Hall19, Mrs. Bodey (C) and her passenger, Mrs. Hall (D), were riding in a pony and trap
on a rural road not far from Newbury, Berkshire. Mrs. Bodey was making use of
the road so that she might be
transported to Newbury. Mrs. Hall's horse, Pepper, developed nerves not long after turning off the farm road into
the railroad's side. Due to the trap's forward tilt as it followed the attack, both were propelled
out of it and onto the land. Both C and D were taken off guard. C had a brain damage as a result of the vehicle
accident. C, an experienced horsewoman, knew without a doubt that the horse in question
was the one in question
since she had driven
with D six to eight times before.
She had decided against wearing a riding cap on the day of the accident,
which proved to be a fatal error.
C's lack of riding helmet
use was ruled to not be contributory negligence. Evidence suggested that wearing a riding cap while managing
a pony or a trap would have been suitable,
but this was not the common practise. When it came to whether or not riders
should wear hats while operating
carriages, "clearly distinct schools of thought" existed, with the
final decision coming down to
individual preference. If driving a carriage need a riding cap, yes or no? Although ther1e were no regulations or
suggestions for carriage driving, it was advised that one not wear a
hat.20
o PROBLEM OF STRAYING ANIMALS
Straying onto the highway-
When D's animals wandered
into a public roadway, the previous common
law protection for D in irresponsible situations was eliminated by section 8(1)21 of the Animals Act 197122. Therefore, if animals strayed onto a
road, the typical rules of negligence would apply. If the animals strayed due to D's inability to
exercise reasonable protection and C was hurt as a consequence, D will
be held responsible.23
As
Lord Denning MR stated in Davies v Davies24, The
common law principle still holds true today:
"The owner of an animal was not accountable if it strayed onto a
highway."25
19 Bodey v Hall, 3 [2011] EWHC 2162 (QB) [43]–[44].
20 Supra note 11
21 Animals straying on to highway,
sec.8 Duty to take care to prevent damage from animals straying on to
the highway.
22 Supra note 5
23 Supra note 11
24 Davies v Davies,
[1975] QB 172 (CA) 175.
25 Supra note 5
In the case of Searle
v. Wallbank,26 which took place in 1971, he was not required
to exercise any duty of care to make repairs
to the hedges or to keep the animal in the field. As a consequence of the Animals Act 197127,
section 8(1)28, the general rule is that the keeper of an animal has an obligation to take such care as is reasonable to ensure that it does not wander
on to a roadway and cause damage. This duty comes as a
result of the fact that the Animals Act 197129 was passed.
o STATUTORY CAUSES
OF ACTION UNDER THE ANIMALS
ACT 1971
Animal
owners may be held liable for any damage their pets cause under the
"Act," which is short for the
Animals Act of 197130. This law is meant to augment others
that establish civil culpability (via things like fines, jail time, or confiscation) for harm caused
by hazardous animals. It is
supplementary to laws that compel animal caretakers to have insurance and get licences. In most cases, insurance
programmes are relied upon more than legal proceedings to compensate accident victims.31
o PRE-REQUISITES32
·
Precondition-1
Who can sue and who
can be sued under the Act?
Subject to subsection (4) of section
633, a person
is a keeper of an animal if:
(a)
he owns the animal or has
it in his possession; or
(b)
he is the head of a household of which a member under
the age of sixteen owns the animal or has it in his possession;
26 Searle v Wallbank
[1947] AC 341, [1947] 1 All ER 12, (1947)
176 LT 104, (1947) 63 TLR 24, [1947] LJR
258
27 Supra note 5
28 Ibid 1
29 Supra note 5
30 Supra note 5
31 Supra note 11
32Mulheron,
Principles of Tort Law, Cambridge University Press,
Until another person becomes the animal's keeper in line with the rules
that come before paragraph, the
person who was the keeper immediately prior to that time under that paragraph remains the keeper of the animal. Any
person who has maintained an animal in line with the preceding clauses in this paragraph
is still maintaining the animal even though the animal is no longer
possessed or in the possession
of that person.
The Act does not specify
who is eligible to bring
a claim, thus anybody who has suffered
losses due to animal behaviour
is allowed to do so. The wounded
party may have been a client at D's equestrian centre, but they could just as well have been an employee, a friend, or even someone
D has never met. A keeper may sue another keeper for breach of contract
under the Act. An admissible
suffering under the Act is an injury sustained by a keeper as a direct
consequence of the animal's actions.
The Act does not mandate
that an eligible C ought to be a "stranger" to the keeper in order to qualify.34
·
Precondition-235
Type of animal which caused injury
Notably,
the term "animal" is not defined either in the Animals Act of 197136.
Consequently, the Act's potential scope is not
entirely clear.
For the purposes of the statutory foundation for action under the Act, it is required to ascertain whether or not the creature that caused
him damage was of a purported "dangerous" species, as various criteria for establishing
culpability apply to each sort of animal. This is because the animal in issue has to fall into one of
these two classes for the statutory cause of action to be applicable.
In order to evaluate D's obligation, all animals are categorised as
either dangerous or non- dangerous
under section 237 of the Act. Animals fall into one of these two
classes depending on whether or not
people regard them to be a threat to human safety. This division does not quite reflect the old common law scienter
notion, which distinguished between injury caused by wild animals
(ferae naturea) and harm
33 Interpretaion of certain expressions used in section
2-5, (4), Animal
Act,1971
34 Supra note 11
35 Supra note 21
36 Supra note 5
37 Liability for damages
done by dangerous animals, section2,
animal act,1971
caused by domesticated animals (mansuetae
naturae). But the legislative breakdown
is what we have today, and how things are divided up is
a question of interpretation. Any animal of a dangerous species is included by
the law's provision in section 2(1)38. All animals of a species
that "is not commonly domesticated in the British
Islands" and "fully-grown animals of the species normally
have such characteristics that are likely,
unless restrained, to cause severe damage or that any damage they may cause is likely to be severe" are considered
dangerous wild animals under Section 6(2)39. Any animal seeking protection under this provision
must satisfy both of these conditions. Obviously, subsection (1) of section
240 only applies in
certain cases.41
· Precondition-342
The legal theory under which compensation may be sought.
Specifically, section
1143 of the Act defines
"damage" as "the death of, or injury to, any person
(including any disease
and any impairment of body or mental condition). This term encompasses every possible meaning.
Case law demonstrates that the Act may be used to seek compensation for a wide range of
injuries, regardless of whether liability is alleged under Section
2(1)44 or Section
2(2)45, for example:
• physical injury to plaintiff
caused by the animal directly
(for example, plaintiff being thrown off a horse or being bitten by a dog);
• physical
injury to C because a horse or livestock got
onto a roadway and collided
with C's car;
• injury to plaintiff caused by the spread of infection from D's animals;
• physical
injury to plaintiff caused by a horse or livestock getting onto a roadway
and colliding with C's car;
• property damage
to plaintiff's chattels
caused by the animal (e.g.,
where his car collided with
an animal);
• physical
injury to plaintiff's livestock (e.g., Defendant's dog killing plaintiff's
sheep, or defendant's cat killing plaintiff's birds);
38 Ibid
39 Supra note 33
40 Ibid
41 Supra note 11
42 Supra note 21
43 General interpretation, Animal
act,1971
44 Supra act 37
45 Supra act37
• property damage
to his fixtures (e.g., damage
to crops or gardens caused
by straying animals);
• consequential
economic loss flowing from property damage (e.g., arising from plaintiff's inability
to sell his crops in the example above);
or
• loss of
amenity damages, compensating for intangible inconveniences to him, arising
from the smell or noise of
defendant's animals.
o ANIMALS BELONGING TO A DANGEROUS SPECIES
Damages
produced by animals of a dangerous species may result in a person being held
liable for such damages regardless of whether or not they were negligent
or knew what they were getting into. Section 2(1)46 of the act states: Where any damage
is caused by an animal
which belongs to a dangerous
species, any person who is a keeper of the animal is liable for the damage,
except as otherwise provided by this Act.47
The
offender is held severely accountable regardless of whether or not he knew the
animal presented a harm to people or
took every reasonable precaution to prevent the escape of the dangerous
animal. Responsibility is thus not an absolute
idea, even when the animal
in issue is a member
of a dangerous species, due to the statutory defences
available under the Act, which
will be explored below. According to common sense, the 'damage'
mentioned in subsection 2(1)48 might include either
personal harm or property loss. This was the conclusion reached by the English Law Commission49: ‘although
there is no direct authority
on the point, statements of principle in a number of cases suggest that, provided an animal is a danger to mankind,
there is strict liability
for any damage which it may cause to property’.50 So far as the
author can ascertain, this provision has never been litigated
in English law to date.51
46 Supra act 37
47 1971 c. 22
48 Supra act 37
49 Supra note 1
50 EWLC, Civil Liability for Animals (Rep 13, 1967), ch 1, [5],
referring to, e.g., Behrens v Bertram Mills
Circus Ltd [1957]
2 QB 1 (CA) 13–14.
51 Supra note 11
o ANIMALS BELONGING TO A NON-DANGEROUS SPECIES
A
person may be held accountable for injuries caused by a non-dangerous
(harmless) animal that acted
abnormally in some regard, even though the owner took all the steps that might reasonably be anticipated to prevent the
animal from escaping or harming another person. It makes no difference who caused the accident; the owner must pay
for repairs.
Section 2(2)52 of the act states: Where damage is caused by an
animal which does not belong to a dangerous
species, a keeper of the animal is liable for the damage.
Unfortunately, the drafting of this provision
is extremely convoluted. That is unfortunate, given that it
operates far more widely than s 2(1)53 does – far more accidents
involve ‘harmless’ animals than ‘dangerous’ ones. 54
-
Element#1: Satisfying the
opening words S 2(2)55- The damage to plaintiff must have been caused by owner’s animal. In Bodey
v Hall,56 facts previously, held: plaintiff’s head injury was caused by the actions of
the horse, and him being thrown out of the trap onto her head when the horse unexpectedly shot forward, tipping
the trap over.
-
Element#2: Satisfying
condition S (2)(a)57- As Lord Hobhouse put it in Mirvahedy
v Henley,58 this
condition deals with the animal's ‘dangerousness’.59 This
requirement corresponds broadly
with what had been called,
under the scienter
doctrine at common
law, proof of a ‘vicious propensity’ on the part of the
animal
52 Supra note 37
53 Supra note 37
54 Supra note 11
55 Supra note 37
56 Bodey v Hall [2011]
EWHC 2162 (QB),
[2012] PIQR P1, [29].
57 Supra note 37
58 [2003] UKHL 16, [2003]
2 AC 491, [16]
59 [2003] UKHL 16, [2003]
2 AC 491, [16].
-
Element#3: Satisfying condition S 2(2)(b)60- This condition refers to ‘ the source
of the animal's dangerousness’ (per Lord Nicholls in Mirvahedy
v Henley61). The provision
is obfuscatory, and had been described judicially as being ‘opaque’
and ‘tortuous’.62
-
Element#4: Satisfying
condition 2(2)(c)63- To satisfy the third legal requirement, the keeper or those associated with the keeper
must be familiar with the animal's relevant traits.
Ø
DAMAGE DONE BY AN INDIVIDUAL’S STRAYING
LIVESTOCK
o
Straying onto plaintiff’s land
Under section
464 of the Act, a defendant is held strictly
liable for damages
and expenses caused
by trespassing livestock if the defendant is in possession of livestock
(other than horses) and the livestock
trespasses onto land owned or occupied by the plaintiff and either damages the land or the property of the plaintiff. There is no need to prove
that he was careless. Any horse that is "on any land in England without
legal authorisation" is also in violation of section 4A65 of the Act. Horses "on
any land in England without
legal authorization" are within the purview of this
clause.
The
cattle trespass doctrine of common law has been replaced by these guidelines,
although the common law principle of
strict liability has been maintained. We believe that a fresh explanation of the principles
60 Supra note 37
61Supra note 23
62 Turnbull v Warrener
[2012] EWCA Civ 412, [17] (Maurice Kay LJ).
63 Supra note 37
64 Liabilty for damage and expenses due to trespassing livestock, Animal act,1971
65 Ibid
of
strict responsibility for wandering animals is preferable to attempts to patch up elements of the
current legislation dealing to cattle trespass, since there can be no doubt that this area of the law is burdened by outdated and questionable standards.66
o Straying onto a highway
Plaintiff,
who is wounded when travelling along a road while meeting D's animal, is
required to establish that D did not exercise reasonable care as the keeper of that animal,
which resulted in C's injuries. This is necessary in
order to win the case. Because of the decision in Searle v. Wallbank67, cases such as Mirvahedy
v. Henley68 were allowed to be litigated based on the theory
of negligence.
o Combining the scenarios
The
provisions of the Animals Act 197169
and the case law covered previously do not do as well a job as the graphic on the preceding page does of
conveying the subtleties, nuances, and complexity
of this area of tortious duty for animals. Seeing as how the figure is superimposed on the prior page, this makes sense.
Graphically, this goes against what the English Law Commission, which claims that the new theory would "provide
a very clear norm" in lieu of the antiquated cattle trespass idea, has to say.70
Ø
REMOTENESS
Whether C's damage
or loss must have been fairly foreseeable in order for there to be a chance of recovery in an action based on strict liability
brought under Section
2, Section 3, or Section
471 of the Act is currently up for debate. Prior to this
report's publication in 1967, the English Law Commission72 did not
66 Supra note 11
67 Supra note 18
68 Supra note 23
69 Supra note 5
70 Civil Liability for Animals (Rep 13, 1967) [65].
71 Supra note 5
72 Supra note 1
discuss
the prospect of irreparable injury in cases involving the Animals Act
of 197173.74
Ø
STATUTORY
DEFENCES FOR DEFENDANT’S LIABILITY UNDER S 2
There
are three statutory defences available to a defendant under the Act if the
defendant is prima facie culpable under section 275. Whether the animal
in question belongs
to a potentially dangerous group, the defendant is always entitled to raise these defences.
Here are the three ways in which he might seek legal protection from potential harm thanks to
the Animals
Act,197176: in the event that he is found
liable under section 277:
1.
the plaintiff was entirely to blame for the injury
that was sustained.
2.
The plaintiff knowingly
and willingly accepted
the possibility of suffering damages.
3.
The plaintiff illegally entered the premises. The
lenient way in which these defences have been
interpreted has helped to restore some equilibrium in the defendant's favour,
despite the fact that it is
relatively simple for him to satisfy the requirements outlined in section 2(2)78, despite
this, the conditions outlined in section 2(2)79 have been interpreted.80
o
DAMAGE WHOLLY DUE TO THE FAULT
OF PLAINTIFF
Defendant
is not responsible for damages if the plaintiff is found to be "wholly at
fault" for them. It is hard to onclude
that the claimant was "wholly at blame" after it is shown that the defendant, as the animal's caretaker, is responsible for some "fault," whether
in carelessness or otherwise.
Defendant's negligence or other kind of culpability renders the defence moot.
This defence is provided by s 5(1)81. It applies
to liability arising under S 2, 3,
4 and 4A82.
73 Supra note 5
74 Supra note 11
75 Supra note 37
76 Supra note 5
77 Supra note 37
78 Supra note 37
79 Supra note 37
80 Supra note 11
81 Exceptions from liability
under sec 2, Animal act 1971.
82 Supra note 5
o VOLUNTARY ACCEPTANCE OF RISK
If
the plaintiff can show that he or she "voluntarily accepted the
hazard" of being injured by the defendant's animal, the defendant
will have a difficult time proving liability. Although it is a
complete defence, the defence of volenti in
common law is not entirely analogous to the defence
of volenti under statute. Section
5(2)83 provides the applicable defence, and it applies only
to the duty stated in Section
284.
The plaintiff has the burden
of (1) showing that he was aware of the risk and (2) showing
that he knowingly and willingly put himself in harm's way.85
o TRESPASSERS
If
the plaintiff is injured by a defendant's animal while trespassing on property
where the defendant's animal was kept,
the defendant is completely protected from liability if either (1) he did not keep the animal there to
protect persons or property, or (2) he kept the animal there to protect persons or property, and it
was reasonable for the defendant to keep the animal for that purpose.
o STATUTORY DEFENCES FOR DEFENDANT’S LIABILITY UNDER S 3
Under subsection 386, the plaintiff is strictly liable to the defendant (the owner of the livestock) for the damage that was caused by the defendant's dog (the
keeper of the dog responsible for the death or injury), subject to three
statutory defences.87
If
any of the following circumstances is true, the defendant will have a defence
to any obligation imposed by section 388:
83 Supra note 81
84 Supra note 37
85 Supra note 11
86 Liability for injury done by dogs to livestock, Animal act,1971
87 Supra note 11
88 Ibid
• the
plaintiff's livestock strayed onto land, where the offending dog either
belonged to the occupier of that
land, or the dog's presence on the land was authorised by that occupier, per s 5(4)89; • the common
law defence of contributory negligence applies, per s 1090; or
• the damage
to the plaintiff's livestock that was caused by the defendant's offending dog
was "due wholly to the fault
of the plaintiff."
Ø
OLD COMMON
LAW DOCTRINES: Scienter
Rule and Cattle
Trespass
If a "wild animal" caused harm, its owner had all responsibility under the scienter
theory (ferae naturae). The custodian had complete and whole understanding of the feral animal's potentially lethal tendencies, therefore this was the case. If the animal
in question was a "domesticated animal"
or "tame animal" (mansueta
naturae), and its keeper knew that it had a horrible propensity to do the type of injury that was committed to C,
then the keeper would be held harshly
accountable regardless of guilt. The idea could only work if the keeper was aware
of the animal's bad tendencies; in
the case of wild animals, this knowledge might be assumed without
evidence, but in the situation
of domesticated animals,
evidence would be required.
According to McQuaker v Goddard91, Because they were not tamed, wild
animals were considered to be hazardous
to humans, in contrast to domesticated animals,
which were thought
to be secure. The scienter
hypothesis protects domesticated animals including cats, dogs, cattle,
horses, pheasants and
partridge, bees, as well as camels.
There
were many other kinds of wild creatures that might be discovered, including
elephants, bears, zebras, lions, tigers,
and monkeys, to mention a few. However, "there is substantial dispute
as to the standards applied in
categorising these species," 92
89 Supra note 81
90 Application of certain enactments to liability under sec 2
91 McQuaker v Goddard [1940]
1 KB 687 (CA) 695.
92 Supra note 11
CHAPTER 2:
JUDICIAL PRECEDENTS
# CASE-1
In
Breeden
v Lampard93 (1985) The claimant's leg was broken when the
horse she was riding approached
another horse too quickly from behind and kicked it. Lloyd LJ stated, "If
liability is based on the possession
of some abnormal characteristic known to the owner, then I cannot see any sense in imposing liability when
the animal is behaving in a perfectly normal way for all animals of that species in those circumstances, even if it
wouldn't be normal for those animals
to behave in that manner in other circumstances, for example, a bitch with pups
or a hob wiggling its tail." The commentator said that Section
2(2)(b)94 was a one-legged stool, and that the court's
ruling "severely restricted the application of s.2(2)95 to aberrant animals
because of this.
Since the case included a study of natural behaviour, it is in
the favour of the keepers.
# CASE-2
Flack
v Hudson96 (2000) explains what's behind a peculiar
characteristic. When Mrs. Flack's horse saw an approaching tractor, it became
quite nervous and bolted down the road in front
of her. Mrs. Flack's fall caused her to sustain
injuries that ultimately proved deadly. The abnormal behaviour of this horse was clearly in violation
of subsection 2(2)(b)97. Not all horses will run away if they see a tractor, but if they
are frightened, their instinct is to go away as quickly as possible. Since Sebastian's source of concern
is not one that many horses often feel, his behavior—namely,
racing away—was seen as peculiar. These examples, such as Breeden and Fox v. Kohn, show that stable owners are
not responsible for injuries their horses cause while behaving normally. This allows the counterargument that keepers are not subjected to an undue share of the
regulatory burden as a consequence of the Animals Act98.
93Breeden v Lampard [1985]
WL 542478.
94 Supra note 37
95 Supra note 37
96 Flack v Hudson
[2001] QB 698.
97 Supra note 37
98 Supra note 5
# CASE-3
In Mirvahedy
v Henley99, (2003)
By a vote of 3 to 2, the House of Lords decided that if a non- dangerous animal causes damage by acting
in a way that is not typical
of the species as a whole
but
is typical of the species under certain
circumstances, the animal's
keeper will be held strictly
liable under section
2(2)(b)100 of the Animal Welfare
Act. Due to the fact that this is not typical behaviour for the species as a whole,
this choice was chosen. Since all horses react similarly when sufficiently terrified, a horse that rushes away because it
is fearful of something it has never seen before is deemed to be responding properly given the circumstances. Since this is a violation of the second prong of
subsection 2, (2)(b)101. The House of Lords also restated that section 2(2)(b)102 had two
potential paths to liability. The judgement in the case of Mirvahedy might be interpreted to mean that owners
are now liable for damage caused by their animals while acting normally. Due to the closeness of the vote tally,
the opinions of their Lordships must
be considered; in particular, the views of Lord Scott and Lord Slynn, who were among the Lords who voted against the judgement.
The majority opinion, given by Lord Nicholls,
took into account the contrasting
findings of Lords Cummings and Breeden.
#CASE-4
In
Clark
v Bowlt103 (2006) Injuries were sustained by the claimant
when his automobile was struck by the
defendant's horse, Chance, as he attempted to pass two horses being ridden by the defendant. The defendant was found guilty
at first instance
for exhibiting the propensity to behave
in a way that deviated from the court's instructions, which the judge deemed
sufficient to establish liability
under section 2(2)(b)104. The Court of Appeals ruled that the judge
erred in his application of Mirvahedy when he decided
that clause 2(2)(a)105 was met because
of the fact that Chance's weight was likely to inflict significant
injury (b). Since a horse's weight is an
inherent quality of the species, this provision could never have been met. The
opposite of what was intended by the Act would happen
if weight was considered an abnormality in horses. The court said that the case "has
restricted the meaning of section 2106 by underlining the necessity
for a homogeneous reading of subsections (a) and (b)." Because the
99Mirvahedy v Henley per Lord Nicholls at para.48.
100 Supra note 37
101 Supraa note 37
102 Supra note 37
103 Clark v Bowlt [2006]
EWCA Civ 978.
104 Supra note 37
105 Supra note 37
106 Supra note 37
desire to deviate from the prescribed course of action
cannot be considered a trait within the meaning of subsection 2(2)107, the Court of Appeal sided with the appellant (b). Sedley LJ held that the
purpose of section 2(2)108 was not to make pet owners habitually
responsible for harm caused by the
species's innate tendencies. The absence of the necessary element to hold the keeper responsible in this case is a significant limitation on the scope of the
claim.
#CASE-5
Welsh v Stokes109 (2007) Defendants' 17-year-old employee was wounded
when a horse leaped out of the water and fell on top of her.
All three conditions of subsection 2110 were found to have been satisfied, as the Court of
Appeal upheld the trial judge's decision. A fall from a rearing horse is very dangerous and may result in severe harm,
as stated in Section 2(2)(a)111. Specifically,
the accused argued that the trial judge had improperly interpreted Sections 2(2)(b)112 and 2(2)(c)113.
Given
that horses as a species will raise under particular conditions, the court ruled that the trait of rearing was characteristic for the horse under section
2(2)(b)114.
The
key question, as noted by Dyson LJ, was not whether Ivor had a propensity to
rear in general, but whether he had the trait of rearing under
those particular circumstances. Therefore, the court properly read clause 2 (2)(b)115.
In their defence, the defendants claimed
that the issue
with section 2(2)(c)116 was that the court did not examine
whether or not they had sufficient evidence
that Ivor had the trait of rearing in particular circumstances, as opposed to
horses in general.
The defendant's appeal was dismissed
by the Court of Appeal because it was determined that knowing that the general
species may act in such a way under specified
circumstances is sufficient to satisfy section 2(2)(c)117.
107 Supra note 37
108 Supra note 37
109 Welsh v Stokes [2007]
EWCA Civ 796.
110 Supra note 37
111 Supra note 37
112 Supra note 37
113 Supra note 37
114 Supra note 37
115 Supra note 37
116 Supra note 37
117 Supra note 37
CHAPTER 3:
JUDICIAL VIEW IN
21ST CENTURY
#CASE-1
Freeman
v Higher Park Farm118 (2008) contains what is perhaps the
most extreme instance of deliberately
accepting risk of all the cases employing section 5(2)119, and it
exemplifies exactly why the defence
is so crucial to the Animals Act120. Although the claimant had been advised
beforehand that her horse was prone to bucking when breaking into a canter,
she stated that this behaviour did not bother her
and that the ride did not dampen her enthusiasm. The claimant said that she had begun to canter and that the horse
had buckled somewhat, at which point she had inquired
as to whether or not it was safe for her to continue. The second time, the horse gave a few good bucks, sending the
claimant flying from the animal and into serious injury. Due to the high probability of severe injury for anybody
falling from a bucking horse, the Court of Appeals
found that the conditions of section 2(2)(a)121 had been satisfied. Bucking, however,
was ruled not to qualify as a "trait not frequently observed in horses"
under the first prong of Section
2(2)(b)122. No evidence was also found to support the idea that
bucking is a typical behaviour
for horses, but rather one that manifests
only in certain
contexts. This meant
that consideration of section 2(2)(c)123 was utterly
unnecessary since the second prong could not
be fulfilled. The Court of Appeal affirmed the trial court's ruling that the
section 5(2)124 defence was applicable. At least twice,
the claimant was asked whether
she wanted to continue and canter again, and each times she
said “yes" even though it was probable that Patty may buck again. "the appellant
voluntarily assumed that risk and its ramifications," as stated by Etherton
LJ.
#CASE-2
In Jones v Baldwin125 (2010) When the claimant rode too closely
to the defendant's horse from behind,
the
118 Freeman v Higher
Park Farm per Etherton LJ at para.51.
119 Supra note 81
120 Supra note 5
121 Supra note 37
122 Supra note 37
123 Supra note 37
124 Supra note 81
125 Jones v Baldwin [2010]
(Unreported) Cardiff County
Court, 12 October.
horse
kicked him, causing bodily harm. The animal then reared up and kicked the claimant
as a result. All three of Section
2's requirements had been completed, but it was crystal
clear that the defendant had a defence available under that section's fifth
prong (1). This was because the claimant had brought about his own injuries via his own actions.
Two important points are reinforced by this case: first, that horse keepers
are not responsible for actions that
are inherently equine, and second, that those who choose to engage in the extremely dangerous activity of horseback
riding are fully responsible for their own actions, no matter how they
turn out.
#CASE-3
In
Bodey
v Hall126 (2011) At the time of the incident, the claimant
was serving as her friend's groom as
she drove her horse in a trap. The trap tipped over and the claimant was hurt
when the horse became scared and ran. Because of the high probability of serious harm, subsection
(a)
of section 2127 was met. Since it is known
from Mirvahedy that all horses have the trait of running away when startled, the requirements of Section 2(2)(b)128
were also fulfilled. The defendant
was a skilled horsewoman, thus it was shown that she was aware of the fact that horses, as a species, tend to run away
when they're terrified (section 2(2)(c)129). The claimant was also a skilled horsewoman, thus the
High Court ruled that the willing acceptance of risk defence of Section
5(2)130 applied.
#CASE-4
In Goldsmith v Patchcott131 (2012) The plaintiff was riding a horse named
Red when the steed was frightened and bucked. After the
claimant fell from the horse, Red kicked her in the face. Initially, the court ruled that Section
2's requirements had been completed, but he also ruled that the defendant
might raise the willing acceptance of risk defence.
Following an appeal,
the Court of Appeals affirmed
the lower
126 5 Bodey v Hall
[2011] EWHC 2162 QB
127 Supra note 37
128 Supra note 37
129 Supra note 37
130 Supra note 81
131 Goldsmith v Patchcott
[2012] EWCA Civ 183.
court's ruling
that all three
of Section 2's requirements had been
fulfilled. The second half of criterion 2(2)(b)132 is met since
bucking is a behaviour that all horses
display under certain
situations, especially when they are frightened by anything. All horses have the ability
to buck when startled. The Court of Appeals also upheld the trial court's
ruling that section
5(2)133 applied. Claimant
said that although
she understood there was a
chance Red may buck, she did not realise he could buck as hard as he did.
Despite her awareness of the
potential for Red to buck, she continued. "the fact that Red bucked more violently than predicted cannot carry this
case beyond s.5(2) in order to defeat the defendant's defence," said Jackson LJ. It may be shown that the
defendant insurers' exposure to the possibility
that a claimant would be held liable for the animal's normal behaviour would be much reduced
if they took a broad reading of section 5(2).134
#CASE-5
In Turnbull v Warrener135 (2012) The defendant's bitless horse, named Gem, was being ridden by the claimant. After taking Gem for a walk in a ring, the two females agreed that he responded well to a bridle. Due to Gem's uncontrollability, the claimant fell off as the horse deviated through a hole in the hedge. Nothing in section 2(2)136 had been shown, and even if it had, the defendant might have utilised subsection 5(1)137 to claim that the victim was solely to blame for the injury. In response to the claimant's appeal, the defendant argued that the claimant had voluntarily accepted risk in violation of Section 5(2)138. As the Court of Appeals explained, the judge improperly interpreted Section 2(2)139. Since horseback riding is inherently dangerous, subsection (a)of that law must be applied. The judge considered whether or not it was common for horses to disobey directions when he arrived at his conclusion about Section 2(2)(b)140. Maurice Kay LJ stated that this consideration was ‘too simplistic’141 and that as the judge had held that the claimant could not stop the horse because of the bitless bridle, he should have instead asked whether it was normal for horses not to respond to instructions in circumstances where they are wearing a bitless bridle which they are unaccustomed to.
132 Supra note 37
133 Supra note 37
134 Ibid per Jackson
LJ at para.59.
135 Turnbull v Warrener per Maurice Kay LJ.
136 Supra note 37
137 Supra note 81
138 Supra note 81
139 Supra note 37
140 Supra note 37
141 Turnbull v Warrener
per Maurice Kay LJ at para.21.
This
question would therefore have most
likely led to the second limb of section 2(2)(b)142 being satisfied.
It was also clear to the Court of
Appeal that section 2(2)(c)143 would have been satisfied due to the fact that the two women were experienced horsewomen. Because, as Maurice Kay LJ put it for the
Court of Appeal, "to find that Ms Turnbull was 'wholly' at blame cannot
cohabit with the judgement that Mrs Warrener
was not negligent," the Court of Appeal concluded that the section 5(1)144
defence did not apply.’145 However, the court ruled in favour of the
defendant, citing section 5(2)146,
since the claimant knew that a horse would refuse to follow a rider's commands
if it was unfamiliar with the equipment being used, in this case the bitless
bridle. It was for
this reason that they first tried Gem in a confined space while bridled.
CHAPTER 4:
CHALLENGES THAT ARE NOT COVERED IN THE ACT
In
response to a rise in dog attacks in recent years, the House of the Kanpur
Municipal Corporation (KMC) has approved
a resolution to outlaw the breeding of pit bulls and rottweilers inside municipal
limits.147
The
resolution states that a fine of up to Rs 5,000 and the confiscation of the
animal would be given to anybody caught in possession of
either of the two species.
On the other hand in Cubbon Park,
Residents who love their pets are fuming
because, beginning of July 1, the city's Horticulture Department will no longer let them to bring them into Cubbon Park. In response to widespread public
outcry and demonstrations, the department reversed a restriction it had previously placed on bringing pets to
the park over five years ago.
In Kanpur, over the course of the previous two months, pit bulls have
been responsible for attacking half a
dozen individuals across three states. An old woman died of her wounds in Lucknow in July. This month, a pit bull attacked
a 10-year-old child in Ghaziabad, requiring 150 stitches.
A teenager was severely mauled
by a pit bull and taken to the hospital
in Meerut. A pit bull attacked a lady, leaving her
with significant injuries in Gurugram. In Kanpur, one dog attacked a cow.
142 Supra note 37
143 Supra note 37
144 Supra note 81 145 Ibid at para.29.
146 Supra note 81
147 Kanpur bans rearing of pitbull, rottweiler dog breeds within
city limits, ET Spotlight Special,
Sep 28, 2022
The
Kanpur resolution said that the reason pit bulls and Rottweilers get stressed
and attack people is because their
owners do not have a big enough home or farm house to properly care for them.
Animal rights
campaigner Priya Chetty
Rajagopal was surprised by the move to prohibit
dogs. But if it turns out
that unrestrained dogs and unpicked faeces are at the root of the problem, I really hope pet owners behave civically
and do something about it. She emphasised the need of leashing dogs and
picking up waste whenever owners left the dog park's
property.148
CHAPTER 5:
CRITICAL ANALYSIS
Case
law decided in recent years shows that the Animals Act of 1971149 does
not require updating since
it adequately safeguards and defends the rights of caretakers.
The
major substance of Section 2150 would be deleted if the Bill were to
become law, along with the phrases
"except at particular times or circumstances" and "characteristics of the animal
not typically found in animals of the same species". According to
the bill's original intent, "damage
related to an animal's unusual or conditional characteristic" would have
replaced section 2(2)(b)151. "Uncommon" here implies "not shared by animals
of that species
generally." A conditional characteristic "is commonly
shared by organisms
of that species,
but only under
particular conditions."
The case law that emerged in response to the Mirvahedy judgement suggests
that the answer is likely not
positive, as it applies in most situations when the voluntary acceptance of
risk defence provided by Section 5(2)152
of the Act is at issue. This claim may be contested, nevertheless it is not completely nonsensical. Once the dangers posed by the animal are known by all parties, "serious hurdles for claimants beginning
lawsuits" arise. This could be significant in certain
ways.
The need that the accused be "scienter," or
"knowing," is what makes accountability possible under the rule in question. Researchers distinguished between
animals of the ferae naturae and
mansuetae naturae. One related
to wild animals and the other to pets and livestock. A mansuetae naturae
animal's keeper
148 Pets to be banned in Cubbon Park from July 1, The Hindu Editorial, 25 June, 2022
149 Supra note 5
150 Supra note 5
151 Supra note 5
152 Supra note 5
However, it is maintained that no matter which way the judge ruled in Mirvahedy, someone would have found fault: either the negligent pet owners would have been punished or the victim would have been left defenceless.