LIABILITY IN TORT FOR ANIMALS

A PROJECT REPORT
Submitted to the

FIVE YEAR LAW COLLEGE

University of Rajasthan

Jaipur

(As per requirement of fifthth semester)

for the B.A.LLB.(HONS). Examination-

2010
Paper-III (LAW OF TORTS)

Under Supervision of Submitted by

Prof. T. BHATTACHARYA AJIT YADAV

Faculty Lecturer B.A.,LL.B (Hons.)

FIVE YEAR LAW COLLEGE V Semester (07)

FIVE YEAR LAW COLLEGE

UNIVERSITY OF RAJASTHAN
JAIPUR
 CERTIFICATE

This is to certify that AJIT YADAV , a student of B.A LL.B

(hons.) V Semester, Five Year Law College, Rajasthan University,

Jaipur has written this project entitled "LIABILITY IN TORT FOR

ANIMALS" under my supervision and guidance.

It is further certified that the candidate has done a sincere

efforts in this work on the topic mentioned above.

Prof. T. Bhattacharya

Supervisor
 ACKNOWLEDGEMENT

I have written this presentation entitled

""LIABILITY IN TORT FOR ANIMALS" " under the
supervision of Prof. T. Bhattacharya, Faculty
Lecturer, Five Year Law College, University of
Rajasthan, Jaipur.

I find no words to express my sense of gratitude

for Prof. T. Bhattacharya, Faculty lecturer for
providing the necessary guidance and constant
encouragement at every step of his endeavour.
The pains taken by him in the scrutiny of the rough
draft as well his valuable suggestions to plug the
loopholes therein have not only helped immensely
in making this work see the light of the day, but
above all, have helped in developing an analytical
approach to this work.

I am grateful and thankful to Prof. (Mrs.) Mridul

Srivastava, Director of Five Year Law College,
University of Rajasthan, Jaipur for her cooperation
and guidance.
 Further I am grateful to my learned teachers for
their academic patronage and persistent
encouragement extended to me.

I am highly indebted to the office and Library Staff

of the Five Year Law College, University of
Rajasthan, Jaipur for the support and cooperation
extended by them from time to time.
I cannot conclude with recording my gratefulness
to my friends for the assistance received from
them in the preparation of this project for which I
am indebted to them.

Ajit Yadav.
B.A.,LLB.
(hons.)
V Semester
Roll No. 07
Five Year Law College
University of Rajasthan,
Jaipur
 CONTENTS

Sr.no. Topic Page no.

1. Certificate i

2. Acknowledgement ii

3. Introduction 1

4. Scienter Rule 2

5. Cattle Trespass 5

6. Defence to an action in cattle trespass 6

7. General Liability in Tort 7

8. Conclusion 9

9. Table of Cases 10

Bibliography and Webliography

 INTRODUCTION

People who keep animals whether they are dangerous or non-dangerous animals are under a duty
of care to prevent harm to other people by their animals.
This is a civil liability and is governed by the law of tort meaning that it is concerned with a
dispute between two parties, in this case between two individuals and is therefore governed by a
civil court.

The owner of a wild animal that is of a dangerous species, is liable for injuries sustained from
their animal. There is no requirement for negligence or intent because it is a form of strict
liability. Moreover, in order to impose liability upon an owner, the vicious nature of the animal
needs to be abnormal to the class in which the animal belongs if the animal is domestic. The
rationale for the strict liability is to impose liability upon an owner because they have knowledge
that a vicious act is likely to result from their animal. However, there is a defense available for an
owner when the plaintiff assumes the risk of the danger related to the vicious animal.

Strict liability may be imposed upon owners of domestic and wild animals as long as there is
knowledge of the vicious characteristics the animal possesses. In addition, the vicious behavior
needs to be the efficient, and proximate cause of the injury incurred to the plaintiff. In
comparison, injuries to wild animals have an assumed responsibility whereas domestic animals
may not. When an owner has a wild animal, there is a presumption of awareness that the animal
has vicious behavior and tendencies. Moreover, proof of vicious behavior is more difficult when
discussing domestic animals.

Liability may be imposed upon a third party employee when they possess knowledge as to the
violent disposition of the animal. Here, when knowledge is passed on to an agent, there is a duty
imposed to protect third persons. Owners of vicious animals have an additional duty to protect
individuals they have a relationship with. Liability can be absolved if the owner warns
employees of the dangers the animal carries. However, if an owner fails to warn another
employee of the dangers, the owner will be held liable.

An employer duty is limited in regards to liability of vicious animals. Thus, the employer does
not need to give specific descriptions regarding the possible dangers. When an employee is
warned of an animal's behavior, and continues working, they may not hold the employee liable
for damages. Additionally, liability cannot be argued that the animal is unusually vicious and that
the employee did not appreciate the full extent of the danger, unless the employer knew of the
danger, for if the employer was not aware of the danger.
The liability for the damage done by animals can be studied under the
following three heads :

1. SCIENTER RULE.
2. CATTLE TRESPASS.
3. ORDINARY LIABILITY IN TORT.

1. SCIENTER RULE - One of the specific rules of animal liability depends on a

distinction made between wild animals (ferae naturae) and domestic animals (mansuetae
naturae). The keeper of a wild animal is said to be strictly liable for the damage such an
animal causes and a person who keeps such an animal is said to keep it at his peril.
Negligence does not have to be proved by an injured plaintiff when he is injured by such
an animal. To recover for injuries caused by a domestic animal, however, the plaintiff
must prove that the animal in question had a vicious propensity to do the kind of injury
that is the subject of the complaint, and further, it must be shown that the defendant knew
of this propensity. Put another way, the defendant is only liable for injuries caused by
domestic animals when he knows of the vicious propensity, but in the case of wild
animals the knowledge of a vicious propensity is irrebutably presumed. The scienter
action, therefore, extends not only to damage caused by domestic animals known to be
vicious but also to wild animals presumed to be vicious.

The scienter principles is described by Williams in the following language: “The

general principle in present-day English law is that, apart from cases in cattle-trespass
and the ordinary torts of nuisance, negligence, and so on, liability for damage caused by
one's animal depends on previous knowledge of its vicious nature. Such knowledge had
originally to be proved in all cases, but in modern law it is presumed if the animal in
question is one of a dangerous class. The principle is known as the scienter principle
(from the words scienter retinuit in the old form of the writ), and proof of knowledge is
called, somewhat ungramatically, proof of scienter.”
 In Kelly v. Wade1 the defendant kept a dog which attacked and killed the plaintiff's
sheep. An averment by the plaintiff that the defendant negligently kept such an animal
was held to be insufficient; since the animal was not ferae naturae, the plaintiff was
obliged to allege scienter.

In Quinn v. Quinn2 the plaintiff and the defendant occupied the same yard and had joint
use of a stall in which the plaintiff kept a cow and the defendant kept two sows. The cow
was separated from the pigs by a timber partition. The plaintiff's sows were allowed to
get over to the cow's side of the stall where they ate off two of the cow's paps. The cow
died as a result of the injuries. The plaintiff recovered as there was evidence that the pigs
had previously attacked and killed certain cocks and hens to the knowledge of the
defendant. (There was also some evidence that the plaintiff had previously asked the
defendant to strengthen the partition.) In the case of a wild animal no such proof is
necessary to establish liability. So where injury was caused by a bear, by an elephant and
by a zebra it was not necessary in any of these cases to allege or prove the vicious
propensity of the animal in question.

In State of Himachal Pradesh v. Halli Devi3 The petitioner through this petition claimed
compensation in tort for damages by injuries sustained by the claimant as a result of attack by a
ferocious wild animal i.e., black bear. The question before the Court to adjudicate was whether
the Wild Life Protection Act 1972 provides any sort of compensation in the form of damages to
be awarded as a result of attack by wild animals? Whether the State is liable under the Law of
Tort for payment of compensation?
The respondent, was a resident of the District of Chamba and while going to her cattle shed for
the purpose of feeding her cows, was attacked by a black bear as a result of which she sustained
the serious injuries: like loss of complete eye sight, compound fracture of left mandible, nasal
bone, left forearm etc., her permanent disability was assessed at 100 % by medical authorities.
Thus a claim of Rs. 1,00,000 was made against the Divisional Forest Officer. It was averred that
the Divisional Forest Officer, under the scheme for the preservation of wildlife, had let loose the
Bear and other protected wild animals in the Jungle and unfortunately killing of such animals is
also prohibited by the State Government.

1
(1848) 12 ILR 424.
ii. 39 ILTR 163
iii. A.I.R. 2000 H.P. 113.

3
As a result of the attack by the black Bear, the respondent suffered grievous injuries and
sustained 100% permanent disability. She has spent about Rs. 50,000 on her medical treatment.
In claiming damages, the respondent alleged that she suffered due to the acts of omission and
commission of the defendants.

The defendants on their part, denied liability for the damages, and for letting loose the black
Bear. They raised several objections to the petition, including one of jurisdiction. They further
claimed that Sec. 60 of the Wildlife [Protection]Act, 1972, provides that no suit, prosecution or
other legal proceeding shall lie against any officer or employee of the Central Government or
State Government for anything which is done in good faith. Hence this suit is hit by the above
section.

The Court while admitting the petition under the civil provision, held that claiming damages for
the injuries sustained as result of attack by a wild animal would not be an action for damages
caused by an Act which has been done in good faith by the State or its officers/ employees under
the Act. Further the Court held that to succeed in claiming damages under the tortuous liability
of the defendant, the onus was heavily on the plaintiff to show that damages was sustained by her
due to some act of omission or commission of the defendants. The plaintiff had miserably failed
to discharge such onus. There is no provision under the Wild Life [Protection] Act, 1972 for
providing relief to a victim attacked by wild animals. Decision of the State Government to grant
gratuitous relief to victims was a welcome sign of a democratic Government, but providing for
such relief would not tantamount to admission of liability by the State, for tort or death or
injuries by wild
animals.
 2. CATTLE TRESPASS - Apart from scienter the other special rule relating to animal
liability is known as Cattle Trespass. Here too, as in the scienter action, the owner is, in
the appropriate circumstances, strictly liable for damage caused by his trespassing cattle.

At the very outset a distinction must be made between Cattle Trespass on the one hand
and the personal trespass which one may commit through the medium of one's animals.
If, for example, my cattle stray from my land and go onto the land of another, this is
properly called cattle trespass. If, on the other hand, I drive my cattle or deposit them
onto another's land, then this is not cattle trespass, but trespass to land committed by me
through the instrumentality of my cattle. The fact that it is cattle which I drove onto my
neighbour's land is of no more consequence than if it was a load of stones which I
deposited on the land.

In Brady v. Warren4 the defendant inherited a demesne in 1898 on which there were
rabbits and deer. These animals trespassed on the adjoining lands which were in the
occupation of the plaintiff. In an action grounded in trespass, negligence and nuisance the
court held that the defendant could not be liable in respect of damage done by the rabbits
as they were wild and did not belong to the defendant. Evidence that the defendant's
predecessor had brought onto the demesne foreign rabbits to improve the strain of the
breed and that the rabbits were trapped, killed and exported, did not alter the fact that
they were wild and did not belong to the defendant. With regard to the deer, however, the
court took a different view, and on the facts (e.g. there was some evidence that the
defendant used to feed them in the winter), it was prepared to hold that the deer were in
fact tame and under the defendant's control. The defendant in these circumstances was
liable for the trespass to the plaintiff's crops. The tamed deer owned by the defendant
were treated seemingly (the court is not explicit on the matter) as cattle for the purpose of
the cattle trespass rule. If cattle are straying and they come onto another person's property
it does not matter if they have come from an adjoining field or from the highway. Strict
liability will attach in either event. It should be hastily added that this is the case only
when the cattle have strayed onto the property (i.e. cattle trespass properly so called). If
the cattle are being driven and through mis-handling they break onto another person's
property then whether the owner of the cattle is liable or not depends on principles of
negligence or ordinary trespass. This applies whether the cattle are being driven or
managed on private property from which they break out or whether they are being driven
along the highway and break onto adjoining property. The owner of cattle which are
lawfully on the highway is not liable without negligence for trespasses which his cattle
commit to adjoining property. This is not an exception to the cattle trespass rule because
4
[1900] 2 I.R. 63
 in cattle trespass the animals are by definition straying on the road and are not on the
highway for a lawful purpose.

In Dalton v. O'Sullivan5 the cattle in question were in the possession of an agister, who had
placed them on his lands in pursuance of an agistment agreement. The cattle escaped and caused
damage to the plaintiff's property. An action against the defendant as owner of the cattle failed,
as it was clear on the facts that the defendant was neither in possession of the cattle nor in
occupation of the land. In fact, the defendant lived in Killarney nearly 100 miles from the land in
question. Dalton's case, therefore, in deciding negatively that the defendant was not liable merely
because he owned the cattle, did not decide whether primary responsibility rested in the case of
cattle trespass on the person who was in possession of the cattle at the material time or the
occupier of the land from which they escaped.

DEFENCES TO AN ACTION IN CATTLE TRESPASS

Act of Third Party- Although there used to be some doubt about it, it seems now to be well
settled by two Irish cases that the act of a third party is a good defence to an action in
Cattle Trespass. In Moloney v. Stephens6 the plaintiff and defendant owned adjoining
property and a third party had a right of way over both farms. The third party in
exercising his right of way failed to close a gate as he was obliged to do with the result
that the defendant's horses trampled on the plaintiff's land. Judge O Briain in following
an earlier Irish case, McGibbon v. McCorry7 said in quite unequivocal language “that
the defendant has established a good defence in law to this action by showing that the
trespass complained of was caused by the wrongful acts of a third party.”

1. Act of God - It would seem that if an action of a third party affords a defence then Act of
God should also immunize the defendant from legal liability. So if the fence or gate
through which the cattle trespassed was blown down by an extraordinary gale no liability
should attach to their owner.

2. Plaintiff’s Own fault and Contributory Negligence - Where the plaintiff is the sole
author of his own misfortune then, of course, he cannot complain. So, for example, if the
cattle have trespassed because the plaintiff in breach of an obligation to fence allows the
defendant's cattle on to his own property he cannot complain at law. If he has, however,

5
[1947] Ir. Jur. Rep. 25.
6
[1945] Ir. Jur. Rep. 37.
7
43 ILTR 132.
 been only partly responsible for the trespass then the apportionment provisions of the
Civil Liability Act 1961 should apply.

3. Inevitable Accidents - The defence of inevitable accident appears to be available in

some limited cases at least. It seems to be recognized at least where the cattle trespass is
necessary to secure the reasonable fulfillment of the defendant's rights.

3. GENERAL LIABILITY IN TORT : negligence, nuisance and trespass :

The owner or keeper of an animal may become liable under the general principles of tort
law just as the owner of any chattel may become so liable. If, for example, a person
brings a dog onto the highway he may be liable in Negligence if he does not exercise
reasonable care controlling the dog. Again, if a person keeps animals in such numbers
that they unreasonably interfere with his neighbour's enjoyment of his property then the
owner of the animals may be liable in Nuisance. Similarly, will the owner be liable if the
noise or stench which such animals emit unreasonably interferes with the quiet enjoyment
of adjoining property. In trespass too the owner who commands a dog to attack a person
or who drives a beast onto another's land may be liable. The occupier of premises may be
liable if, for example, injury is caused to a lawful entrant by the occupier's dog. Finally,
within the principle expressed in Rylands v. Fletcher8, if animals are collected on
property, in such a way as to amount to a non-natural user of the land, and, if they are
likely to do damage if they escape, the owner may then be liable for all injuries caused by
such an escape.

(a) Negligence - In Howard v. Bergin, O'Connor & Co.9 the defendants purchased
cattle in the country and sent them by train to Dublin. The defendant's drovers in
unloading the cattle allowed two bullocks who “got wild” to escape onto the highway
where they eventually knocked down and injured the plaintiff. The following facts
were proved in the case: although an unloading platform with pens was provided at
8
1868 L.R. 3 H.L. 330.
9
[1925] 2 I.R. 110. 118.
 the station this platform was not always used and was not used in the instant case; a
gate on the public road was not closed during the unloading operation; one drover
who followed the animals and who located them in a yard off a laneway before the
accident, left them unguarded to report their location and to get assistance.

The Supreme Court held that the defendants were liable in Negligence. Apart from
dicta on scienter all three judges in the Supreme Court were of the opinion that in
circumstances such as those present the defendants should be liable. Kennedy C.J.,
and O'Connor J., thought that there was sufficient evidence of negligence on the part
of the defendants whereas Fitzgibbon J., while not satisfied that the jury had found
negligence on the part of the defendants agreed with the legal proposition that if the
jury had made such a factual finding the defendants would be liable in law.

(b) Nuisance - The defendant may also be liable for injuries caused by his animals under
the heading of Nuisance. If the defendant by keeping or managing animals
wrongfully interferes with a public right or with another landowner's reasonable use
of his property, then in the latter case the injured party, and in the former case a
member of the public who suffers special damage, can sue the defendant. That the
instrument causing the Nuisance happens to be an animal or animals does not exempt
the defendant from liability; whether the defendant is liable under any special rule is
another question entirely.

(c) Trespass - The defendant may also be liable for the Trespass of his animals under the
general tort of Trespass. Thus, if a person throws an animal or drives an animal onto
another's land he will be liable just in the same way as if he threw a stone or drove a
car onto another's land. That the object through which the trespass is committed
happens to be an animal does not alter the legal situation. Similarly, if a person sets a
dog at another person he will be liable for trespass to the person. Liability for
trespass, however, must of course be distinguished from the strict liability to be found
in the specific rule of Cattle Trespass which will be dealt with at a later point. An
illustration may help to mark the difference between the two cases. If I drive my
cattle unlawfully onto my neighbour's land, my neighbour, as already noted may sue
me under the general rules of trespass. If, however, my cattle, because of defective
fencing on my land, stray onto my neighbour's land this is more properly called cattle
trespass. In the former case, my actions in driving the cattle, constitute the gist of the
action and the role played by the cattle in comparison to my part is small; in the latter
case, however, the cattle's actions are more directly in focus, whereas my actions (or
omissions) are only indirectly in question.
 CONCLUSION

First, in so far as liability may arise under the general principles of tort it may be
based either on the fault concept (Negligence, Trespass to Person, etc.) or it may be
based on notions of strict liability. Second, the scienter rule when it applies imposes
strict liability on the keeper of the animal. Similarly, strict liability arises by statute
for injury done by dogs to cattle. Third, the law imposes strict liability for cattle
trespass. And fourth, the law confers immunity on the owner of cattle which cause
injury while straying on a public highway. If one ignores this last immunity for a
moment, the overall picture that emerges from even this brief sketch, therefore, is one
where the owner of animals is liable for his negligence in their management and in
many cases is held to be strictly liable even when there is no fault on his part.
 TABLE OF CASES

1. Kelly v. Wade.

2. Quinn v. Quinn.

3. State of Himachal Pradesh v. Halli Devi.

4. Brady v. Warren.

5. Dalton v. O’Sulliva.

6. Moloney v. Stephens.

7. McGibbon v. McCorry.

8. Rylands v. Fletcher.

9. Howard v. Bergin, O'Connor & Co.

 BIBLIOGRAPHY AND WEBLIOGRAPHY

1. Law of Torts by R.K.BANGIYA.

2. Law of Torts by S.P.SINGH.

3. Law of Torts by RATANLAL AND DHIRAJLAL.

4. Law of Torts by SALMOND.

1.www.google.co.in.

2.www.wikipediaencyclopedia.in.