DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
LIABILITY FOR ANIMALS

SUBJECT
LAW OF TORTS

NAME OF THE FACULTY

Prof. (Dr.) P. SRI DEVI, B.Sc., M.L., Ph.D.,
DEAN, ACADEMIC AFFAIRS & RESEARCH

Name of the Candidate: MASALEGAR HIDAYATHULLA

Roll Number: 17LLB048
Semester: 1

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 ACKNOWLEDEMENT

I would like to express my special thanks of gratitude to my teacher Prof. (Dr.) P. Sri Devi
Mam, who gave me the opportunity to do this wonderful project on the topic (Liability for
Animals), which also helped me in doing a lot of Research and I came to know so many new
things about various types of liabilities of the animals and various types of cases.

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 PROJECT SUMMARY/ABSTRACT

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 by a civil court.

NEGLIGENCE:

If the keeper of a certain animal is negligent in the looking after or restraining of that animal
and then causes damage to another person or their property then the keeper will be liable to that
other person through the tort of negligence.

This is the case with all negligence claims the following elements will need to be present:

 Duty of care
 Breach of the Duty
 Causation
 Damage or injury

Using the common law tort of negligence it is possible to establish a breach when concerned
with the keeper of an animal. There is however specific legislation set down concerning liability
for animals which is the preferable route to establish a claim.

Animals Act 1971

The Animals act 1971 provides a distinction between dangerous and non-dangerous species.

 Dangerous species:

Under Section 2(1) of the Animals Act 1971 states that where 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 expect as specifically provided for by the act.

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  Non-Dangerous species:

Under Section 2(2) of the Animals Act 1971 states that where damage is caused by an animal
that belongs to a non-dangerous species a keeper of the animal is liable for the damage. Animals
within this category as such things as dogs, cattle, horses etc.

The Dangerous Wild Animals Act 1976:

The Dangerous Wild Animals Act 1976 requires keepers of dangerous wild animals to take
out compulsory insurance policies against liability for damage caused to third parties and to be
licensed by the local authority.

Keeper of the Animal:

The keeper of the animal is defined by the Act as the following:

 The owner is in possession.

 The head of the household if the owner is under 16 year old.
 An existing keeper who loses ownership or possession, until there is a new
keeper.

Strict Liability:

Under Section 2(1) of the Animals Act 1971 the keeper of the dangerous animal is strictly
liable for any harm which may have been caused by that animal regardless of whether the keeper
or owner was at fault.

Defences:

The following defenses are available when concerned with liability in relation to both
dangerous and non-dangerous species:

 Contributory Negligence
 Volenti
 Trespassers

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 Finally the research would be concluded with its scope to be applicable in India. As a part of
this study it would contain illustrations, case laws and different examples.

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 TABLE OF CONTENTS

ACKNOWLEDGEMENT……………………………………………………………………02

PROJECT SUMMARY/ABSTRACT………………………………………………………..03

OBJECTIVES/AIMS OF THE STUDY……………………………………………………..07

SIGNIFICANCE & BENEFIT OF THE STUDY……………………………………………07

SCOPE OF THE STUDY…………………………………………………………………….07

REVIEW OF LITERATURE………………………………………………………………...07

RESEARCH METHODOLOGY…………………………………………………………….07

INTRODUCTION……………………………………………………………………………08

1. THE SCIENTER RULE:……………………………………………………………..10

(a) Liability for Animals ‘Ferae Naturae’:………………………………………………11
(i) PERSONS HAVING ELEPHANT JOY-RIDE SERIOUSLY INJURED:
(ii) DEATH OR INJURY CAUSED BY WILD ANIMALS
(b) Liability for Animals ‘Mansuetae Naturae’:………………………………………….13
2. CATTLE TRESPASS:………………………………………………………………...15
A. DEFENCES TO AN ACTION IN CATTLE TRESPASS:…………………………...17
 ACT OF THIRD PARTY:
(i) Act of God
(ii) Plaintiff’s Own Fault and Contributory Negligence:
(iii) Inevitable Accidents
3. ORDINARY LIABILITY IN TORT:…………………………………………….…..19
(a) Negligence
(b) Nuisance
(c) Trespass

CONCLUSION………………………………………………………………………….........22

BIBLIOGRAPHY AND ONLINE RESOURCES……………………………………….......23

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OBJECTIVES/AIMS OF THE STUDY:
The main objective of the study is to know about the liability of animals in the concept of
torts.
SIGNIFICANCE & BENEFIT OF THE STUDY:
The research helps the researchers to gain knowledge regarding the topic of liability of
animals.
SCOPE OF THE STUDY:
The scope of the study is restricted to liability of only animals.
REVIEW OF LITERATURE:
To collect information regarding the project books, articles and online resources have
been referred.
RESEARCH METHODOLOGY:
The research is done in doctrinal method. In this method no field work is done. It is also
called theoretical way of study.

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INTRODUCTION:

Animals are in their own category for the purposes of civil liability. At common law this
was referred to as “scienter”, which was based on the keeper’s knowledge of the animals
dangerous.
Propensities, with liability arising if the animal belonged to a dangerous species or the
keeper knew of its dangerousness. The Animals Act 1971 abolished scienter, replacing it with a
statutory code of liability, although many of the common law principles of scienter remain in the
legislation.
This project considers whether the Act is “posing as many problems in animal cases as
under the common law principles which preceded it”, the project is focusing on issues associated
with differentiating between wild animals (ferae naturae) and tame animals (mansuetae naturae),
establishing the keeper’s requisite knowledge of danger, and the appropriateness of the common
law in modern times.
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.

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 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.

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 The liability for the damage done by animals can be studied under the following three heads:

1. The Scienter Rule

2. Cattle-Trespass
3. Ordinary Liability in Tort
1. THE SCIENTER RULE:

The liability of the defendant under this rule depends upon the knowledge of the dangerous
character of the animals. If the defendant has not been able to properly control the animal which
he knows or ought to know to be having a tendency to do the harm, he is liable. For the purpose
of this rule, the animals have been divided into two categories:

(a) Animals ferae naturae, i.e., animals dangerous by nature;

(b) Animal’s mansuetae naturae, i.e., animals harmless by nature.

Lions, tigers, bears, elephants, zebras and monkeys have been considered to be generally
dangerous to mankind and are, therefore, placed in the first category. In such a case scienter, i.e.,
the knowledge as to its dangerous nature is conclusively presumed and the person having their
control will be liable for the damage caused by their escape even without any proof of negligence
on his part. Animals like horses, camels, cows, dogs, cats and rabbits, on the other hand, are
considered to be harmless (mansuetae naturae) and the person having their control is not liable
for damage done by them unless it can be proved that the particular animal in question had a
vicious or savage propensity and the person having its control had knowledge of the same. The
position was thus stated by Devlin J. in Behrens v. Bertram Mills Circus Ltd.1:

“A person who keeps an animal with knowledge of its tendency to do harm is strictly liable
for damage that it does if it escapes: he is under an absolute duty to confine or control it so that it
shall not do injury to others. All animals ferae naturae, that is, all animals which are not by
nature and harmless; such as a rabbit, or have not been tamed by man and domesticated, such as
a horse, are conclusively presumed to have such a tendency, so that the scienter need not in their
case be proved. All animals in the second class, mansuetae naturae are presumed to be harmless
until they have manifested a savage or vicious propensity; proof of such a manifestation is proof

1
(1957) All E.R 583, at 587.

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of scienter and serves to transfer the animal so to speak, out of its natural class into the class
ferae naturae.

(a) LIABILITY FOR KEEPING ANIMALS ‘FERAE NATURAE’:

As stated above, there is conclusive and irrebuttable presumption that the keeper of the
animals ferae naturae knows of their dangerous nature and if such an animal gets out of control
and causes damage, he will be liable. The keeper keeps such an animal at his peril and his
liability is strict. The liability arises even without bites the plaintiff; the defendant will be liable
even without the proof of negligence. Thus, if the monkey kept by the defendant of negligence
on the part of the defendant in respect of the control of that monkey.2 It is no defense to say that
the animal in question, though belonging to the category of ferae naturae, is in fact a tame one or
even circus trained or the animal was acting out of fright rather than viciously. The position can
be explained by referring to Behrens v. Bertram Mills Circus Ltd.3 There the defendants
operated a circus. Their Burmese Elephant, which was circus trained, was frightened by the
barking of a small dog. The elephant ran after the dog towards a booth, the booth was knocked
down and the plaintiff who was inside the booth, although not injured physically, received a
considerable shock and had to be confined to bed for a week. The elephant is an animal ferae
naturae,4 and the court did not consider that the Burmese elephants came in different category.
The court also did not think that the fact animal was not acting viciously but out of fright made
any difference regarding the defendant’s liability. The court was also of the opinion that the
animal in question was a tame one should be ignored and the liability is the same whether the
animal is a wild elephant or tame as cow. The defendants were, therefore, held liable in this case.

It appears that placing an elephant in the category of animals of ‘ferae naturae’ under all
conditions may not be applicable in India. In India, the elephant is used on various ceremonial
occasions and is more or less kept as a pet animal with certain obvious precautions. For
unforeseeable damage caused by the elephant there may be no liability. This could be illustrated
by the following illustrative decision.

2
May v. Burdett, (1846) 9 Q.B. 101
3
(1957) All E.R. 583.
4
Fillburn v. People’s Palace & Aquarium Co. Ltd., (1890) 25 Q.B.D. 258.

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 (i) PERSONS HAVING ELEPHANT JOY-RIDE SERIOUSLY INJURED:

In Dr. M. Mayi Gowda v. State of Karnataka,5 the complainant and five children of his
family took an elephant joy-ride on 7-1-92 at about 8.00 p.m. in Mysore Dasahara Exhibition
ground after having purchased tickets for the same. After taking a number of rounds, while the
complainant, etc. were in the process of getting down the cradle, the elephant became panicky in
that rush hour and ran forward. The complainant was thrown on the ground as a result of which
he received serious injuries resulting in total loss of his eyesight to both the eyes. He was a
medical practitioner. He claimed compensation of Rs. 9,99,000.

It was found that it was a female elephant having participated in such rides and festivals for
13 years. It had acted in film shootings, various religious functions and honouring the V.I.P.s.

It was held that there was no negligence on the part of the opposite parties who had
organized the joy-ride. The reason of the accident was unusual and unfortunate behavior of the
elephant, and therefore the complaint was dismissed.

(ii) DEATH OR INJURY CAUSED BY WILD ANIMALS:

In State of Himachal Pradesh v. Halli Devi,6 the plaintiff/ respondent, a resident of village
Rohla in Chamba district, while going to her cattle shed to feed her cows on 27-3-1989, was
attacked by a wild animal, i.e., a black bear. She suffered fractures in different parts of her body
and also last lost complete eyesight of her left eye.

She was granted Rs. 5,000/- as ‘ex gratia’ relief.

She filed a suit for recovery of Rs. 1,00,000 as damages for the injuries sustained by her. She
averred that the Divisional Forest Officer, under the scheme for protection of wildlife, had let
loose bears and other protected animals in the jungles.

It was held that the mere fact that the killing of the wild animals was prohibited under the law
did not mean that the State had become the owner of those animals, nor did it create the liability
of the State for the death or injury caused by such animals.

5
II (1996) C.P.J. 307. (Karnataka).
6
A.I.R. 2000 H.P. 113

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 Moreover, there was no provision in the Wildlife Protection Act, 1972 for providing relief to
the victims of wild animals. Further, providing ‘ex gratia’ relief in such cases did not amount to
admission of liability by the State and that also did not create any State liability to pay
compensation in such cases.

(b) LIABILITY FOR KEEPING ANIMALS ‘MANSUETAE NATURAE’:

For making the defendant liable in respect of the damage done by an animal belonging to the
class of harmless or domestic animals, two things have to be proved:

(i) That the animals in question had a vicious propensity which is not common to
animals of that species; and
(ii) That the defendant had the actual knowledge of the viciousness.

The position was explained by Bankes, L.J. in Buckle v. Holmes7 thus:

“The class includes dogs, cows, and horses, which are not naturally dangerous to mankind.
Of this class individuals may develop propensities, but unless and until they do so, they are not
peril; and leaving trespass aside for the present, the owner is not responsible for damage which
these animals may do when not trespassing. An individual of this class, however, may cease to
be one for whose damage its owner is not responsible, if it has given him indication of a vicious
or dangerous disposition. When the animal has been found by its owner to possess such nature, it
passes into the class of animals which the owner keeps at his peril”.

In Buckle v. Holmes, the defendant’s cat entered the plaintiff’s land and there killed thirteen
of the plaintiff’s pigeons and two bantams. Since the cat is doing so had followed the ordinary
instincts of its kind and there was no vicious propensity to this cat, its owner was held not liable.
Similarly, if the plaintiff has been bitten by the defendant’s dog that had earlier shown this
tendency to attack mankind and the defendant had the knowledge of the same, the defendant will
be liable. In Manton v. Brocklebank,8 the defendant’s mare and the plaintiff’s horse were in a
field with the permission of its owner. The defendant’s mare kicked and injured the plaintiff’s

7
(1926) 2 K.B. 125.
8
(1923) 2 K.B. 212.

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horse. Since the tendency to kick and bite other horses is common to all the horses, the defendant
was held not liable.

If the plaintiff proves that an animal has previously shown a dangerous propensity and the
defendant was aware of the same, the defendant will be liable for the harm caused by such an
animal. In Hudson v. Roberts,9 the defendant’s bull was irritated by the red handkerchief which
the plaintiff was wearing and it attacked the plaintiff while he was walking along the highway.
This bull had shown this tendency earlier also and the defendant had the knowledge of the same.
The defendant was held liable. In Read v. Edwards,10 the defendant’s dog had on occasions
shown peculiar mischievous disposition in chasing and destroying the game and since the same
was known to the defendant, he was held liable to the plaintiff for the destruction of the
plaintiff’s pheasants by the dog.

The Dogs Act, 1906 makes the liability of the owner of the dog strict in certain cases. He is
liable for injury done to cattle or poultry by the dog without the proof of negligence on his part.

Sec. 1(1) of the Act provides:

“The owner of a dog shall be liable in damages for injury done to any cattle (or poultry) by
that dog; and it shall not be necessary for the person seeking such damages to show a previous
mischievous propensity in the dog, or the owner’s knowledge of any such previous propensity, or
to show that the injury was attributable to any negligence on the part of the owner”.

For the purpose of the Act, ‘cattle’ includes horses, mules, asses, sheep, goats and swine and
‘poultry’ includes domestic fowls, turkeys, geese, guinea-fowls, ducks and pigeons. The rules of
common law still continue to govern the liability for all other kinds of harm caused by the dog.

9
(1851) 6 Ex. 697.
10
(1864) 17 C.B. (N.S) 245.

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 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. Warren11 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

11
(1900) 2 I.R. 63.

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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 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’Sullivan12 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.

The liability for cattle trespass is strict, scienter or negligence on the part of the owner of the
cattle is not required to be proved. In Ellis v. Loftus Iron Col.,13 the defendant’s horse kicked
and bit the plaintiff’s mare through the wire fence which divided their properties. This damage
could not have been caused without the horse’s body having crossed the boundary. There was
cattle trespass and the defendant was held liable without any proof of knowledge of the vicious
nature of the horse or negligence on the part of the defendant.

Where there is a cattle trespass, the defendant is liable for the damage which directly results
from that trespass. In Thayer v. Purnell,14 the defendant’s sheep trespassed on the plaintiff’s
land. They developed scab there and conveyed the same to the plaintiff’s sheep. All these sheep
were interned by the government. Even though the defendant did not know about the infection of
his sheep with the disease, he was held liable for the loss to the plaintiff which was considered to
12
(1947) Ir. Jur. Rep. 25.
13
(1874) L.R. 10 C.P. 10; Lee v. Riley, (1856) 18 C.B. (N.S) 722. Also see Manton v. Brocklebank, (1923) 2 K.B.
212, where the owner of a mare was held not liable for injury to the plaintiff’s horse because there was no trespass,
nor any proof of vicious propensity of the mare or negligence of the defendant.
14
(1918) 2 K.B. 333.

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be a natural consequence of the trespass. According to Lawrence, J.: “Every owner of the sheep
must be aware that his sheep are liable to develop scab”.15

A. DEFENCES TO AN ACTION IN CATTLE TRESPASS:

 ACT OF THIRD PARTY:

Although there used to be some doubt about it, it seems now to be well settled by two
Irish cases that the act of a third party is a good defence to an action in Cattle Trespass.
In Moloney v. Stephens,16 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. McCorry,17 it is that 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.
(i) 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.
(ii) 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, been only partly responsible for the trespass then the apportionment
provisions of the Civil Liability Act 1961 should apply.

15
Ibid., at 336.
16
(1945) Ir. Jur. Rep. 37.
17
43 ILTR 132.

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 (iii) 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.

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 3. ORDINARY LIABILITY IN TORT:

The owner or keeper of an animal may become liable under the general principles of tort law
just as the owner of any chattel may become so liable. If, for example, a person brings a dog onto
the highway he may be liable in Negligence if he does not exercise reasonable care controlling
the dog. Again, if a person keeps animals in such numbers that they unreasonably interfere with
his neighbour’s enjoyment of his property then the owner of the animals may be liable in
Nuisance. Similarly, will the owner be liable if the noise or stench which such animals emit
unreasonably interferes with the quiet enjoyment of adjoining property. In trespass too the
owner who commands a dog to attack a person or who drives a beast onto another’s land may be
liable. The occupier of premises may be liable if, for example, injury is caused to a lawful entrant
by the occupier’s dog.
Finally, within the principle expressed in Rylands v. Fletcher,18 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.19 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 the station this platform was not always used and was not used in the
instant case; agate 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

18
1868 L.R. 3 H.L. 330.
19
(1925) 2 I.R. 110. 118.

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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
do not exempt the defendant from liability; whether the defendant is liable under any special rule
is another question entirely.

In Grainger v. Finlay,20 the plaintiff complained that the defendant kept a vicious and
dangerous dog upon his land which prevented the plaintiff and his family from using a right of
way which passed close to the defendant's land. The plaintiff failed, but only because he did not
aver in his pleadings that his fear, and the fear of his family, in using the right of way was a
reasonable one. Had he done so and had he been able to satisfy the court of the truth of his claim,
the court it seems would have allowed him to recover.

(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 on to 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

20
(1858) 7 I.C.L.R. 417, 3 Ir. Jur. N.S. 175.

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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.

The distinction between the two kinds of trespass is important for the following reasons: first,
liability in Cattle Trespass is strict whereas liability in some kinds of trespass at least requires
intention or negligence on the part of the defendant21 second, Cattle Trespass is confined to
“cattle”, and does not extend to other animals such as cats and dogs; third, the defences in both
torts are not the same.

The distinction between ordinary Trespass and Cattle Trespass is not always maintained by
the courts, however, as can be seen from the Irish case Cronin v. Connor.22 The facts of the case
were as follows. The plaintiff had the right to cut and save turf (turbary rights) on the defendant's
bog. The bog was part of a larger holding but was not fenced off therefrom and some cattle
belonging to the defendant who owned the land got on to the bog and damaged turf which the
plaintiff was in the process of saving.

21
Fowler v. Lanning (1959) 1 Q.B. 426; (1959) 1 All E.R. 290.

22
(1913) 2 I.R. 119.

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 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.
 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.

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 BIBLIOGRAPHY:

1. Dr.R.K.Bangia, ‘Law of Torts Including Compensation under the Motor Vehicles Act
and Consumer Protection Laws’, (Allahabad Law Agency, Faridabad, Haryana, Edn. 24,
2017).
2. Ratanlal & Dheerajlal, ‘The Law of Torts’, (Lexis Nexis Publications, New Delhi, Edn.
26, 2016).
3. Winfield & Jolowicz, ‘Tort’, (Thomson Sweet & Maxwell, London, Edn, 17, 2006).

ONLINE RESOURCES:
1. https://www.legislation.gov.uk.
2. http://www.lawreform.ie.

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