TORT 2.1A LIABILITY FOR ANIMALS
Topic One: LIABILITY FOR ANIMALS.
This subject of tort exposes us to the conception that man can keep animal(s) but he keeps such animal(s) at his peril and must reasonably ensure that they do not harm others.
Just note the following:
:: Who is a keeper? He/she is one who owns or takes care of or has control of an animal.
:: What is the Keeper’s Liability? A keeper of an animal is liable for damage caused by his animal.
:: What is an animal? Animals are living things (other than man) which live on land or water whether domestic, wild or tamed.
:: Animals are zoologically classified into wild and domestic.
:: Ese Malemi in his treatise classifies animals into “Livestock”, “Dangerous” animals and “Non-dangerous” animals.
:: Kodilinye and Aluko classified animals according to the form of action i.e. –“Cattle trespass” and “Scienter action” A similar classification can be found in the Animals Act 1971 England. I shall adopt this classification for my discussion.
CATTLE TRESPASS: Note carefully, that; a cattle in this sense includes; cow, bull, goat, and so on… excluding dogs and cats.
Cattle trespass occurs where the defendant’s cattle are driven onto, or stray into the plaintiff’s land. Damages can be recovered for injuries/harm caused to the plaintiff and his property. Although when the plaintiff sues, there are certain facts he must prove like; that he has an interest in the land trespassed upon, the trespass/encroachment was not accidental, etc.
THE SCIENTER ACTION: This is an action against the keeper of a dangerous animal because his dangerous animal injured the plaintiff-May V Burdett.
Animals under this head are divided into;
- Ferae naturae: (Latin for wild animal) these are animals of a specie which are naturally dangerous and unless restrained, are likely to cause harm. For example lions, leopards, tigers, elephants, gorillas, and so on. They are zoologically referred to as\wild animals.
- Mansuetae naturae: animals belonging to a naturally harmless specie though individual ones may harbour vicious dispositions. For example cats, dogs, and so on.
Flowing from our discussion so far, you should note the following points for Scienter Actions:
:: Whether an animal is ferae naturae or mensauete naturae is a question of law-McQuaker V Goddard.
:: Liability rests on the keeper of the animal-Knott V Lagos City Council. Draper V Hodder, Curtis V Betts.
:: The place of attack is irrelevant.
:: Animals Ferae naturae are conclusively presumed to be dangerous without need to prove that the particular animal was vicious/savage. The owner would be liable. In Behrens V Betram Mills Circus, the court held the keeper of a circus elephant liable when it knocked down and injured the plaintiff.
:: On the other hand, animals mansuetae naturae are NOT conclusively presumed to be dangerous. Therefore, the plaintiff must establish two things (for Mansuetae naturae attacks). They are.
One: That the particular animal (i.e. Mansuetae naturae) has a vicious tendency/propensity:
Case law examples on this point include; Worth V Gilling, where there was evidence that the dog habitually rushed out of its kernel and attempted to bite passers-by. In Daryani V Njoku, there was evidence that the defendant’s dog (which attacked the plaintiff) had previously attacked the housemaid. In Kite V Napp, it was shown that his dog was in the habit of attacking people carrying handbags. In Wallace V Newton where it was shown that the defendant’s horse usually got nervous whenever it was being loaded onto a trailer and could be harmful. In all these cases, the court held that these facts were sufficient to establish the vicious tendencies of these (mansuetae naturae) animals… sufficient to entitle the plaintiffs in the cases to damages from the defendant (i.e. keeper of the animal).
Two: that the keeper knew of the vicious tendency of his animal-Fitzgerald V Cooke, Barnes V Lucille. In Cummings V Granger, the owner was held liable where his dog attacked a coloured skin man. Because he knew that his dog was prone to attack coloured skin men. Glanville V Sutton. On the authority of Daryani V Njoku, we should note that knowledge can be imputed to the keeper where a third party who has some degree of control over the premises/animal has knowledge. As in this Daryani Case, the court held that since the wife was informed of the animal’s particular vicious tendency, such knowledge can be imputed to the husband (plaintiff-keeper).
We have highlighted the vital points to note and discuss in the exams. We move on to NEXT LESSON.