This blog post has been contributed by Dr Carol Brennan, Module Convenor for Tort law.
The liability of an owner or keeper of an animal which causes damage can arise in tort under a number of different headings, including nuisance and battery. However most frequently it will be actionable in common law negligence and/or strict liability under the Animals Act 1971. This statutory provision is not on the syllabus of some LLB Tort modules, however the reports below, and others, indicate the topicality of the issue and the need for lawyers to be aware of the fundamentals.
An England polo player was sued under the Animals Act 1971 for£2 million by a groom who suffered a smashed pelvis and other injuries when a polo pony which she was preparing for a match suddenly reared up and fell on her. In this case liability was not contested although negotiations continue about the nature and extent of damage claimed.
In contrast, liability is being contested in a similar case in which a racehorse trainer is being sued for compensation of almost £500,000 by a stable hand who was kicked in the head by a colt belonging to the defendant. Her claim under the Animals Act 1971 alleges that the horse had ‘abnormal and dangerous characteristics’ that made it a known risk. This fact has been denied by the defendant, as are the extent of the claimant’s injuries.
The Animals Act 1971 was intended to rationalise and codify the common law of negligence regarding damage caused by animals. It removed the virtual immunity belonging to owners of animals such as cattle if they strayed onto the highway and precipitated an accident (s.8). The Act retained the common law’s principle of strict liability for two categories of animals: ferae naturae (belonging to a dangerous species, now covered by s.2(1)) and mansuetae naturae (not belonging to a dangerous species but known by the defendant to have dangerous characteristics now covered by s 2 (2) ). Unlike the common law, under the Act there is no requirement that there be either an escape or an attack by the animal.
The designation of an animal as of a dangerous species under s 2(1) depends on them not being commonly domesticated in Britain and is a matter of law, based upon likelihood of their causing severe damage, including to property and regardless of the effects of training or context. Examples are lions, elephants and certain types of monkey.
s 2(2), regarding non-dangerous species, is more challenging in practice. Its language has been described by at least one judge as ‘opaque’ and has been the basis of a number of appeals. The requirements for strict liability are basically: a) the possibility of the animal causing severe damage; b) the likelihood of damage being due to characteristics not normally found in animals of the same species or not normally found except in particular circumstances; c) that those characteristics were actually known to the keeper. s 2 (2)(c) is dependant upon an assessment of the state of knowledge of the defendant. s2(2)(b) has been interpreted quite generously by the House of Lords; the leading case is Mirvahedy v Henley [2003] UKHL 16.
The defendant under the Act is the keeper of the animal. This may be the owner, or someone who has the animal in their possession, but case law indicates that the latter requires some interaction with the animal rather than for instance, allowing grazing on his land.
In our two examples of the horses, above, claims would obviously be under s 2(2). Liability was conceded in the polo case, however determination of the second case will depend the claimant satisfying the requirements of s2(2) (b) and (c) and this will turn on the judge’s assessment of the particular facts, in the light of expert evidence about equine behaviour.
A topical issue in the UK has recently been a spate of horrific attacks by American XL Bully dogs. These have now been added to the list governed by the Dangerous Dogs Act 1991 which imposes criminal penalties on the keeping, breeding and selling of particular breeds of dogs with fighting characteristics. The 1991 Act is silent on civil remedies but a conviction would certainly be almost conclusive evidence of common law negligence as well as satisfying the requirements of s 2(2) of the 1971 Act.