Liability for Animals

An opinion/concept note by The Oyemaja Institute of Law.



Growing up in an African home meant that I got punished a few times for stuff I did not do (at least not directly). Oftentimes, it was because I was deemed responsible for who or what caused the injury. More often than not, that person was my younger sibling.


Initially, I thought this concept was a product of a family meeting where our ancestors sat with kola nut, sugar cane and a calabash containing palm wine; but growing up, I came to realize that this "principle of responsibility" is just as prominent in the society as it was in my home.


The law imposes a standard of responsibility on virtually all members of the society to ensure that they conduct their activities in such a way that they avoid causing harm to other members of the society. A pretty good example is the responsibility imposed by law on pet owners or keepers of animals.

Only in a few societies of the world do we have laws that actually limit the kind of animals that a person is allowed to keep. In most societies, an individual is allowed to keep almost any animal he pleases but then he does so at his own peril and he is expected to reasonably ensure that, while exercising his freedom, he does not cause any harm to others.


Let's break it down now, shall we?


Trespass


Trespass to person, damage to property and trespass to chattel are only a few of the damage that can be caused by animals to members of the society. While a keeper of animals is primarily saddled with the responsibility of ensuring that his animals do not cause any damage to anyone, the law also makes provisions for the compensation of victims, should such injuries occur.




The primary tort that deals with injuries caused by animals is 'liability for animals". However, in instances where a victim for one reason or the other may not be able to obtain remedy under liability for animals, he can seek redress under other general torts like nuisance and negligence.


Liability for animals or not?


When we say "animals", we think zoologically in terms of wild and domestic animals. However, drawing from the provisions of the Animals Act of 1971 in England, animals can be classified in terms of forms of action into "cattle trespass" and "scienter action".

Primarily, the keeper (one who takes care of or controls animals) is considered liable for damage caused by his animal. There are however slight variations in how this rule operates in "cattle trespass" and "scienter action".


The subject matter of cattle trespass is "cattle" which has been defined as including domestic animals such as cows, mules, goats, bulls, horses, pigs (and in some instances fowls) but excluding dogs and cats.


Cattle trespass occurs when cattle in the possession and control of the defendant enters into a land that belongs to or is in the plaintiff's possession and causes damage to his land. In bringing an action under cattle trespass, the plaintiff is expected to prove that he has an interest in the land and that the trespass was not accidental.


If the plaintiff succeeds, the cattle rearer will be held liable and damages may be recovered for injuries to the plaintiff's person or property. In a bid to address their own peculiar situations and circumstances (clashes between herdsmen and landowners) , a number of states in Nigeria have also adopted anti open-grazing laws outrightly banning herdsmen from moving cattles in public places.




Scienter


The second form of action (Scienter action) has to do with liability for animals that are vicious or dangerous. These animals are further subdivided into Ferae Naturae (which is latin for wild animal) and Mansuetae Naturae (this refers to naturally harmless animals which may individually have vicious tendencies).


Distinguishing between Ferae Naturae and Mansuetae Naturae is strictly a question of law. When an animal is regarded as Ferae Naturae, it is presumed that such an animal is dangerous and so the owner will be held liable for injury caused by the animal. A good example of this can be seen in Behrens vs. Bertram Mills Circus where the keeper of a circus elephant was held liable for the injury caused by the elephant to the plaintiff.


On the other hand, when an animal is regarded as a Mansuetae Naturae, there is no presumption unlike what obtains when an animal is Ferae Naturae. The plaintiff is therefore expected to prove that the animal in question has vicious tendencies and the keeper knew about it.


In a number of cases, the following instances have been regarded as vicious tendencies; a dog with an habit of attacking coloured skin people (Cummings v Granger) and a horse that tended to get nervous when loaded into a trailer (Wallace v Newton).


The knowledge in question could also be that of the keeper or anyone with considerable control over where the animal is kept. In Daryani vs. Njoku for instance, the knowledge of the keeper's wife was considered sufficient.


Now the law does take into cognisance the fact that animals do have natural instincts and so if, for example, a cat kills rats or any other animal that it will normally attack based on its natural instinct, there is no liability.



Defences


In an action for liability for animals, a defendant can plead the following defences; fault of the plaintiff ( when the plaintiff trespasses into the defendant’s property or provokes the animal) , consent of the victim e.g a zookeeper for veterinary doctor's job already puts him at risk of being attacked.


Other defences include act of nature (e.g trespass by a frightened animal) and contributory negligence (where the defendant contributed to the injury suffered and act of a third party).


Apart from damages (monetary compensation), other remedies available to the plaintiff include injunction, abatement or confinement of such animals to the zoo to prevent further injury.


As stated earlier, not every action will fit into Liability for animals. In cases where a plaintiff cannot successfully bring an action under liability for animals, he or she is free to utilize any other existing tort that can fit the circumstances of his case.


For instance, in Abiola v Ijeoma where the damage caused and interference was indirect, the plaintiff was able to successfully bring an action under the tort of nuisance since his situation did not exactly fit into negligence or liability for animals.


The tort of negligence can also come in where the owner could not be said to have exercised reasonable care, and trespass to chattel where an animal is trained by its owner to steal.


Like buying a car or starting a business, keeping an animal can be quite risky. The sweetest of animals can snap without warning, thereby putting the owner in a pretty difficult position. The owner is likely to incur financial costs such as litigation costs and damages.


Now if zootopia were reality and animals had jobs or sources of income, animals would have been able to contribute to paying the bills. Well, animals do not have jobs, but then, in some parts of the world, owners are not exactly on their own either. A form of insurance, known as animal liability insurance helps owners to secure themselves from personal liability for the actions of their animals.


Your friend,

Damilare,

Oyemaja Law.


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