Liability for Animals

There are two separate torts in which strict liability for harm caused by animals is imposed (i) cattle trespass (ii) the scienter action

Cattle trespass

An action in cattle trespass lies where cattle in control or possession of the defendant are either intentionally or independently stray on to the plaintiff‟ s land. NB: Cattle includes cows, bulls, horses, moles, goats and pigs and fowls. Dogs and cats are excluded because it is undesirable and impossible to restrain them as cattle and the propensity for damage is negligible compared to heavier and larger animals.

• There is no liability for cattle which are lawfully led along the highway which escape there on to adjacent land unless negligence can be proved of the person in control. He will be liable for negligence.
• Only the person having interest on the land trespassed on can sue.
• Damages is recoverable for harm to plaintiff’s land, crops his animals, chattels and injuries inflicted upon himself.

Defence include: default of plaintiff e.g. where he failed to maintain an adequate fence where he has a duty to act of a stranger where a stranger intentionally drives the defendant cattle on the plaintiff’s land and act of God e.g. flash of lightening.

The Scienter Action (Liability for dangerous animals)

Strict liability is imposed on a person who keeps a dangerous animal which causes damage to another. For the purpose of this tort, the animals are divided into two categories:

1. Animals Ferae naturae i.e. animals belonging to a species which is normally dangerous though individual animals may be tamed e.g. lions, tiger, elephant.
2. Animal mansuetae naturae i.e animals belonging to is species which is normally harmless though individual animals may harbor a vicious disposition e.g. cow, horse, dog, cat, etc. In Behrens v. Betram Mills Circus, the keepers of a "tame" elephant in a circus were held liable when the animal without any aggression knocked down and injured the plaintiff.

Where damage is caused by an animal mansuetae naturae, the keeper will only be liable if the particular animal had a vicious tendency and the keeper knew of that tendency. Scienter means proof of knowledge of an animal’s vicious propensity.

Principles of liability under Scienter Action

• The classification as ferae or mansuetae naturae is a question of law for the judge to decide on the bases of judicial notice or on expert evidence.
• The requisite knowledge of an animal’s vicious propensity must relate to the particular propensity that caused the damage.
• In establishing scienter prove that the animal had actually done the particular type of damage is not necessary, it is sufficient that it had exhibited a tendency to do that kind of harm. In Worth v. Gilling, it was held that in proving a dog’s propensity to attack humans, it is sufficient to show that it habitually rushed out of its kernel and attempted to bite passersby.
• In the case of harm caused by an animal mansuetae naturae, the propensity of the animal shown must be vicious or hostile. The defendant will not be liable if the animal was merely indulging in a propensity towards playfulness.
• Knowledge of an animal’s propensity will be imputed to the defendant where it is acquired by someone to whom the defendant delegated full custody or wife/servant.
• For scienter action, it is immaterial where the animal attack took place.
• Liability rests on the keeper of the offending animal. In Knott v. LCC, a school authority was not liable when a dog kept on school premises by the caretaker attached and injured a cleaner.

Defences

1. Default of the plaintiff.
2. Contributory negligence.
3. Volenti non fit injuria.

The Nigerian situation

The liability for harm caused by animals is an area of law of torts which has been much neglected in Nigeria. However there are a few cases. In Daryani v. Njoku, D was attacked and bitten by a dog belonging to N. There was evidence that on a previous occasion, the dog had bitten a house maid which was reported to N's wife. The court held that notice to the wife amounted to notice to the husband and scienter was thus established.

The defence of necessity will be available to one who kills an animal in order to prevent further damage. In Uzoahia v. Atu where a plaintiff’s cow being disturbed by a tsetse fly broke away and found its way into a village where it attacked and injured one person and terrorized others. The court held that the defence of necessity would avail the killer of the cow.

Despite liability in cattle trespass or under the scienter action/rule, the keeper of an animal owes a duty of care that it does not become a source of harm to others. Where an action in cattle trespass or under the scienter rule is not available for any reason, the plaintiff may still recover in negligence. In Draper v. Hodder, where the plaintiff an infant was badly injured by a pack of terries dogs which suddenly dashed out of the defendant premise. Although the plaintiff could not succeed in a liability for animal action, he did succeed in negligence.