Lecture 5 - Animals PDF

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Offences in relation to Animals...

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Lecture 5 – Animals 1.   

Introduction: Strict liability imposed on the ‘keeper’ of an animal Common law Animals Act 1971

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The Common Law A long-standing interest No standalone Tort of animal liability, per se Gould v McAuliffe [1941] 1 All ER 515 Wheeler v JJ Saunders [1996] Ch 19 League Against Cruel Sports v Scott [1986] QB 240 Roberts v CC of Kent Police [2008] EWCA Civ 1588 Fardon v Harcourt-Rivington (1932) 146 LTD 391 HL Markesinis and Deakin (2014) – The slanderous parrot! Common law reflected bygone societal conditions (Searle v Wallbank [1947] AC 341) Updated by Animals Act 1971 Still performs a residual function (Draper v Hodder [1972] 2 QB 556)

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Animals Act 1971 Legal basis for Strict Liability of animal’s ‘keeper’ for injury, loss or damage occasioned by it No need for animal to ‘escape’ or attack anyone Operates according to a key distinction between animals which are “Dangerous” and “Nondangerous”  Who is the ‘keeper?’ (s.6(3))  Owner or possessor of the animal, or  Head of household of which a member under 16 owns or possesses the animal 3.1. ‘Dangerous’ Species  Defined by Animals Act 1971, s.6(2) as a species: (a) Which is not commonly domesticated in the British Islands, and (b) Whose fully grown animals normally have such characteristic that they are likely, unless restrained, to cause damage or any damage they may cause is likely to be severe. (c) Any person who is a keeper of a dangerous animal is liable for the damage (S.2(1))  General Background: Mirvahedy v Henley [2003] UKHL 16  Behrens v Bertam Mills Circus Ltd [1957] 2 QB 1  McQuaker v Goddard [1940] 1 KB 697 3.2. “Non-Dangerous” Species  Animals Act 1971, S/2(2) says a keeper will be liable for damage caused by a non-dangerous animal if:  S.2(2)(a): “The damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe, and...  S.2(2)(b): The likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and

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S.2(2)(c): Those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as the keeper’s servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of 16.

3.2.1. S.2(2)(a):  Implication of foreseeability implied objective test  Two limbs - Likelihood of damage if the animal is not restrained, or - If the animal causes any damage, it is likely to be severe  Mirvahedy v Henley, per Lord Scott  Smith v Ainger The Times 5 June 1990, per Neill LJ 3.2.2. S.2(2)(b):  Complicated wording!  Cummings v Grainger [1977] QB 397, per Lord Denning at 404  Turnbull v Warrener [2012] WCA Civ 412, per Maurice Kay LJ at [4]  Curtis v Betts [1990] 1 WLR 459, per Slade LJ at 462  Objective test  First Limb: “Permanent characteristics” (Curtis v Betts, per Stuart-Smith LJ at 469)  Second Limb: Normal characteristics which arise at particular times or in particular circumstances (Mirvahedy v Henley)  Facts of Mirvahedy’s case  Cummings v Grainger  Curtis v Betts  Welsh v Stokes [2007] EWCA Civ 796  Clark v Bowlt [2006] EWCa Civ 978, per Sedley LJ 3.2.3. S.2(2)(c):  Subjective Test  Hunt v Wallis [1994] PIQR P128  Glanville v Sutton [1928] 1 KB 571  Welsh v Stokes  McKenny v Foster [2008] EWCA Civ 173 3.3. Liability for dogs  Animals Act 1971, s.3  Special Defence (S.5(4))  Animals Act 1971, S.9 3.4. Liability for straying livestock  One of the oldest forms of strict liability  Animals Act 1971, S.4  ‘Livestock’ defined by S.11  Rests on the concept of ‘straying to the land’ (S.4(1))  Ellis v The Loftus Iron Co (1874) LR 10 CP 10  Limited scope of liability (S.4(1)(a)) 3.5. Detention and sale of straying livestock  Animals Act 1971, S.7(1)  Detainer’s duty (S.7(6))  Statutory right of sale (S.7(4))

4. Defences and Remoteness 4.1. Remoteness  1971 Act says nothing about remoteness of damage  The Wagon Mound (No 1) [1961] AC 388 4.2. Defences  1971 Act’s regime of strict liability does not preclude defences  They are: - Fault of the victim - Voluntary acceptance of risk - Where the victim is a trespasser 4.2.1. Fault of the victim  Animals Act 1971, S.5(1) 4.2.2. Voluntary acceptance of the risk  Animals Act 1971, S.5(2)  Cummings v Grainger  Dhesi v Chief Constable of West Midlands Police the Times 9 May 2000  Turnbull v Warrener  Goldsmith v Patchcott [2012] EWCA Civ 183 4.2.3. Victim is a trespasser  Animals Act 1971, s.5(3)  Cummings v Grainger

5. Conclusions  Mirvahedy v Henley  Some misgivings about how the law has developed (e.g., Turnbull v Warrener, per Lewison LJ at [43])  North (2012): Reform may only come via a Private Members’ Bill...