Knoweldge of Disposition
Animals which are harmless of their nature or domesticated over generations are presumed not to be of a dangerous disposition. At common law, the owner was not liable in the absence of negligence, for any vicious or mischievous behaviour which is not in the animal’s nature usually to commit unless he knew that the animal had a particular disposition or propensity for the same.
At common law, proof of this knowledge or so-called scienter was required. Once the knowledge existed, the owner was liable for all harm done by the animal at his risk. This rule has been reformed by statute in relation to dogs.
Under this principle in the ordinary nature of things, horses, rams, camels, cats and kittens were not assumed to be vicious. Dogs also fell into this category. The position in respect of dogs, however, has been amended significantly by the Control of Dogs legislation.
A narrow category of animals is wild in the sense in the sense of being deemed dangerous by nature. This includes elephants, lions, tigers, bears and monkeys. It is a question of law as to whether an animal falls into the category of a wild animal. A wild animal remains such, notwithstanding that it is tamed.
Nature of Knowledge
At common law and apart from statutory alterations in respect of dogs, the so-called knowledge must be directed at a particular mischievous tendency which caused the damage in question. The issue arose most commonly in relation to dogs. Knowledge might be proved by a tendency to bite or to rush at persons causing damage.
Knowledge on the part of an owner sufficed at common law. An employee’s knowledge of the propensity of a particular animal was sufficient to impute knowledge to the owner who may accordingly be liable.
The employee must have actual management or control of the premises, the relevant business or the animal. Mere employment in itself is not sufficient if it is unconnected with the context in which the knowledge arises.
A person may be liable for the acts of an animal as owner, possessor or controller. A person who possesses an animal and controls it may be liable. A person who allows animals to be kept on his premises may become liable. The owner of a domestic animal may become liable for injuries and damage caused by it under general principles of negligence.
A person who brings an animal onto the highway must use reasonable care to prevent it from damaging others. A person who brings animals onto the highway without sufficient control may become liable for damage and loss caused. The bolting of a horse that has been left unattended may raise an inference of negligence.
A person who keeps an animal which is naturally of wild nature, such as lions and tigers does so at his risk. He is liable irrespective of negligence, for damage caused by its escape. The issue is different to that of whether animals are wild in sense of property.
The owner is not liable for injuries caused to a trespasser who brings the injury on himself. This is so even if he believes he has a property right to enter a particular place. If, however, a person keeps a dangerous animal and allows a person to enter his property, he must take reasonable precautions to prevent injury.
A person may put it in place a fierce dog to protect his property but must not put it where persons whom he expressly or impliedly invites to the property are likely to come. Putting up a sign may not suffice, particularly if entrants cannot read or see them.
Control & Escape
If a person is bound to keep domestic animals on his land under control and is liable if they escape and trespass or cause damage which is ordinarily in their nature to occasion. This is absolute liability irrespective of negligence for their trespass. It does not apply if the escape or trespass is involuntary, caused by an act of God or wilful default of the claimant or a third party for whom he is not liable.
The basis of liability is failure to keep the animals under control. In this context, liability is independent of negligence. Liability arises if they escape and commit trespass for damage that is ordinarily in their nature to commit. Questions arise as to whether the damages are ordinarily in the nature of the animal to commit. This depends on the ordinary course of nature.
The owner of a cat is not liable if it trespasses and kills birds. The owner of cattle is not liable and has a good defence if the claimant or his landlord is under a duty to maintain fencing on the land to which the animal trespasses. Where the trespass is caused by the liability of the claimant or his landlord, he is not liable.
If a person takes wild animals and puts them on his land, he is liable for trespass if they trespass and damage is caused which is in their ordinary nature to commit.
Questions of remoteness of damage may limit liability. Questions of will arise as to how long the owner of the animal may remain liable after its escape. It seems presumed that the liability will extend until it is returned to its wild state.
Cattle found at large may be apprehended by police officers under the Town Police Clauses Act. Where it is in force, they may be impounded until reclaimed by their owner, who may be obliged to pay a penalty and the cost of their upkeep. The Town Police Clauses Act allows for their sale if they are not reclaimed.
In the case of cattle trespassing from a highway for the purpose of its lawful use, the owner is only liable at common law if negligence is proved. This has been modified by the Animals Act 1985.
The owner of the subsoil of a highway may take an action for trespass if cattle damage lands in the lawful course of the exercise of grazing rights.
Trespass by Animals
At common law, there is no general obligation for an owner or occupier of land to fence his land and keep domestic animals from the public roadways. If an animal escapes onto the public highway and causes damage to a member of the public using it lawfully, he is liable only if he can show that the animal had mischievous tendencies or specific negligence can be shown.
Actions for trespass by (unowned) undomesticated animals on the land of another do not arise. The owner has a qualified property in them only once they leave the land. If, however, he brings a greater quantity of animals than can reasonably and properly be kept, he may be liable on principles of strict liability.
It appears the liability will only arise if animals are deliberately brought onto the land. The failure to prevent them from amassing in numbers is not thought sufficient.
At common law, trespassing animals may be impounded to secure compensation for damage done by them. This is analogous to and is a species of distress similar to a landlord’s distress for rent. It is known as distress damage feasant; distress for damage done.
The animal may not be pursued if he leaves the land. A landowner or a person having possession of land with sufficient interest to maintain an action for trespass may exercise the right. Its validity under the Constitution may be questioned. The courts do not favour self-help remedies in modern times.
There must be trespass without lawful excuse. If there is a right to enter, the right does not apply. If cattle are driven on the highway and stray onto other lands, they may not be distrained until a reasonable time has passed.
Common Law Distraint
An animal may be distrained only in respect of damage which itself does. There must be actual damage at the relevant time. In broad terms, this remedy is similar to distress for rent. There are fewer statutory modifications than in the case of distress for rent.
Animals and things that are trespassing and doing damage may be distrained for this purpose. It is not limited to animals. There are exceptions at common law for things in actual use. A horse being ridden may not be distrained. The thing subject of distress must be something which is capable of being owned. Dogs may be distrained at common law for trespassing damage done.
Distress at common law is a pledge for the damage. There is no statutory right of sale. Abuse of this right makes the person exercising distress a trespasser. Abuse of the right may constitute trespass or conversion.
Where animals have been seized by way of distress, they should be impounded in a common pound. A person distraining may impound them on his own land or the land of another with consent.
A person may recover the animals by tendering adequate compensation. In the case of a public keeper, they may be impounded until charges are paid or until they are bailed or replevied by the owner.
Common pounds are rarely available in modern times. The provisions for impounding may be contrary to constitutional principles of law. The law generally leans against self-help remedies.
An animal that is distrained must be impounded where the owner can have access to feed it. If he is impounded in a pound to which access is not available, the distrainer must feed it.
The principles applicable to ordinary distress, such as rescue, and pound breach, apply in broad terms. Rescue may be justified where the distress is unlawful or where the animals are not released on proper tender of compensation. A pound breach cannot be justified as the animals are in the custody of the law.
There are civil remedies for rescue and pound breaches. Pound breach was a misdemeanour at common law. There are statutory rights to apply to a court to summary jurisdiction under the Pound-Breach Act 1843.