Tort Liability in the Keeper of the Beast

In December 2005 the Supreme Court of Victoria Court of appeal decided McLean Pty Ltd v Meech, concerning the liability of the defendant company for damage caused by a tenant’s horse which was resident on the company’s premises ([2005] VSCA 305). The company was occupier of St.Annes’s Winery abutting the Western Highway in Victoria , and a horse, known as Bob, belonging to a third party, was agisted in paddocks there. When Bob somehow escaped on to the highway he was involved in a collision with two vehicles, one driven by the plaintiff, who as a result sustained significant injuries. Finding the defendants liable in tort for failing adequately to confine Bob, the court considered, inter alia, the common law rules on cattle-trespass, the venerable rule in Rylands v Fletcher and the modern interpretation of responsibility in the decision of the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd. This piece offers a concise survey of tortious liability for damage inflicted by the conduct of animals a little more generally.

The year 1995 saw the conclusion of a two-year legal quarrel over a cockerel called Corky. One Mrs.Johns of Devon, England, kept Corky as a pet in her urban dwelling, and her neighbour finally instituted a civil suit over Corky’s crowing. Two years and some $60,000 later the County Court at Taunton ruled against Mrs.Johns. Corky was, officially, a nuisance. A sad case but not without precedent. In July of 1936 the Kings Bench Division of the High Court of Justice in England had adjudicated upon the case of Leeman v Montagu [1936] KB 1677, where the plaintiffs complained that 750 cockerels in the neighbouring orchard commenced crowing at 2.am. and continued until 8.am, obliging them to sleep with cotton-wool in their ears. Again it was held that the noise constituted a private nuisance. The learned judge declined to listen to a recording of the cockerels in full voice but nonetheless granted the Leemans an injunction against the noise; a legal order to refrain from continuing a nuisance, although in many cases its effect is to compel the defendant to do something. Corky’s diggings had to be shifted to a farm; Mr. Montagu’s wrongdoers had to be herded into a top field.

The law of nuisance is said to be the law of ‘give and take’, balancing competing interests, or, more realistically, choosing between them. The key to it is ‘reasonableness’. What degree of discomfort is it reasonable to expect one’s neighbour to put up with? The trouble is, of course, that we all incline to the view that our own behaviour is always perfectly reasonable. It is, as has frequently been pronounced, ‘a difficult matter of degree’ (See, for example, dicta of Lord Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880 @ 903)^. Corky’s claim for legitimacy was stronger in that, given there was only one of him, he didn’t crow as loudly or for so long, but weaker in that he resided in an urban rather than a rural setting. As well as the level of the noise, its duration and the locality are important in determining whether it is ‘reasonable’.

Animals are essential to mankind. It is well appreciated that people live longer if they keep a cat.

Our non-human companions are, however, subject to the laws of the land as are we all, and English common-law, automatically transported to Australia, has provided a beautifully tangled landscape of provisions with respect to them. Generated case-to-case, rules, sub-rules, careful distinctions and exceptions have been produced by earlier generations of judges in a smorgasbord of actions in nuisance, negligence, trespass and more. (Statutes have added others).  One of the oldest causes of action is cattle-trespass. This primarily means that the keeper is strictly responsible for the ill- doings of cattle straying onto neighbouring land. ‘Cattle’ doesn’t just mean cattle but includes, amongst others, horses, sheep, goats, pigs and geese (but not dogs and cats). The common-law likes thinking in categories, and if a court of competent jurisdiction says that a horse is a cow for legal purposes it is no objection that it is not for milking purposes. It is not incumbent to establish any negligence on the keeper’s part and absent any legislative provision or covenant there is no obligation on the part of a landowner to ‘fence out’. Early actions of this type concerned damage inflicted upon crops, but by 1919, in the Victorian case of  Halstead v Mathieson ([1919] V.L.R. 362), it was sufficient ‘damage’ that a low-caste bull had strayed onto the plaintiff’s land and he could no longer be sure that any of his high-cast cows was not in calf to it; a claim for economic loss that would be unlikely to  succeed in negligence even today. It was established elsewhere, however, perhaps just to equalise matters somewhat, that the keeper is not liable under the rule should cattle once lawfully on the highway stray thence onto neighbouring land and there cause damage, as the plaintiff in Tillet v Ward ([1882] 10 QBD 17) discovered after an ox had wandered into his shop and there obtruded itself for some fifty minutes to the detriment of his stock-in-trade. Here something in the way of negligence on the keeper’s part must be established. Again livestock wandering onto the highway did not attract strict liability for the keeper at common law. The rule in Searl v Wallbank (1947) was followed by the High Court of Australia in Government Insurance Commissioners v Trigwell (1979). However the rule together with the broader cattle trespass principle wherein it resides was abolished by statute in New South Wales; Animals Act 1977, South Australia; Wrongs Act 1936, and the A.C.T; Civil Liabilities (Animals) Act 1984.

Animals do, of course, inflict physical injuries and to provide redress for this the common-law developed what is known as the ‘scienter’ action. According to perceptions as to their nature under this doctrine creatures are legally situated in one or other of two categories accordingly as to whether they are wild and fierce; ferae naturae, or domestic and docile; mansuetae naturae . Into the former class go elephants, bears, and lions and the keeper of such is strictly responsible for injuries which it causes to another.  Hence when, in May v Bardett ([1846] 9 QB 101) the defendant’s monkey bit somebody, he was held liable in damages for it. In the second category we find horses, rabbits and pigeons. Bulls are a bit of a problem for the unwary, since they also go into the tame category but can, apparently, get nasty. As far as the domesticated beast is concerned the common law takes the view that the keeper is strictly responsible for physical injury which it inflicts upon another only provided that the offended party can establish that the former was  aware that his charge was possessed of a ‘vicious propensity’. Otherwise the aggrieved is relegated to proof of negligence. Yet in the New South Wales case of Eather v Jones ((1975) ALJR 254) the keeper was not strictly responsible when his horse chased after and bit another rider. The beast’s known propensity towards violence was to do this sort of thing to other horses rather than to people. As to whether strict liability in the keeper of a wild animal is restricted to damage related to its feral character there is some conflict of authority. However in Brook v Cook ((1961) Sol J p.684) it was accepted that the keeper would be so liable when the plaintiff suffered a heart attack upon discovering an escaped tiger resting upon his bed, even though it was a perfectly friendly Bengal tiger as it turned out. A few disagreements have arisen as to which class to put a creature in. Curiously it has been held both in England and Australia that camels are domestic animals. Perhaps an English judge can be forgiven for believing that a camel can be purchased from the local pet shop, but not, one would think, an Australian. At other times the judges are better informed. In Tutton v A.D. Walter Ltd ([1985] 3 All ER 158) an attempt to stigmatise bees as ‘trespassers’ quite properly met with judicial rebuke.

Except where statute provides to the contrary it is the ‘keeper’, i.e. the person in control of the animal which causes injury and not the owner as such who stands to be liable. It is, however, unwise needlessly to expose oneself to an obvious risk, for example by approaching a grisly bear in a national park, or entering a lion’s compound. Voluntary assumption of risk is a defence. Again in some Australian states the whole set of scienter rules has finally been viewed with disfavour and abolished by statute in the same way as the action for cattle trespass. In England and the other more interesting jurisdictions, whilst the keeper of tame creatures may elude the plaintiff under the scienter doctrine, depending upon what they do, they may attract strict liability under the equally venerable rule in Rylands v Fletcher (1868), where the landholder is held strictly liable for things not naturally on his land but brought there at his behest, if they escape and cause damage. Unfortunately the High Court of Australia has all but abrogated this doctrine in Burnie Port Authority v General Jones Pty Ltd ((1994) 179 CLR 520).

 Finally it should be kept in mind that the older rules do not override the ordinary principles of civil liability in negligence and nuisance. With respect to the former, in general terms the law requires the event which occurs to be foreseeable, not precisely, but broadly as the kind of event one should anticipate. A pack of high-spirited pups out of control might well injure a young child by biting him; it is equally ‘foreseeable’ that physical injury might be caused by bowling him over. Foreseeable risks then must be guarded against by those in a position to do so. In the celebrated case of Behrens v Bertram Mills Circus ([1957] 2 QB 1) performing dwarves and midgets variously suffered injury and serious shock when circus elephants stampeded through a sideshow. Despite the fact that Bullu, the lead elephant, had been put in state of alarm when beset by a customer’s small dog, the Circus was found liable in negligence. The arrangements for conveying the elephants from their enclosure to the Big Top were not safe enough and the risk of danger to the performers was sufficiently foreseeable as to invoke liability in negligence with respect to it.