This week’s column looks at liability for other animals which do not fall into the category of dangerous species.
Section 3(2) of the Animals (Civil Liability) Act seeks to preserve the common law rule which applied to animals which are tame by nature.
The owner of this type of animal was only liable for the harm caused by this animal if the particular animal had shown a propensity in the past to do harm of that kind; and the owner or keeper of that animal knew of that propensity to do harm.
Section 3(2) provides: Where any damage is caused by an animal which belongs to a dangerous species, a keeper of the animal is liable for the damage, unless exempted by this act, if
(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
(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
(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 that keeper’s servant or, where that keeper is the head of the household, were known to another keeper of the animal who is a member of that household and a minor.
The effect of this rule is that you will only be liable for the damage done by your horse or cow if you are aware of some special dangerous characteristic.
Therefore in a Guyanese case Williams vs Martins (1920) where the owner of a horse was aware of its vicious propensity to attack other horses, he was held liable for injuries inflicted on the plaintiff’s horse.
Apart from the liability expressed in Section 3 of the Animals (Civil Liability) Act, there is also liability for cattle trespass referred to in Section 5 of the act as trespass by livestock.
Livestock is defined in Section 5 of the act as meaning “cattle, horses, asses, mules, sheep, pigs, goats and poultry”. The section also defines poultry as “fowls, turkeys, geese, ducks, guinea fowls, pigeons and peacocks”.
Section 5 provides:
“(1) Where livestock belonging to any person trespasses onto land in ownership, occupation or control of another and
(a) damage is done by the livestock to the land or to any property on it which is in the ownership, possession or control of the other person; or
(b) any expenses are reasonably incurred by the other person in keeping the livestock while it cannot be restored to the person whom it belongs or while it is detained in accordance with Section 7, or in ascertaining to whom it belongs, the person to whom the livestock belongs is liable for the damage or expense thereby incurred.
(1) A person whose land is damaged by livestock shall summon a Justice of the Peace for the purpose of appraising the damage and expense, if any, incurred.”
The above section retains the strict liability for cattle trespass which had existed at common law.
Exceptions to liability for straying livestock:
The act provides that there is no liability for damage which is due to the fault of the person suffering it.
The act also preserves another common law defence by which a person is not liable for cattle trespass where the livestock strayed from a highway and its presence there was a lawful use of the highway.
An example of the above principle is to be found in the old English case of Tillet vs Ward where the defendant owned an ox which, while his servants were driving it within proper care through a town, entered the shop of the plaintiff, an ironmonger, through an open door.
It took three quarters of an hour to get it out and in the interim it caused damage. It was held that the defendant was not liable to the plaintiff for this was one of the inevitable risks of driving cattle on the street.
• Cecil McCarthy is a Queen’s Counsel.
