PREVIEW LAW OF TORTS II
This subject of tort exposes us to the conception that man can keep animal(s) but he keeps such animal(s) at his peril and must reasonably ensure that they do not harm others.
Just note the following:
:: Who is a keeper? He/she is one who owns or takes care of or has control of an animal.
:: What is the Keeper’s Liability? A keeper of an animal is liable for damage caused by his animal.
:: What is an animal? Animals are living things (other than man) which live on land or water whether domestic, wild or tamed.
:: Animals are zoologically classified into wild and domestic.
:: Ese Malemi in his treatise classifies animals into “Livestock”, “Dangerous” animals and “Non-dangerous” animals.
:: Kodilinye and Aluko classified animals according to the form of action i.e. –“Cattle trespass” and “Scienter action” A similar classification can be found in the Animals Act 1971 England. I shall adopt this classification for my discussion.
CATTLE TRESPASS: Note carefully, that; a cattle in this sense includes; cow, bull, goat, and so on… excluding dogs and cats.
Cattle trespass occurs where the defendant’s cattle are driven onto, or stray into the plaintiff’s land. Damages can be recovered for injuries/harm caused to the plaintiff and his property. Although when the plaintiff sues, there are certain facts he must prove like; that he has an interest in the land trespassed upon, the trespass/encroachment was not accidental, etc.
THE SCIENTER ACTION: This is an action against the keeper of a dangerous animal because his dangerous animal injured the plaintiff-May V Burdett.
Animals under this head are divided into;
- Ferae naturae: (Latin for wild animal) these are animals of a specie which are naturally dangerous and unless restrained, are likely to cause harm. For example lions, leopards, tigers, elephants, gorillas, and so on. They are zoologically referred to as\wild animals.
- Mansuetae naturae: animals belonging to a naturally harmless specie though individual ones may harbour vicious dispositions. For example cats, dogs, and so on.
Flowing from our discussion so far, you should note the following points for Scienter Actions:
:: Whether an animal is ferae naturae or mensauete naturae is a question of law-McQuaker V Goddard.
:: Liability rests on the keeper of the animal-Knott V Lagos City Council. Draper V Hodder, Curtis V Betts.
:: The place of attack is irrelevant.
:: Animals Ferae naturae are conclusively presumed to be dangerous without need to prove that the particular animal was vicious/savage. The owner would be liable. In Behrens V Betram Mills Circus, the court held the keeper of a circus elephant liable when it knocked down and injured the plaintiff.
:: On the other hand, animals mansuetae naturae are NOT conclusively presumed to be dangerous. Therefore, the plaintiff must establish two things (for Mansuetae naturae attacks). They are.
One: That the particular animal (i.e. Mansuetae naturae) has a vicious tendency/propensity:
Case law examples on this point include; Worth V Gilling, where there was evidence that the dog habitually rushed out of its kernel and attempted to bite passers-by. In Daryani V Njoku, there was evidence that the defendant’s dog (which attacked the plaintiff) had previously attacked the housemaid. In Kite V Napp, it was shown that his dog was in the habit of attacking people carrying handbags. In Wallace V Newton where it was shown that the defendant’s horse usually got nervous whenever it was being loaded onto a trailer and could be harmful. In all these cases, the court held that these facts were sufficient to establish the vicious tendencies of these (mansuetae naturae) animals… sufficient to entitle the plaintiffs in the cases to damages from the defendant (i.e. keeper of the animal).
Two: that the keeper knew of the vicious tendency of his animal-Fitzgerald V Cooke, Barnes V Lucille. In Cummings V Granger, the owner was held liable where his dog attacked a coloured skin man. Because he knew that his dog was prone to attack coloured skin men. Glanville V Sutton. On the authority of Daryani V Njoku, we should note that knowledge can be imputed to the keeper where a third party who has some degree of control over the premises/animal has knowledge. As in this Daryani Case, the court held that since the wife was informed of the animal’s particular vicious tendency, such knowledge can be imputed to the husband (plaintiff-keeper).
We have highlighted the vital points to note and discuss in the exams. We move on to:
Fault of the plaintiff: e.g. In Sycamore V Ley, the plaintiff was held to be at fault where he was teasing the dog. In Nelmes V Chief Constable of Avon and Somerset, no damages where it was the plaintiff (claimant) that kicked the dog which then bit him. Also the plaintiff (i.e. injured person) can be said to be at fault if he was trespassing on the defendant’s (i.e. keeper) premises and the animal attacked.
Consent of the victim/plaintiff: in Rands V McNeil, the plaintiff was a zookeeper/wild animal trainer, the court held that he should expect dangers that come with the job.
Act of nature or Novus Actus: for example where the animal got frightened by the sound of thunder and becomes vicious/violent.
Other defences include; –Contributory negligence of the plaintiff which resulted to the attack. –Act of an authorised third party:–Flemming V Oor. And so on.
Note: For the keeper to claim these defences, he should however be shown to come with clean hands and taken reasonable steps to prevent the occurrence of the injurious event. E.g. he should not maliciously keep the animal as a trap-Sarch V Blackburn.
Remedies: Initially, the people or community resolved to killing the animal as was seen in the case of Uzoahia V Atu. However, now the court may award damages against the keeper, grant an injunction or an order of abetment. It could also seize and confine the animal in a zoo.
Note (before we conclude this topic) that: where a plaintiff is unable to show that the ferocious tendency of the animal was known, he may sue in negligence-Draper V Hodder. There could also be liability for animals in other torts like nuisance (where one collects animals to disturb his neighbour-Abiola V Ijeoma). One who accumulates animals in his compound and they escape and cause harm elsewhere may be liable under Rylands V Fletcher. One who sets his animal to a plaintiff may be liable for assault and battery and so on.
In Rylands V Fletcher, the defendant employed an independent contractor to build a reservoir on his land. While working, the contractors discovered a series of coal shafts (which unknown to them linked to the plaintiff’s land) which were loosely covered by debris, they did not block these coal shafts properly. The reservoir burst and flooded the neighbouring mine which was run by Fletcher. This situation/wrong did not fall under any existing tort.
This is the rule (quoted but somehow summarised):
Note that you should try and quote it in exams in the introductory parts.
A person, who for his own purpose brings on his land and (or) collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of the thing’s escape-Blackburn J, (speaking on behalf of the judges) in the Ryland V Fletcher Case
At the Court of Appeal, Lord Cairns added that the thing which escapes must be a non-natural user of the defendant’s land.
Simply put; Rylands V Fletcher generally established strict liability for damage which occur from escape of tangible things from a defendant’s land.
The following elements can be deduced from the foregoing:
- The defendant must have brought/accumulated (or authorised the bringing/accumulation) of a deleterious substance on his land: Where he did not bring it into/accumulate it in his land, then no liability-Giles v. Walker.
- The thing brought onto the land must have escaped. In Read V Lyons inability to prove escape from the defendant’s premises was fatal to the plaintiff’s claim. Similar position in Hunter v. Canary Wharf. In Pointing V Noakes where the claimant’s horse stretched over the defendant’s fence and ate leaves from his yew (poisonous) tree and died… held, no escape. But on similar facts in Crowhurst V Amersham Burial Board court found escape because the yew tree overstretched the defendant’s land into the plaintiff’s. See also; Hale V Jennings, Powell V Fall and Midwood V Manchester, where in these cases, the plaintiffs were successful in proving escape.
:: Note however; Umudje v. SPDCN Ltd which … KINDLY DOWNLOAD THE FULL VERSION THANK YOU.