TORT 164 Liability for Animals Scienter and Cattle Trespass — Law of Torts Notes for Judiciary

Liability for Animals: Scienter, Cattle Trespass and the Ordinary Torts

An animal cannot be a defendant, so liability for what it does falls on the person who keeps it, and the common law developed two special heads for the purpose alongside the ordinary torts. The scienter action holds a keeper strictly liable for harm done by a dangerous animal, and by a harmless one whose vicious propensity he knew of. Cattle trespass holds an owner strictly liable for the straying of his beasts onto another's land and for the damage they do there. Beyond these, an animal may be the instrument of negligence, of nuisance, of trespass or of the rule in Rylands v. Fletcher, and in India the impounding side of cattle trespass is regulated by the Cattle Trespass Act, 1871.

1. The Heads of Liability

The head	What it covers, and the basis of liability
Scienter, or the dangerous animals rule	Strict liability of the keeper for harm done by an animal ferae naturae, and by an animal mansuetae naturae whose vicious propensity he knew of
Cattle trespass	Strict liability of the owner for cattle straying onto another's land, and for the damage they do there
Negligence	Failing to control, confine, secure or supervise an animal where a reasonable person would have done so
Nuisance	Keeping animals so as unreasonably to interfere with a neighbour's use and enjoyment of land: noise, smell, flies, straying
Trespass	Where the defendant deliberately drives or sends an animal onto another's land, which is his own trespass committed through the animal
Rylands v. Fletcher	Where the animal is a dangerous thing brought and kept on land in a non natural use, and escapes
Statutory liability	The Cattle Trespass Act, 1871, and the local and municipal legislation on stray and dangerous animals

2. The Scienter Action

The rule divides animals into two classes, and everything turns on which class the animal belongs to.
Animals ferae naturae are those belonging to a species dangerous by nature: a lion, a tiger, an elephant, a bear, a monkey. The keeper is strictly liable for harm they do, and no proof of knowledge of any vicious propensity is required, because the law conclusively presumes it from the species.
Animals mansuetae naturae are those belonging to a species harmless by nature: a dog, a horse, a cow, a sheep. The keeper is liable only if the plaintiff proves that this animal had a vicious propensity and that the keeper knew of it. That knowledge is the scienter which gives the action its name.
The classification is of the species and not of the individual. A tame and docile elephant is still ferae naturae, and a savage dog is still mansuetae naturae, the difference being that the dog's owner answers only if he knew.
Where scienter is established, liability is strict. It is no answer that the keeper took every precaution, and the ordinary defences of the strict liability torts apply: the plaintiff's own default, the act of a stranger, act of God, and consent.

📖 May v. Burdett, (1846) 9 QB 101

Facts The defendant kept a monkey, knowing it to be of a mischievous and ferocious disposition and accustomed to attack and bite. The monkey bit the plaintiff's wife. The declaration did not allege negligence in keeping it.

Held The defendant was liable, and no allegation of negligence was necessary.

Ratio A person who keeps an animal knowing it to be dangerous is bound to keep it secure at his peril, and is answerable for the harm it does without any proof of negligence in the manner of keeping it. The gist of the action is the keeping of the animal after knowledge of its mischievous propensity, and it is immaterial how careful the keeper was.

Behrens v. Bertram Mills Circus Ltd., [1957] 2 QB 1 applies the rule to a circus elephant which, startled by a small dog, injured the plaintiff. Devlin J. held the elephant to belong to a dangerous species as a matter of law, notwithstanding that the particular animal was tame and had never shown any vicious tendency, and the liability was accordingly strict.
Filburn v. People's Palace and Aquarium Co., (1890) 25 QBD 258 is to the same effect: whether a species is dangerous is a question of law for the court and not a question of fact about the individual beast.
Knowledge of the keeper's servant is ordinarily imputed to him, so a keeper cannot escape by showing that only the man in charge knew of the propensity.
The propensity must be one to do the kind of harm that occurred. Knowledge that a dog chases sheep is not knowledge that it will bite a child.

3. Cattle Trespass

An owner is strictly liable if his cattle stray onto another's land, and he answers for the damage they do there. No negligence need be proved.
The word cattle is used widely and covers horses, cattle, sheep, goats, pigs, asses and poultry. Dogs and cats are outside it, which is the historical anomaly of the subject.
Ellis v. Loftus Iron Co., (1874) LR 10 CP 10 shows how little intrusion is needed. The defendant's horse put its head over or through the boundary fence and bit and kicked the plaintiff's mare. That was a trespass: if the defendant's horse places any part of its body on the plaintiff's land, that is a trespass, and it is immaterial that the animal did not set foot on the land at all.
The owner answers for the natural consequences of the trespass: damage to crops, to fences, to other animals, and injury to persons flowing naturally from the straying.
There is no duty at common law to fence against a neighbour's cattle, unless the duty has been assumed by agreement or acquired by prescription. The duty lies on the owner of the animals to keep them in, not on the neighbour to keep them out.
The defences are the plaintiff's own default, as where he left a gate open; an act of a stranger; and straying from the highway while the animals are being lawfully driven along it, where liability is in negligence only.

4. The Indian Position

The common law heads apply in India, the law of torts here being uncodified and received: TORT 005.
The Cattle Trespass Act, 1871 supplies the statutory machinery. It defines cattle widely, covering elephants, camels, buffaloes, horses, asses, pigs, sheep and goats among others, together with their young.
It permits a person whose land or crops have suffered actual damage to seize and impound the offending cattle, and requires public officers to impound cattle damaging roads, canals and embankments. Mere trespass without damage does not give the right to seize.
Cattle sent to a pound must be delivered there promptly, and the State Government fixes the fines and the rates for their keeping and feeding.
A person whose cattle have been wrongfully seized may complain to a Magistrate, and compensation may be awarded for an illegal seizure.
The Act does not displace the civil remedy. It provides a summary and practical route for the village dispute, and the common law action for the damage done survives alongside it.
Municipal and State legislation on stray cattle and dangerous dogs supplements this, and the liability of a municipal authority for failing to remove stray animals from a public road is decided on ordinary principles of negligence: TORT 106.

5. Dogs

A dog is mansuetae naturae, so the scienter action requires proof of a vicious propensity and of the keeper's knowledge of it. This is the origin of the saying that every dog is allowed one bite, which is a caricature but conveys the rule accurately enough.
The knowledge need not come from a previous bite. Evidence that the dog was kept chained, that it was known to snap, that warning notices were displayed, or that it had attacked other animals may all establish it.
Cattle trespass does not apply to dogs, so a dog that strays and worries a neighbour's sheep is not within that head.
Negligence is therefore the usual route in dog cases. A keeper who allows a large dog to run loose in a public place, or who fails to secure a gate, or who keeps an animal he knows to be unpredictable where children come, is liable on ordinary principles without any need for scienter.
Nuisance covers the persistent barker, and the ordinary rules of unreasonableness, locality and duration apply: TORT 059.
A municipal or institutional keeper answers as any other keeper does, and a claim arising from a stray dog on public premises is framed in negligence against the authority responsible for it.

6. Choosing the Head

The facts	The head to plead
A zoo animal or performing beast injures a visitor	Scienter, the species being ferae naturae, with negligence in the alternative
A dog bites a person, the owner knowing it was savage	Scienter, with negligence in the alternative
A dog bites a person with no history at all	Negligence only. Scienter fails for want of knowledge
Cattle stray onto a field and destroy a crop	Cattle trespass, with the Cattle Trespass Act, 1871 for the impounding
Cattle stray onto a highway and cause a collision	Negligence. The duty is to take reasonable care that animals do not get onto the road
Animals kept in numbers cause smell, flies and noise	Nuisance
An animal is deliberately driven onto another's land	Trespass by the defendant himself
A dangerous animal escapes from a non natural accumulation	Rylands v. Fletcher, and scienter: TORT 115

⚠ Why the law kept two special heads instead of using negligence

A modern lawyer looking at this subject is entitled to ask why animals need rules of their own at all, when a keeper who fails to control a beast is negligent and a keeper who does control it has done what the law asks. The answer lies in the two features animals have that make ordinary fault analysis awkward. The first is that an animal acts on its own, so the immediate cause of the harm is not the defendant's conduct but the creature's, and a system that asked only whether the keeper was careful would place the risk of an animal's autonomy on the person it injured rather than on the person who chose to keep it. The second is that the risk is known in advance and voluntarily assumed: nobody keeps a tiger, or a herd of cattle, without knowing exactly what may follow. Those two together are the classic case for strict liability, and they produce the same reasoning that underlies Rylands v. Fletcher, which is why the heads look alike. What has dated is not the principle but the categories. The division between ferae and mansuetae naturae is a judgment about species made in another century and applied as a question of law, so a circus elephant that has never harmed anyone is dangerous and a fighting dog is not. England replaced the whole structure by statute in 1971. India has not, so the common law categories remain, and a practitioner must still begin by asking which class the animal belongs to before he can say what has to be proved.

7. The Position Stated Shortly

1. Liability for an animal falls on its keeper, under two special heads and the ordinary torts.

2. The scienter action makes a keeper strictly liable for an animal ferae naturae, and for one mansuetae naturae whose vicious propensity he knew of.

3. The classification is of the species and is a question of law, so a tame elephant is still a dangerous animal.

4. May v. Burdett holds that a keeper who knows of the propensity keeps the animal at his peril and answers without proof of negligence.

5. Behrens v. Bertram Mills Circus applies the rule to a circus elephant notwithstanding its docility.

6. Cattle trespass makes an owner strictly liable for cattle straying onto another's land and for the damage they do.

7. Ellis v. Loftus Iron Co. shows that a horse putting its head through a fence is enough, without setting foot on the land.

8. There is no common law duty to fence against a neighbour's cattle; the duty is on the owner to keep them in.

9. The Cattle Trespass Act, 1871 supplies the Indian machinery for seizure, impounding, fines and compensation for wrongful seizure, without displacing the civil remedy.

10. A dog is mansuetae naturae and outside cattle trespass, so negligence is the usual route where no vicious propensity is proved.