You are on page 1of 4

Etienne collects venomous snakes which he keeps in a shed in his back garden.

His
neighbour Fabien is not happy about this and is planning to report the matter to the local
council. He believes that Etienne is in breach of the local planning laws in using his
property in this way.
Fabien believes that his complaint will be taken more seriously if he has photographic
evidence so he enters Etienne’s garden late one night and goes into the shed. He is
shocked to see that the snakes are not in cages and takes photographs. He then leaves
quickly, without closing the door.
Several of the snakes escape. In the following days a child is badly bitten by one of the
snakes.

Discuss the potential liability of Etienne and Fabien in this case. [25]

The case of Rylands v Fletcher shows how an occupier can be liable for the damage
caused to a neighbour’s land or the claimant’s land. In the case, the defendant, a mill
owner, had paid independent contractors to make a reservoir on his land, which was
intended to supply water to the mill. During construction, the contractors discovered the
shafts and passages of an old coal mine on the land, some of which joined up with a
mine situated on neighbouring land, belonging to the claimant. The contractors could
have blocked up these shafts but did not and, as a result, when the reservoir was filled,
the water from it burst through the shafts and flooded the claimant’s mine, causing
damage estimated at £937. The defendant himself had not been negligent, since there
was no way he could have known about the shafts, and nor could he be held vicariously
liable for the contractors, who were clearly not his employees for that purpose. An
action for trespass (discussed in the next chapter) was unavailable because the
damage was not direct and immediate, and at the time of the case the tort of nuisance
could not be applied to an isolated escape. Nevertheless, the House of Lords held that
the defendant was liable in tort, upholding the judgment delivered in the lower court by
Blackburn J, which defined the rule: ‘A person who, for his own purposes, brings on his
land and keeps there anything likely to do mischief if it escapes, must do so at his peril,
and, if he does not do so, he is prima facie answerable for all damage which is the
natural consequence of its escape.’ The justification for this rule, he explained, was that
‘the person whose grass or corn is eaten down by the escaping cattle of his neighbour,
or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is
invaded by the filth of his neighbour’s privy, or whose habitation is made unhealthy by
the fumes and noisome vapours of his neighbour’s alkali works, is damnified without
any fault of his own . . .’ Despite the fact that the courts claimed a clear foundation for
the rule in previous cases, these authorities did not go nearly as far as the decision in
the case, and it is generally regarded as establishing a completely new principle at the
time.
It found that the defendant is liable on the basis of:
 The defendant must control the land from which the problem has come.
 The defendant must have brought or accumulated something in the course of some
‘unnatural use’ of the land.
 The thing brought or accumulated must be ‘dangerous’, meaning likely to do damage if it
escapes from the land.
 There must be an escape of the dangerous thing.
 There must be damage as a result of the escape.

Under the defendant must control the land, it is whereby the dangerous thing must have come from the
defendant’s land. In the case of Smith v Scott (1973), a local authority let a house to a homeless
family, on condition that they promised not to make any trouble. This promise was disregarded by the
family once they moved in, and their behaviour was so intolerable that their next-door neighbour tried
to sue the local authority on the basis of Rylands v Fletcher.

With regards to the unnatural use of land, the defendant must have practiced some sort of activity that
is considered ‘non-natural’. Instances regarding this phenomena include: poisonous gas, growing of
dangerous plants, etc.

In the case of Transco plc v Stockport Metropolitan Borough Council (2003) the defendant owned a
water pipe, which carried water from the mains to a large block of flats. The pipe fractured, and huge
amounts of water ran along an embankment, which contained the claimant’s gas pipeline. The
embankment collapsed, leaving the gas pipeline unsupported. The claimant repaired the damage, and
claimed the costs of the repairs under Rylands v Fletcher . Their claim failed, because the House of
Lords held that a water pipe was not an unnatural use of land. Lord Bingham stated that the phrase
‘unnatural user’ was not very helpful, and that a better question might be whether the defendant was
an ‘ordinary user’.

However, the dangerous thing is to be considered as causing damage if it let out of the defendant’s
property. This includes gas, electricity, poisonous fumes, flagpole and harmful trees (branches).

Escape covers the liability to a claimant if the dangerous thing escapes from the land, but does not cover
liability whereby the individual is injured by the “thing” on the defendant’s property. In the case of In
Read v Lyons (1946), the claimant was an inspector of munitions, visiting the defendants’ munitions
factory. A shell being manufactured there exploded, injuring her, and, because there was no suggestion
that the defendants had been negligent, she claimed under Rylands v Fletcher . The defendants were
held not liable, on the grounds that, although high-explosive shells clearly were ‘dangerous things’.

We can see clearly that Fabien trespassed onto Etienne’s property. With regards to this Section 6(2)(b)
of the Animals Act states that to be considered a dangerous animal, a species must either be likely to
cause severe damage if not restrained (for example, a lion or tiger), or must be the kind of species that
may be unlikely to cause damage, but, if they did, would probably cause serious damage.

In this case, it would be the venomous snakes that Etienne has. These snakes are regarded as a threat to
society since they can do serious damage even if they are domesticated.

So, we can see that Etienne is liable for the damage caused by the snakes and that Fabien is liable for
trespass onto Etienne’s land.
Cant sue under rylands and flether because its personal injury. Fabien issa trespasser and can sue under
negligence.

Jumbo’s Flying Circus (JFC) is situated adjacent to a large car-park in the centre of the
city of Oxford.
After one circus performance, an incident occurs. The performing elephants are
returned to their trailer but their keeper fails to lock the door. Subsequently the
elephants are set free by an animal rights activist who gains entry over a fence
surrounding the circus compound.
As the elephants cross the car-park, they seriously injure Zak, a visitor who attended
the circus, and badly damage his motorcycle as he tries to leave.

Advise JFC as to its potential liability for Zak’s losses in the tort of negligence. [25]

JFC owed a duty to care to persons within the circus that is to those viewing the
performances and all other persons around the vicinity of the circus to ensure that the
elephants they have doesn’t cause any damage to onlookers as well as persons in the
area. The normal rules of the tort apply, so, for example, the owner or controller of an
animal will be liable for personal injury or property damage if it was reasonably
foreseeable that the animal might cause that kind of damage. This was the case in
Draper v Hodder (1972), where the claimant was a child who had been savaged by a
pack of Jack Russell dogs from the premises next door. Although the dogs had never
attacked anyone before, they did have a habit of running next door in a pack. The court
held that as the owner was an experienced dog breeder, he should have known that
Jack Russells as a breed had a tendency to attack moving persons or objects when
they were travelling in a pack, and that as he did know that the dogs were in the habit of
running next door, he should have fenced them in. It was therefore foreseeable that
someone might be injured by the dogs. Under the Animals Act 1971, the Act divides
animals into two different groups: dangerous species and non-dangerous species –
although, as we shall see, these classifications do not necessarily correspond to what
most of us would think of as dangerous or non-dangerous (camels, for example, are
classified as dangerous and dogs as non-dangerous).

Section 6(2) of the Act defines dangerous species as:

(a) a species not commonly domesticated in the British Isles; and


(b) whose fully grown animals normally have such characteristics that they are likely,
unless restrained, to cause severe damage or that any damage that they may cause is
likely to be severe.

This category therefore covers animals which are not usually kept as pets or working
animals in this country, so, as well as foreign animals such as lions and tigers, it
includes wild animals that are native to this country, such as foxes and wildcats. The
fact that an animal is commonly domesticated in other parts of the world is irrelevant:
camels, for example, are widely domesticated in Arab countries, but under English law
they still come under the category of dangerous animals.

A species must either be likely to cause severe damage if not restrained (for example, a
lion or tiger), or must be the kind of species that may be unlikely to cause damage, but,
if they did, would probably cause serious damage. An example of this kind of species
was given in Behrens v Bertram Mills Circus (1957), where the court held that
although an elephant was not an aggressive or violent animal, and was therefore not
likely to cause serious damage if unrestrained, its sheer size meant that if it did cause
damage, the damage was likely to be serious.

It does not matter whether the animal’s keeper was at fault, or whether he or she did
their best to prevent their damage; if they are the keeper of the animal that caused the
damage, and they have no defence, they will be liable.

Section 6(3) specifies that a person will be considered to be the ‘keeper’ of a particular
animal if:

(a) he owns the animal or has it in his possession; or

(b) he is the head of a household in which a member under the age of 16 owns the
animal or has it in his possession.

In the situation of JFC the keeper who failed to lock the doors of the elephants will be
held liable for Zaks’s losses because under the section 2(1) of the Animals act 1971 it
states that where any damage is caused by an animal which belongs to a dangerous
species, any person who is a keeper of the animal is liable for the damage, except as
otherwise provided by this Act. Both the imjuries as well as the damage done to Zak’s
Motorcycle will be accounted for by the keeper of the elephants. With respect to the
animals rights activist he after realizing that the door was not apparently locked by the
keeper decide to let the elephants out, what he did that was wrong was to trespass into
the property of the circus but what is required here it to determine who is liable for the
losses of Zak and JFC is responsible for this including the keeper.

You might also like