Chapter 14

CHAPTER 14
ANIMALS
PARA.
1. Introduction ................................................................................................................ 14–01

2. Strict liability for damage done by animals generally ............................................. 14–06
3. Strict liability for injury caused to livestock by dogs .............................................. 14–51
4. Strict liability for damage done by straying livestock ............................................. 14–58
5. Liability for animals straying on to highways .......................................................... 14–84
6. Wider liabilities at common law ............................................................................... 14–86
1.—INTRODUCTION
Generally. Although there are certain similarities between liability for dan- 14–01
gerous animals and the rule in Rylands v Fletcher,1 since both are examples of
strict liability, they are nevertheless distinct and separate. This remained the case
after the Animals Act 1971, despite the fact that animals, just like other chattels,
are merely agents for causing damage. One obvious difference between the two
forms of liability is that no escape of an animal from the defendant’s land is
required for liability to attach. Nor is natural use of the land a defence in the case
of a dangerous animal.2
Historic differences in liability. Prior to October 1, 1971, when the Animals 14–02
Act 1971 came into force,3 the law dealing with damage caused by animals had
become unduly complex.4 From early days the owner had been liable for damage
caused by his animals, when trespassing on the land of another, but, apart from
cattle trespass, there was no liability at all for damage done by domestic animals.
In the course of time the owner became liable for some damage done by domestic
animals, but this was only for such damage as he knew the particular animal had
a propensity to commit. Liability was based on what was termed scienter,5 for
convenience. In respect of damage done by wild animals the owner was
1
(1868) L.R. 3 H.L. 330.
2
Rands v McNeil [1955] 1 Q.B. 253. See observations of Denning L.J. at 258; Behrens v Bertram
Mills Circus Ltd [1957] 2 Q.B. 1 at 21, 22.
3
As Lord Simonds observed in Read v Lyons [1947] A.C. 156 at 182; ‘‘The law of torts has grown
up historically in separate compartments and . . . beasts have travelled in a compartment of their
own.’’
4
See Williams, Liability for Animals (Cambridge, 1939) for a full account of the common law on this
subject, and Holdsworth, 55 L.Q.R. 588–591. As regards the law of Scotland, see Jackson, ‘‘Liability
for Animals in Scottish Legal Literature: From Stair to the Modern Law’’, 22 J.R. 139.
5
A recognised foreshortening of words that were used in the form of the old writ, which ran: ‘‘Quod
defendens quendam canem ad mordendum oves consuetum scienter retinuit’’. See Jackson, ‘‘On the
Origins of Scienter’’, 94 L.Q.R. 85.
[1051]
14–02 CHAPTER 14—ANIMALS
absolutely liable.6 Then, very much later on, it was recognised that the ordinary
duty to take care to prevent damage applied to animals, as well as to other things,
but this was a modern creation which had to be fitted on to the earlier law. In
short, there was considerable uncertainty. By way of an illustration, it was not
settled whether damage included injury to human beings, in the absence of proof
of scienter,7 in actions for trespass and negligence.
14–03 It took a long time for change to be contemplated. In 1953 a report was
produced on the law8 but it was not until 1967 that the Law Commission resumed
consideration of reform and reported to Parliament,9 submitting a draft Bill to
give effect to their recommendations. Finally, the Animals Act 1971 emerged,
which, by s.13(3), came into operation on October 1, 1971.
14–04 The Animals Act 1971. For the most part the Act10 rationalised existing rules,
rather than replacing them. The old scienter action was abolished11 and replaced
by related provisions.12 The basic distinction, however, between dangerous and
non-dangerous animals was adapted and retained. One important change was to
abolish the rule in Searle v Wallbank13 relating to liability for animals which
escaped on to the highway.14 Nevertheless, it was not until 2003 that the House
of Lords was finally presented with an opportunity to examine the Act’s more
difficult provisions, thus enabling a more certain interpretation of the liability
attaching to non dangerous species.15 In all other areas of tort, such as strict
liability under the principle in Rylands v Fletcher,16 trespass to the person,17
6
Under the Dangerous Wild Animals Act 1976, a person acquiring a dangerous wild animal as a pet
is required to obtain a local authority licence in respect of each such animal. Dangerous wild animals,
as defined in this Act, include lions, tigers, poisonous snakes and certain monkeys and other unusual
pets such as crocodiles, cassowaries and bears. The Act was introduced as a Private Member’s Bill,
following several incidents involving escapes of potentially dangerous animals kept as pets with little
regard for public safety or the welfare of the animals. Circuses, zoos, pet shops and research
laboratories are exempted under the Act, which creates criminal liability but does not affect civil
liability as set out in this chapter.
7
For a fuller discussion of the state of the law prior to the passing of the Animals Act 1971, see
Charlesworth on Negligence (4th edn, 1962), Ch.17.
8
Report of the Committee on the Law of Civil Liability for Damage done by Animals, Cmd. 8746
(1953), under the chairmanship of Lord Goddard.
9
Law Com. No.13.
10
See North, ‘‘The Modern Law of Animals’’, 1972. See articles on the Act: Powell-Smith, 112 New
L.J. 584; Samuels, 115 S.J. 662 and 34 M.L.R. 550; Passingham, 66 L.S.Gaz. 397.
11
s.1(1)(a).
12
s.2.
13
[1947] A.C. 341. The rule was that there was no duty, in the absence of special circumstances
relating to the behaviour of an animal known to the landowner, to fence or maintain existing fences
on land adjoining highways, thereby to prevent animals straying on to the highways. See Poole,
‘‘Fencing Against Cattle on Common Land’’ (1947) J.P.L. 587.
14
Further see Ch.10, para.10–287, above.
15
Mirvahedy v Henley [2003] 2 A.C. 491.
16
See Ch.13, generally.
17
Over 200 years ago, it was settled that trespass to the person could be committed through the
agency of an animal, such as by the defendant deliberately setting his dog to attack the claimant: Scott
v Shepherd (1773) 3 Wils. 403 at 408. Although clearly obiter on the facts under consideration, the
Court of Appeal acknowledged that this remains the position today in Gloster v Chief Constable of
Greater Manchester Police [2000] P.I.Q.R. P114 at P121.
[1052]
STRICT LIABILITY FOR DAMAGE DONE BY ANIMALS GENERALLY 14–06
trespass to chattels,18 nuisance,19 negligence20 (except as mentioned above),

including a lawful visitor’s claim under the Occupiers’ Liability Act 1957,21 and
a claim by an injured trespasser on premises (if his action is not barred by s.5(3)22
of the Animals Act) the common law remains unaffected by its provisions.
It is proposed to follow the same order as the Act and discuss: (1) strict 14–05
liability for damage done by dangerous animals, under s.2; (2) strict liability for
injury done by dogs to livestock, under s.3; and (3) strict liability for damage
done by straying livestock, under s.4.
2.—STRICT LIABILITY FOR DAMAGE DONE BY ANIMALS GENERALLY
Liability for damage done by dangerous animals.23 Section 2 of the 1971 14–06
Act was described by Lord Denning M.R., who (correctly) anticipated ‘‘several
difficulties in the future’’, as ‘‘very cumbrously worded.’’24 It replaces the rules
of the scienter action and provides that:
‘‘(1) 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.
(2) Where damage is caused by an animal which does not belong to a dangerous
species, a keeper of the animal is liable for the damage, except as otherwise provided
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 species25 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 a household, were known to another keeper of
the animal who is a member of that household and under the age of 16.’’
18
Manton v Brocklebank [1923] 2 K.B. 212. See further the example given by Atkin L.J. (at 229) of
the owner who intentionally caused his dog to accomplish ‘‘an ‘asportavit’ of a golf ball’’.
19
e.g. Pitcher v Martin [1937] 3 All E.R. 918 where a dog with a long loose leash escaped its owner’s
control and ran after a cat but in so doing the lead tripped up an elderly pedestrian, it was held to be
a nuisance; and where herds of cattle in large numbers stray on to the highway and cause an
obstruction such as occurred in Cunningham v Whelan (1917) 52 I.L.T.R. 67 and Fleming v Atkinson
(1959) 18 D.L.R. (2d) 81.
20
See further, paras 14–87–14–98, and Cummings v Grainger [1977] Q.B. 397.
21
See Ch.8, generally.
22
For the provisions of which, see para.14–46, below.
23
See Begley, ‘‘Who let the dogs out?’’ 2002 H. & S.L., 2(2), 10.
24
Cummings v Grainger [1977] Q.B. 397 at 404. Ormrod L.J. described s.2(2)(b) as ‘‘remarkably
opaque’’ at 407 and similar criticism can be found in Curtis v Betts [1990] 1 W.L.R. 459, CA,
para.14–11 below, and Gloster v Chief Constable of Greater Manchester Police [2000] P.I.Q.R. P114,
CA, where Pill L.J. noted, at 117, that the Law Commission’s draft, Law Com. No.13, had not been
followed. See further para.14–11, below.
25
See Hunt v Wallis [1994] P.I.Q.R. P128, para.14–12, n.42, below.
[1053]
14–07 Dangerous species. It will be seen that a distinction is drawn between animals
of a dangerous species and other animals. No attempt is made to define ‘‘animal’’
as such. By s.6(2) a ‘‘dangerous species’’ is defined as a species26—
‘‘(a) which is not commonly domesticated in the British Islands; and

(b) whose fully grown animals normally have such characteristics that they are likely,
unless restrained, to cause severe damage or that any damage they may cause is
likely to be severe.’’
14–08 Whether or not a particular species of animals is dangerous is purely a question

of law27:
‘‘the reason why this is a question of law and not a question of fact is because it is a
matter of which judicial notice has to be taken. The doctrine has from its formulation
proceeded upon the supposition that the knowledge of what kinds of animals are tame
and what are savage is common knowledge. Evidence is receivable, if at all, only on the
basis that the judge may wish to inform himself.’’28
14–09 Accordingly, in each case a decision must first be reached about the category,
dangerous or non-dangerous, into which the animal falls. The answer is of
considerable importance since, should s.2(1) apply, the keeper’s state of
knowledge of the animal’s characteristics is irrelevant and proof of liability on
behalf of an injured party ought to be a straightforward exercise. Under s.2(2) the
claimant must establish each of the matters set out in subsections (a), (b) and
(c).
14–10 Bears,29 elephants,30 and lions31 have all been held to be dangerous species at
common law. There was some doubt about bees.32 Dogs, even a 50kg Rottweiler
dog,33 are not,34 although the Dangerous Dogs Act 1991 imposes criminal
penalties on those who fail to observe certain safeguards in relation to identified
26
s.11 defines ‘‘species’’ as including ‘‘sub-species and variety.’’
27
Filburn v People’s Palace and Aquarium Co (1890) 25 Q.B.D. 258; Mason v Keeling (1699) 12
Mod. 332 at 355; Besozzi v Harris (1858) 1 F. & F. 92.
28
per Devlin J. in Behrens v Bertram Mills Circus Ltd [1957] 2 Q.B. 1 at 15, 16. cf. the approach of
Scrutton L.J. in Glanville v Sutton [1928] 1 K.B. 571, 575.
29
Besozzi v Harris (1858) 1 F. & F. 92. See also Wyatt v Rosherville Gardens (1886) 2 T.L.R. 282;
Pearson v Coleman [1948] 2 K.B. 359.
30
Filburn v People’s Palace and Aquarium Co (1890) 25 Q.B.D. 258. See also, Behrens v Bertram
Mills Circus Ltd [1957] 2 Q.B. 1; per Lord Simonds in Read v J. Lyons & Co Ltd [1947] A.C.
156.
31
Murphy v Zoological Society of London, The Times, November 14, 1962.
32
At common law the responsibilities of an owner of hived bees were not entirely clear. The Irish
case of O’Gorman v O’Gorman [1903] 2 I.R. 573, where a man was injured as a result of angered
bees stinging his horse, was decided on a finding of negligence and is some authority for the
proposition that bees are not per se ‘‘dangerous animals,’’ but in a later Canadian case, Lucas v Pettitt
(1906) 12 O.L.R. 448 where the beekeeper was also held liable, it was decided that the doctrine of
scienter had no application. See also Robins v Kennedy [1931] N.Z.L.R. 1134. Bees are not included
in the statutory definition of livestock in s.11 of the Act.
33
Chauhan v Paul [1998] C.L.Y. 3990, CA.
34
See, e.g. Curtis v Betts [1990] 1 W.L.R. 459; Peachey, ‘‘Dogs—Civil Liability for Damage and
Injuries’’, 133 S.J. 1614. See also Hunt v Wallis [1994] P.I.Q.R. P128 and Gloster v Chief Constable
of Greater Manchester Police [2000] P.I.Q.R. P114, CA, at P116.
[1054]
breeds known for their aggressive qualities.35 If the animal is of a dangerous

species it is irrelevant that the keeper either did not know it was dangerous or
believed the individual tame.36 It is no defence that the damage resulted because
the animal was suddenly frightened and not from any vicious propensity in its
character.37
Non-dangerous species.38 The effect of s.2(2) is that, in order to establish 14–11

liability, an injured claimant must prove each of the three elements of the
subsection as set out above. In Curtis v Betts,39 it was emphasised that each part
of the subsection should be examined in turn.
(a) The damage is of a kind which the animal, unless restrained, was likely to 14–12
cause or which, if caused by the animal, was likely to be severe.40 This
requirement in s. 2(2)(a), along with s.2(2)(c), is relatively straightforward. There
are two limbs to it. The former is illustrated by the facts of Curtis v Betts41 where
a young bull mastiff dog, which bit a 10-year-old boy, was found to be an animal
of a kind which would satisfy s.2(2)(a) since the damage was likely to be severe
if it did bite someone. Hunt v Wallis42 is an example of the second limb. A border
collie was not likely to cause physical injury but, since it ran into the claimant,
given its size and speed, if it did cause damage this was likely to be severe, thus
satisfying the second limb of s.2(2)(a). It should be noted that there is no
requirement that the damage should in fact be severe: the test is one of
foreseeability of damage.43
(b) The likelihood of the damage or of its being severe was due to 14–13
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.44 It is the requirements of s.2(2)(b) in particular,
which have given rise to difficulty and led to two different lines of authority.45
One would have expected the first limb of the subsection to be relatively
un-contentious. Abnormal characteristics can, but do not necessarily, comprise a
35
It is not as yet clear whether, in spite of the criminal sanctions contained in the Act, a civil remedy
will also arise at the suit of someone injured as a result of a failure to heed the restrictions
imposed.
36
Besozzi v Harris (1858) 1 F. & F. 92.
37
Behrens v Bertram Mills Circus Ltd [1957] 2 Q.B. 1 (the defendants were liable even though their
Burmese elephants were normally obedient and well-behaved when on the way to the ring, being
frightened by a small dog, they knocked over a booth in which two midgets were on show).
38
‘‘Species’’ is defined as including ‘‘sub-species and variety’’: s.11.
39
[1990] 1 W.L.R. 459, applying Cummings v Grainger [1977] Q.B. 397.
40
s.2(2)(a).
41
n.39 above.
42
[1994] P.I.Q.R. P128 Pill J. held that in the light of the definition of ‘‘species’’ in s.11, where an
identifiable breed of dog existed such as ‘‘Border Collie’’, the relevant comparison ought to be made
with that breed of dog and not dogs generally. See Exall, ‘‘Give a Dog a Bad Name’’, 135 S.J.
644.
43
A child, who suffered a fractured humerus when thrown from a riding school pony, failed to
establish that the damage caused was of a kind which a pony was likely to cause, or if it caused, was
likely to be severe: E v Townfoot Stables [2004] C.L.Y. 169.
44
s.2(2)(b).
45
Breeden v Lampart March 21, 1985 and Cummings v Granger [1977] Q.B. 397.
[1055]
vicious tendency based on past conduct46 or simply unusual characteristics. Thus,

in Wallace v Newton,47 where the claimant, a groom in the defendant’s training
stables, was crushed and seriously injured, while attempting to lead a thorough-
bred showjumper into a horse-box trailer, it was held that in order to succeed, it
was not necessary that the horse had any vicious tendency to attack people, but
only that it had particular characteristics of unpredictability and unreliability
unusual in a horse, and that it was from those characteristics that injury arose.
Similarly, where the claimant had been bitten by a dog, which was known to
attack people carrying bags, it was held to possess a characteristic peculiar to
itself within the meaning of para.(b).48 By way of contrast, in Fitzgerald v E.D.
& A.D. Cooke Bourne (Farms) Ltd, a pre-Act case, the claimant’s claim failed
where the court was satisfied that in knocking the claimant to the ground, a young
unbroken thoroughbred filly was indulging in a natural propensity to be playful,
rather than viciousness.49
14–14 More recently, it has been pointed out that before a claim on the basis of strict
liability under the Act can attach, it has to be shown that the characteristic of an
animal which is causative of damage to the claimant is a dangerous behavioural
characteristic, even though only exhibited in particular times or circumstances. A
claim under the Act for injury and damage caused by a cow, which escaped from
a field on to a road, failed where the behavioural characteristic relied on by the
claimants (agitation resulting from the cow’s normal maternal instinct upon
being separated from her calf) was itself neither dangerous nor causative.50 The
cow’s behaviour, which included climbing a six bar livestock gate and crossing
a 12 foot cattle grid, reflected exceptional and exaggerated agitation, so that she
was in the state of an excited wild animal.
14–15 As is apparent from the previous paragraph, the interpretation and application
of ‘‘characteristics’’ has continued to give rise to difficulty. Thus it has been held
that a normally obedient horse which stepped into the road and collided with the
claimant’s car, contrary to the direction of its rider, did not have a characteristic
or a characteristic only found at particular times and particular circumstances and
the claimant failed.51 Yet where an otherwise well behaved horse reared up
causing the claimant rider to fall, it was held that the core meaning of ‘‘normal’’
in ‘‘characteristics . . . which are not normally found . . . .’’ was ‘‘conforming to
type’’. Thus if a characteristic was usual then it would certainly be normal. The
Court of Appeal said that it was difficult to see why Parliament should have
intended to exclude from the ambit of s.2(2)(b) cases where the relevant
characteristic was natural, although unusual, in the animal which caused the
damage. If s.2(2)(b) was interpreted in that way, there was nothing unjust or
46
e.g. Parsons v King (1891) 8 T.L.R. 114.
47
[1982] 1 W.L.R. 375. The horse was called ‘‘Lord Justice’’.
48
Kite v Napp, The Times, June 1, 1982; see also Flack v Hudson [2001] Q.B. 698: a horse liable to
bolt when in the vicinity of agricultural machinery.
49
[1964] 1 Q.B. 249. The decision was distinguished in Morris v Bailey (1970) 13 D.L.R. (3d) 150,
where the defendant allowed his collie dog to run at large, knowing it had a propensity to run up to
people barking furiously, although it stopped short of actually knocking them to the ground.
50
McKenny v Foster [2008] EWCA Civ 173.
51
Clark v Bowlt [2007] P.I.Q.R. P12, CA.
[1056]
unreasonable, as between the keeper, who could decide whether to run the
unavoidable risks involved in keeping horses, and whether or not to insure
against those risks, and the victim of the horse’s behaviour, in requiring the
keeper to bear the loss.52
That reasoning was applied where a claimant fell from a horse which had a 14–16
habit of bucking when going into a canter.53 The relevant characteristic for the
purposes of s.2(2)(b) was said to be bucking, not bucking when going into a
canter, as considerations of time and circumstances were only relevant elements
in the second, alternative, limb of s.2(2)(b) and, thus the core meaning of
‘‘normal’’ was ‘‘conforming to type’’ and the judge had been entitled to find on
the evidence that bucking was not a normal characteristic of horses generally.
Under the second limb of s.2(2)(b), the relevant question was whether it was
normal for horses generally to buck at particular times and in particular
circumstances, including when beginning to canter. The words ‘‘at particular
times or in particular circumstances’’ denoted times or circumstances that could
be described and predicted. Since there was no evidence that horses generally
bucked at particular times or in particular circumstances, the claim failed.
The second limb of the subsection is altogether more tortuous and gave rise to 14–17
a dispute as to whether a literal interpretation should prevail over an inter-
pretation that did not treat as abnormal behaviour that is characteristic of the
species in the circumstances in which the species found itself. More than 30 years
after the passing of the Act, the House of Lords had an opportunity to resolve the
difference in Mirvahedy v Henley.54 The case arose from a collision on a road
between a car and a horse, one of several that had panicked for some unknown
reason and escaped from a field, pushing over an electric fence and travelling
over a mile before they reached the road. It was agreed that while this behaviour
was not normal for horses in normal circumstances, it was usual when such
animals were alarmed or under threat. Thus, by a majority, it was held that the
second limb of the subsection did indeed apply to temporary characteristics
which were nevertheless normal for the animal in particular circumstances, even
if those circumstances were unusual. Lord Hobhouse said:
‘‘It is true that there is an implicit assumption of fact in section 2(2) that domesticated
animals are not normally dangerous. But the purpose of paragraph (b) is to make
provision for those that are. It deals with two specific categories where that assumption
of fact is falsified. The first is that of an animal which is possessed of a characteristic,
not normally found in animals of the same species, which makes it dangerous. The
second is an animal which, although belonging to a species which does not normally
have dangerous characteristics, nevertheless had dangerous characteristics at particular
times or in particular circumstances. The essence of those provisions is the falsification
of the assumption, in the first because of the departure of the individual from the norm
for its species, in the second because of the introduction of special factors.’’55
52
Welsh v Stokes [2008] 1 W.L.R. 1224, CA.
53
Freeman v Higher Park Farm [2009] P.I.Q.R. P6, CA.
54
[2003] 2 A.C. 491. See Amirthalingham ‘‘Animal Liability—equine, canine and asinine’’ 119
L.Q.R. 563; Howarth ‘‘The House of Lords and the Animals Act: closing the stable door’’ 62 C.L.J.
548; Barker, ‘‘Animals: where should the loss lie?’’ E.P.S. 2006, 4(9), 9.
55
Mirvahedy v Henley [2003] 2 A.C. 491 at 517, para.[71].
[1057]
In reaching this decision, Lord Nicholls acknowledged public policy con-

siderations:
‘‘Considered as a matter of social policy, there are arguments in favour of [imposing

strict liability for damage caused by the animal when the animal’s behaviour was not
abnormal for an animal of the species in those circumstances]. It may be said that the
loss should fall on the person who chooses to keep an animal which is known to be
dangerous in some circumstances. He is aware of the risks involved, and he should bear
the risk. On the other hand, it can be said, that negligence apart, everyone must take the
risks associated with the ordinary characteristics of animals commonly kept in this
country.’’56
14–18 It follows that, on establishing a pattern of behaviour capable of amounting to

a ‘‘characteristic’’ in any given case, the characteristic so identified will either be
abnormal, or normal: either way it will fall within one of the limbs of s.2(2)(b)
and satisfy the requirement, leaving defendants to argue, if they can, over
whether the requirements of s.2(2)(a) and (c) have been met.57 Many earlier cases
have now to be reconsidered in the light of Mirvahedy.58 In relation to a relatively
recent example, Gloster v Chief Constable of Greater Manchester Police,59
discussed in the 10th edition of this work, the suggestion that a police dog which
bit in accordance with its training was responding to that training, rather than an
inculcated propensity to bite, was expressly disapproved.60
14–19 (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 a household, were known to another keeper
of the animal who is a member of that household and under the age of 16.61 The
knowledge required to impose liability is the actual knowledge of the keeper or
that to be imputed to him, through a particular employee or agent.62 So, where
only one of two keepers of a horse was aware that it had a propensity to be
frightened of farm machinery and the keeper without such knowledge was killed
when thrown from the horse, the keeper with knowledge was liable to the
deceased’s widower for her death. The Court of Appeal rejected the submission
that the two keepers’ knowledge of the horse’s characteristics be treated as being
the same.63 It is not sufficient to prove that he ought to have known of the
56
Mirvahedy v Henley [2003] 2 A.C. 491 at 503, para.[6].
57
The Animals Act 1971 (Amendment) Bill, which proposed amending s.2 to limit the scope of
Mirvahedy by affording keepers of animals a defence if they could show that there was no particular
reason to expect an animal to react as it did, failed to attract sufficient Parliamentary support in March
2008.
58
For example Jaundrill v Gillett, The Times, January 30, 1996, CA where an intruder maliciously
opened a roadside field gate and, during the hours of darkness, drove out a number of horses which
panicked and galloped along the highway and into collision with an oncoming car, and their keeper
was held not liable.
59
[2000] P.I.Q.R. P114.
60
Thus Lord Scott said, at [126]: ‘‘If biting at its handler’s command is a characteristic of German
Shepherds only after they have been trained to do so, it is not a normal characteristic of the sub-
species.’’
61
s.2(2)(c).
62
See s.2(2)(c).
63
Flack v Hudson [2001] Q.B. 698.
[1058]
propensity.64 There is no definition of knowledge contained in the Act so that

reference back to the common law must be made for assistance.65 What is
required is knowledge of characteristics of the animal that indicate a tendency to
cause the damage or injury which in fact ensues.66 In the light of the several
provisions of the subsection, it will be necessary to consider this aspect by
reference to the knowledge of: (i) the keeper himself; (ii) his servant in charge;
and (iii) another keeper, who is a member of his household. Outside the confines
of these categories, knowledge cannot be attributed to the keeper, under the
Act.
(i) Knowledge of the keeper

Some guidance can still be gained from the common law principles, relating 14–20
to proof of scienter,67 perhaps now more appropriately called knowledge of
propensity. Such proof is made by showing that the animal has a propensity to do
the particular kind of damage in question and that the keeper knows of it. The
best evidence is that the animal has, to the keeper’s knowledge, done the same
kind of damage before, but it is not essential to go as far as that. Proof of
knowledge of unsuccessful attempts is enough.68 In the case of a bull, evidence
by one witness that the owner had said that the bull would run at anything in red,
and by another witness that he had said that a bull would run at anything red, was
held to be sufficient evidence on the ground that ‘‘either expression was some
evidence to go to the jury that the defendant knew that this animal was a
dangerous one’’.69 In an action for damages for being bitten by a dog, where there
was no evidence that the dog had ever bitten any person, but it was proved that,
to the defendant’s knowledge, the dog rushed out of his kennel when any stranger
passed and barked and attempted to bite, it was held that that was sufficient to
establish liability.70 The fact that a dog was usually kept tied up was held to be
64
Mason v Keeling (1699) 12 Mod. 332.
65
See Glanville v Sutton & Co Ltd [1928] 1 K.B. 571 and Brock v Richards [1951] 1 K.B. 529.
66
See Smith v Ainger, The Times, June 6, 1990, where it was held that the keeper of a dog with a
known propensity to attack other dogs was liable to a claimant who was knocked over and hurt as it
rushed to attack her own animal; it was incorrect to hold, as had the judge at first instance, that
knowledge of his animal’s aggressive tendencies towards other dogs was insufficient to fix the
defendant with knowledge of a characteristic which caused the claimant’s injury. See further
McKenny v Foster, n.50 above, (cow separated from her calf: her behaviour in escaping from a field
by climbing a six bar livestock gate and crossing a 12 foot cattle grid, reflected exceptional and
exaggerated agitation, resulting from the animal’s maternal instinct, so that she was in the state of an
excited, wild animal. The potential for such behaviour had not been known to the defendants: neither
the cow, nor the breed generally, were known to exhibit their maternal instinct with such excited and
exaggerated anxiety as was shown, for whatever abnormal reason, on the relevant occasion).
67
The Law Commission in para.18 reported: ‘‘The law at present achieves this imposition of strict
liability by the scienter rules, but we think that this rule requires considerable modification and
simplification. We would therefore abolish it in its common law form and substitute a new rule
retaining what we conceive to be the essential rationale of the old law . . . [i.e.] a propensity which
is really likely to be dangerous,’’ per Willmer L.J. and ‘‘a propensity to attack people,’’ per
Danckwerts L.J. in Fitzgerald v E.D. & A.D. Cooke Bourne (Farms) Ltd [1964] 1 Q.B. 249.
68
See Barnes v Lucille Ltd (1907) 96 L.T. 680. See para.18(2) of the Law Commission’s report.
69
Hudson v Roberts (1851) 6 Ex. 697.
70
Worth v Gilling (1866) L.R. 2 C.P. 1. See also to the same effect Osborne v Chocqueel [1896] 2
K.B. 109. The decision to the contrary of Lord Ellenborough in Beck v Dyson (1815) 4 Camp. 198,
must be taken to be overruled. Thus the common suggestion that every dog is entitled to its first bite
is scarcely accurate law. See further Curtis v Betts [1990] 1 W.L.R. 459.
[1059]
insufficient evidence,71 but a warning by the owner not to go near the dog was
sufficient evidence.72
14–21 The evidence of one bite by a dog has been enough to establish proof and it
has been held that it is not necessary that the dog should be generally prone to
bite.73 When the defendant went with his dog into a public house and his dog bit
the potman, and half an hour afterwards, in the street, it again bit the potman, it
was held, reversing the court below, that the defendant was liable, because ‘‘the
action was not for the first bite, but for the second. Half an hour had intervened
between them, and during that time it was the duty of the defendant, who knew
his dog had just bitten a man, to secure him in some way so as to prevent him
from biting again.’’74 Interrogatories were not permitted to ascertain the names of
the persons alleged by the claimant to have been previously bitten by the dog.75
The scope of further information that can now be sought under the Civil
Procedure Rules76 is wider than under previous rules of court. However, whether
this will extend to requiring the defendant to disclose the identity of a witness
helpful to the claimant remains an open question.
14–22 It is not necessary to prove that the defendant’s animal is always ferocious, as
long as it is proved that, to his knowledge, it is fierce at certain times. So, when
it was proved that a bitch which had bitten the claimant was, to the defendant’s
knowledge, fierce when she had pups, although harmless at other times, it was
held that liability was established.77 This principle is obviously enshrined in the
second limb of s.2(2)(b) of the Act.78
14–23 It is a matter of evidence whether a keeper has been told about his animal’s
abnormal characteristics, whether by an employee (not in charge of it) or by
anyone else, including any member of his family or household. In such event, it
will not be necessary to consider paras (b) and (c), hereinafter, which are only
concerned with the circumstances where knowledge will be imputed. Accord-
ingly, a complaint made to the keeper’s wife, who is living with him, was held
to be evidence of her husband’s knowledge.79 But, on the other hand, a complaint
made to the keeper’s husband was held not to be evidence against her in an action
71
Beck v Dyson (1815) 4 Camp. 198; Hogan v Sharpe (1837) 7 Car. & P. 755.
72
Judge v Cox (1816) 1 Stark. 285. A ‘‘beware of dog’’ sign on the front gate did not imply
knowledge that the dog was vicious: Dolan v Bright, The Times, November 17, 1962. It must today
be doubted whether an offer of compromise would be capable of constituting evidence of knowledge
of propensity, but see Thomas v Morgan (1835) 2 C.M. & R. 496. cf. Sanders v Teape and Swan
(1884) 51 L.T. 263.
73
Charlwood v Greig (1851) 3 Car. & Kir. 46; Pacy v Field (1937) 81 S.J. 160.
74
Parsons v King (1891) 8 T.L.R. 114.
75
Knapp v Harvey [1911] 2 K.B. 725. Interrogatories were the precursors of requests for further
information under the present Rules.
76
CPR Pt 18.
77
Barnes v Lucille Ltd (1907) 96 L.T. 680 where Darling J. said: ‘‘I do not think, further, that in order
to make the owner of the dog liable the dog must be always and invariably ferocious. If the owner
knows that at certain periods the dog is ferocious, then he has knowledge that at those times the dog
is of such a character that he ought to take care of it.’’ cf. Howard v Bergin O’Connor & Co [1925]
2 Ir.R. 110 (bullock savage when being unloaded from railway).
78
See para.14–17, above.
79
Gladman v Johnson (1867) 36 L.J.C.P. 153.
[1060]
brought by the claimant after the keeper’s husband’s death.80 Where a young
child, living with his parents, acquired knowledge of an animal’s abnormal
characteristics that fact alone did not, as a matter of law, pass on such knowledge
to his parent, the keeper.81
(ii) Knowledge of keeper’s servant

Section 2(2)(c) deals with the situation where the relevant knowledge will be 14–24
attributed to the keeper of an animal via the agency of another person. The words
concerned are contained in s.2(2)(c). What has to be considered is whether:
‘‘those characteristics . . . were at any time known to a person who at that time
had charge of the animal as that keeper’s servant . . . ’’.82
It follows that the knowledge of the abnormal characteristics of the animal 14–25
need not be the personal knowledge of the keeper himself. It suffices if such
knowledge is possessed by an employee, who had the care and control of the
animal, such as a manager or agent of the keeper’s business, in connection with
which the animal is kept.
ILLUSTRATIONS
Owners were fixed with knowledge: where their coachman, who kept the dog 14–26
in the stable, knew it to be savage83; where barmen employees had received
complaints that the dog had attacked customers of the bar even though there was
no evidence of the complaints being communicated to the owner.84 In contrast an
education authority escaped liability for a dog kept on school premises by a
school keeper with its knowledge and permission, where the dog was kept for
pleasure rather than as a guard dog. The dog was acquired and kept by him in a
personal capacity rather than as an employee.85
The words of the subsection restrict the category of the keeper’s employee to 14–27
the one who had charge of the animal at the time of acquiring knowledge. Thus,
if some other fellow employee had knowledge of its abnormal characteristics but
he was not in charge of it, then such knowledge gained cannot be attributed to the
keeper, his employer. This would appear to be so despite Lord Wheatley’s strong
comment that ‘‘if each is to be regarded in his own way as the alter ego of the
employers it seems to produce a schizophrenic legal persona, and I cannot
imagine the law leads to such a result.’’86
80
Miller v Kimbray (1867) 16 L.T. 360.
81
Elliott v Longden (1901) 17 T.L.R. 648.
82
A ‘‘servant’’ is a person who is employed to perform services in connection with the affairs of his
employer and over whom the latter has control in the performance of those services. For the
distinction between servants and independent contractors see Ch.3, para.3–99, above.
83
Baldwin v Casella (1872) L.R. 7 Ex. 325.
84
Applebee v Percy (1874) L.R. 9 C.P. 647.
85
Knott v London County Council [1934] 1 K.B. 126 at 134.
86
Maclean v The Forestry Commission, 1970 S.L.T. 265, (the employee, actually in charge of a
horse, did not know of its dangerous characteristic which was known to another employee who was
not in charge of the animal at all).
[1061]
14–28 So, complaints about a dog’s ferocity to a domestic who did not have charge
of the animal, in the absence of evidence that the fact of its ferocity had been
communicated to the defendant or his wife, were insufficient to fix the defendant
with knowledge.87 Nor was knowledge acquired where it was proved that
employees of a steamship company knew that a dog belonging to the company
had previously bitten people but those employees had neither the control of the
dog nor the management of the premises.88
(iii) Knowledge of another keeper in this household

14–29 Section 2(2)(c) also fixes the keeper with knowledge where the characteristics
described in s.2(2)(b) ‘‘were known to another keeper of the animal who is a
member of that household and under the age of sixteen.’’ However, not every
child within a household89 will necessarily be another keeper of the animal in
order to impute knowledge to the keeper, and problems may arise similar to those
referred to in the previous paragraph, where one employee not in charge of the
animal, has the appropriate knowledge but another who is in charge of it, lacks
does not.90
14–30 Liability of keeper. Whether liability arises under s.2(1) or (2) of the Act, the
keeper is the person liable for damage done by a dangerous animal. By section
6(3) a person is a keeper of an animal if (subject to subs.6(4)) either:
‘‘(a) he owns the animal or has it in his possession91; or (b) he is the head of a household
of which a member under the age of sixteen owns the animal or has it in his posses-
sion.’’
14–31 At common law an owner who was in possession of an animal could not
escape liability by abandoning ownership either before or after the damage was
done.92 Until he had transferred the ownership to another he was liable for not
87
Colget v Norrish (1866) 2 T.L.R. 471.
88
Stiles v Cardiff Steam Navigation Co (1864) 33 L.J.Q.B. 310.
89
As to the meaning of ‘‘household’’ and the relationship of the members of the household to the head
of the household, these were described by Rand J. in Wawanesa Mutual Insurance Co v Bell [1957]
S.C.R. 581 at 584, as follows: ‘‘The ‘household,’ in the broad sense of a family, is a collective group
living in a home, acknowledging the authority of a head, the members of which, with few exceptions,
are bound by marriage, blood, affinity or other bond, between whom there is an intimacy and by
whom there is felt a concern with and an interest in the life of all that gives it a unity. It may, for
example, include such persons as domestic servants and distant relatives permanently residing within
it. To some degree they are all admitted and submit to the collective body, its unity and its conditions,
particularly that of the general discipline of the family head. They do not share fully in the more
restricted family intimacy or interest or concern, but they participate to a substantial degree in the
general life of the household and form part of it.’’
90
But in respect of two keepers who were not members of the same household and their liability to
each other, see Flack v Hudson [2001] Q.B. 698, para.14–19, above.
91
Lord Wright in Knott v London County Council [1934] 1 K.B. 126 at 134, 141, stated the common
law position: ‘‘The true test of liability, namely that of ownership or possession and control’’.
Similarly, the ‘‘keeper’’ of animals, for the purposes of s.155 of the Highways Act 1980, is the person
in whose possession the animals are, whether or not he derives any personal benefit from them. The
fact that the straying cattle may also be in any other person’s possession is irrelevant as regards
committing an offence: D.P.P. v Turton, The Guardian, June 8, 1988, DC.
92
Brady v Warren [1900] 2 I.R. 632; Dee Conservancy Board v McConnell [1928] 2 K.B. 159 at 163,
per Scrutton L.J.
[1062]
keeping it under control. His liability being based on strict liability, similar to the
rule in Rylands v Fletcher,93 he could not relieve himself from responsibility by
delegating the performance of his duty to an independent contractor. In the words
of Atkin L.J.: ‘‘Can the person who has acquired a tiger, so long as he remains
its owner, relieve himself of responsibility by contracting with a third person for
its custody?’’94 So, too, as Lord Wright observed: ‘‘In the case of dangerous
animals, a transfer of actual possession and control would not necessarily
terminate his [the owner’s] responsibility.’’95 Section 6(3) preserves and embod-
ies the common law on the point by adding that:
‘‘if at any time an animal ceases to be owned by or to be in the possession of a person,
any person who immediately before that time was a keeper thereof by virtue of the
preceding provisions of this subsection continues to be a keeper of the animal until
another person becomes a keeper thereof by virtue of those provisions.’’
In the light of the definition of a ‘‘a keeper’’, more than one person can be held 14–32
liable for the same animal, for example the owner, in addition to a person having
its possession and control. Further, the there is nothing in the Act which limits
those who can sue the keeper of an animal to third parties or strangers: hence one
keeper was held liable to another keeper where the former had knowledge of a
propensity of which the latter was in ignorance and where the latter was killed as
a result of that propensity.96
ILLUSTRATIONS
A dog belonging to a former employee was permitted to live on the 14–33

defendant’s premises. The defendant was found liable for the damage it caused
on the basis that he was harbouring it.97 In contrast, a father escaped liability for
his 17-year-old daughter’s savage dog on the basis that she was the owner and
had control of the dog.98 Likewise, an education authority escaped liability for a
dog kept by its school keeper on its school premises with its knowledge and
permission because the dog was kept by the keeper in a personal capacity and not
as an employee.99
The mere fact of an animal’s presence on the defendant’s premises when it 14–34
does damage, imposes no liability on the defendant. So, where a dog made a
sudden incursion at a railway station, bit the claimant and disappeared just as
suddenly as it had appeared, the railway company was held not to be liable.100
93
Filburn v People’s Palace and Aquarium Co (1890) 25 Q.B.D. 258; Knott v London County
Council [1934] 1 K.B. 126 at 139, per Lord Wright, and recognised in numerous cases.
94
Belvedere Fish Guano Co v Rainham Chemical Works [1920] 2 K.B. 487 at 504; commented on
by Lords Buckmaster and Parmoor [1921] 2 A.C. 465 at 477, 491.
95
Brackenborough v Spalding Urban District Council [1942] A.C. 310 at 324.
96
Flack v Hudson [2001] Q.B. 698.
97
M’Kone v Wood (1831) 5 C. & P. 1.
98
North v Wood [1914] K.B. 629.
99
Knott v London County Council [1934] 1 K.B. 126.
100
Smith v Great Eastern Ry (1866) L.R. 2 C.P. 4.
[1063]
14–35 A person with the care and custody of the animal under contract with the
owner, is under the same liability as the owner, since both are keepers under the
Act. A trainer, who, under contract with the owner, had in his custody a horse,
which he knew was accustomed to bite, was held liable when the horse, while
being taken from the stables to a railway station, bit the claimant.101
14–36 The Act specifically provides that a person shall not be a keeper of an animal
by virtue only of the fact of possession where he has taken it into and kept it in
possession ‘‘for the purpose of preventing it from causing damage or of restoring
it to its owner’’.102
14–37 The damage for which the keeper is liable. If the keeper is liable under
either of the subsections of s.2, he will be responsible for ‘‘any damage’’ caused
by his animal. ‘‘Damage’’ is defined in s.11 as including ‘‘the death of, or injury
to, any person (including any disease and any impairment of physical or mental
condition)’’ but the definition is clearly not exhaustive and the damage claimed
may embrace any damage to the property or chattels of another, including an
animal owned by him. There is no requirement that this damage be of a type the
animal was likely to cause, because liability under the Act is independent of fault
or any finding of negligence and the test of the damage recoverable is therefore
directness of consequence not reasonable foresight.103 ‘‘If a tiger is let loose at a
funfair, it seems to me irrelevant whether a person is injured as a result of direct
attack or because on seeing it he runs away and falls over.’’104
14–38 Even so, damage will not be recoverable if it is not strictly caused by the
animal (for purposes of s.2(1)) or its abnormal characteristics (s.2(2)).105
14–39 The words of the two alternatives contained in s.2(2)(a), namely ‘‘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’’, are not intended as a restriction
on the damage recoverable in an appropriate case, but merely set out the test of
the likelihood of damage for the purposes of the subsection.106 Certainly there is
no requirement that the damage has to be severe in order to found an action.
14–40 The keeper’s defences: at common law. Although a common law liability
for damage caused by animals was regarded as similar to liability under Rylands
101
Walker v Hall (1876) 40 J.P. 456.
102
s.6(4).
103
Behrens v Bertram Mills Circus Ltd [1957] 2 Q.B. 1 at 18. See generally Ch.5, para.5–41, and
Ch.13, para.13–29, above.
104
per Devlin J. in Behrens v Bertram Mills Circus Ltd [1957] 2 Q.B. 1 at 18.
105
In Jaundrill v Gillett, The Times, January 30, 1996, the Court of Appeal held that damage to a car
was not actionable against the keeper where it was caused by horses maliciously released on to the
road by an unknown other. The animals had panicked and aimlessly galloped about but it was held
that the ‘‘real and effective cause of the accident’’ was their release on to the highway, not any
panicky characteristic. That approach was rejected by Hale L.J. in Mirvahedy v Henley [2002] 2 A.C.
491 whose remarks at para.[16] were expressly approved by Lord Walker of Gestingthorpe in the
House of Lords: above para.[140]. On the facts, it is likely that the claimant would today succeed in
Jaundrill v Gillett as he had done before the trial judge.
106
See Curtis v Betts [1990] 1 W.L.R. 459.
[1064]
v Fletcher, there was some doubt about the extent to which the same defences
applied.107 It was, however always a defence to prove that the injured person had
brought the damage upon himself by either meddling with the animal or
deliberately or rashly going too near the dangerous animal’s cage,108 well
knowing that it was dangerous.109
ILLUSTRATIONS
The owner of some zebras was held not liable when he kept his animals secure 14–41
in a stable but the claimant entered the stable and, in stroking one of the animals,
was kicked into the next stall where another zebra bit him.110 Where, upon seeing
a smouldering cigarette on some straw, an employee of the defendants, who was
not employed to look after the animals, climbed over a barrier separating a
leopard’s cage from the part to which the public were admitted and was bitten,
liability was not made out.111 Where a child attempted to play with a dog of
known mischievous propensity by and was bitten as a result, the claim
failed.112
The keeper’s defences: under the statute. Section 2 of the Animals Act 14–42
imposes liability ‘‘except as otherwise provided’’ and the statutory exceptions to
liability are set out in s.5: (i) the fault of the claimant; (ii) voluntary acceptance
of the risk; (iii) the claimant as trespasser. Other defences, at common law, are no
longer available.
(i) The fault and contributory negligence of the claimant

Under s.5(1), ‘‘a person is not liable under section[s] . . . of this Act for any 14–43
damage which is due wholly to the fault of the person suffering it.’’ In the light
of the provisions of s.10113 and the definition of fault, as having ‘‘the same
meaning as in the Law Reform (Contributory Negligence) Act 1945’’ contained
in s.11, the court may apportion damage where the claimant has been held partly
to blame for the damage.
107
See Bramwell B. in Nicholls v Marsland (1875) L.R. 10 Ex. 255 at 260 (act of God); see also
Rands v McNeil [1955] 1 Q.B. 253 at 257, per Denning L.J. (no escape from control); Fleeming v Orr
(1855) 2 Macq. 14; Charlesworth on Negligence (4th edn, 1962), p.744, Baker v Snell [1908] 2 K.B.
825 and Devlin J. in Behrens v Bertram Mills Circus Ltd [1957] 2 Q.B. 1, (independent act of third
party).
108
Murphy v Zoological Society of London, The Times, November 14, 1962 (a boy aged 10 who was
a cub member of a scout group, visited a lion’s cage, climbed between two fences, was mauled by
the lion and died later. The deceased was held to be a trespasser at that place and as no animal had
‘‘escaped’’ the Zoological Society were not in breach of any duty owed him).
109
In Behrens v Bertram Mills Circus Ltd [1957] 2 Q.B. 1 at 19, Devlin J. said of the defence (of the
claimant’s own fault): ‘‘I see no reason why the same sort of defence should not prevail where the
fault of the plaintiff does not amount to recklessness . . . but is failure of due diligence to look after
his own safety.’’ See also James v Wellington City [1972] N.Z.L.R. 70 and para.14–45, n.19,
below.
110
Marlor v Ball (1900) 16 T.L.R. 239.
111
Sylvester v Chapman Ltd (1935) 79 S.J. 777.
112
Lee v Walkers (1940) 162 L.T. 89; see also Sycamore v Ley (1932) 147 L.T. 342.
113
Which provides: ‘‘For the purposes of the Fatal Accidents Acts 1846 to 1959, [1976] the Law
Reform (Contributory Negligence) Act 1945 and the Limitation Act[s] [1980] any damage for which
a person is liable under ss.2 to 4 of this Act shall be treated as due to his fault.’’
[1065]
(ii) The claimant voluntarily accepting the risk

14–44 Section 5(2) provides that: ‘‘a person is not liable under section 2 of this Act
for any damage suffered by a person who has voluntarily accepted the risk
thereof.’’114 Accordingly, if a person intervened to separate his dog involved in
a fight with another dog, he could well expect to have this defence raised against
him.115 Where a claimant deliberately trespassed in a scrap yard at night,
although she was well aware that an Alsatian guard dog patrolled the premises
unrestrained, she was held to have voluntarily accepted the risk and her action
failed on appeal.116 Where an experienced rider said she would continue to ride
a horse after being thrown from it when it bucked on going into a canter, a
characteristic of which she had been warned, she was to be taken as having
accepted the risk of falling off when the horse behaved in that way again.117
Presumably a suspect told by a pursuing police dog handler to ‘‘stand still or the
dog will be sent’’ would be held to have voluntarily accepted the risk of being
bitten if such clear warning was ignored.
14–45 An important change was made to the common law by s.6(5) of the Act which
provides that ‘‘[W]here a person employed as a servant by a keeper of an animal
incurs a risk incidental to his employment he shall not be treated as accepting it
voluntarily’’. The defence of volenti formerly available118 to an employer is
thereby removed, even for a case where the claimant has been employed
specifically for a purpose which includes coming into close proximity to a
dangerous animal.119
(iii) The claimant as trespasser

14–46 By s.5(3):
‘‘A person is not liable under section 2 of this Act for any damage caused by an animal
kept on any premises or structure to a person trespassing there, if it is proved
either—
(a) that the animal was not kept there for the protection of persons or property; or
(b) (if the animal was kept there for the protection of persons or property) that
keeping it there for that purpose was not unreasonable.’’
14–47 In Cummings v Grainger,120 Lord Denning M.R. considered that since the use
of guard dogs had long been recognised as reasonable for the protection of
property by the common law, it was not unreasonable for the defendants to have
protected their scrap yard, which was enclosed by walls and wire fence, at night
114
In Cummings v Grainger [1977] Q.B. 397 at 408, Ormrod L.J. urged that the words of s.5(2)
should be given their ordinary English meaning not complicated with the old doctrine of volenti non
fit injuria and the defence should not be whittled down by too fine distinctions of what they
meant.
115
Smith v Shields (1964) 108 S.J. 501.
116
Cummings v Grainger [1977] Q.B. 397.
117
Freeman v Higher Park Farm [2009] P.I.Q.R. P6, CA, para.14–16, above.
118
Rands v McNeil [1955] 1 Q.B. 253.
119
See, e.g. the circumstances in James v Wellington City [1972] N.Z.L.R. 70 (zookeeper bitten by
chimpanzee).
120
[1977] Q.B. 397.
[1066]
STRICT LIABILITY FOR INJURY CAUSED TO LIVESTOCK BY DOGS 14–51
by an Alsatian guard dog that was allowed to roam around loose within the
confines of the premises.121
Although a trespasser cannot, therefore, generally rely upon strict liability 14–48
under s.2, there may have the option of an action for damages in negligence.122
Doubtless if the claim succeeds the damages recoverable will be reduced for
contributory negligence.
If the presence of a trespasser were unforeseeable, the keeper of a tamed 14–49

animal of a dangerous species, like a chimpanzee or a cheetah, would avoid
liability both under the Act and in negligence should the trespasser be injured, as
a result of an attack by the animal whilst still on the keeper’s land.
Limitation of action. It has been held that the limitation period for a claim 14–50
under s.2(2) of the Act is six years.123
3.—STRICT LIABILITY FOR INJURY CAUSED TO LIVESTOCK BY DOGS
Basis of liability. Section 3 of the Animals Act provides: ‘‘where a dog causes 14–51
damage by killing or injuring livestock, any person who is a keeper of the dog
is liable for the damage, except as otherwise provided by this Act.’’124 Just like
the position under the provisions of s.2, the person responsible for damage
caused by a dog is its keeper125 but the only damage in respect of which he will
be liable under the section must be restricted to that occasioned to ‘‘livestock’’.
Livestock is defined as meaning: ‘‘cattle, horses, asses, mules, hinnies, sheep,
pigs, goats and poultry, and also deer not in the wild state and . . . also while in
captivity, pheasants, partridges and grouse’’. Poultry is defined as meaning the
domestic varieties of ‘‘fowls, turkeys, geese, ducks, guinea-fowls, pigeons,
peacocks and quails’’.126
121
See now the Guard Dogs Act 1975, where a person commits an offence by keeping a guard dog
on premises, unless there is a handler with it or unless it is securely chained. These provisions do not
affect civil liability and, so far as reasonableness is concerned, the Act has no application. See Harper,
‘‘Guard Dogs to Legal Heel’’, 125 New L.J. 243; Although not strictly trespass, see, e.g. Lowery v
Walker [1911] A.C. 10 (the occupier of a field who had given a tacit permission for it to be used as
a short cut was held liable in negligence for injury caused by a savage horse). Roy, ‘‘Guard Dog Act
1975’’, 126 New L.J. 1001; Spencer, [1977] C.L.J. 39 at 42–43.
122
See further Ch.8, generally, on Trespassers.
123
Clarke v Barber [2002] C.L.Y. 464 (an action based upon personal injury caused by the
defendant’s dog) applying the reasoning in Stubbing v Webbs [1993] A.C. 498 now overruled in A v
Hoare [2008] 2 W.L.R. 311, HL, Ch.4, para.4–196, above.
124
As regards strict liability for damage done by dogs to livestock, the provisions of the 1971 Act
repealed and replaced the Dogs Act 1906 and 1928. See also Samuels, ‘‘Dogs and the Law’’, 117 S.J.
238; Whalen, ‘‘Dog bites’’ (2003) H. & S.L.3(3), 4.
125
See para.14–30, above. cf. the situation under the Dogs Act 1906 when the person liable was the
owner of the dog or else the occupier of the place where the dog was kept. Under the Animals Act
1971 both the dog owner without possession of it and the possessor without ownership of it are
‘‘keepers’’.
126
s.11. Rabbits are no longer included: Tallents v Bell [1944] 2 All E.R. 474; cats and dogs are not
‘‘cattle’’; Buckle v Holmes [1926] 2 K.B. 125.
[1067]
14–52 It can be seen that in an action under s.3 arising from injury to livestock by a
dog, there is no need to prove either negligence or the application of the
problematic s.2(2). As Goddard L.J. commented ironically, Parliament still
thinks ‘‘that sheep require more protection than human beings’’!127
14–53 Where a number of dogs belonging to different keepers collect together and
form, in effect, a hunting pack, the keeper of any one dog identified as part of the
group can be sued for the entire damage caused, under the ordinary principles of
liability of joint tortfeasors.128
14–54 Should a person kill or injure a dog, s.9 of the Act provides a defence if that
person was acting or had reasonable grounds for believing he was acting for the
protection of livestock, which was either being worried or was about to be
worried by it and there was no other means in practice for preventing such an
attack.129
14–55 Exceptions from liability. Section 3 of the Act clearly imposes strict liability,
‘‘except as otherwise provided’’ and these statutory exceptions to liability are
contained in s.5. There are two only and they are respectively: (i) the fault of the
claimant; and (ii) the livestock had strayed on to the land where the dog was kept.
Any other defence at common law is not now available.130

14–56 In common with actions under either s.2131 or s.4,132 the exception provided by
s.5(1) can be relied upon, namely that the relevant damage was due to the fault
of the person suffering it or else he contributed towards it.133
(ii) The livestock had strayed

14–57 By s.5(4), a new defence was made available to a keeper of a dog, namely ‘‘a
person is not liable under section 3 of this Act if the livestock was killed or
injured on land on to which it had strayed and either the dog belonged to the
occupier or its presence on the land was authorised by the occupier’’. These latter
words would obviously include the dog belonging to a visitor who happened to
be staying with the occupier at the time. On the other hand, if the dog were
trespassing at the material time, equally with the livestock that it subsequently
injured or killed, the defence would no longer be available to its keeper.
127
Hughes v Williams [1943] K.B. 574 at 580.
128
Arneil v Paterson [1931] A.C. 560, which leaves the keeper to obtain whatever contribution that
he can from the keeper of any other dog involved in the action or in third party proceedings.
129
See para.14–66, below.
130
See, generally, para.14–40, above.
131
See further, para.14–42, above.
132
See further, para.14–74, below.
133
Which is the combined effect of ss.10 and 11 and enables the court to apportion damages.
[1068]
STRICT LIABILITY FOR DAMAGE DONE BY STRAYING LIVESTOCK 14–60
4.—STRICT LIABILITY FOR DAMAGE DONE BY STRAYING LIVESTOCK
Common law principles of liability. Quite apart from negligence, an 14–58

owner134 was strictly liable for damage caused by the trespass of his livestock.135
This was confined to trespass to land, as there was no liability for trespass to
person or goods by an animal in the absence of intention or negligence.136 The
common law was stated by Williams J.:
‘‘If I am the owner of an animal in which by law the right of property can exist, I am
bound to take care that it does not stray into the land of my neighbour; and I am liable
for any trespass it may commit, and for the ordinary consequences of that trespass.
Whether or not the escape of the animal is due to my negligence is altogether
immaterial. I am clearly liable for the trespass, and for all the ordinary consequences of
the trespass, subject to a distinction which is taken very early in the books, that the
animal is such that the owner of it may have a property in it which is recognisable by
law. For instance, if a man’s cattle, or sheep, or poultry, stray into his neighbour’s land
or garden, and do such damage as might ordinarily be expected to be done by things of
that sort, the owner is liable to his neighbour for the consequences.’’137
ILLUSTRATIONS
The defendant was liable when his mare strayed into the claimant’s field and 14–59
kicked a horse, the damage not being too remote138; where the defendant’s horse
bit and kicked the claimant’s mare through a wire fence, the protrusion of any
part of the horse over the boundary line was sufficient to found liability139; where
calves were penned on one side of a railway line and their dams on the other, the
fences between being erected and maintained by the railway authorities, and the
dams, by using exceptional force broke through the fence and got on to the line
where some of them were killed in a collision with a train, their owner was liable
for the damage caused by the derailment, on it being proved that the fence was
properly maintained in accordance with s.68 of the Railway Clauses Consolida-
tion Act 1845140; when the defendant’s cow entered the claimant’s field where
there was a bull that broke its leg whilst chasing and attempting to mount the
cow, the claimant succeeded on the ground that the damage to his bull was the
natural consequence of the cow’s trespass.141
Statutory liability for loss and damage caused by trespassing live- 14–60
stock. The 1971 Act abolished and superseded the common law rules imposing
134
For meaning of ‘‘owner’’ in this connection, see para.14–65, below.
135
This is an ancient cause of action dating from the fourteenth century: Wormald v Cole [1954] 1
Q.B. 614, 620; Williams, Liability for Animals, pp.127, 135; Holdsworth, A History of English Law,
Vol. 8, pp.470–471. See also Blackstone, Comm., III, 211. See generally, Reid, ‘‘Go wild in the
country’’ 146 S.J. 748 (dealing with liability of landowner to a neighbour for damage caused by
wildlife or weed pests).
136
Manton v Brocklebank [1923] 2 K.B. 212.
137
Cox v Burbidge (1863) 13 C.B.(N.S.) 430.
138
Lee v Riley (1865) 18 C.B.(N.S.) 722; Holgate v Bleazard [1917] 1 K.B. 443.
139
Ellis v Loftus Iron Co (1874) L.R. 10 C.P. 10. Otherwise, where the horse was not trespassing:
Manton v Brocklebank [1923] 2 K.B. 212.
140
Cooper v Railway Executive [1953] 1 W.L.R. 223.
141
Eustace v Ayre (1947) 14 L.J.N.C.C.R. 106.
[1069]
liability for cattle trespass and replaced them with a new, but similar, form of
strict liability142 Section 4 provides:
‘‘(1) Where livestock143 belonging to any person strays on to land in the ownership or
occupation of another and—
(a) damage is done by the livestock to the land or to any property on it which is in
the ownership or possession of the other person; or
(b) any expenses are reasonably incurred by that other person in keeping the
livestock while it cannot be restored to the person to whom it belongs or while
it is detained in pursuance of section 7 of this Act, or in ascertaining to whom it
belongs;
the person to whom the livestock belongs144 is liable for the damage or expenses, except
as otherwise provided by this Act.’’
14–61 It follows that the straying of livestock is no longer actionable per se but is
only actionable upon proof of actual damage, which includes those reasonable
expenses incurred in detaining the animals, where there is a right to do so, or in
finding the person to whom they belong, but which is otherwise limited to
damage to land and chattels. In this respect the action under the statute is
different to cattle trespass at common law.
14–62 Damages for livestock trespass. At common law when a trespass was
committed by livestock, its owner was liable for the natural consequences of the
trespass, although there was considerable uncertainty whether this included
damage occasioned by an abnormal propensity, in the absence of scienter. In
Theyer v Purnell,145 where sheep suffering from disease trespassed upon the
claimant’s land and infected his sheep, it was held that the defendant was liable
for that damage, whether or not he was aware of the condition of his sheep at the
date of the trespass, on the ground that the doctrine of scienter had no application
to an action founded on trespass.146 Today, there can be little doubt that the same
decision would be reached on the same facts, but on the ground that the damage
suffered was that covered by s.4(1)(a) of the Act.
142
The heading of s.4 is: ‘‘Liability for damage and expense due to trespassing livestock’’. Despite
these words, there is no further reference to ‘‘trespass’’ included in the text. If, technically, a trespass
need not be proved it would seem that Ellis v Loftus Iron Co (1874) L.R. 10 C.P. 10, is no longer the
law. The word used in the section is ‘‘straying’’: see North, op cit., p.107 for problems that may arise
as to what could be important distinctions between ‘‘straying’’ and ‘‘trespassing’’. Some guidance
relating to the meaning of ‘‘straying’’ can possibly be gained from Wiseman v Booker (1878) 3 C.P.D.
184.
143
Livestock is defined in s.11: see para.14–51 above, and does not include wild animals which are
not normally the object of ownership, e.g. rabbits, foxes nor such imported wild animals such as lions
and tigers, whether captive or free.
144
s.4(2) provides that ‘‘for the purposes of this section any livestock belongs to the person in whose
possession it is’’.
145
[1918] 2 K.B. 333 distinguishing Cooke v Waring (1863) 2 H. & C. 332, where the action was for
negligence.
146
On the other hand there were several opinions but not decisions expressing the contrary view, e.g.
Blackburn J. in Fletcher v Rylands (1866) L.R. 1 Ex. 265 at 280; Lord Sterndale M.R. in Manton v
Brocklebank [1923] 2 K.B. 212 at 223; and Atkin L.J. in Buckle v Holmes [1926] 2 K.B. 125 at
130.
[1070]
Whilst the Act defines ‘‘damage’’ as including ‘‘any disease and any 14–63
impairment of physical or mental condition’’147 it is apparent from the wording
of s.4 that the only actionable general damage done by straying livestock is either
to land or any property on it, which is in the ownership or possession of the other
person. It follows that a claim for damages in respect of personal injuries
sustained by a claimant cannot be maintained in an action under s.4, as was
possible at common law.148 In addition, however, where any special damage has
been suffered, namely expenses incurred in keeping the livestock until restored
to the owner, such damage can be recovered under the section.
Section 7 abolished the ancient right to seize and detain any animal by way of 14–64
distress damage feasant replacing it with a more elaborate procedure for the
detention and sale of trespassing livestock by way of remedy for the occupier of
the injured land.
By and against whom the action is brought. An action for damage done by 14–65
straying livestock can be brought by anyone who has possession of the land or
any part of it, and so the purchaser of a crop of growing turnips can sue for
turnips eaten by trespassing sheep.149 Anyone who can bring an action for
trespass to the land can sue and this will include a person who has the exclusive
right of pasture upon it.
At common law the owner of the animal was liable for its trespass. If,
however, the animal was in possession of another under the contract of agistment
when the trespass was committed, the owner was not liable, but the agister
was.150 This was on the principle that the person in possession and control of an
animal was liable for the damage it caused, when there was any liability at all.151
Section 4152 of the Animals Act does not change the common law in this
regard.
Trespass by dog. At common law there was no liability for trespass to land 14–66
committed by a straying dog153 and this position remains unaltered under the Act,
since the definition of ‘‘livestock’’ purposely has excluded a dog, hence its keeper
will not be liable in respect of any action brought under s.4.154 The reason for this
was apparently:
‘‘on account—first of the difficulty or impossibility of keeping the latter [dogs and cats]
under restraint—secondly, the slightness of the damage which their wandering
147
s.11.
148
See Wormald v Cole [1954] 1 Q.B. 614, which has, accordingly, been overruled by the Act;
Horrocks, ‘‘Wormald v Cole Lives?’’, 123 New L.J. 255.
149
Wellaway v Courtier [1918] 1 K.B. 200.
150
Hammond v Mallinson (1939) 6 L.J.C.C.R. 357.
151
See now para.14–40 et seq. for the effect of the Animals Act 1971.
152
In respect of which, see para.14–62, above.
153
Brown v Giles (1823) 1 C. & P. 118; Sanders v Teape & Swan (1884) 51 L.T. 263; Beckwith v
Shordike (1767) 4 Burr. 2092; Mitten v Faudrye (1626) Poph. 161. A dog is not included in the
definition, contained in s.11 of the Animals Act 1971, of ‘‘livestock,’’ for the trespassing of which the
person to whom the livestock belongs is liable.
154
This in no way affects the strict liability of a dog’s keeper brought, appropriately, under ss.2(2)
or 3.
[1071]
ordinarily causes—thirdly, the common usage of mankind to allow them a wider

liberty—and lastly, their not being considered in law so absolutely the chattels of the
owner, as to be the subject of larceny.’’155
By way of contrast, an owner who incited his dog to enter the land of another was
held liable for the intentional trespass thereby committed,156 and he will still be
so today.
14–67 Although the owner of a dog is not liable for damage it does when trespassing,
he runs the risk of having it shot. At common law a trespassing dog which
attacked livestock belonging to the occupier of the land might be killed if it were
attacking the animals at the time, or there were a danger that it would renew any
attack already made, should it have been left alone, and it was reasonable in all
the circumstances for the protection of the animals to kill it.157 Where by way of
distinction, the animals chased were ferae naturae, in which the landowner had
no property, such as pheasants, which were not in captivity, there was no right to
shoot the trespassing dog.158
14–68 Section 9 of the Animals Act clarifies the precise circumstances in which a
defendant may justifiably kill or injure dogs worrying livestock. The section
provides—
‘‘(1) In any civil proceedings against a person (in this section referred to as the
defendant) for killing or causing injury to a dog it shall be a defence to prove—
(a) that the defendant acted for the protection of any livestock and was a person
entitled to act for the protection of that livestock; and
(b) that within forty-eight hours of the killing or injury notice thereof was given by
the defendant to the officer in charge of a police station.
(2) For the purpose of this section a person is entitled to act for the protection of any
livestock if, and only if—
(a) the livestock or the land on which it is belongs to him or to any person under
whose express or implied authority he is acting; and
(b) the circumstances are not such that liability for killing or causing injury to the
livestock would be excluded by section 5(4) of this Act.
(3) Subject to subsection (4) of this section, a person killing or causing injury to a dog
shall be deemed for the purposes of this section to act for the protection of any livestock
if, and only if, either—
(a) the dog is worrying or is about to worry the livestock and there are no other
reasonable means of ending or preventing the worrying; or
155
Read v Edwards (1864) 17 C.B.(N.S.) 245, per Willes J. (where the dog had a known propensity
to hunt and destroy game, the owner was held liable for the damage done, he being the owner of a
mischievous dog, and the fact that the dog was trespassing when the damage was done did not affect
his liability whatsoever). By way of contrast, see Tallents v Bell and Goddard [1944] 2 All E.R. 474
(where an owner was held not liable for his trespassing dog, which had killed rabbits kept for
commercial purposes, in the absence of evidence of scienter).
156
R. v Pratt (1855) 4 E. & B. 860.
157
Cresswell v Sirl [1948] 1 K.B. 241; Goodway v Becher [1951] 2 All E.R. 349. See also Dogs
(Protection of Livestock) Act 1953.
158
Gott v Measures [1948] 1 K.B. 234.
[1072]
(b) the dog has been worrying livestock, has not left the vicinity and is not under the
control of any person and there are no practicable means of ascertaining to whom
it belongs.
(4) For the purposes of this section the condition stated in either of the paragraphs of
the preceding subsection shall be deemed to have been satisfied if the defendant
believed that it was satisfied and had reasonable grounds for that belief.
(5) For the purposes of this section—
(a) an animal belongs to any person if he owns it or has it in his possession; and
(b) land belongs to any person if he is the occupier thereof.’’
Trespass by cat. A cat is in the same category as a dog when the liability of 14–69
the owner for its trespasses is in question. Accordingly, when a cat went onto the
claimant’s land and killed some of his pigeons and fowls, it was held that the
owner was not liable.159 However, if the cat did the same a second time, the
keeper would be liable under the Act, not for trespass, but under s.2(2), for
damage done by a cat with a known abnormal characteristic.160
Trespass by deer. At common law the owner of deer has been held liable for 14–70
trespass committed by them upon the neighbouring land.161 In the case in
question the deer had escaped from the owner’s park some six years before, but
were in the habit of returning. The defendant’s keeper fed them in the park in the
winter time, and a jury found that they were tame and kept by the defendant and
under his control. Under the Act, the same result should probably follow. On the
other hand, if the finding on the evidence was that the deer were ‘‘in the wild
state,’’ then they would not be livestock within the definition. In such an event
there would be no liability, under s.4, in respect of their causing actionable
damage, whilst straying.
Wild animals. There is no liability for wild animals,162 breeding or living on 14–71
the land of one owner, which do damage on the land of another owner, although
a landowner who brings game or other wild animals on to his land to an
unreasonable extent, or causes them to multiply to an unreasonable extent, will
be liable to his neighbours for any damage suffers as a result.163
ILLUSTRATIONS
It has been said that: ‘‘If a man makes coney-burrows in his own land, which 14–72
increase in so great a number that they destroy his neighbour’s land next
adjoining, his neighbours cannot have an action on the case against him who
makes the said coney-burrows.’’164 Where rabbits bred on the defendant’s land
and were trapped by the defendant for profit, he was not liable for damage done
by their trespass on neighbouring land, although his predecessor had brought new
159
Buckle v Holmes [1926] 2 K.B. 125.
160
See para.14–13, above.
161
Brady v Warren [1900] 2 I.R. 632.
162
As regards bees, see para.14–10, n.32 above.
163
Farrer v Nelson (1885) 15 Q.B.D. 258. See comment by Scrutton L.J. on this case in Peech v Best
[1931] 1 K.B. 1 at 14.
164
Boulston’s Case (1597) 15 Rep. 104b; sub nom. Boulston v Hardy, Cro.Eliz. 547.
[1073]
rabbits onto the land in order to improve the breed.165 The presence of a large
number of pheasants on the defendant’s land, as a result of natural increase, does
not render him liable for damage caused by the pheasants to crops on adjoining
land.166 Where rabbits that lived on a railway owner’s land escaped onto the
adjoining land of a farmer and ate his crop of swedes, the farmer’s action in
respect of his lost crop failed despite the fact that the rabbits came from the
defendant’s land and the defendant had not done all he could to control them,
because the rabbits were naturally occurring wild animals and, as such, natural
products of the soil.167 A bone manure manufacturer whose business was on land
close to a farmer’s fields was not liable for damage done to the farmer’s corn by
rats attracted to the land by a heap of bones, on it not being proved that the bones
kept were excessive or unusual in quantity.168
14–73 Contrast with nuisance. A landowner may, however, be guilty of nuisance

where a substance is kept on his land in such circumstances as to attract animals
or insects so as to create a nuisance. So, where a landowner had a heap of manure
that was excessive in quantity so that its smell, as well as the number of flies it
attracted and bred amounted to a nuisance, his neighbour was granted an
injunction to prevent him from keeping it.169
14–74 Exceptions from liability. Section 4 of the Act imposes strict liability
‘‘except as otherwise provided’’ and statutory exceptions to liability are con-
tained in s.5. There are two only and they are respectively: (i) the fault of the
claimant, subject to certain special rules concerning fencing; and (ii) straying
from the highway, when such livestock was present lawfully on the highway.
14–75 It follows that other defences, which could be relied upon at common law,
namely an act of God, the independent act of a third party170 and volenti non fit
injuria are no longer available.

14–76 At common law it was always a defence to an action for trespass by a person’s
livestock to show that the trespass was caused by breach of an obligation on the
part of the claimant to fence, although the obligation to fence had to be
enforceable by the defendant. Whilst it is the duty of the person to whom the
165
Birkbeck v Paget (1862) 31 Beav. 403.
166
Seligman v Docker [1949] Ch. 53, where Romer J. said, at 55: ‘‘The birds were ferae naturae and
I am unable to see that the fact that the plaintiff had no right to shoot them imposed any duty in law
upon the defendant to shoot them himself.’’
167
Hall v Dart Light Valley Railway [1998] C.L.Y. 3933.
168
Stearn v Prentice Bros [1919] 1 K.B. 394.
169
Bland v Yates (1914) 58 S.J. 612.
170
See Law Commission’s recommendation in para.24: ‘‘We would abolish the defence of Act of
God, which appears to be of little practical importance in this field and only to add an unnecessary
complication to the law. We would also resolve any doubts which may remain in spite of the majority
view in Baker v Snell [1908] 2 K.B. 825 as to the availability of the defence of the act of a third party,
by a clear rule that this defence is not available. In view of the rationale of strict liability for special
risks [see para.20] it is our view that the act of a third party is one of the circumstances against which
the person creating the risk should take precautions.’’
[1074]
animal belongs to prevent it from trespassing, if by statute or custom,171 a right

in the nature of an easement,172 or some other agreement or prescription, that
duty is imposed upon the claimant, then damages may not be recovered173 if the
duty has not been observed.
Section 5(1) of the Act preserves the common law defence by providing that 14–77
a person is not liable for the straying of his livestock causing damage, which is
due wholly or in part174 to the fault of the person suffering it. However, this
defence needs to be considered in the light of subs.(6) which provides that:
‘‘In determining whether any liability for damage under section 4 of this Act is excluded
by subsection (1) of this section the damage shall not be treated as due to the fault of
the person suffering it by reason only that he could have prevented it by fencing175; but
a person is not liable under that section where it is proved that the straying of the
livestock on to the land would not have occurred but for a breach by any other person
being a person having an interest in the land, of a duty to fence.’’176
In these circumstances guidance may still be obtained from such authorities as

the following.
ILLUSTRATIONS
Where a railway company was obliged by statute to fence its railway from the 14–78
land of adjoining occupiers and the claimant’s sheep escaped from his land
because his own fences were out of repair and got on to the land of a third party
adjoining the railway and thence through the railway company’s defective fence
on to the track, where they were killed, the railway company was held not
liable.177 Where the claimant’s cottage and the defendant’s farm adjoined
common land over which both parties enjoyed grazing rights but only the
defendant exercised such right and his cattle strayed into the claimant’s garden
171
Egerton v Harding [1975] Q.B. 62 (where the defendants proved that the claimant, who occupied
a country cottage, had a duty arising out of custom to fence against the common land, over which they
both enjoyed grazing rights).
172
Crow v Wood [1971] 1 Q.B. 77 (farms were let to individual farmers who had the right to ‘‘stray’’
a certain number of sheep on the moors, in Yorkshire, and who agreed to keep their fences and walls
in repair).
173
Star v Rookesby (1711) 1 Salk. 335 (prescription); Singleton v Williamson (1861) 7 H. & M. 410
(enclosure award); Lawrence v Jenkins (1873) L.R. 8 Q.B. 274. In Wiseman v Booker (1878) 3 C.P.D.
184, the liability to fence was imposed by statute on a railway company for the benefit of the
defendant, and when the defendant’s horses put their heads over the fence and ate the crops of the
claimant, who was the tenant of the railway company, the defendant was held not liable on the
grounds: (1) the claimant could not be in a better position than the railway company, (2) the damage
was caused by the company’s breach of the statutory duty owed to the defendant.
174
Which is the combined effect of ss.10 and 11 and enables the court to apportion damages in an
appropriate case.
175
‘‘Fencing’’ includes the construction of any obstacle designed to prevent animals from straying:
s.11.
176
This provision appears to be designed to overcome the difficulty caused by the decision and the
circumstances prevailing in Crow v Wood [1971] 1 Q.B. 77.
177
Ricketts v East and West India Docks, etc., Ry (1852) 12 C.B. 160. See also Child v Hearn (1874)
L.R. 9 Ex. 176 (railway company bound to maintain fence—pigs got through and upset a railwayman
riding a trolley—owner of pigs not liable).
[1075]
through gaps in her hedge and caused damage, it was held that she was not
entitled to recover damages: she had failed in her obligation to fence against the
common, an obligation established by evidence of immemorial usage.178
14–79 In contrast, parties who occupied adjoining fields were both tenants of the
same landlord and were each obliged to keep the fences on their holdings in
repair under their respective tenancy agreements. Although the claimant was in
breach of his obligation to fence, it was held that the defendant could not rely on
the claimant’s breach when some of the defendant’s horses trespassed on the
claimant’s field and injured a colt.179 Where a farm adjoined several allotments
and shared a landlord with the allotment holders, who were bound to maintain a
fence, and the farmer’s cattle damaged crops in one allotment because the fence
had been broken by the acts of the allotment holders, the farmer was held
liable.180 Where the defendant’s sheep stayed from a moor on to the highway and
thence on to the claimant’s land as a result of a breach by a third party of their
duty to fence, the defendant was held not liable. Although the third party’s failure
to fence was a wrongful act, it did not excuse the defendant as he was aware of
the failure, a failure against which he could and should have guarded.181
14–80 Defendant under an obligation to fence. If the defendant was under a duty
to fence, he was liable for consequential damage to his neighbour’s cattle, if the
duty was not discharged. So, where the claimant, the bailee of a horse, turned it
into a field but, due to the dilapidated state of the fence, which the defendant was
obliged to maintain, the animal fell into the defendant’s field and was killed, the
defendant was liable.182 Liability also followed where the claimant’s cows
escaped through a gap in a fence which the defendant, by prescription, was
obliged to maintain and ate yew leaves on the defendant’s land, which caused
them to be poisoned and die. The defendant was liable despite ignorance that the
fence was broken before the cows escaped.183 An occupier of land, under an
obligation to fence against moorland cattle, including sheep, was held not bound
to fence against sheep of a peculiarly wandering and active disposition, which
jumped over his fence.184
(ii) Straying from the highway

14–81 At common law the occupier of premises, which adjoin a highway, was
presumed to have accepted the risks that flowed from the passage of traffic along
that highway.185 So, where the defendant’s ox, whilst being driven through the
streets of a country town, entered the claimant’s ironmonger’s shop, which
adjoined the highway, through its open doorway and damaged goods inside, it
178
Egerton v Harding [1975] Q.B. 62.
179
Holgate v Bleazard [1917] 1 K.B. 443.
180
Park v Jobson & Son [1945] 1 All E.R. 222. A defence of leave and licence was rejected on the
ground that there was no evidence that the cattle entered through any particular gap. If the claimant
had broken down the fence and so let in the cattle, the defence would have succeeded.
181
Sutcliffe v Holmes [1947] 1 K.B. 147.
182
Rooth v Wilson (1817) 1 B. & Ald. 59.
183
Lawrence v Jenkins (1873) L.R. 8 Q.B. 274.
184
Coaker v Willcocks [1911] 1 K.B. 649.
185
See further, Ch.10, para.10–287, above.
[1076]
LIABILITY FOR ANIMALS STRAYING ON TO HIGHWAYS 14–85
was held that the claimant was not entitled to recover damages since the escape
was not the result of the defendant’s negligence.186
Statutory recognition of this defence187 is given by s.5(5) of the Act which 14–82
replaces the common law and provides that: ‘‘A person is not liable under section
4 of this Act where the livestock strayed from a highway and its presence there
was a lawful use of the highway.’’ The subsection is so worded that it is not
restricted merely to land that adjoins the highway, from which the livestock has
strayed,188 but extends to apply to any land. Nonetheless, the ‘‘lawful use of the
highway’’ is the right to pass and re-pass along it and not, for example, where an
owner’s livestock has been set to graze the verges or central reservations.
It should be noted that this statutory defence is only an exception to strict 14–83
liability under the Act and does not preclude an action succeeding based upon
negligence. The common law still continues to recognise that a duty of care is
owed to prevent animals straying from the highway.189 As Lord Porter pointed
out, in Searle v Wallbank, if animals lawfully are brought on the highway,
‘‘reasonable care must be exercised to control them’’.190
5.—LIABILITY FOR ANIMALS STRAYING ON TO HIGHWAYS
Generally. Under the common law191 there was an important exception to the 14–84
general principles of negligence. The rule in Searle v Wallbank192 provided that,
in the absence of special circumstances (relating to the behaviour of an animal
which was known to the landowner), there was no duty to fence or maintain
existing fences on land adjoining a highway so as to prevent an animal straying
on to it.
The abolition of the rule in Searle v Wallbank represented the one radical 14–85
departure from the common law brought about by the Act. Section 8(1) provides
that:
‘‘So much of the rules of the common law relating to liability for negligence as excludes
or restricts the duty which a person might owe to others to take such care as is
reasonable to see that damage is not caused by animals straying on to a highway is
hereby abolished.’’
186
Tillett v Ward (1882) 10 Q.B.D. 17.
187
In addition to Tillett v Ward, see Gayler & Pope Ltd v B. Davies & Son Ltd [1924] 2 K.B. 75,
above.
188
See Law Commission’s recommendation, p.30, n.97.
189
Gayler & Pope Ltd v B. Davies & Son Ltd [1924] 2 K.B. 75.
190
[1947] A.C. 341 at 356. See Ch.10, para.10–283, above.
191
See the 9th edn of this work, Ch.10, para.10–282 et seq., above for a fuller discussion of this topic.
See also Harwood, ‘‘Raging Bull: Pt 2’’ 139 S.J. 628.
192
[1947] A.C. 341.
[1077]
As a result of the removal of this common law exception, injury or damage

occasioned by an animal straying on to the highway renders its owner,193
including the person having control of it, liable under the ordinary principles of
negligence.194 By way of example, where livestock strayed from the defendant’s
farm through an open gate, through which the public had a right of way, on to an
abutting road and caused an accident, the defendant was found liable on the basis
of a failure to assess the risk of livestock straying on to the highway. Had he done
so, amongst the measures that could and should have been taken, was the
installation of a self closing mechanism to the gate.195 Section 8(2) of the Act
reflects concerns that by custom or otherwise, including the question of sheer
economics, many extensive parts of the country, especially the moorland areas,
are completely or partially unfenced.196
6.—WIDER LIABILITIES AT COMMON LAW
14–86 Other torts generally available. Although the Animals Act 1971 abolished
the old scienter and the even older cattle-trespass actions,197 replacing them with
strict liability, it left unaffected other areas of the law of torts relating to animals,
save only for the exception, just discussed, in relation to animals straying on to
the highway. As has been explained above, strict liability under the Act is
independent of and distinct from strict liability under the rule in Rylands v
Fletcher198 as well as other torts such as trespass to the person and to chattels,
nuisance199 and negligence.200 All of these give separate but potentially con-
current causes of action which may become necessary alternatives in a given
case.201 In many cases after the Act a keeper of an animal has been found to have
been under a duty of care in negligence in relation to damage caused by it.202 In
193
In Hoskin v Rogers, The Times, January 25, 1985, the CA held that liability for the claimant’s
accident, which was caused by cattle straying on to the highway through inadequate fencing, attached
itself to the cattle-owner rather than the landowner. At the time of the let of the land, the fencing had
been adequate and the landowner was unaware that anything was wrong with the fencing prior to the
happening of the accident.
194
Fardon v Harcourt-Rivington (1932) 48 T.L.R. 215; Pike v Wallis, The Times, November 6, 1981.
cf. the situation in Jaundrill v Gillett, The Times, January 30, 1996, CA for which see para.14–18,
n.58, above.
195
Donaldson v Wilson (2004) 148 S.J.L.B. 879, CA.
196
For which, see Ch.10, para.10–287, above.
197
s.1(1).
198
See Ch.13, above, where the matter is fully discussed.
199
para.14–04, above.
200
In its report the Law Commission recommended that the general principles of the existing law of
negligence, whereby the keeper of an animal is under a duty to prevent that animal causing injury or
damage, should not be disturbed. See paras 26–28, which recommendation the Act has observed.
201
Lord Atkin emphasised this in Fardon v Harcourt-Rivington (1932) 48 T.L.R. 215 when, at 217,
he said: ‘‘Quite apart from the liability imposed upon the owner of animals or the persons having
control of them by reason of knowledge of their propensities, there is the ordinary duty of a person
to take care either that his animal or his chattel is not put to such a use as is likely to injure his
neighbour—the ordinary duty to take care in the cases put upon negligence’’.
202
See, e.g. Draper v Hodder [1972] 2 Q.B. 556, applying the dicta of Pearson L.J. in Ellis v
Johnstone [1963] 2 Q.B. 8 at 29, as well as that of Lord Atkin in Fardon v Harcourt-Rivington (1932)
48 T.L.R. 215.
[1078]
WIDER LIABILITIES AT COMMON LAW 14–88
Scotland it has been held that the Occupiers’ Liability (Scotland) Act 1960 can
be invoked. Thus, where the claimant suffered injury when bitten by one of her
employer’s two dogs when she entered his garden to clean the windows, she
succeeded both in a claim brought in employer’s liability and under that Act.203
In the latter cause of action the claim succeeded against the employer and his
wife because the dogs were known to be ‘‘prone to nip’’ even though they had not
previously attacked a stranger. Thus, just as liability can be established at
common law, so should liability be established under the Occupiers’ Liability
Act 1957 where an occupier, by virtue of the presence of an animal which causes
harm, fails to ensure that his premises are reasonably safe for lawful visitors.
Negligence as a concurrent cause of action. There is a duty to take 14–87

reasonable care to prevent damage from animals but, as a general rule there is no
liability ‘‘where tame animals with no special individual mischievous propensity
are lawfully let loose in the course of the ordinary use of them, and the only
danger to be apprehended is from contact with other animals in places where they
may all lawfully be’’.204 The rule is the same as regards danger to human
beings.205 What is reasonable care depends essentially on the nature and habits
of the kind of animal concerned, the circumstances of the case and the usual
practice of mankind in dealing with that kind of animal. So, by way of example,
a high standard of care must be required of those, such as the police, who use
dogs for security purposes.206 The facts of a case may show that the owner of an
animal should have known that it was likely to cause damage, and taken
reasonable steps to prevent it. If he has failed to do so and damage has resulted
liability may well follow.
‘‘The root of this liability is negligence, and what is negligence depends on the facts
with which you have to deal . . . If the possibility of danger emerging is only a mere
possibility which would never occur to the mind of a reasonable man, then there is no
negligence in not having taken extraordinary precautions.’’207
Lord MacMillan added:
‘‘In each case the question is whether there is any evidence of such carelessness in fact
as amounts to negligence in law—that is, to breach of the duty to take care. To fulfil this
duty the user of the road is not bound to guard against every conceivable eventuality but
only against such eventualities as a reasonable man ought to foresee as being within the
ordinary range of human experience.’’208
The differences between a cause of action under the Act and at common law 14–88
can be important in practice. There may be difficulties in establishing the
203
Hill v Lovett 1992 S.L.T. 1991.
204
Manton v Brocklebank [1923] 2 K.B. 212 at 232, per Atkin L.J.
205
Cox v Burbidge (1863) 13 C.B.(N.S.) 430.
206
Gloster v Chief Constable of Greater Manchester Police [2000] P.I.Q.R. P114 at P120, per Pill
L.J.
207
Fardon v Harcourt-Rivington (1932) 48 T.L.R. 215 at 216 per Lord Dunedin.
208
Fardon v Harcourt-Rivington (1932) 48 T.L.R. 215 at 217.
[1079]
requirements set out in s.2(2) of the Act, but not that a duty of care was owed.209
The statutory keeper of the animal may not be covered by insurance, whereas
others, who arguably owed the claimant a duty of care, are. On the other hand,
if strict liability under the Act is made out, the test of remoteness of damage is
more favourable than at common law.210 It may often be wise for the claimant to
protect his claim by pleading both sources of duty, in case one should fail.
ILLUSTRATIONS
14–89 In the following cases no negligence was proved: where an owner’s Airedale
dog, left shut up in his car parked by the kerb in a street, became so excited that
it eventually smashed a window, a splinter of which struck and blinded a passing
pedestrian in one eye211; where a dog was kept in a car confined by a leash, which
prevented it from projecting its nose more than three inches over the rim of the
door, and a child of five when leaning over the car was bitten212; when a large
Newfoundland dog, roaming loose in a small garden, jumped over the garden
wall, landed on the claimant’s back and injured him, while he was digging a
hole213; when a dog came out of the open gate of his owner’s property, dashed
across the road and, upon being frightened by an oncoming car, turned back into
collision with the claimant’s bicycle, knocking the claimant down214; when a
racing greyhound, in the charge of two small boys, chased a cat, but then bit a
woman who tried to rescue the cat215; where its owner had brought a dog into a
public house, there being no duty to keep a constant watch upon it, unless there
was reason to believe that it was making a nuisance of itself, which it did216;
when a large, but well-behaved dog, owned by the tenant of an upper flat, came
down the stairs unaccompanied and knocked against a woman who was coming
up the stairs, and injured her.217
14–90 Likewise, negligence was not established: where a horse, which was being
properly ridden on the highway, suddenly took fright, shied and caused an
209
See, e.g. Smith v Prendercast, The Times, October 18, 1984, where the owner of a scrapyard had
allowed a stray dog to establish its residence in his yard and had fed it but some three weeks later it
had attacked a child passer-by. Having regard to the defendant’s knowledge of the dog’s background,
his complete failure to attempt any systematic supervision and control, much less any training, of the
dog amounted to negligence in all the circumstances.
210
See para.14–37, above, and, generally, Ch.5, para.5–41, above.
211
Fardon v Harcourt-Rivington (1932) 48 T.L.R. 215. The injured pedestrian’s action in negligence
against the dog’s owner failed because the occurrence was such that ‘‘according to no reasonable
standard could it be said that it ought to have been foreseen by the most careful owner of a motor with
a dog in it on a highway’’ (per Lord Macmillan at 217). Further, whilst a person must guard against
a reasonable probability of danger he was not bound to guard against a fantastic possibility. These
circumstances, subject to the question of knowledge, would almost certainly now satisfy the
‘‘particular circumstances’’ requirement of s.2(2)(b) of the Animals Act 1971 following Mirvahedy v
Henley [2003] 2 A.C. 491.
212
Sycamore v Ley (1932) 147 L.T. 342.
213
Sanders v Teape & Swan (1884) 51 L.T. 263.
214
Gibb v Comerford [1942] Ir.R. 295, but cf. with the facts in Gomberg v Smith [1963] 1 Q.B. 25,
where the owner was held to be negligent.
215
Toogood v Wright [1940] 2 All E.R. 306.
216
Carroll v Garford (1968) 112 S.J. 948.
217
Hines v Tousley (1926) 95 L.J.K.B. 773, because there was no evidence to show how the dog had
got out of the flat.
[1080]
accident, whilst a motorist was in the process of overtaking it218; where a

Limousin-cross cow placed in a field with her suckling calf attacked and injured
a pedestrian using a public footpath through the field, there being a difference of
expert opinion about the risk to passers-by219; where the claimant pedestrian was
surrounded, jostled and knocked to the ground by horses whilst walking his dog,
the horses being generally of good behaviour220; where a police dog handler in
pursuit of a suspect slipped and fell as a result of which his trained police dog
slipped its lead and mistakenly bit another officer. The judge described the
incident as ‘‘an accident pure and simple’’221; negligence was not made out where
the claimant, an experienced runner, was running along a footpath by the side of
a river when he was knocked off balance by the defendant’s twelve and a half
stone Great Dane, Hector, as a result of which he fell down a slope and broke his
ankle. On the facts, given what was known of the dog, a reasonable man in the
defendant’s position would not have anticipated that physical injury to another
adult park user such as the claimant would be caused by the dog coming into
physical contact with him.222
On the other hand, in Hines v Tousley,223 quoted above, Scrutton L.J. had 14–91
occasion to add: ‘‘I reserve my opinion as to whether in other cases, where the
owner of a dog is responsible for taking him into such a situation where the
uncontrolled movements of the dog may cause damage, there may not be a
liability on the owner of the dog.’’ Indeed, such a case occurred when a dog,
taken out into the street on a long lead, was held so loosely by its owner that it
broke away from control to chase a cat, and in doing so the lead became
entangled with the legs of the claimant, a woman of 73, who was thrown to the
ground and injured.224 Further, negligence was established when a three-year-old
child, who was playing in the yard of his home, was savaged and severely bitten
by a pack of about seven Jack Russell terrier puppies, which had escaped during
their feeding time from the defendant’s ungated land next door and had entered
the claimant’s premises, where they were accustomed to scavenge among the
dustbins225; where an owner had been exercising two greyhounds, coupled
together, in the highway near to a town at dusk so that the claimant was knocked
down and injured226; where the defendant allowed his dog to run at large in the
vicinity of a mink farm, during the whelping season, when he knew that there
was a hostile reaction between mink and strange dogs.227
218
Haimes v Watson [1981] R.T.R. 90, CA.
219
Ostle v Stapleton [1996] 2 C.L.Y. 4443, Sachs J.
220
Miller v Duggan [1996] 12 C.L.Y. 4444.
221
Gloster v Chief Constable of Greater Manchester Police [2000] P.I.Q.R. P114, CA, at P120.
222
Jones v Whippey [2009] EWCA Civ 452.
223
(1926) 95 L.J.K.B. 773.
224
Pitcher v Martin [1937] 3 All E.R. 918 (defendant was held liable in both nuisance and negli-
gence).
225
Draper v Hodder [1972] 2 Q.B. 556 (negligence was proved because the judge accepted expert
evidence that dogs of that particular breed, when in groups, were highly dangerous and that no
responsible dog breeder would allow such animals to be free to roam about uncontrolled. However,
since there was no evidence that any of these puppies had ever before attacked a human being, no
liability under a scienter action in addition could be established).
226
Jones v Owen (1871) 24 L.T. 587.
227
Caine Fur Farms v Kokolsky (1963) 39 D.L.R. (2d) 134.
[1081]
14–92 Liability was also established: where the defendant permitted a stray dog to
take up its residence in his scrapyard, without attempting any systematic
supervision and control of it228; where he was driving a cow and calf on the
highway, and the cow tossed a woman on the pavement229; where the defendant
had tethered insecurely a pony in a stable, so that it broke loose, went into the
streets of a town and caused the claimant to fall over and sustain injury230; for
unloading from a train bullocks, excited by the journey, so that they escaped
through an open gate into the streets of a town and did damage231; for keeping
bees in unreasonable numbers, at an unreasonable place, smoking them out at an
unreasonable time, so that they stung the claimant’s horse which threw the
claimant232; for supplying an unsuitable horse which bolted and threw the
claimant, whom the riding stable’s employee knew to be an inexperienced
rider233; and for driving cattle four times a day along a road, bounded by the
claimant’s hedge, accompanied only by a boy incapable of controlling them, so
that the cattle damaged the hedge, making it unsightly by pulling at and eating
it.234
14–93 Further, where as a result of its suffering a fright when its rider had fallen off
and its saddle had slipped underneath its belly, a pony in a gymkhana ran out of
the ring and on to a road, thereby causing a motor collision, it was held that its
straying was a foreseeable reaction by the animal in the circumstances. Hence the
organisers were negligent.235
14–94 An attempt to fix a local authority with liability failed where a horse, whose
owner was never identified, broke free from its tether at the Appleby Horse Fair
and seriously injured the claimant: the suggestion that the local authority should
have arranged public liability insurance to cover such a circumstance failed.236
The defendant had no duty of care to organise the safe segregation and
supervision of horses and, as such, there could be no duty of care to procure that
a third party did so. Since the defendant had no duty to protect the claimant from
the physical consequences of the unknown owner’s negligence, it could not be
just and reasonable to impose on it the more remote duty to protect the claimant
against the economic consequences of not being able to enforce a judgment
against the owner.
14–95 Where the person having control is not the employee or agent of the
owner. In cases where liability is based on negligence, the owner is not liable for
228
Smith v Prendergast, The Times, October 18, 1984, CA.
229
Pinn v Rew (1916) 32 T.L.R. 451 (before meeting the claimant, the cow had met a dog, which she
tossed. There was evidence that a cow with a calf might become dangerous on meeting a dog).
230
Deen v Davies [1935] K.B. 282.
231
Howard v Bergin, O’Connor & Co [1925] 2 I.R. 110.
232
O’Gorman v O’Gorman [1903] 2 I.R. 573.
233
Collins v Richmond Rodeo Riding and Amundson (1966) 56 D.L.R. (2d) 428. Similarly, Carrera
v Honey Church (1983) 32 S.A.S.R. 511.
234
Allford v Maton (1936) 3 L.J.C.C.R. 167.
235
Bativala v West [1970] 1 Q.B. 716 (it was also held that the rule in Searle v Wallbank had no
application, since the animal was under direct human control). For highway collision, involving
animals, generally, see Ch.10, paras 10–281–10–286, above.
236
Glaister v Appleby-in-Westmorland Town Council [2010] P.I.Q.R. P6, CA.
[1082]
the negligence of someone who is not his employee or agent. So, where the
defendant employed an auctioneer to hold a sale of horses in his yard and the
claimant, attending the sale, was kicked by a horse, which was being run up and
down, allegedly, in too narrow a space, it was held that the defendant was not
liable for the negligence of the auctioneer, because he was not the defendant’s
employee.237
Liability in negligence may be independent of scienter. Where negligence 14–96

is relied upon a question may arise whether or not the defendant is liable for
damage caused by a mischievous propensity in his animal, not known to the
defendant. The cases suggest that it is not necessary for the claimant to prove that
the defendant had knowledge of propensity. The principle has been stated
thus:
‘‘I agree that there may be cases in which a defendant may be liable for the bite of a dog
even if the dog does not belong to the class of ferocious animals, if it be proved that the
dog is put in such a position that a reasonable man would know that it was likely to
cause danger and therefore he ought to regard himself as under an obligation to do
something by way of precaution.’’238
ILLUSTRATIONS
Where a pony attached to a milk cart was left unattended for an hour-and- 14–97
a-half, became restive and put its feet on the footpath attacking the claimant as
she walked on the path, the owners were held liable in spite of a finding by the
jury that the owners had no knowledge of any propensity on the part of the pony
to attack human beings.239 Where a bull attacked a cow in an auction yard, it was
no answer to a claim in negligence to plead absence of knowledge of
propensity.240 Of course, where the defendant does have such knowledge, the
claimant’s task is rendered all the easier so, where a mare, known to be of an
excitable and nervous disposition, was left unattended on a towpath, where it
kicked a man leading a quiet horse pulling a barge, the owner was held lia-
ble.241
Damage may be too remote. Although negligence is proved, absence of 14–98

knowledge of propensity may nevertheless result in the claimant failing on the
ground that the damage sustained is too remote.242 Where the defendants’ horse,
known to be of vicious temperament, was negligently left unattended in the
claimant’s yard and kicked and killed one of the claimant’s employees as he
passed behind it, the defendants were held not liable on the basis that the accident
was not the natural result of the negligence.243 The result would, no doubt, have
been different if the defendants had done something to disturb the horse as the
237
Walker v Crabb (1916) 33 T.L.R. 119.
238
per Greer L.J. in Sycamore v Ley (1932) 147 L.T. 342 at 345. See also Fardon v Harcourt-
Rivington (1932) 48 T.L.R. 215.
239
Rose v George Henry Collier Ltd [1939] W.N. 19.
240
Aldham v United Dairies (London) Ltd [1940] 1 K.B. 507.
241
Hinckes v Harris (1921) 65 S.J. 781.
242
For remoteness of damage see Ch.5, paras 5–01–5–41, above.
243
Bradley v Wallaces Ltd [1913] 3 K.B. 629.
[1083]
employee passed behind it.244 Similarly, where a bullock, which was being
unloaded at a butcher’s premises, was negligently allowed to escape and,
thereafter, attacked a cyclist, the defendant was held not liable. The damage was
held not to flow naturally from the negligence in the absence of proof of a known
mischievous propensity.245 The owner of sheep was acquitted of blame when his
sheep communicated disease to other sheep due to his negligence, since he did
not know that his sheep were suffering from disease.246
244
See Abbott v Freeman (1876) 35 L.T. (N.S.) 783, where the facts negatived negligence.
245
Lathall v Joyce & Son [1939] 3 All E.R. 854.
246
Cooke v Waring (1863) 2 H. & C. 332. Otherwise where the sheep were trespassing, see paras
14–60–14–64, above.
[1084]

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1. Introduction ................................................................................................................ 14–01

trespass to chattels,18 nuisance,19 negligence20 (except as mentioned above),

2.—STRICT LIABILITY FOR DAMAGE DONE BY ANIMALS GENERALLY

‘‘(a) which is not commonly domesticated in the British Islands; and

14–08 Whether or not a particular species of animals is dangerous is purely a question

breeds known for their aggressive qualities.35 If the animal is of a dangerous

Non-dangerous species.38 The effect of s.2(2) is that, in order to establish 14–11

vicious tendency based on past conduct46 or simply unusual characteristics. Thus,

In reaching this decision, Lord Nicholls acknowledged public policy con-

‘‘Considered as a matter of social policy, there are arguments in favour of [imposing

14–18 It follows that, on establishing a pattern of behaviour capable of amounting to

propensity.64 There is no definition of knowledge contained in the Act so that

(i) Knowledge of the keeper

(ii) Knowledge of keeper’s servant

(iii) Knowledge of another keeper in this household

A dog belonging to a former employee was permitted to live on the 14–33

(i) The fault and contributory negligence of the claimant

(ii) The claimant voluntarily accepting the risk

(iii) The claimant as trespasser

If the presence of a trespasser were unforeseeable, the keeper of a tamed 14–49

3.—STRICT LIABILITY FOR INJURY CAUSED TO LIVESTOCK BY DOGS

(i) The fault and contributory negligence of the claimant

(ii) The livestock had strayed

4.—STRICT LIABILITY FOR DAMAGE DONE BY STRAYING LIVESTOCK

Common law principles of liability. Quite apart from negligence, an 14–58

ordinarily causes—thirdly, the common usage of mankind to allow them a wider

14–73 Contrast with nuisance. A landowner may, however, be guilty of nuisance

(i) The fault and contributory negligence of the claimant

animal belongs to prevent it from trespassing, if by statute or custom,171 a right

In these circumstances guidance may still be obtained from such authorities as

(ii) Straying from the highway

5.—LIABILITY FOR ANIMALS STRAYING ON TO HIGHWAYS

As a result of the removal of this common law exception, injury or damage

6.—WIDER LIABILITIES AT COMMON LAW

Negligence as a concurrent cause of action. There is a duty to take 14–87

Lord MacMillan added:

accident, whilst a motorist was in the process of overtaking it218; where a

Liability in negligence may be independent of scienter. Where negligence 14–96

Damage may be too remote. Although negligence is proved, absence of 14–98

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