LAW OF TORTS PROJECT

Strict or Fault Liability for Harm by Dogs?

What is the doctrine of Strict Liability? Or Fault-based Liability? What are the problems courts
face when applying Strict Liability to animals such as dogs? And if they are justified in doing
so? In the essay we are going to expand upon the complex application of strict liability rule in
dog bite cases and also analyze the scope of fault liability in determining the outcome in such
cases.
I. The doctrine of Strict Liability and Fault Liability
II. The problems in applying Strict Liability to animals such as dogs
III. Indian position on strict liability for animals in this category and Whether the law is
adequate
IV. Conclusion

I. The Doctrine of Strict Liability and Fault Liability

The Court in Rylands v. Fletcher1 rested their decision on the principles referred to by Mr. Jstice
Blackburn in the court of Exchequer Chamber, who stated his opinion in these words: “We think
that the true rule of law is, that the person who for his own purposes brings on his land and
collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and,
if he does not do so, is prima facie answerable for all the damage which is the natural
consequence of its escape.” This in common law is generally regarded as the “Rule in Rylands v.
Fletcher” or ‘Rule of Strict Liability’. There are certain situations where an individual may be
held legally liable even if he was not negligent in or intent on causing the damage as a
consequence of some act, or even if he tried to avert it. This theory is known as ‘No Fault
Liability’ or the rule of Strict Liability. It is usually applied in animal bites (in certain states),
manufacturing defects, and abnormally dangerous activities, etc. The essentials elements for a
tort to be held under the Doctrine of Strict Liability are:
a) Non-natural use of land must have taken place.
b) Escape of a dangerous thing from that land on which it was kept must have taken place.
c) The dangerous thing must have caused mischief.
d)The damaged caused should be foreseeable to the defendant

The principle of strict liability has been integrated in Indian statutes i.e., The Workmen’s
Compensation Act, 1923, The Motor Vehicles Act, 1988.
Some common defenses to strict liability are Assumption of risk, Plaintiff’s own fault, Act of
stranger, Common benefit of the Plaintiff and the Defendant, Damage caused due to natural use

1
(1868) UKHL 1
of land, Statute of limitations, Act of God or Vis Major, Statutory Authority. On this note, it
would be pertinent to comment that Absolute Liability is basically modified Strict Liability
where absolutely no defenses are available and the defendant will be held liable no matter his
contribution to the damage caused. The principle contradicts the general principle of negligence
in torts where one can only be held liable if the plaintiff can prove his negligence in the
commission of a tort.
Fault-Liability is a type of liability in which the defendant can be held liable only if the plaintiff
proves that the defendant's conduct was negligent or intentional which was a proximate cause in
the resulting damage. It is the opposite of Strict Liability.

II. The Problems in Applying Strict Liability to animals such as Dogs

In some jurisdictions, the rule of Strict Liability is applied in cases of animal attacks or dog bites.
As per Common Law, an owner of an animal was held strictly liable for all injuries caused by
such animal even without fault; he had no-fault liability. The Animals Act, 1971 passed in
England imposed strict liability for damage done by an animal under the care of its keeper2. The
reason cited is that an animal does not have a conscience and an owner who chooses to
domesticate them or keep them as pets has a duty to properly restrain and control them to avoid
harm to others. Such a duty extends to property and animals of others. In Common Law, the
‘scienter’ of the keeper meant if he had any knowledge about the past dangerous actions of his
pet. In modern law, the scienter principal is applicable to all wild animals kept by owners and for
domestic animals whose vicious propensity is known by the keeper3. Domestic animals are
categorized as cattle, cats and dogs. This distinction was made to ascertain the quantum of
compensation awarded to the Plaintiff. In Mcquacker v Goddard4, the keeper of the animal was
sued on the contention that the animal was wild and thus the keeper was strictly liable. Held that
animals are to be classified as wild or domestic on the basis of their genus and not their
characteristics. The animal was not considered wild and the appeal was dismissed.
The Court in Hale v. O’Neill5 noted that an owner of a domestic animal becomes liable,
regardless of fault, for injuries caused by the animal, which arise from a vicious propensity,
known to the owner and that behavior should be ‘abnormal to that class of animal’. The elements
to apply the rule of strict liability based on an animal's known ferocity are: (1) the animal's owner
knows or should know of the animal's "dangerous tendency," and (2) that the dangerous
tendency results in an injury to the claimant.

2
Gilbert Kodilinye, Strict Liability for Harm by Dogs: A Comparative Survey, 16
ANGLO-AM. L. REV. 174 (1987).
3
John C.P. Goldberg and Benjamin C. Zipursky, The Strict Liability in Fault and the Fault in Strict Liability, 85
Fordham L. Rev. 743 (2016).
4
(1940) 1 K.B. 687
5
183 P. 723.
In the case of Barger v. Jimerson6, the plaintiff was attacked by the defendant's dog. The
defendants had a German Shepherd known to have a ferocious nature and was never allowed to
be out of a fenced enclosure unless on a leash. The defendants moved out and after a few
months, their dog escaped and attacked the plaintiff outside her house. The plaintiffs alleged that
knowing that the dog had vicious propensities, allowed the dog to run at large and permitted it to
commit the injuries received. But the Court found that defendants did not at any time carelessly
or intentionally allow the dog to run at large. Their liability was in keeping such a dog and they
did so at their peril. But the Court held that “they were the owners of the dog which proved to be
vicious and, knowing the dangerous propensities, they were bound to keep the animal secured at
their peril because they had assumed the risk of keeping him secured.”7
In applying strict liability, two important questions have caused difficulty: (i) Is liability under
the statutes confined to "canine" injuries involving a hostile or aggressive act on the part of the
dog, such as biting or scratching, or does the liability encompass any type of harm caused by the
dog? (ii) Is liability under the statutes "absolute", in the sense that no defenses are available, or
may the defendant rely upon common law defenses such as default of the plaintiff, volenti non fit
injuria and contributory negligence? As stated earlier, clearly even in strict liability certain
defenses are available to the owner to escape liability. In modern law, strict liability has now
become equivalent to the negligence principle minus some defenses available.
In Sinclair v. Okata8, the plaintiff’s two-year old son was bitten by a dog with her five-year old
daughter as a witness to the attack. The dog was involved in at least four previous biting
incidents. The plaintiffs have made three arguments, that defendants are liable on a theory of
strict liability, under the negligence theory and under negligence per se. Plaintiffs intend to
establish that the dog had "dangerous propensities" and that the Okatas had actual knowledge of
Anchor's dangerousness. Defendants countered that each of the four admitted biting incidents
were the result of natural instincts like overstimulation, protective instincts and chase instincts,
not of any dangerous tendencies. But the Court cited Keane v. Schroeder9, to note that if the dog
did have a dangerous propensity, then it is immaterial whether this propensity was driven by
anger, playfulness, affection or curiosity. In Ryor v Pryor10, it was held that it is the act of the
animal and not in the state of mind of the animal from which the effects of a dangerous
propensity must be determined. Under the Restatement approach, “possessor of a domestic
animal that he knows or has reason to know has dangerous propensities abnormal to its class, is
subject to liability for harm done by the animal to another, although he has exercised the utmost
care to prevent it from doing the harm.” It may be true that the dog’s reaction was abnormal in
the sense that they were not reactions typical of domesticated dogs. The Court arrived at the
conclusion that the defendant acted negligently. Plaintiffs' motion for summary judgment on
their negligence and negligence per se claims is granted but summary judgement on their strict
liability claim is denied.
6
276 P.2d 744 (1954)
7
Id.
8
874 F. Supp. 1051, 1059 (D. Alaska 1994)
9
264 N.E.2d 95
10
427 N.E.2d1112
A keeper is permitted all the strict liability defenses discussed above and he will not be held
liable if he proves any of the said defenses against the plaintiff.

III. Indian Position on Strict Liability for Animals in this Category and
Whether the laws are adequate
The provisions regarding animal trespass are mentioned under the State List Section 16 worded
as: “Ponds and the prevention of cattle trespass”. There was a need to come up with a sustainable
law to define offences and impose punishments, since in an agriculture-centered country like
India, cattle trespass was a very prevalent issue. So, the government came up with the Cattle
Trespass Act, 1871 which put together all the previous cattle trespass laws and aimed to
compensate the injured party. Since animals come under movable property under the General
Clauses Act, 1987, the owner of the animals has a right to sue for damages if they are injured and
be sued if any damage is caused by them. In Krushna Sahu v Chaitan Das11, the Court stated that
to be held liable under the Act, the cattle must have: (1) trespassed on land as mentioned as per
S. 10 of the Act and (2) done damage on the land, however nominal. The Act was further
developed in Gram Panchayat Swargaon v Jamnprasad Ragunath Prasad12. Trespass by animals
other than cattle are treated as per common law principles. The scienter principle and
classification of animals are the same as in the Animals Act of 1871 (England). But the Act
covers only highways and not other roads which limits the scope of its application drastically.
The damage caused can be very different in a village and a city. In a village, a cow may bulldoze
on grass or crops and in a city on someone’s prosed flower beds. Hence it is felt that the Act does
not strictly govern cattle trespass in a city. The provisions also make it difficult to prove whose
cattle were responsible for the damage. And since the burden of proof is on the Plaintiff it is
difficult to establish certain facts like the previous vicious tendency of the animal. Also,
negligence on part of the owner in controlling his cattle can also be difficult to prove. Added
with procedural difficulties, granting justice to the grieved becomes tough.

IV. Conclusion
Modern day strict liability is a dog victim friendly law. About half of all states have eliminated
the requirement of scienter in dog bite cases. Since the defenses and allegations are difficult to
prove, and there are differences in the interpretation of statutes, there are inconsistencies in jury
verdicts. Even if an action does not succeed under the principle of strict liability, it is possible to
rely on a negligent cause of action when pleading a dog bite case. A court applying common law
strict liability, with the scienter requirement and a determination of whether the dog is
abnormally dangerous, places too harsh a burden on dog bite victims. However, a court
removing the scienter and diluting other dog requirements results in almost absolute liability for
the dog owner. It is contended that Fault Liability shifts the focus away from the determination
11
AIR 1966 Ori 191
12
(1967) 69 BOMLR 801
of whether a dog was dangerous or provoked, and instead puts the responsibility on dog owners
to supervise and control their pets and strikes a balance between draconian owner-harassing
laws. Parents and dog owners both have a responsibility to control and supervise those in their
care. Similarly, property owners have a responsibility to make their premises safe for others. Yet
neither parents nor property owners are strictly liable for damage or injury. The Restatement
finds negligent liability when the owner is negligent in failing to prevent the harm. Strict liability
should be abandoned in dog bite cases. Instead, courts should follow the negligence standard,
which should not prove too burdensome for either owners or victims13. Dog bite victims would
have to plead and prove the elements of negligence and establish fault on the defendant dog
owner through breach of a duty of care. ere dog ownership result in a presumption of liability.
Dog owners would also be entitled to all defenses commonly used in negligence cases. Yet dog
owners would have an affirmative duty to supervise and control their dogs. focus on the owner's
knowledge concerning his dog's behavior and consider whether, in light of that knowledge, the
owner's supervision and control of his dog was reasonable.

13
Lynn A. Epstein, There Are Not Bad Dogs, Only Bad Owners: Replacing Strict Liability with a Negligence
Standard in Dog Bite Cases, 13 ANIMAL L. 129 (2006)
BIBLIOGRAPHY
Matter for this essay has been referred from:
1.‘Law of Torts including Compensation under Motor Vehicles Act and Consumer Protection
Laws’ textbook by Dr. R.K. Bangia (publisher- Allahabad Law Agency).
2 .‘The Law of Torts’ textbook by Ratanlal and Dhirajlal (updated 26th edition, publisher-
LexisNexis).
3. Cases have been referred from SCC OnLine and Manupatra (Legal Databases)