1. Introduction
There are two categories of animals—
(i) ferae naturae –
animals belonging to dangerous species, e.g.—lion, tiger, bear, wolf, elephant, ape etc., and
(ii) mansuetoe naturae –
animals belonging to non-danerous species, e.g.—dog, horse, cow, ram, cat, etc.
An animal-keeper is strictly liable, independently of negligence, for damage done by the animals of both the categories.
In the case Behrens v. Bertram Mills Circus, Ltd., (1857) 1 All ER 583, Devlin J., illustrated the types of animals as—
If a person has this knowledge that the animals which he has kept can do harm, and if the same escapes and causes harm, then the keeper is strictly liable for damage. He is bound to keep such animals under control so that it would not do harm to others. In the case of animals falling under ferae naturae, they are conclusively presumed to have such a tendency hence there is no need of proving scienter. Whereas animals falling under the second category i.e., mansuetoe naturae, are presumed to be harmless unless and until it has acquired a savage or vicious nature, then proof of such a manifestation is proof of scienter and serves to transfer the animal from natural class to class – feare naturae.
Examples:
• In May v. Burdett, (1846) 9 QB 101, the defendant was held liable for keeping a monkey which bit the plaintiff on the ground that the monkey is a dangerous animal.
• In Hudson v. Roberts, (1851) 6 Ex 697, the defendant was known to this fact that bull always irritates from the red colour, the plaintiff was wearing red and was walking on the highway, when the bull attacked him. The defendant was held liable.
• In Read v. Edwards, (1864) 17 CBNS 245, the dog of defendant had a peculiar habit of chasing and destroying pheasants. Defendant was held liable when dog chased and destroyed plaintiff’s pheasants.
If an animal causes damage after making a trespass, then the keeper of the animal will have strict liability and will be held liable even in case he did not know any of the particular propensities in that animal. Here, it is not needed to prove the negligence of the defendant as the liability is strict which means without fault. Cow, pigs, ass, horse, bull, sheep and poultry belong to category cattle but cats and dogs are not considered as cattle. Hence cats and dogs do not figure in cattle trespass.
In Buckle v. Holmes, (1926) 2 KB 125, defendant’s cat entered into plaintiff’s house and killed 13 pigeons. The Court did not hold defendant as liable since it was not peculiar to this cat alone. Here, the liability under the scienter rule arises only when the defendant had knowledge. If a cat is known to have a tendency of causing injury to human beings and if it injures someone, then the plaintiff has to prove this habit of that particular case. Even if he proves a single instance of its ferocity, it is sufficient.
In Read v. Edwards, (1864) 17 CBNS 245, defendant’s dog chased and killed some pheasants belonging to plaintiff. The defendant was held liable on the ground that the defendant had knowledge of the particular propensity of his dog.
In the case, Theyer v. Purnell, (1918) 2 KB 333, the defendant’s sheep was infected with scab trespassed on to the plaintiff’s land and transmitted the disease to plaintiff’s sheep. Under the government order, all these sheep were interned and thus plaintiff suffered a loss. The Court held the defendant liable for cattle trespass and its natural consequences irrespective of his knowledge as to the infected condition of the sheep.
The Animals Act, 1971 has modified/amended the common law rules relating to cattle trespass, in England. Section 4 says that the owner of trespassing cattle would be held strictly liable if the animals trespass to another’s land and causes damages. Proof of damage is essential here to hold the defendant liable. The immunity for damage ensuing from straying of cattles on to the highway has been abolished in England by the Animals Act, 1971 and the question of liability is to be decided on ordinary principles of negligence.
In Ellis v. Loftu Iron Co., (1874) LR 10 CP 10, defendant’s horse injured the plaintiff’s mare by biting and kicking her through the fence. The plaintiff’s and defendant’s land were separated. The defendant was held liable on the ground that it was a trespass.
In Wormald v. Cole, (1954) 1 All ER 683, although defendant was not negligent but his cattle ran away to plaintiff’s garden and plaintiff got hurt while protecting her garden from ravaging cattle. The defendant was held liable for plaintiff’s personal injury.
In Brock v. Richards, (1951) 1 All ER 261, the plaintiff was riding a motorcycle along the highway, when a mare jumped over a hedge bordering the highway and fell on motorcycle resulting in rider’s injury. The animal had a propensity to stray, but she did not belong to dangerous category. The Court held that the occupier of land bordering the highway was under no duty to prevent his animals from straying on the highway unless they were dangerous. The fact that the mare had a special proclivity towards straying did not impose such a duty on the defendant, and therefore, he was under no liability to the plaintiff.
The common law remedy i.e., distress damage feasant is abolished. There is a provision as given in section 7 of the Animals Act provides a right to detain the livestock and to sell it at the end of fourteen days. Section 5 of the Act recognizes the well-established law as laid down in Tellet v. Ward, (1882) 10 QBD 17.—
‘the occupier of premises adjoining a highway is presumed to have accepted the risks incidental to the passage of ordinary traffic along that highway.’
In our country, The Cattle Trespass Act, 1871 has provision that the trespassing cattle can be taken to the pounds, made at different places. The cattle owner can come and take their cattle back from the pound keeper after paying the pound fees. But defendant is not bound to pay the sum which the plaintiff has lost due to cattle. Cattle means – pig, elephants, camels, buffaloes, horses, ponies, mares, colts, fillies, mules, asses, rams, ewes, sheep, lamb, goats and birds etc., as given in the Cattle Trespass Act, 1971.
In the Act, other provisions are like delivery and sale of cattle, illegal seizure, detention, payment of penalties etc. The cultivator has the right of seizing cattle if it damages the crop but cultivator has to produce and send the cattle within 24 hours of its seizure to pounds.
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