AIMS AND OBJECTIVES
After reading this chapter you should be able to:
■ Understand the common law basis for liability
■ Understand the statutory definitions of dangerous species and non-dangerous species
■ Understand the statutory basis for liability for either
■ Critically analyse the tort
■ Apply the law to factual situations and reach conclusions as to liability
By the middle of the twentieth century, the law relating to liability for damage or injury done by animals was confused. An owner could be liable under various torts on the requirements of those torts being established (see section 11.3). There were also other common law actions which imposed strict liability for harm done by animals. It was acknowledged that animals are by their nature unpredictable and that owners kept animals at their peril. Strict liability depended on whether the animals were ‘ferae naturae’ (loosely translated as wild animals) or ‘mansuetae naturae’ (loosely translated as tame animals). In the case of wild animals, the owner was presumed to know that they were dangerous and would be liable without fault, while in the case of tame animals, knowledge of the animal’s dangerous tendency had to be proved before liability would be imposed. This is perhaps the origin of the saying ‘Every dog is allowed one bite.’
It was hoped that there would be a thorough and wide-ranging reform of this area of law with liability being based either on the principles of negligence or strictly imposed for damage done by all animals. The opportunity was not taken, the Animals Act 1971 continuing a distinction between liability for dangerous and non-dangerous species alongside liability under various torts.
The basic principle of the Animals Act 1971 is that a person who keeps a dangerous animal has strict liability for any damage which the animal may cause. A person who keeps an animal which is domesticated and is usually regarded as harmless will only be liable if the animal has given cause to fear that it has unusual characteristics which make it potentially dangerous.
Liability is imposed on the ‘keeper’ of the animal. A person is a keeper of the animal if:
‘s6(3) (a) he owns the animal or has it in his possession; 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 possession.’
If an animal strays, the original keeper remains liable unless and until another person fulfils the requirements of s6(3). A person who takes a stray into safe-keeping to prevent it from causing damage or until it can be returned will not be regarded as the keeper (s6(4)).
The definition is provided by s6(2).
‘s6(2) A dangerous species is a species
(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.’
Potentially ferocious animals such as tigers clearly fall within the definition. Other animals, not known for ferocity, are also caught if any damage is likely to be severe. This would apply, for example, to elephants which rarely attack but whose sheer size means that any damage would be likely to be severe.
Behrens v Bertram Mills  2 QB 1
The claimants ran a booth in a fun fair operated by the defendants who were the owners of a circus. The defendant’s troop of elephants had to pass the booth on their way to the circus ring. One, Bullu, was frightened by a small dog and in its fright trampled the booth injuring the claimants. Although Bullu was described as ‘no more dangerous than a cow’ the defendants were liable.
Although the case was decided before the Animals Act was passed, it is illustrative of the severity of damage which can be caused by a tame but very large animal.
Tutin v Chipperfield Promotions Ltd  130 NLJ 807
The claimant agreed to take part in a camel race at the Horse of the Year Show. As the race started she was thrown off the camel by its awkward gait. It was held that the camel was a member of a dangerous species although the claimant did not succeed in this claim as on the facts the defence of voluntary assumption of risk applied. (She had also pleaded negligence on the part of the defendant and was successful on that basis.)
It is clear that whether or not an animal is a member of a dangerous species is a question of law and not one of fact. Neither the elephant in Behrens v Bertram Mills nor the camel in Tutin v Chipperfield Promotions was dangerous in the ordinary sense of the word but both species satisfied the legal test.
Any animal which is not covered by the definition is termed ‘non-dangerous’.
‘s2(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.’
This was explained by Lord Nicholls in Mirvahedy (FC) v Henley and another  UKHL 16 when he said:
‘If you choose to keep a dangerous animal not commonly domesticated in this country, you are liable for damage done by the animal. It matters not that you take every precaution to prevent the animal escaping. You may not realise that the animal is dangerous. Liability is independent of fault. Liability is independent of knowledge of the animal’s dangerous characteristics.’
By s5 the only defences available are that the damage was caused by the claimant’s fault or occurred when the claimant had voluntarily assumed the risk (see section 11.2.5 for a full discussion of s5).
The basis for liability is set out in s2(2).
‘s2(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 … 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 species or are not normally so found except at particular times or in particular circumstances; and
(c) those characteristics were known to the keeper [or his servant having charge of the animal or to a member of his household who is the keeper but aged under sixteen].’
This sub-section is not a model of clear parliamentary draftsmanship. It has been described in various uncomplimentary ways by the judges who have had to try to interpret and apply it, s2(2)(b) in particular causing great difficulty. There have been a number of different approaches taken over the years but the section has recently come before the House of Lords for the first time in Mirvahedy (FC) v Henley and Another. To some extent the law has been clarified although no doubt problems will still arise in future cases. All three parts of s2(2) must be satisfied but, for convenience, each will be considered separately. The facts of Mirvahedy are given at this point for the sake of convenience. Relevant parts of the judgments are discussed later where appropriate.
Mirvahedy (FC) v Henley and Another  UKHL 16
Three horses were kept by the defendants in a field next to their house. Something frightened the horses and they bolted out of the field. They pushed over an electric fence and a surrounding wooden fence and then stampeded along a track on to a road. They ran for more than a mile on to a main dual-carriageway road where one of the horses collided with the car driven by the claimant. The claimant was seriously injured and the horse was killed. The claimant alleged that the defendants were liable under the Animals Act.
Section 2(2)(a): the nature of the damage
The damage must be ‘of a kind which the animal unless restrained was likely to cause’ or ‘of a kind … which, if caused by the animal, was likely to be severe’. What does the word ‘likely’ mean? This has exercised judicial minds on several occasions.
Smith v Ainger, The Times, 5 June 1990
The defendant’s dog, an Alsatian cross, had a history of attacking other dogs. When it attacked the claimant’s dog, the claimant was knocked over, breaking his leg. The Court of Appeal had to consider whether the injury was one which was ‘likely’ to occur unless the dog was restrained.
At first sight, the nature of the injury was unlikely – a bite would be more likely. The court held, however, that the words ‘was likely’ meant ‘such as might well happen’ rather than ‘probable’. On this basis, on the facts, it was likely that the dog would attack another dog and that the owner of the other dog would intervene or, as in this case, get in the way. Were this to happen, there was a material risk that the owner would be bitten or buffeted and suffer injury. No distinction needed to be drawn between a bite and a buffet. The damage caused to the claimant was of a kind which the dog was likely to cause.
In many cases the severity of the damage can clearly be anticipated.
Curtis v Betts  1 WLR 459
The claimant, aged 11, was attacked and bitten by Max, a bull mastiff weighing 70 kg. The child knew the dog and as he cycled past he called to Max who was being put into a car. The dog leapt at the child and bit him on the face. It was held that s2(2)(a) was satisfied.
Slade LJ said:
‘Max was a dog of the bull mastiff breed. If he did bite anyone, the damage was likely to be severe.’
As with dangerous animals, the damage need not be the result of anything other than the size and weight of the animal. Thus in Jaundrill v Gillett, The Times, 30 January 1996 the Court of Appeal accepted that horses were likely to cause damage by virtue of their weight.
While Lord Scott in Mirvahedy stated, obiter, that he had doubts as to earlier interpretations of s2(2)(a), the issue was not further considered and the Court of Appeal decisions continue to provide guidance.
Section 2(2)(b): is the behaviour normal or abnormal?
Once s2(2)(a) is satisfied, the cause of the animal’s dangerousness must be established. This can be done in two ways:
(i) the danger was caused by characteristics ‘which are not normally found in animals of the same species’; or
(ii) it was caused by characteristics which are not normally found in animals of the same species ‘except at particular times or in particular circumstances’.
If the first approach is to be used, the characteristic which causes the danger must result from some abnormality. Lord Nicholls in Mirvahedy explained that this deals with ‘a case where animals of the same species are normally docile but the particular animal is not’. The second approach covers animals which are not normally vicious but which may be dangerous at certain times. An example of this can be found in the case of a bitch with a litter who bites to defend her pups. While this is normal behaviour for a bitch in such circumstances, the second limb of s2(2)(b) means that there can be liability on the part of the keeper even though at other times the bitch is completely docile.
The judges have not been in agreement as to how s2(2)(b) should be interpreted.
Cummings v Grainger  QB 397
An Alsatian was loose in a scrap-yard to guard against intruders. The claimant went into the yard and was seriously injured by the dog. The Court of Appeal held that the dog had characteristics not normally found in an Alsatian dog except when it is being used as a guard dog. The second limb of s2(2)(b) was therefore satisfied.
In Curtis v Betts above, discussing whether the dog’s behaviour fell within s2(2)(b), the Court of Appeal agreed with the trial judge:
‘bull mastiffs have a tendency to react fiercely at particular times and in particular circumstances, namely when defending the boundaries of what they regard as their own territory’.