There are two distinct forms of civil liability for loss caused by animals.
The first form is liability based on the fault of the owner. The second is strict liability, where liability can be established without the need to prove fault. This article will consider both forms and provide examples of where civil liability for loss caused by animals may apply.
Fault-based liability
The first form, fault, can itself be split into two categories: deliberate wrongdoing and negligence.
Deliberate wrongdoing
If the owner of an animal deliberately uses that animal to cause loss, then they can be held liable for that loss.
One such example of this was the case of Ewing v Earl of Mar (1851), in which the Earl of Mar was held liable for the loss he had caused Mr Ewing by riding at him on horseback so as to place him in danger and in reasonable alarm.
Negligence
Negligence is more complex.
For an owner of an animal to be liable in negligence, it must be proved that:
- they owed a duty of care to the person complaining of harm;
- the owner’s behaviour breached that duty of care; and
- the breach of duty was the cause of the harm complained of.
For example, take a scenario where there is a field of cows directly adjacent to a main road. A farmer leaves the gate to the field open, and one of the cows escapes onto the road and causes a road traffic accident.
In that scenario, a driver who has suffered loss may be able to recover that loss from the farmer, if they can show that the requirements for negligence have been met.
Strict liability
The second form of liability is strict liability. This refers to certain exceptional cases where loss caused by an animal can be recovered from the owner of that animal, without the need to show that the owner was at fault. In such cases, it is only necessary to show that the harm was caused by the behaviour complained of.
The Animals (Scotland) Act 1987 (“the Act”) contains provisions imposing strict liability on the keepers of animals in certain circumstances.
The test set out in the Act has three limbs. A person can be liable for any injury or damage caused by an animal if:
- they were the keeper of the animal at the relevant time;
- the animal belongs to a species which, by virtue of its physical attributes or habits, if not properly restrained, is likely to injure or kill persons or animals, or damage property; and
- the injury or damage is directly referable to such physical attributes or habits.
The Act refers to “keepers” of animals, not owners. The keeper can be the person who owns the animal, has possession of it, or has care and control of a child under 16 who owns or has possession of the animal. Accordingly, liability could attach to, for example, farm workers who are in possession of the animal at the relevant time.
In terms of animals likely to injure or kill, the Act explicitly includes dogs within this class of animals. The Act also specifically includes those animals covered by the Dangerous Wild Animals Act of 1976, which includes the more exotic dangerous animals such as tigers, bears, and crocodiles.
The Act also explicitly defines cattle, horses, sheep, pigs, goats, and deer as animals likely to cause damage to land, or the produce of land, in the course of foraging.
It can therefore be seen that the Act could allow, for example, a person injured by a dog, or a landowner whose crops are eaten by cows that have escaped from a neighbouring farm, to recover their loss from the keeper of that animal, without having to prove that the keeper was at fault.
There are defences that are available to keepers in some circumstances. For example, a keeper may not be liable for injury caused to a person that was wholly due to the fault of the person sustaining it.
For more information on this subject, as well as some other aspects of the law as it applies to animals, please refer to our webinar.