Arthur Sike

LLB (Unza), LLM (Turin), AHCZ, (Dip.

Bus. Admin.)
• Note that liability for animals under Tort Law may
arise from:
1. Animals being instruments of assault and other torts;
2. Further, liability for animals may be based on
negligence except that IF animals that are ordinarily
tamed- stray from adjacent land onto the highway the
person responsible for them will not be liable for
damage that they cause there……see the case of
SEARLE V. WALLBANK [1947] A.C. 341. The
facts are that owing to the defective state of the
Respondent’s fence, his horse strayed onto the road at
night and injured a cyclist. The owner was not held
liable as there was no duty to fence!
• Also consider the case of ELLIS V. JOHNSTONE
[1963] 2 Q.B. 8 Where it was held that in the absence
of special cases the owner of a dog is under no duty to
prevent it straying onto the highway.
• HOWEVER, THE POSITION CHANGES IN THE
FOLLOWING EVENTS
• Where the animal is of a savage disposition which is
known or presumed to be known to its owner. The
escaping animal causes an obstruction; and
• The animal has been brought or let out upon or is being
driven along the highway. In such cases, there is a duty
to control the animals.
 See the case of DEEN V. DAVIES [1935] 2 K.B.
282 Where the Defendant left a pony badly
secured in a stable in a large town. It escaped and
injured the Plaintiff. The Defendant was held
liable.
• It is therefore important to note that the keeper of an
animal known to be dangerous is responsible without
proof of negligence for damage done by it if it escapes
from his control.
• The law draws a distinction between:
(a) Animals of wild species. The knowledge of their
dangerous nature is presumed by the law. An elephant
for example has been held to be within this class. See
the case of BEHRENS V. BERTRAM MILLS
CIRCUS [1957] 2 Q.B. 1- Where it was said to be
immaterial whether the elephants were highly trained.
(b) Animals that are tamed. Liability only arises if the
keeper knew that the particular animal had a tendency
to do that kind of damage. See the case of HUDSON
V. ROBERTS [1851] 6 EX. 697
• The owner of a bull knew of its tendency to attack
anything red. He was held liable to a person wearing
red whom the bull attacked in the street.
• CONSIDER THE FOLLOWING POINTS:
1. It is a question of law whether the animal is wild;
2. The person primarily liable is the keeper;
3. There must be escape from control as evidenced in the
case of RANDS V. MCNEIL [1955] 1 Q.B. 253-
wherein a farm- hand entered the stall of a bull known
to be dangerous. The bull charged and injured him .
The farmer was held not liable; and
4. Contributory negligence and probably acts of God and
Volenti non fit injuria are defenses but not the act of a
stranger…see the case that follows
 BEHRENS V. BERTRAM MILLS CIRCUS
[1957] 2 Q.B. 1. The keeper leading circus
elephants to the ring. A small dog snapped at
them. They turned and knocked the Plaintiff's
booth, and then were at once brought under
control. Circus-owners held liable. It was no
defence that the elephants acted out of fright, and
not viciously; nor that the dogs had been brought
in against the rules of a stranger.
 This is a scenario where the law places an obligation
on the keepers of the animals. The keepers are to
ensure that the animals are well secured to avoid
committing torts such as nuisance, negligence. Such
responsibility and or obligation is expressly stated in a
piece of legislation.
 In England, they have statutes such as the DOGS Act
of 1906 and 1928. the same Act does define what
‘Cattle’ includes- horses, sheep, goats, poultry etc…
 In Zambia, we have what is called a Public Pounds and
Trespass Act chapter 253 of the Laws of Zambia.
• The statutory position on this subject is that the owner or occupier of land
from which a dog came is liable for any damage it does to cattle.

• CATTLE TRESPASS
• The occupier of land is liable without proof of negligence for damage
done by animals in his possession which trespasses on the land of his
neighbor.

• Note: Tort liability is usually founded on intended harm (intentional torts

such as assault) or where harm occurs as a result of negligence.
• In strict liability, neither of those are required.
• Liability attaches even where the defendant has acted completely
reasonably
• So, then- it is a Tort liability which is set upon the defendant without
need to prove intent, negligence or fault; as long as you can prove that it
was the defendant's object that caused the damage
I. “Cattle” for this purpose includes the usual farm
animals but not cats or dogs;
II. The liability does not extend to animals straying
onto the highway nor to animals straying from
the highway onto another’s land;
III. If the animal acts contrary to the nature of its
species there will be no liability as the damage
will be too remote; and
IV. Only the occupier of the land trespassed upon
can sue.
 An unlawful act by a third party;
 An act of God;
 The Plaintiff’s failure to keep a fence in repair for
which he was responsible.