199903 As stated in the preamble to the Act, the purpose of the Animals Act 1971 is to make provision with respect to civil liability for damage done by animals and with respect to protection of livestock from dogs; and for purposes connected with those matters. This paper compares and contrasts an action under section 2(2) of the Act with one under section 4 of the same Act. The two provisions are as follows: Section 2(2):
Where any damage is caused by an animal which does not belong to a dangerous species, any person who is keeper of the animal is liable for the damage, except as otherwise provided by this Act if:-
- 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
- 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
- those characteristics were known to that keeper, or were at any time known to a person who at that time had charge of the animal as that keeper's servant or, if the keeper is the head of a household, if they were known to any other member of the household under the age of 16 who is also deemed to be a keeper of the animal.
Section 4: Where livestock belonging to any person strays on to land in the ownership of another and:
- damage is done by the livestock to the land or to any property on it which is in the ownership or possession of the other person; or
- any expenses are reasonably incurred by that other person in keeping the livestock while it cannot be restored to the person to whom it belongs or while it is detained in pursuance of section 7 of this Act, or in ascertaining to whom it belongs; the person to whom the livestock belongs is liable for the damage or expense, except as otherwise provided by this Act.
(2) For the purpose of this section any livestock belongs to the person in whose possession it is. The Act draws a distinction between animals which belongs to a dangerous species and those which do not belong to a dangerous species. The Act defines â€œspeciesâ€ as including â€œsub-species and variety
. The word â€œkeeperâ€ mentioned in section 2(2) refers the person who owns the animal or has it in his possession. This definition is provided under section 6(3) of the same Act. The word was also interpreted by the court in Flack v Hudson
. The case involved a horse rider who was injured while riding the horse. The owner of the horse knew that the horse had a propensity to be frightened by agricultural machine but the rider (keeper) did not. The keeper brought an action under section 2(2) against the owner of the horse for the damage. The court held that the Animals Act 1971 Act did not limit those who could sue the keeper of an animal to strangers or third parties. In the instant case, the person in possession of the animal, who was harmed by the animal, was not the keeper and was accordingly entitled to sue the owner. With regard to the word â€œsevereâ€ mentioned in section 2(2), it was held in Curtis v Betts that it was not necessary for the Plaintiff to show that the animal had abnormal characteristics which rendered it likely that any damage would be severe. In Wallace v Newton it was held that on the true construction of section 2(2) of the 1971 Act the words â€œcharacteristics of the animal which are not normally found in animals of the same speciesâ€ were to be given their ordinary, natural meaning. The court said the plaintiff in that case was therefore not required to prove that the horse which caused damage had a vicious tendency to injure people by attacking them, but merely that the horse had characteristics of a kind not normally found in horses. The case was distinguished on its facts by the court in Mirvahedy v Henley where it was held that the keeper of an animal would incur strict liability under section 2(2)(b) if the animal had displayed characteristics which, while they were not normally found in an animal of the same species, were normal for the animal in particular circumstances. According to section 2(2) the animalâ€™s characteristics must also be known to its keeper if the claim against the keeper is to be successful. In the pre- 1971 Act case of Osborne v Chocqueel the court said in order to support an action for damages for the bite of a dog it was necessary to show that the dog had to the defendant's knowledge bitten or attempted to bite some person before it bit the plaintiff; it is not sufficient to show that it had to the defendant's knowledge attacked and bitten a goat. In Breeden v Lampard the plaintiff suffered injury when her horse was kicked by the defendantâ€™s horse which had not kicked out before. Besides, there was nothing to suggest that the horse was anything more than a normal five-year old horse. The court held that the defendant horse rider was not in breach of the Animals Act 1971 or negligent in an accident where her horse kicked another rider, as she did not know of a propensity in that particular horse to kick another horse. Basically, section 4 of the Animals Act 1971 concerns liability for damage to land and property caused by trespassing livestock. As defined under section 11 of the Act, livestock means cattle, horses, asses, mules, hinnies, sheep, pigs, goats and poultry. Damage to land and property is not specifically mentioned under section 11. However, it can be said that damage to land and property is covered by section 11. As stated in section 4(2) livestock belongs to the person in whose possession it is. Such a person has immediate right to detain the livestock which has strayed on to the land owned or occupied by him. The right of detention can only be exercised if at the time the livestock strayed on to the land it was not under anyoneâ€™s control The right to detain the animal ceasesat the end of a period of 48 hours, unless within that period notice of the detention has been given to the officer in charge of a police station and also to the person to whom the livestock belongs, if the person exercising the right of detention knows that person. The fact that the person to whom the livestock belongs is liable for the damage or expenses incurred as a result of the keeping of the trespassing livestock was shown in Morris v Blaenau Gwent District Council where the court decided that the cost of catching and feeding the strayed animals qualified as expenses reasonably incurred within section 4 of the Act. An action under section 2(2) and one under section 4 have certain things in common. These include the fact that both provisions impose strict liability for damages caused by animals. Besides, in an action under both sections, a person is not liable for any damage which is wholly due to the fault of the person suffering it. Section 11 of the Act provides that â€œfaultâ€ has the same meaning as in the Law Reform (Contributory Negligence) Act 1945. To an appreciable extent, an action under section 2(2) and one under section 4 are not the same. A right to detain an animal exists only in relation to an action under section 4. Similarly, knowledge of an animalâ€™s unusual characteristics is necessary only in an action under section 2(2). Also, Section 5(2) provides that a person is not liable under section 2(2) of the Act for any damage suffered by a person who has voluntarily accepted the risk thereof. Section 5(3) also provides that a person is not liable under section 2(2) for any damage caused by an animal kept on any premises or structure to a person trespassing, if it is proved either that the animal was kept there for the protection of persons or property; or that keeping the animal there for that purpose was not unreasonable. Thus, it is only in an action under section 2(2) that issues such as â€œvoluntary acceptance of riskâ€ and â€œreasonableness of the purpose of keeping an animal on any premises or structureâ€ will come into play. In Cummings v Granger where the plaintiff brought an action under section 2(2), the defendant successfully pleaded these two defences. There are also some defences which are exclusive to an action under section 4. Section 5(5) provides that a person is not liable where livestock strayed from a highway and its presence was a lawful use of the highway. Damage will not be treated as due to the fault of the person suffering it merely on the ground that he could have prevented it by fencing. However, where it is proved that the damage would not have occurred but for a breach of a duty to fence, there will be no liability: section 5(6). As far as an action under section 2(2) is concerned, all these matters are irrelevant. Bibliography Bagshaw, R. and McBride, N. J. (2005) Tort Law (Longman Law Series), Harrow: Longman Hodge, J. (2004) Tort Law, Devon: Willan Publisher Hodgson, J. and Lewthwaite, J. (2004) Tort Law Textbook, Oxford: Oxford University Press Rogers, W. V. H. (2006) Winfield and Jolowicz on Tort, London: Sweet & Maxwell Rose, F. (2006) Blackstoneâ€™s Statutes on Contract, Tort and Restitution, Oxford: Oxford University Press Turner, C. (2007) Tort Law, London: Hodder Arnold Weir, T. (2006) An Introduction to Tort Law, Oxford: Oxford University Press 1
Footnotes  See section 11 of Animals Act 1971   2 All ER 982   1 All ER 769   2 All ER 106     2 QB 109  Unreported 21 March 1985  Section 7(2) of the Animals Act 1971  Section 7(3) of the Animals Act 1971  The Times 6 July 1982   1 All ER 104