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GAZETTE
JULY/AUGUST 1988
St ray ing An ima l s:
the Burden of Proof
by:
Gerald J. Needham, B.A., Barrister-at-Law
Section 2(1) of the Animals Act,
1985, states " So much of the rules
of the common law relating to
liability for negligence as excludes
or restricts the duty which a person
might owe to others to take such
care as is reasonable to see that
damage is not caused by an animal
straying on to a public road, is
hereby abolished." This section is,
I believe, causing problems of
interpretation for District Justices
in the absence of precedent case
law. Prior to its enactment and
following the maxim laid down in
Sear/e -v- Wallbank
[1947] A.C.
341, negligence did not attach to
l a n d own e rs
wh o se
an ima ls
wandered on to highways and
caused damage thereon.
Section 2(1) of the 1985 Act
removes this immunity and makes
l andowne rs liable for damage
caused by their animals straying
from their lands on to highways,
but g r ounds t h at l i ab i l i ty in
neg l i gence. The Law Re f o rm
Commission (Working Paper No. 3
of 1977) r e c omme n d ed t he
imposition of strict liability on
landowners for straying animals;
however, the legislature in its
w i sdom decided not to impose
strict liability, but dealt w i th the
matter as set out in the section
referred to.
The burden of proof is the
obligation upon a party to establish
by evidence the facts which are in
issue in a particular case. In civil
cases the burden lies upon the
plaintiff who would seek to affirm
a particular issue unless the
defendant raises another issue e.g.
contributory negligence, when the
onus of proving this defence would
shift to him the defendant. The
burden of adducing evidence rests
upon the party who would fail if no
ev i dence at all, or no more
evidence, were given. This burden
of adducing evidence shifts from
the party who affirms to his
opponent where a presumption
exists or a
prima facie
case has
been proved. The presumption of
negligence, res ispa loquitur, would
therefore shift the burden should it
exist in a particular case.
Reliance can be placed on this
d o c t r i ne in place of f u r t h er
evidence of negligence if a plaintiff
suffers damage as a result of
something, which is under the
exclusive control of the defendant
or his servants, getting out of such
c on t r o l. This d o c t r i ne
was
explained by Erie, C . J., in
Scott -
v- The London Dock Co.
(1865) 3
H. & C. 596 at 601 ". . . where the
thing is shown to be under the
management of the defendant or
his servants, and the accident is
such as in the ordinary course of
things does not happen if those
who have the management use
proper care, it affords reasonable
evidence, in t he absence of
explanation by the defendants, that
the accident arose from want of
care".
The burden would also shift to
the defendant where one of the
matters to be proved by the plaintiff
lies peculiarly within the knowledge
of the defendant - that is where, if
a negative averment is made by a
plaintiff which is peculiarly within
the knowledge of the defendant,
the burden of rebutting such
averment lies upon the defendant.
The operation of this "peculiar
knowledge" maxim can be seen in
The General Accident Fire & Life
Assurance
Corporation
-v-
Ftobertson
[1909] A.C. 404, where
the p l a i n t i ff alleged t hat the
defendant Corporation had not
registered him as a policyholder
before a certain date. The Court
held that the onus of proving such
registration lay on the defendants,
since the matter was one of
internal organisation.
In Stephen's
Digest of the Law
of Evidence,
9th ed. (Art. 96), the
rule is stated as follows: " The
burden of proof as to any particular
fact lies on that person who wishes
the Court to believe in its existence,
unless it is provided by any law that
the burden of proving that fact shall
lie on any particular person; but the
burden may in the course of a case
be shifted from one side to the
other, and in considering the
amount of evidence necessary to
shift the burden of proof the Court
has regard to the opportunities of
knowledge w i th respect to the fact
to be proved wh i ch may be
pos ses sed
by
t he
pa r t i es
respectively."
In District No. 3, District Justice
Patrick J. Brennan sees Section
2(1) of the 1985 Act as creating a
res ipsa loquitur
presumption. He
would say that where a plaintiff
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