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GAZE1TE
DECEMBER 1977
in many cases, merely leave the legal determination of the
issue to "the familiar calculus of negligence" — an
approach, which because of its familiarity, should hold no
terror for us. It would reintroduce flexibility into a branch
of the law that has become all too rigid and this flexibility
would also restore to the factual plane matters which
under the special rules have wrongly been treated as
questions of law. Finally, such an approach would make
the law clearer and more understandable to the lay
person, although determination of the rights of parties
would not be made appreciably easier in particular cases
as can be seen from the amount of litigation that, at
present, surrounds motor car accidents determined by
Negligence rules.
Against such a solution it could be argued that such a
proposal would be a solution which favours the "fault"
basis of liability, at a time when modem trends in the law
of Torts seem to favour principles of strict liability. See
e.g. Draft EEC Directive on Products' Liability, No Fault
Automobile Insurance Schemes in U.S.A. and Canada,
New Zealand Accident Compensation Act 1972, etc. To
suggest the abolition of
scienter
and cattle trespass at a
time when the general trend is towards strict forms of
liability is therefore regressive.
Second, at the other extreme, one could take the strict
liability imposed in the
scienter
action and in cattle
trespass as the norm and introduce legislation which
would make the keeper of any animal strictly liable for
injuries caused by that animal. This strict approach could
be supported nowadays by arguments based on the risk
theory of liability and by economic arguments which
would regard injuries committed by animals which form
part of a business (a farmer's cow, etc.) as part of the
producer's costs which should be borne by the producer,
and lastly, by arguments which suggest in all cases that
the owner of the animal is the person best positioned to
control the animal and to insure against the risk of injury
which such an animal may represent to other persons in
society.
Other arguments in favour of a strict liability approach
may be mentioned. First, much of the existing law relating
to animals is strict in its present form. Under the general
principles of law if the plaintiff succeeds in showing that
there was a trespass to land or to chattels, damage under
Rylands v. Fletcher
or damage under some forms of
Nuisance, the defendant's liability is strict. If the
defendant keeps a wild animal or a domestic animal
known to have a mischievous propensity, liability is strict.
If it is a case of cattle trespass, liability is strict and if it is
a case of dogs injuring cattle, liability is strict under the
Dogs Act 1906. In all these cases, under the existing law,
the defendant is liable even though he was not at fault.
Second, strict liability is not absolute liability. This
means that as well as Act of God, the plaintiffs own act
of omission could cause, in the appropriate
circumstances, the damages for such wrong to be reduced
in accordance with the apportionment provisions of the
Civil Liability Act 1961. Moreover, even a regime of
strict liability should contemplate an exception in the case
of a trespasser being injured by an animal. In such
circumstances reasonable care would seem to be a more
satisfactory standard than strict liability.
Third, strict liability regimes for injuries caused by
animals already exist in many other countries — France,
Germany, Italy, etc. — without any great legal or social
difficulty. Indeed in Canada, the Province of Quebec,
following a civil law tradition, has a strict regime and no
great difficulties are experienced even though all the other
Provinces are in the common law tradition.
Fourth, such a system would provide a clear and
simple legal rule which would undoubtedly reduce
litigation in this area. The attractions of legal certainty
and reduced litigation are powerful arguments in favour
of such a strict regime.
It must be admitted that many people in our society
might show an initial hesitancy in contemplating such a
rule of strict liability, but is is submitted that this reaction
is an emotional rather than a rational response to the
problem. It stems from the fact that many people
personalise the problem and view it from the limited
vantage of their own personal circumstances.
This conclusion, of course, although, as already noted,
very understandable, is itself wrong. It springs from an
incorrect assumption made 'by the layman that legal
liability should be co-extensive with moral culpability.
There are many cases, even within the existing rules
relating to liability for animals, where this is not so. In
these circumstances it could hardly be called unjust to
impose liability on the owner of the dog.
Third between these two approaches, the negligence
approach or the strict liability approach one could take up
an intermediate stance such as that adopted by the Law
Commission in England (Law Com. No. 13) and enacted
by Parliament in England in the Animals Act 1971. The
view of the Law Commission was that the
scienter
principle and the cattle trespass rule have much to
recommend them and should be retained. It felt that
although these rules should be tidied up and reduced to a
statutory form they should not be abolished. Strict
liability would remain, therefore, in these cases only; in all
other cases, whether the plaintiff had an action or not
would depend on the general principles of tort, and in
particular on Negligence and Nuisance. The position
which the Lsw Commission takes about these special
rules —
scienter
and cattle trespass — could also, of
course, be taken as regards any one of them alone. One
could suggest, for example, that strict liability should be
retained in cattle trespass only, but not in
scienter,
or
vice
versa.
The English approach has been criticised (Roberts,
(1968) 31 M.L.R. 683; Powell-Smith, (1971) 121 N.L.J.
584; Samuels, (1971) 34 M.L.R. 550) and the difficulties
which such legislation can produce are amply illustrated
in the recent Court of Appeals decision in
Cummings v.
Grainger
[1976] 3 W.L.R. 842, [1977] 1 All E.R. 104.
Noted in 40 M.L.R. 590-596. This was a case where the
plaintiff was savaged by the defendant's Alsatian dog
while trespassing on the defendant's premises at night.
Whatever one may say about the outcome of the case (the
plaintiff failed to recover) it is very clear that legislation
even in the nature of a reforming measure (The Animals
Act 1971 in this case) does not always make the law on a
particular topic less complicated or more easily
understood. Indeed, after reading this decision one is
convinced that the retention of a statutory form of
scienter
(Section 2 of Animals Act 1971) is misconceived
and unhelpful.
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