Law of Tort

I began the evening with an apology, as the material we were to look at was not likely to be examined. In fact, it hasn’t seen the light of day in the past 12 years, and I don’t see any change for the next 12 years either.

Liability for fire is governed by s86 FIRES PREVENTION (METROPOLIS) ACT 1774, which despite its title is not confined to London.

No one will be liable for a fire which begins on his premises, unless he has been negligent in respect of it. If the fire arises by accident the occupier may be liable if he is negligent in allowing it to spread.

In Musgrove v Pandelis (1919) a fire accidentally started in the carburettor of the defendant’s car. The defendant’s employee negligently failed to turn off the petrol tap and the fires spread. The defendant was held liable not for the original fire but for the spreading of the fire.

We then turned to LIABILITY FOR ANIMALS. Liability for damage caused by animals can arise both at common law and statute, particularly the ANIMALS ACT 1971.

There are many ways in which a tort can be committed by means of an animal.

NUISANCE: An actionable nuisance may be caused by the noise or smell of animals: Bone v Seale (1975) 1 WLR 797 - the smell of pig manure and pig swill.

NEGLIGENCE: The tort of negligence will be the relevant action if the defendant fails to exercise reasonable care in the control of an animal. In Draper v Hodder (1972) the defendant’s Jack Russell terrier pups escaped from his premises and caused serious personal injury to the infant claimant, who was playing next door. The young dogs made their attack whilst acting as a pack and this was a foreseeable risk against which the defendant should have taken greater precautions.

TRESPASS: will be committed if a person intentionally brings about the direct contact of an animal with the body, land or chattels of the claimant.

RYLANDS v FLETCHER: it is quite possible that if animals were accumulated in a manner which constituted a non-natural use of the land, their escape, leading to foreseeable damage to the claimant, could give rise to liability under the rule.

OCCUPIERS’ LIABILITY ACTS: a lawful visitor or trespasser injured by an animal may be able to bring an action.

DEFAMATION: teach your parrot to defame someone!

The ANIMALS ACT 1971 replaced the common law rules which divided animals into fierce and docile categories for the purpose of establishing strict liability. The distinction is preserved, but as dangerous and non-dangerous species. The snag is that the change of definitions means that some animals have changed category. At common law, a camel was a docile animal because they are generally adapted to the service of man; under the Act, a camel is a dangerous species because it is not commonly domesticated in the British Isles.

Special liability is imposed for trespassing livestock, but they will also fall into the category of non-dangerous species if they cause harm in other ways than by trespassing, e.g. if a goat butts someone causing injury. Dogs are also dealt with separately for worrying livestock, but they also fall into the non-dangerous category generally.

A DANGEROUS SPECIES is defined by s6(2):

• not commonly domesticated in the British Islands (e.g. wild stags, foxes and wild cats); and


• whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage (e.g. snakes or tigers) or that any damage they may cause is likely to be severe (e.g. an elephant because of its sheer bulk).

In Behrens v Bertram Mills Circus (1957) the claimants were injured by the defendant’s Indian elephant. It was accepted that the animal was no more dangerous than a cow, but was still dangerous.

To be dangerous a species must satisfy both parts of the definition, thus many foreign animals will not be dangerous, e.g. bush baby, penguin. The question whether a species is dangerous or not under s6(2) is one of law. The unwieldy definition can give rise to problems of classification in relation to very commonplace animals such as rabbits and cats. The cat, for example is a commonly domesticated animal in the British Islands, but there are wild cats in Scotland and many numbers of the cat “family” (lions, tigers etc.) are not domesticated.

There also exists a Dangerous Wild Animals Act 1976 with regard to licensing, so the schedule of the statute lists them and they will be covered by s6. Bizarrely absent form the schedule is buffaloes and hippopotamuses, both evidently dangerous.

Liability for an animal of a dangerous species is governed by s2(1):

“where any damage is caused by an animal which belongs to a dangerous species, any person who is a keeper of the animal is liable for the damage, except as otherwise provided by this Act.”

Liability is therefore strict subject to the defences in s5. Liability will fall on the keeper of the animal, defined by s6(3) as someone who:

• owns the animal or has it in his possession; or


• is the head of a household of which a member under the age of sixteen owns the animal or has it in his possession. (This deals with the problem where the animal is theoretically owned by a child).

Liability for non-dangerous species animals is covered by s2(2):

“where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage . . . 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 (e.g. an unusually large size or a propensity to viciousness) or are not normally found except at particular times or in particular circumstances; and


• those characteristics were known to that keeper (it had done the act before) or were at any time known to a person who at that time had charge of the animal as that keeper’s servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.”

The complicated wording of s2(2) has been given detailed consideration by the Court of Appeal in Curtis v Betts (1990). The defendants owned a bull mastiff which regularly travelled in the back of a Land Rover. The claimant aged 10, lived in the same neighbourhood and was known to the dog. He approached the dog as it was being loaded into the Land Rover. The dog leapt at him and bit him twice. The Court of Appeal held that the requirement of s2(2) had been satisfied because the size of the dog (ten stone with massive jaw and teeth) meant that damage it caused was likely to be severe and the particular characteristic of the dog was to react aggressively when defending its territory. This behaviour was known to the keepers.

A causal link must exist between the characteristic in question and the damage suffered. In Jaundrill v Gillett (1996) the issue of causation enabled the owner of horses which had been maliciously released onto the public highway to win his appeal. On the facts it was the actual presence of the horses on the road and not any characteristic of the horses which had caused the collision between the claimant’s car and the horses.

Mirhavedy v Henley [2003] – the claimant was injured when a horse collided with his car. The horse had stampeded from a field breaking through fences. The horse was in extreme fear, although the cause was not known. This behaviour was in no way abnormal in such circumstances. It was held that s2(2)(b) Animals Act 1971 applied to normal characteristics which only occurred in particular circumstances. The statutory allocation of risk placed the responsibility for such on the keeper.

Knowledge of the particular characteristic is essential to this strict liability tort.

Defences are contained in s5. In addition, s10 and s11 have the effect of allowing a reduction in damages for contributory negligence where appropriate.

s5(1): there is no liability for damage which is wholly due to the fault of the person suffering it.

s5(2): there is no liability for damage to a person who has voluntarily accepted the risk thereof. Where a person is employed as a servant by the keeper of the animal and incurs a risk incidental to his employment he shall not be treated as accepting it voluntarily - s6(5). Nelmes v C.C. Avon [1993]: the claimant kicked a police dog who, quite naturally, bit him.

s5(3): There is no liability for any damage caused by an animal kept on any premises or structure to a person trespassing there, if it is proved either:

• that the animal was not kept there for the protection of persons or property; or


• (if the animal was kept there for the protection of persons or property) that keeping it there for that purpose was not unreasonable.

The GUARD DOGS ACT 1975 creates a criminal offence to use or permit the use of a guard dog on business premises without the guard dog being at all times under the control of the handler. There is no civil penalty, but it may mean that the use of a guard dog is now unreasonable for the purpose of s5(3).

Trespassing livestock is governed by s4(1) ANIMALS ACT and provides that a person to whom livestock belongs is liable:

• for damage done to the land onto which it strays, to the owner or occupier of the land;


• for damage done to property on the land.

There is no liability for personal injuries or damage to property belonging to a third party. Livestock “belongs” to the person in whose possession it is (s4(2)). Liability is strict, the only defences are provided by s5(1), (5) and (6):

s5(1) - If the damage is wholly due to the fault of the person suffering it. The damage shall not be treated as due to the fault of the person suffering it by reason only that he could have prevented it by fencing. But the defendant will not be liable under s4 where it is proved that the straying of the livestock on to the land would not have occurred but for a breach by any other person, being a person having an interest in the land, of a duty to fence. A causal link between the breach of duty to fence and the straying of the livestock is essential.

s5(5) - a person is not liable under s4 where the livestock strayed from a highway and its presence there was a lawful use of the highway, e.g. to herd livestock from one place to another. If there is evidence of lack of reasonable care (too many cattle for a single herdsman to control), then an action may arise in the tort of negligence.

The definition of livestock is found in s11: cattle, horses, asses, mules, hinnies ( a cross between a female donkey and a male horse), sheep, pigs, goats and poultry, and also deer not in the wild state and, in s3 and s9, also, while in captivity, pheasants, partridges and grouse.

s7 - the occupier may detain trespassing livestock and sell it after 14 days. During the period, the person must feed the livestock properly and give notice within 48 hours to the police and the owner of the livestock, if known. If an offer of amends is made, the livestock must be released to the owner. The sale must take place at market or by public auction to ensure a fair price. After deducting the costs of sale and of keeping the livestock pending sale and the compensation for the damage caused, any surplus must be returned to the owner.

There is a special provision for dogs worrying livestock in s3. Liability is for damage caused by a dog in injuring or killing livestock. The keeper of the dog is strictly liable. There is no requirement that the dog should have particular characteristics.

The owner has a defence under s5(4) “if the livestock was killed or injured on land on to which it had strayed and either the dog belonged to the occupier or its presence on the land was authorised by the occupier”.

s9 provides a defence for a person who kills or injures a dog which:

• is worrying or is about to worry livestock, and there are no other reasonable means of ending or preventing the worrying; or


• the dog has been worrying livestock, has not left the vicinity, is not under the control of any person and there are no practicable means of ascertaining to whom it belongs.

The person harming the dog must also show:

• that he was entitled to act for the protection of livestock (i.e. he owns either the livestock or the land on which it is kept, or is authorised to protect it by either owner); and


• that he gives notice to the police within 48 hours.

Animals straying onto the highway is governed by s8. A duty of care is owed, general principles of negligence will apply. If an animal does stray onto the highway the court will consider all matters relevant to the issue of reasonableness, for example nature of the animal, the possibility of fencing, proximity to the highway, amount of traffic usually on the highway.

s8(2) deals with certain types of land where the burden of fencing against the public highway would be very heavy, i.e. common land, town or village greens and such areas where fencing is not customary (for example moorland). In such areas, provided that the defendant had a right to place the animals on the land in question, lack of fencing, by itself, will not be sufficient to establish breach of duty of care.

Thank goodness that’s over, but we aren’t out of the woods yet.

We then turned to INTENTIONAL INTERFERENCE WITH INTERESTS IN CHATTELS. The TORTS (INTERFERENCE WITH GOODS) ACT 1977 provides a statutory basis for the complex law relating to wrongful interference with interests in chattels. The Act provides no full definition of the other torts in this area, and so reference to common law principles is necessary to understand the present law. The Act provides a new term “wrongful interference with goods” to embrace all torts concerned with the protection of interests in chattels:

• trespass to goods;


• conversion of goods;


• negligence


• any other tort which results in damage to goods or an interest in goods (s1).

Committing any act of direct physical interference with a chattel in the possession of another person without lawful justification is a trespass to goods.

It is probable that the tort must be committed intentionally and is actionable per se, just as with other forms of trespass. In common with other trespasses, the defendant’s act must be direct. A person mixing drugs with a greyhound’s food commits trespass to the food but not to the racehorse, as the effects on the greyhound are indirect and consequential.

The tort may be committed in many ways, for example by taking goods, moving goods from one place to another, striking a person’s dog, erasing a tape recording, shooting a racing pigeon or scratching a car.

The question of car clamping was raised in Arthur v Anker (1996). The Court of Appeal specified the conditions which, if met, would mean that the clampers committed no tort or crime:

• the existence of a clear warning notice stating that a vehicle parked on the premises without lawful authority would be wheel clamped and released only upon payment of a specified fee;


• the existence of means by which the motorist could communicate his wish to pay the fee (phone number on sign?);


• and the release of the vehicle without delay when the motorist tenders the fee.

In effect the motorist is volens to the clamping when these conditions are met, although what would happen if the motorist put a sign in his vehicle specifically stating that he does not consent has yet to be tested. Why? Because I have only recently thought about it!

Vine v Waitham Forest LBC [2000]. The claimant’s car was wheel clamped whilst parked on D’s property. Judge found that the claimant had not seen the warning notice. Argued by the defendant that whether a person had voluntarily assumed the risk or consented to the trespass to their property was to be tested objectively. CA rejected this. The act of clamping a car, even one that was trespassing was one of trespass to goods, unless it could be shown that the owner had consented to or willingly accepted the risk. You have to establish that P saw and understood the significance of the notice. Normally visible notices would lead to such a conclusion. However, the judge’s finding makes this impossible.

We will begin with looking at conversion next time.

There is no class next week, half-term. See you on Tuesday 20th February.