Duty of care
Individuals who keep any animals are under a legal duty of care to prevent them from causing harm to others. This is a civil liability under the law of tort, which means that where harm is caused – action can be taken against the animal owner by the person who suffered loss or injury in the civil courts.
If the animal’s owner is negligent in looking after or restraining the animal, and this directly results in harm, injury or loss to another person (or their property), then the owner will be liable in negligence. In any negligence claim, the following elements must be established to make out a successful claim:
- Duty of care
- Breach of the duty
- Damage or injury
Where negligence can be demonstrated, the victim is entitled to compensation in respect of their pain and injury, and losses resulting from the breach.
In addition to negligence, there is specific legislation governing liability for animals which, in many cases, provides an easier and more robust route to establishing a legal claim and securing damages.
Animals Act 1971
The Animals Act 1971 provides a distinction between dangerous and non-dangerous species.
Under section 2(1) of the 1971 Act, where damage is caused by an animal from a dangerous species, any person who is a keeper of the animal is liable for the damage, subject to certain exceptions.
A dangerous species is one which:
- is not commonly domesticated in the British Isles; and
- which, when fully grown, unless restrained, is either likely to cause severe damage or is such that any damage which it does cause is likely to be severe.
Under the Act, the keeper of a dangerous animal is strictly liable for any harm which may have been caused by that animal, regardless of whether or not the keeper or owner was at fault. Strict liability means neither negligence nor intent is required for liability to be shown.
A common misconception when considering strict liability under the Animals Act 1971 is that the damage caused is that usually associated with that animal, eg. biting. However, it applies to any damage caused, for instance, if an animal is being transported by a trailer but the animal suddenly moves, the trailer could be thrown off balance and cause damage to a third party (or vehicle) on the road.
Keeper of the animal
The keeper of the animal is defined by the Act as:
- the owner who is in possession;
- the head of the household if the owner is under 16 years old; or
- an existing keeper who loses ownership or possession, until there is a new keeper.
The Dangerous Wild Animals Act 1976
Note that keepers of dangerous wild animals are required to take out insurance policies against liability for damage caused to third parties and to be licensed by the local authority (Dangerous Wild Animals Act 1976).
Under Section 2(2) of the 1971 Act, where damage is caused by an animal from a non-dangerous species, the keeper of the animal is liable for the damage. Animals within this category include dogs, cattle, horses, etc.
To prove liability under Section 2(2), the following needs to be established:
- the damage is of a kind which the particular animal, unless restrained, is likely to cause – or if caused is likely to be severe;
- such likelihood is due to the characteristics of the particular animal not normally found in animals of the same species, or not so except at certain times or in certain circumstances;
- that those characteristics were known to the keeper as defined above.
Various defences to a claim under the 1971 Act are available, including:
- Contributory negligence
A keeper is not liable where the damage caused is due wholly to the fault of the other person. Where the other person was partly to blame, contributory negligence can reduce the amount of damages the keeper may be liable to pay.
It is a defence if the other person voluntary assumed or accepted the risk of harm or damage from the animal. This defence is not available if the risk is ordinarily incidental to that person’s employment, for instance, someone working as a lion tamer’s assistant.
It is a defence where the keeper can prove that the animal was not deliberately kept to protect people or property from trespassers, or if it was – that this was not unreasonable in the circumstances.