In Honour of Fenton - Liability for Animal Attacks
From time to time a client may require advice on injuries sustained as a result of animals.
Any injury caused by a wild animal such as lions, tigers or bears will be classified as a strict liability case. However, there are not that many of them roaming around Greenock or Gala.
The Animals (Scotland) Act 1987 confers strict liability unless one of the defences in the Act applies.
The Act applies to animals which are “of a species whose members generally are by virtue of their physical attributes or habits likely (unless controlled or restrained) to injure severely or kill persons or animals or damage property”.
In relation to dogs, strict liability only arises where the injury was caused by biting, savaging, attacking or harrying.
Where an animal falls within the classification specified above the keeper of that animal is strictly liable for any injury or damage which relates to the animals dangerous attributes or habits.
It is therefore surprising more people do not take out pet insurance to protect against the risk of damage being done by their animals.
It is also astonishing how many fingers have been bitten off by dogs when posties or leafleters have been delivering mail.
A simple thing like a letter cage could prevent these tragedies.
The interaction between the injured person and the animal is of relevance too. If an animal is provoked and attacking in defence the keeper is likely to invoke the defence that the injury was wholly the fault of the person sustaining it.
The English case of Jones v Baldwin provides an example of this defence in the context of the equivalent English legislation.
The case involved a riding accident. The claimant was kicked by another horse whilst competing in one of the showing classes at the Royal Welsh Show. There was a dispute about how this happened but the judge held that the claimant approached the horse from behind too quickly and too close so that he came well within kicking range. This caused the horse to kick out which was normal behaviour in the circumstances. The judge found that had the claimant ridden properly he would have been able to give the other horse a sufficiently wide berth and it would not have kicked out. The claimant put himself in a dangerous position and that was the cause of the accident. The defence applied and the claim failed.
There is also the defence that the person sustaining the injury willingly accepted the risk of injury as his.
A recent example of this is found in the Court of Appeal case of Goldsmith v Patchott.
In that case the claimant was injured when the horse she was riding bucked violently. Her argument was that she had accepted the risk of normal bucking but not the risk of violent bucking that had occurred and she was unaware of that possibility.
The court held this contention did not defeat the defence that she had voluntarily accepted the risk and thus her claim failed. The court held it was not a requirement of the defence that the claimant should foresee the precise degree of energy with which the animal would engage in its characteristic behaviour.
In conclusion, You Tube has a whole selection of hilarious clips showing animals doing the funniest thing. This however just shows that their behaviour can be unpredictable, erratic, energetic and exuberant.
If you are a dog owner you should, if you have not already done so, look out for “Fenton” on You Tube. Fenton is a very lovable Labrador. His exasperated owner screams at him to come back whilst he gleefully “harrys” a poor herd of deer in Richmond Park in London. To Fenton herding or chasing these deer is the most natural thing in the world. He means no harm but he can cause it.
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