As stated in the preamble to the Act, the intent of the Animals Act 1971 is to do proviso with regard to civil liability for harm done by animate beings and with regard to protection of farm animal from Canis familiariss ; and for intents connected with those affairs. This paper compares and contrasts an action under subdivision 2 ( 2 ) of the Act with one under subdivision 4 of the same Act. The two commissariats are as follows:
Section 2 ( 2 ) :Where any harm is caused by an animate being which does non belong to a unsafe species, any individual who is keeper of the animate being is apt for the harm, except as otherwise provided by this Act if: –
- the harm is of a sort which the animate being, unless restrained, was likely to do or which, if caused by the animate being, was likely to be terrible ; and
- the likeliness of the harm or of its being terrible was due to features of the animate being which are non usually found in animate beings of the same species or are non usually so found except at peculiar times or in peculiar fortunes ; and
- those features were known to that keeper, or were at any clip known to a individual who at that clip had charge of the animate being as that keeper ‘s retainer or, if the keeper is the caput of a family, if they were known to any other member of the family under the age of 16 who is besides deemed to be a keeper of the animate being.
Section 4: Where farm animal belonging to any individual strays on to set down in the ownership of another and:
- harm is done by the farm animal to the land or to any belongings on it which is in the ownership or ownership of the other individual ; or
- any disbursals are moderately incurred by that other individual in maintaining the farm animal while it can non be restored to the individual to whom it belongs or while it is detained in pursuit of subdivision 7 of this Act, or in determining to whom it belongs ; the individual to whom the farm animal belongs is apt for the harm or disbursal, except as otherwise provided by this Act.
( 2 ) For the intent of this subdivision any farm animal belongs to the individual in whose ownership it is.
The Act draws a differentiation between animate beings which belongs to a unsafe species and those which do non belong to a unsafe species. The Act defines “species” as including “sub-species and assortment [ 1 ] . The word “keeper” mentioned in subdivision 2 ( 2 ) refers the individual who owns the animate being or has it in his ownership. This definition is provided under subdivision 6 ( 3 ) of the same Act. The word was besides interpreted by the tribunal in Flack V Hudson [ 2 ] . The instance involved a Equus caballus rider who was injured while siting the Equus caballus. The proprietor of the Equus caballus knew that the Equus caballus had a leaning to be frightened by agricultural machine but the rider ( keeper ) did non. The keeper brought an action under subdivision 2 ( 2 ) against the proprietor of the Equus caballus for the harm. The tribunal held that the Animals Act 1971 Act did non restrict those who could action the keeper of an animate being to aliens or 3rd parties. In the instant instance, the individual in ownership of the animate being, who was harmed by the animate being, was non the keeper and was consequently entitled to action the proprietor. With respect to the word “severe” mentioned in subdivision 2 ( 2 ) , it was held inCurtis V Betts[ 3 ] that it was non necessary for the Plaintiff to demo that the animate being had unnatural features which rendered it likely that any harm would be terrible.
InWallace VNewton[ 4 ] it was held that on the true building of subdivision 2 ( 2 ) of the 1971 Act the words “characteristics of the animate being which are non usually found in animate beings of the same species” were to be given their ordinary, natural significance. The tribunal said the complainant in that instance was hence non required to turn out that the Equus caballus which caused harm had a barbarous inclination to wound people by assailing them, but simply that the Equus caballus had features of a sort non usually found in Equus caballuss. The instance was distinguished on its facts by the tribunal inMirvahedy V Henley[ 5 ] where it was held that the keeper of an animate being would incur rigorous liability under subdivision 2 ( 2 ) ( B ) if the animate being had displayed features which, while they were non usually found in an animate being of the same species, were normal for the animate being in peculiar fortunes. Harmonizing to subdivision 2 ( 2 ) the animal’s features must besides be known to its keeper if the claim against the keeper is to be successful. In the pre- 1971 Act instance ofOsborne V Chocqueel[ 6 ] the tribunal said in order to back up an action for amendss for the bite of a Canis familiaris it was necessary to demo that the Canis familiaris had to the suspect ‘s cognition bitten or attempted to seize with teeth some individual before it bit the complainant ; it is non sufficient to demo that it had to the suspect ‘s cognition attacked and seize with teeth a caprine animal. InBreeden V Lampard[ 7 ] the complainant suffered hurt when her Equus caballus was kicked by the defendant’s Equus caballus which had non kicked out before. Besides, there was nil to propose that the Equus caballus was anything more than a normal five-year old Equus caballus. The tribunal held that the defendant Equus caballus rider was non in breach of the Animals Act 1971 or negligent in an accident where her Equus caballus kicked another rider, as she did non cognize of a leaning in that peculiar Equus caballus to kick another Equus caballus.
Basically, subdivision 4 of the Animals Act 1971 concerns liability for harm to land and belongings caused by intruding farm animal. As defined under subdivision 11 of the Act, farm animal agencies cowss, Equus caballuss, buttockss, mules, hinnies, sheep, hogs, caprine animals and domestic fowl. Damage to land and belongings is non specifically mentioned under subdivision 11. However, it can be said that harm to land and belongings is covered by subdivision 11. As stated in subdivision 4 ( 2 ) farm animal belongs to the individual in whose ownership it is. Such a individual has immediate right to confine the farm animal which has strayed on to the land owned or occupied by him. The right of detainment can merely be exercised if at the clip the farm animal strayed on to the land it was non under anyone’s control [ 8 ] The right to confine the animate being ceasesat the terminal of a period of 48 hours, unless within that period notice of the detainment has been given to the officer in charge of a constabulary station and besides to the individual to whom the farm animal belongs, if the individual exerting the right of detainment knows that individual. [ 9 ] The fact that the individual to whom the farm animal belongs is apt for the harm or disbursals incurred as a consequence of the maintaining of the intruding farm animal was shown inMorris V Blaenau Gwent District Council[ 10 ] where the tribunal decided that the cost of catching and feeding the strayed animate beings qualified as disbursals moderately incurred within subdivision 4 of the Act.
An action under subdivision 2 ( 2 ) and one under subdivision 4 have certain things in common. These include the fact that both commissariats impose rigorous liability for amendss caused by animate beings. Besides, in an action under both subdivisions, a individual is non apt for any harm which is entirely due to the mistake of the individual enduring it. Section 11 of the Act provides that “fault” has the same significance as in the Law Reform ( Contributory Negligence ) Act 1945.
To an appreciable extent, an action under subdivision 2 ( 2 ) and one under subdivision 4 are non the same. A right to confine an animate being exists merely in relation to an action under subdivision 4. Similarly, cognition of an animal’s unusual features is necessary merely in an action under subdivision 2 ( 2 ) . Besides, Section 5 ( 2 ) provides that a individual is non apt under subdivision 2 ( 2 ) of the Act for any harm suffered by a individual who has voluntarily accepted the hazard thereof. Section 5 ( 3 ) besides provides that a individual is non apt under subdivision 2 ( 2 ) for any harm caused by an carnal kept on any premises or construction to a individual trespassing, if it is proved either that the animate being was kept at that place for the protection of individuals or belongings ; or that maintaining the animate being at that place for that intent was non unreasonable. Therefore, it is merely in an action under subdivision 2 ( 2 ) that issues such as “voluntary credence of risk” and “reasonableness of the intent of maintaining an animate being on any premises or structure” will come into drama. InCummingss V Granger[ 11 ] where the complainant brought an action under subdivision 2 ( 2 ) , the suspect successfully pleaded these two defense mechanisms.
There are besides some defense mechanisms which are sole to an action under subdivision 4. Section 5 ( 5 ) provides that a individual is non apt where farm animal strayed from a main road and its presence was a lawful usage of the main road. Damage will non be treated as due to the mistake of the individual enduring it simply on the land that he could hold prevented it by fencing. However, where it is proved that the harm would non hold occurred but for a breach of a responsibility to fencing, there will be no liability: subdivision 5 ( 6 ) . Equally far as an action under subdivision 2 ( 2 ) is concerned, all these affairs are irrelevant.
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