Animal and fire damage liability Flashcards
what are the facts of Powelll v McGlynn and Bradlaw
the plaintiff was hit by a runaway horse and trap which
was left unattended by the first named defendant McGlynn who had left it to say good-night to his lady friend.
The 2nd named defendant was the owner of the horse and cart and the court imposed damages of £250 against McGlynn for failing to have regard to the danger created
when he left the animal unattended.
what are the facts of Scully.v Mulhall?
The defendant farmer led one of his cattle down a country road where the animal broke into a gallop and knocked the plaintiff from her bicycle.
The animal had never before acted like this and was by all accounts a very placid animal.
In the circumstances the court refused to hold the defendants liable as they could not have foreseen nor guarded against a risk they were not aware of
Trespass to land
Where a person causes or allows their animals to come into contact with the plaintiffs property the courts will apply the principles of trespass to land.
Proof of intention is required in trespass and so if the animals unknown to their owner wander into the property it will not be considered trespass and negligence principles are more applicable
Res ispa Loquitur - O’Reilly v Lavelle
In O’reilly v Lavelle, the court applied the rule to a situation where the defendant’s cattle had trespassed onto the roadway and injured the plaintiff
Johnson J found that “cattle properly managed should not wander ion the road and therefore the burden of proof shifts to the defendant to show that he rook reasonable care of his animals
Nuisance - Leeman V montagu
where the defendant’s chickens crowed loudly at unreasonable hours of the night causing a disturbance to the plaintiff. The court was satisfied that although animal noises would not usually be considered a disturbance of one’s rights in a rural setting, in the present case it constituted a nuisance because of the unreasonable hours and duration of the noise.
Cattle trespass
This rule imposes strict liability for damage caused by cattle which stray from one property to that owned by another.
If driven onto someone’s property- rules of trespass apply.
If brought onto high way and stray - rules of negligence apply.
The rule of scienter
Scienter refers to the nature of the animal itself. There are two rules applicable.
Scienter Rule 1 - concerns wild animals, imposes strict liability on owner as the dangerous
nature of animal is presumed.
Scienter Rule 2 - concerns tame animals - plaintiff must show defendant (owner) aware of animals dangerous propensity before liability will attach. Where this criterion is not fulfilled it is for the plaintiff to prove negligence on the balance of probabilities.”
what are the facts of Duggan v Armstrong?
The plaintiff was on holiday and while she was going through the foyer of the defendant hotel, she was attacked and seriously injure.
The dog was permitted to live around the hotel. The manager’s 9 year old son knew that dog, and he also knew that it had a vicious propensity.
The old common law position was re-enacted and restated in section 1 of the Control of Dogs Act 1986. There the owner of the dog is defined as the occupier of any premises where the dog is kept or permitted to live or remain unless the contrary is proven
This incident occurred prior to the Act, therefore the old scienter principle applied. Liability in scienter is attracted by possession or control rather than ownership of the animal.
McCarthy J suggested that actual knowledge is no longer a requirement and instead constructive knowledge will be enough
what was held in the case of Bennett & another v Walsh
Knowledge of a mischievous propensity by a nine year old girl was sufficient to render her father liable in scienter
Distinction between Ownership and Control - walker v Hall
The distinction between ownership and control is important for the purposes of imposing
liability and the courts have been willing to impose liability based on possession or control of
the animal, rather than ownership.
For example, in Walker v Hall a trainer of a horse was held
to be liable for the animal’s vicious tendencies.
describe the Animals Act 1985
Under the Animals Act 1985, the owner of an animal has a duty of care to take reasonable steps to ensure the safety of members of the public who come in to contact with that animal.
In considering a claim for injury caused by another’s animal, the courts will consider whether the person who has control of the animal breached their duty of care in the circumstances.
Furthermore a duty of care is owed by owners of land adjoining the highway to users of the highway as it can reasonably be foreseen that any body using the highway could be injured if
animals escape from the land.
Section 2(a) provides that where animals have strayed from unfenced land on to the public
highway a person who put the animals on the land will not be held liable if:
(i) the land is situated in an area where fencing is not customary; and
(ii) he had a right to place the animal on that land.
statutory liability for fire
Liability is also imposed under the Fire Services Act 1981 which has been complimented to a large extent by the provisions of the Health & Safety, Welfare at work Act 1989 & 2005.
The Fire Act requires that persons in control of premises used for entertainment, accommodation, treatment and other such public services must take all reasonable steps to guard against the outbreak of fire and to ensure the safety of persons on the premises in the event of an outbreak of fire.
why was the accidental fires act introduced?
Traditionally the common law imposed strict liability on occupiers of property for damage caused when a fire emanating from their property spread to and damaged another persons
property.
However this was seen as an unfair extension of liability imposing liability in circumstances that are beyond the control of the defendant and in 1943 the legislature introduced the Accidental Fires Act which exempts occupiers of buildings and land from liability for damage caused by fires which were deemed to have occurred accidentally.
what does the accidental fires act define accidental as
The legislation defines ‘accidental’ as not caused intentionally or negligently and in Woods v O’Connor, the defendant hotel owner locked the doors and windows of the plaintiffs room leaving the plaintiff trapped. However, while there was clear negligence on the part of the owner, the court accepted that the fire had been accidentally started and so the provisions of the Act applied.
what does the accidental fires act define damage as?
The court interpreted damage (for the purposes of the Act) as including personal injury and so where a person suffers trauma or physical injury as a result of a fire, they can recover damages if the fire is found to be caused by the defendant.
