Explanatory Memorandum

History of the Reference
At the end of 1966 a report was presented to the Chief Justice’s Law Reform Committee by a sub-committee thereof presided over by the Honourable Mr. Justice P.H. Allen. This report examined “the whole question of civil liability for loss, injury and damage caused by animals”. The full committee resolved to recommend to the Honourable the Attorney General that this report, together with other matters, should be transmitted to the Law Reform Commission. This recommendation was subsequently adopted. The Commission has made the report the basis of its thinking on the reference and has gratefully relied on the investigations carried out by the sub-committee. Since the sub-committee reported, however, the (English) Law Commission has made detailed recommendations on the same matters and this Commission has taken advantage of the experience of that body also. This has led to further thinking with the result that the proposals should be circulated for comment to those bodies with whom Mr. Justice Allen’s Sub-committee conducted discussions orally and by correspondence.

Animals Straying on the Highway
At common law there is generally no liability in negligence in respect of animals straying on the highway. This matter is dealt with among others in s. 4 of the draft Bill. The first two subsections adopt the view of Mr. Justice Allen’s sub-committee that the basis of liability should be negligence. The sub-committee also considered that express provision should be include in the Bill so that no new obligation would be imposed on any landowner to erect or maintain fences and the failure to do so would not be made a ground of negligence. This Commission has encountered the difficulty that a bald legislative enactment to this effect might be capable of a number of interpretations, some of which might render the terms of subsection one ineffective while others might give little effect to the protection intended for landowners against being required to fence. In the result it circulates for consideration two alternative proposals for s. 4(3) either of which it is hoped would supply the need for a workable rule to act upon with regard to the relevance of fencing to negligence. Both seek to take account of the unfairness of making absence of fencing a ground of negligence in many parts of New South Wales. On the other hand both seek to avoid the frustration of the object of imposing liability for negligence which would result from giving a general licence not to fence extending to circumstances where the absence or disrepair of fences would connote indifference on the part of an occupier to extreme danger to others. Alternative A gives priority to the consideration that fairness might best be achieved by a flexible rule, alternative B to the consideration that if it is possible without causing undue hardship in individual cases a definite rule is preferable informing an occupier where he stands in regard to the relevance of fencing before any litigation arises.

The section as drafted goes beyond the Highway cases in regard to which the principal obstacles to applying the law of negligence have arisen. Other archaic rules have also imposed obstacles in the way of applying law of negligence to animals and it is desirable that these too should cease to trouble the courts.


Trespass of Cattle on Private Property
Under the present of common law a man is liable to his neighbour for the trespass of his cattle (including horses, sheep and poultry as well as cattle in the narrower sense) whether he has been in fault or not. This gives rise to anomalies since if anyone else than the occupier of private property suffers any harm liability for it depends - or would depend if our other proposals are adopted - on fault. The object of subsection (1) and (3) of section 5 of the draft Bill is to put an occupier of land who suffers damage in the position of, foe example, a user of the highway who is harmed by straying cattle, or a member of the family of an occupier of private property or one of his visitors who is harmed by cattle straying from elsewhere, so that all would have to prove fault. In most cases this would not be difficult, as evidentiary rules would assist the inference of negligence from the fact of the straying cattle. But the owner of the cattle would be placed in a fairer position than now in that he would be able to raise against an occupier the common sense excuses which provide as answer to the modern action for negligence instead of being compelled to rely on the narrow and obscure defences associated with ancient action for cattle trespass.

Distress
Subsections (2) and (4) of section 5 of the draft Bill clear away some old legal debris. Prior to the development in New South Wales of the statutory remedy of impounding, seizure of trespassing animals as security for payment for the harm was governed by the remedy of distress damage feasant. In the case of animals within the meaning of the impounding legislation (which comprise cattle, including camels, horses, sheep, goats and swine) the remedy has been wholly replaced by that legislation. Theoretically, distress could still take place in respect of other animals, and if the remedy were to be preserved for such cases attention would have to be given to modernising the remedy along the same lines as the impounding legislation, e.g., by providing for care to be taken of the animals. Since, however, the remedy is of doubtful advantage and contains some traps, for example, by suspending the right of action for damages, it has been thought better to abolish the remedy. Protection is given under the draft Bill to rights of seizure of animals for any other purpose than as security. the proposed legislation would also not effect the various rights of destruction of animals which exist (e.g. in the case of dogs) under statue or at common law.

Dangerous Animals
Section 6 of the draft Bill abolishes the liability existing independently of negligence for (a) harm done by animals of a kind classified by the common law as dangerous, e.g., lions or elephants, (b) harm done by tame animals where the owner knows the individual specimen is dangerous. The section makes such liability generally depend upon proof of fault. It is not expected that this will make much practical difference to plaintiff in making out a prima facie case, proof of which will generally be assisted by an inference of negligence arising out of the escape of the animal from control. But, as with straying cattle, the law is expected to be improved by permitting the defendant to raise the common sense considerations which go to provide an answer to the action for negligence rather than the technical and obscure defences which exist in the case of the ancient action under the scienter rule. In the present respect our proposals differ from those of Mr. Justice Allen’s sub-committee, which would have preserved the existing scienter rule. But we have been impressed both by the difficulties which the English Law Commission encountered in reducing the defences to the old action to comprehensive form and by the strictures of Lord Devlin on the action from the point of view of its inflexibility, e.g. in treating a circus elephant “no more dangerous than a cow” in the same way as a tiger. Moreover, the existing rule gives rise to anomalies in requiring a man to keep certain animals at his peril whereas for keeping inanimate objects which may be much more dangerous his liability will be dependent on fault. Where in the particular case the keeping of an animal in fact involves extreme danger the possibility of bringing an action under the rule in Rylands v. Fletcher, which can be applied both to animals and inanimate objects, to establish liability independent of fault, is preserved.

Liability for Harm Caused by Dogs
Under the Dog Act, 1966-67 (N.S.W.) liability for harm caused to personal property and animals by a dog is actionable independently of the fault of the defendant. Despite of our preference for founding actions in respect of animals generally on negligence, the draft Bill preserves the principles of strict liability in this case. The peculiar difficulty in the way of founding liability for dogs on negligence is that dogs are generally allowed a good deal of freedom, and it seems better to make the owner liable for harm caused by the dog turning out to be vicious or mischievous as an insurer rather than to attempt in each case to have a jury - perhaps consisting of persons with widely differing attitudes towards dogs - to attempt to work out whether the defendant should have kept the dog under some particular degree of restraint or not keep it all. At the same time it is thought that the liability independent of negligence should be kept within limits. It would not seem fair, for example, to impose on a dog owner - perhaps uninsured - liability for harm done in a motor accident where the danger was really created by the negligence of a motorist in failing to deal properly with an ordinary motoring contingency created by the presence of a dog on the road. In this respect we have sought some clarification of the present Dog Act section. It had in any case to be redrafted because of the reference in it to the scienter rule which the draft Bill proposes to abolish.

Subsidiary Provisions
Section 7 of the draft Bill seeks to avoid the imposition of liability independent of negligence in a civil action by a process of inference from the present existence of a statute imposing a penalty in the particular circumstances. While it is felt that any such inference would in any case be dubious, it seems better to clarify the situation in this respect rather than leave open the possibility that the policy of the draft Bill should be defeated in particular circumstances by a side wind.

Section 8 of the draft Bill clarifies provisions of the Impounding Act and Local Government Act which have been the subject of judicial criticism. The object of the section is to remove doubts as to the circumstances in which a right to impound or actual impounding affects the right to bring a civil action for damages, the answer given by the proposed provision being that they do not affect it at all. Under the sections proposed to be replaced provision was made for the plaintiff to be deprived of his costs in the civil action where the damages recovered in it were no more than were recovered, or might have been recovered, under the impounding legislation. This provision has been dropped, both because of possible obscurities in its operation and because of the inappropriateness to present legislative policies of fixed rules fettering the discretion of the judge in relation to costs.

Section 2 of the draft Bill constitutes a standard type of provision binding the Crown in its various capacities, which may be of importance, for example, in relation to police dogs.

Section 3 is designed to ensure the integration of the proposals of the Bill with the common law applicable in the State, as being appropriate to a set of provisions designed to reform that law. Subsection one will operate, for example, to ensure that the reforming provisions are treated in the same way as the common law in cases involving a foreign element. Subsection (2) will operate, for example, to prevent the common law rules relating contributory negligence from being excluded by resort to the argument, which would be of dubious validity in any case, that the breaches of duty under the provisions of the draft Bill should be regarded as breaches of statutory duty within the meaning of the Statutory Duties (Contributory Negligence) Act, 1945.


TENTATIVE PROPOSALS FOR ANIMALS BILL
(Formal Parts)

PART I - INTRODUCTORY

1. (1) This Act may be cited as the Animals Act, 1969 and is divided into Parts as follows:

Part I - Introductory.
Part II - Liability for Animals.
Part III - Amendment of other Acts.

(a) a municipality within the meaning of the Local Government Act, 1919;
(b) a village, town or urban area within the meaning of that Act; or
(c) an area notified for the purposes of this section by a proclamation of the Governor published in the Gazette - a person shall not be in breach of a duty imposed by subsection one of this section by reason only of refraining from fencing or repairing fences in any case where he may do so lawfully and without committing a breach of duty to the person injured apart from the provisions of this section.

(a) the provisions of the Impounding Act, 1898, or of Part XVIII of the Local Government Act, 1919;
(b) the circumstances in which any seizure or impounding may be made under any other enactment; or
(c) the law relating to the seizure of any animal for the protection of any person or property or relating to the removal of any animals in preservation of any right of property.

(a) animals belonging to a kind classed by law as of a dangerous nature;
(b) animals belonging to a kind not classed by law as of a dangerous nature where the owner or keeper is aware or presumed to be aware of dangerous characteristics of the individual animal.

58. The existence of any right given by this Act or its exercise shall not prevent any person from maintaining any action for damage which he would have otherwise.

(2) The existence of any right given by this Part or its exercise shall not prevent any person from maintaining any action for damage which he would have otherwise.

20. (1) The owner of a dog shall be liable whether negligent or not for the death of or injury to any person, or animal, or damage to property by his dog, whether the harmful happening is of a kind which could reasonably be foreseen as a result of keeping the dog if it is should be or become of savage or mischievous propensity.

(2) Liability under this section shall not extend to harm for which a dog’s presence or actions give occasion where that harm is reasonably to be regarded as exclusively within a risk created by the person harmed or some third person rather than within the risk in respect of which the owner of the dog is sought to be made liable.