Cattle trespass was an ancient common lawtort whereby the keeper of livestock was held strictly liable for any damage caused by the straying livestock.[1] Under English law the tort was abolished by section 1(1)(c) of the Animals Act 1971,[2] but the tort continues to subsist in other common law jurisdictions, either in its original form as a common law tort,[3] or as modified by statute.[4]
Liability for cattle trespass is similar to, but conceptually distinct from, the old common law scienter action in relation to strict liability for animals which are known to be vicious. In many of the reported cases, claims for cattle trespass and scienter are pleaded in the alternative.[5]
History and development
The first recorded writ for cattle trespass was issued during the reign of King John (1199-1216).[6] However the tort initially related to the keeping of animals; it was not until 1353 it was expanded to cover liability caused by their escape.[7]
Since its inception, cattle trespass appears to have been a tort of strict liability, and so the defendant is liable irrespective of whether or not they were negligent or otherwise at fault.[8]
Cattle trespass includes (but is not limited to) straying cattle.
Although the name of the tort refers to cattle, the tort encompasses a wide array of livestock, including horses, oxen, sheep, pigs, donkeys, goats, fowls, geese and ducks. It also has been suggested academically that it would include peacocks, turkey and tame deer.[9] However it does not apply to either dogs or cats.[10] Numerous different reasons have been suggested as to why dogs should be exempt, none of which are entirely satisfactory.[11]
The tort also limited recovery to "damage natural to the species of the animal." Damages contrary to the species of the animal was not thought to be foreseeable and therefore not recoverable.[5] Furthermore, because the action relates to trespass, only the possessor of the land had standing to sue for cattle trespass. Similarly, the defendant against who a claim may be made is the possessor of the animal (rather than its owner).
Strict liability
Although the tort was principally a tort of strict liability, certain aspects of it were fault based. For example, if the owner was herding his livestock along the public highway, he would only be liable for any damage caused by the livestock to neighbor properties if he failed to use sufficient care. However, if the livestock escaped from an enclosure, he would be strictly liable for failing to prevent their escape.
Criticism
In terms of its historical development, cattle trespass belongs in the same broad of group of strict liability torts for failure to control as Rylands v Fletcher[1868] UKHL 1. Such strict liability torts have been criticized as "anachronistic" in modern times.[12] Whilst a number of cases such as Donoghue v Stevenson[1932] UKHL 100 and Letang v Cooper[1964] EWCA 5 have gradually abrogated a number of the old strict liability torts such as trespass to the person toward fault-based torts which require proof of negligence, no such evolution has yet occurred in English law in relation to "escape based" torts.
Whilst the House of Lords chose to preserve the strict liability elements of the rule in Rylands v Fletcher in Transco plc v Stockport Metropolitan Borough Council[2003] UKHL 61, they also limited claims to damage to property. Had cattle trespass remained a separate tort under English law at the time, it seems reasonable to infer it would also have been so limited. In refusing to abolish the strict liability elements of the tort, the House of Lords declined to follow the position taken by the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 and abolish the strict liability test.
Further reform at common law by the courts has in England to the tort have been precluded by the codification of the tort in the Animals Act 1971. But it is noteworthy that the Animals Act broadly preserved the old form of strict liability for animal escapes, but that section 4(1) of the Animals Act limits claims to damage to property (and is thereby consistent with Transco plc v Stockport Metropolitan Borough Council.
Remedies
In addition to being able to sue for damages, a person who suffered loss as a result of trespassing livestock was formerly able to seize and sell the livestock under a common law remedy known as distress damage feasant. Under English law that right has now been abolished by section 7(1) of the Animals Act. Although the injured party is still entitled to detain the livestock, any sale must be conducted by public authorities.
Footnotes
↑ Clerk, John Frederic; Lindsell, William Harry Barber (2010). Michael A. Jones; Anthony M. Dugdale (eds.). Clerk & Lindsell on Torts (21sted.). 21-01. ISBN9781847037961.
1 2 Cox v Burbridge (1863) 13 CB(NS) 430. A horse escaped and kicked a child; recovery was not allowed on the basis that it was not in a horses natural nature to kick humans. The alternative claim in scienter also failed as the animal was not shown to have a prior propensity to be dangerous.
↑ T. Ellis Lewis (1954). Winfield on Torts (6thed.). p.623.
↑ Brown v Giles (1823) 1 C&P 118 (dogs), Buckle v Holmes [1926] 2 KB 125 (cats).
↑ They include: (i) dogs are not normally confined, (ii) it is in the public interest that dogs should roam, (iii) a dog is less cumbersome than an oxen or horse (although presumably not ducks), (iv) transient incidents from dogs are mere accidents to be expected in the nature of things, (v) dogs cannot be restrained in the same way as cattle. Winfield, p.626-627.
A tort, in common law jurisdiction, is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. It can include intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy, and many other things. The word 'tort' stems from Old French via the Norman Conquest and Latin via the Roman Empire.
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
Trespass is an area of criminal law or tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.
This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes. There are three general categories of torts: intentional torts, negligence, and strict liability torts.
In Australia, Torts are common law actions for civil wrongs. Unless barred by statute, individuals are entitled to sue other people, or the state; for the purpose of obtaining a legal remedy for the wrong committed.
In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue to succeed, a claimant must first prove that he had better right to possession of the chattel than the defendant and second that the defendant refused to return the chattel once demanded by the claimant.
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
Rylands v Fletcher[1868] UKHL 1 was a decision by the House of Lords which established a new area of English tort law. Rylands employed contractors to build a reservoir, playing no active role in its construction. When the contractors discovered a series of old coal shafts improperly filled with debris, they chose to continue work rather than properly blocking them up. The result was that on 11 December 1860, shortly after being filled for the first time, Rylands' reservoir burst and flooded a neighbouring mine, run by Fletcher, causing £937 worth of damage. Fletcher brought a claim under negligence against Rylands, through which the case eventually went to the Exchequer of Pleas. At the court of first instance, the majority ruled in favour of Rylands. Bramwell B, however, dissenting, argued that the claimant had the right to enjoy his land free of interference from water, and that as a result the defendant was guilty of trespass and the commissioning of a nuisance. Bramwell's argument was affirmed, both by the Court of Exchequer Chamber and the House of Lords, leading to the development of the "Rule in Rylands v Fletcher"; that "the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape".
Scienter is a legal term for intent or knowledge of wrongdoing. An offending party then has knowledge of the "wrongness" of an act or event prior to committing it.
Premises liability is the liability that a landowner or occupier has for certain torts that occur on their land.
The following outline is provided as an overview of and introduction to tort law:
Transco plc v Stockport Metropolitan Borough Council[2003] UKHL 61 is an important English tort law case, concerning the rule in Rylands v. Fletcher.
Burnie Port Authority v General Jones Pty Ltd is a tort law case from the High Court of Australia, which decided it would abolish the rule in Rylands v Fletcher, and the ignis suus principle, incorporating them generally into the tort of negligence.
Nuisance in English law is an area of tort law broadly divided into two torts; private nuisance, where the actions of the defendant are "causing a substantial and unreasonable interference with a [claimant]'s land or his/her use or enjoyment of that land", and public nuisance, where the defendant's actions "materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects"; public nuisance is also a crime. Both torts have been present from the time of Henry III, being affected by a variety of philosophical shifts through the years which saw them become first looser and then far more stringent and less protecting of an individual's rights. Each tort requires the claimant to prove that the defendant's actions caused interference, which was unreasonable, and in some situations the intention of the defendant may also be taken into account. A significant difference is that private nuisance does not allow a claimant to claim for any personal injury suffered, while public nuisance does.
Trespass in English law is an area of tort law broadly divided into three groups: trespass to the person, trespass to goods and trespass to land.
Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53 is a case in English tort law that established the principle that claims under nuisance and Rylands v Fletcher must include a requirement that the damage be foreseeable; it also suggested that Rylands was a sub-set of nuisance rather than an independent tort, a debate eventually laid to rest in Transco plc v Stockport Metropolitan Borough Council.
Tort law in India is a relatively new common law development supplemented by codifying statutes including statutes governing damages. While India generally follows the UK approach, there are certain differences which may indicate judicial activism, hence creating controversy. Tort is breach of some duty independent of contract which has caused damage to the plaintiff giving rise to civil cause of action and for which remedy is available. If there is no remedy it cannot be called a tort because the essence of tort is to give remedy to the person who has suffered injury.
Mirvahedy v Henley & Henley[2003] UKHL 16 is a House of Lords case concerning the Animals Act 1971.
The Animals Act 1971 is an Act of the Parliament of the United Kingdom the purpose of which was to codify civil liability for damage done by animals in England and Wales.
Distress damage feasant is a common law self-help legal remedy whereby a person who is in possession of land may impound a chattel which is wrongfully on that land to secure the payment of compensation for damage caused by it. It is part of the law relating to distraint. In some cases the party also has the right to sell the chattel. The chattel may be inanimate, or it may be an animal or livestock.
This page is based on this Wikipedia article Text is available under the CC BY-SA 4.0 license; additional terms may apply. Images, videos and audio are available under their respective licenses.
