The article is written by Tridib Mandal.

Introduction

Dogs are indeed adorable animals, but when there is an injury caused by them, the injured parties, legally speaking, are in a flutter. The claimants are generally at loss with regards to the laws best serving their purpose to get an adequate compensation. 

In this article, the author will try to determine the basis of liability and compensation in cases of harm by dogs and will trace the approaches taken by various common law countries in determining such liability. Further, the author will look into the common problems which arise while applying strict liability in the case of dogs. It will then analyze the position of strict liability regarding the harm done by dogs in India and end by drawing a conclusion on this topic.

Liability for harm by dogs

Apart from having dogs for companionship ever since the Neolithic period, there were also instances of liabilities being placed in case of any harm done by them. The liability can be traced back to medieval times where a writ stated: “quod defendens quondam canem ad mordendum aves consuetum scienter retinuit.” which means that if the propensity of an animal to harm and the owner’s knowledge about the same is proven, both of them will be liable. However, with time, changes occurred in the society as well as the laws. It is now under these laws that the liability of an owner is decided to be either strict or fault. Fault liability refers to liability imposed on the defendant due to a tortious act which arises out of his own fault, whereas a person or organization carrying on activities inherently hazardous in nature are said to have strict liability as they need to compensate for any damages arising out their act, irrespective of their fault. 

The common law categorizes animals under two major heads:

• Ferae Naturae, animals which are inherently dangerous.
• Mansuetae Naturae, animals which are harmless by nature. 

Animals which are, from the experience of humankind, known to be harmless, domesticated and are presumed to be tame and docile, fall under the category of Mansuetae Naturae. Dogs are generally considered to be harmless domestic animals and thus they form a large part of this category. According to the ‘Scienter Rule’ in common law, for any harm done by the dogs, the owners are liable only if the plaintiff proves that: (a) The dog had a vicious nature or propensity to do such harm; and

(b)The owner had the knowledge of such harm.

The liability is based on the strict liability rule which states that one who brings on to his land any dangerous thing (vicious propensity of the dog), should be liable even without any fault of his own if such thing causes foreseeable harm (knowledge of the defendant). It is also required to prove that the harm caused was a direct result of the nature of the dog and not otherwise. For example- if a person gets frightened by a dog and steps on the road and a car hits him, the dog owner won’t be liable. 

Previously, the ‘Scienter Rule’ was followed in all cases of harm done by dogs. However, with the Dogs Act of 1865 and further by the Dogs Act of 1906, the rule of ‘Scienter’ was partially struck down. As stated in Section 1 of the Dogs Act 1906, the owners became strictly liable for damages done by dogs to cattle or poultry, without the need to prove that the defendant had knowledge of such propensity or whether it was due to his/her neglect.

The Animal Act of 1971, which replaced these previous acts, retained similar structures of liability making the owners strictly liable for damages done by dogs to cattle or livestock without the requirement of the knowledge factor. However, injuries against humans are actionable only under Section 2(2) of this act. Section 2(2) came up with difficult to prove pre-conditions for claiming damages against harm inflicted on humans by dogs. It stated that in order to hold the owner liable, the act of the dog must be of some abnormal nature, not common to the species and the owner should have knowledge about the same. Thus, in Collier v. Zambito, when the plaintiffs could neither prove previous instances of vicious propensity or such being abnormal of the dog nor the defendants being aware of such, the court dismissed their appeal and didn’t hold the defendants liable.

Strict Liability or Fault Liability?

For holding the dog owners strictly liable, the vicious propensity of the dog along with the knowledge of the owner about the same is required to be proved. If the plaintiff cannot prove such knowledge, the defendant will not be liable, unless negligence on his part is proved by showing the existence of some duty and its subsequent breach.

The question of harm by dogs falling under strict or fault liability is further complicated by the conflicting decisions given in the following two cases discussed below.

In the case of Barger v. Jimerson Jimerson, the plaintiff, was bitten by the German Shepherd of the defendants. Despite there being no previous history of the dog biting or harming others, the court found the vicious nature of the dog based on the testimony of neighbours about its ferocious nature and that the defendants used to always keep the dog on leash. It ultimately gave the judgement in plaintiff’s favour, stating that since vicious propensity was found and the defendants’ knowledge was established by their keeping the dog on leash; they were liable for keeping the dog at their peril and should compensate the plaintiff.

Contrary to this, in the case of Sinclair v. Okata. The court declined the claim of strict liability. In this case, the plaintiff’s son was bitten by a Dog who had a previous history of biting humans. However, the court took a different approach and stated that the activity through which harm was done has to be abnormally dangerous, i.e., something which is uncommon to its class. Since the dog’s dangerous acts in this case arose out of natural instincts, the court held it as a normal act and decided to deny the claim of strict liability against the defendant. However, the court approved the claim of negligence by the plaintiffs and held the defendants liable for a breach of duty of care. 

From the above scenarios, it becomes evident that in case of harm inflicted on humans by dogs, the standard of proving strict liability is much higher and is quite difficult to prove. However, some courts came up with a ‘one-bite rule’, which stated that the owner will not be liable if it is the first instance of his dog showing vicious propensities; but this was criticized and later rejected by applying the reasoning adopted in the Sinclair case.

Thus, generally, dog owners are strictly liable. The position stands such that if a plaintiff tries to claim damages for injuries sustained from a dog, he/she should try to prove Strict Liability against the defendant, and if he fails, fault liability remains as a fall back option. 

Problems in applying Strict Liability to harm by dogs

The basis of strict liability as was formulated in Rylands v. Fletcher was some dangerous or hazardous thing which is kept by the defendant at his peril and would be liable on damages caused by it. Almost all common law countries hold the owner strictly liable for all damage inflicted on livestock by dogs. In contrast, in cases of damage inflicted on humans, there arise some problems in proving liability.

The first problem that arises with regards to the harm done by dogs is proving dogs as something dangerous kept by the defendant at his peril. From the experience of humankind, dogs are considered docile, human-friendly, domesticated animals. In such a case, as laid down in many common law states, the standard of proving dogs’ vicious propensity and labeling them as dangerous is quite high. The plaintiff is not only required to prove that there exists a history of dangerous acts by the dog, but also those acts need to be something abnormal to the general characteristics and natural instincts of the species. Thus, in the case of Kite v. Napp, where the defendant’s dog attacked the plaintiff carrying handbags, the court held that it was a normal behavior of that dog and hence the owner is not liable. However, this was later criticized in many cases saying the propensity to attack individuals carrying handbags was not shared by other dogs and hence it is an abnormal behavior.

The second problem that arises is proving the knowledge of the defendant about the vicious propensity of the dog. It can be proved by showing that either the defendant was aware of such previous occurrences or he/she knew about such propensity to be a characteristic of such species. Even though an objective approach is taken by many states, i.e., the test is of what the defendant has understood from prior events, nevertheless it becomes too difficult to prove or establish such in a court of law, and is further dependent on the first condition being true. This leads to an anomaly which generally gives the defendants a way to get away with their liability by showing lack of knowledge.

Position of Strict Liability in India with regards to dogs

India, being a common law country, follows the judicial precedents and the approaches adopted in the United Kingdom and other common law countries for liability in case of harm inflicted by animals. As a result, India, in cases of animals of harmless nature, imposes strict liability on the owners provided all necessary conditions are proved as against the defendant. However, there are no codified laws such as the Animals Act 1971 of the United Kingdom in India. In Vedapuratti v. M. Koppan Nair. The Madras High Court held that the liability of an owner depends upon the nature or class the animal belongs to and is independent of any negligence on his part. In the case of Prokash Kumar Mookerjee v. A.D.F Harvby, where the defendant’s servant took out his dogs to a ground where they bit the plaintiff, the court proved that the dogs had propensities of harming humankind without provocation and the servant had knowledge of such, the defendant would be strictly liable.

Conclusion

Thus, when the dog is proved to be of vicious nature, the claim of Strict Liability will follow against the defendant whereas if the dog is not vicious, Fault Liability can be claimed.

As evident from the above few passages, strict liability against a dog owner is indeed the best claim for compensation since it does not require any proof of negligence and has very few defenses. But it is the standard of proof that becomes a difficulty or hindrance at certain times. However, there is always fault liability to fall back on if the plaintiff wants to sue the defendant and is unable to prove the pre-requisites of strict liability. Thus, there are no such watertight compartments for laws regarding harm inflicted by dogs, the liability will be based on what best suits the circumstances most- be it fault liability or strict liability.

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