LIABILITY FOR DAMAGE CAUSED BY ANIMALS

Animals play a vital role in many rewilding projects. As part of planning and managing a rewilding project which involves animals, it’s important to appreciate the legal risks associated with them in circumstances where they injure third parties or cause damage to another person’s property. By understanding these risks, practical measures can be put in place to minimise the risk of them occurring.

Liability under the Occupiers Liability Acts 1957 and 1984 is civil liability which means that if found liable, a rewilder or other land manager responsible for animals on their land could be ordered to pay monetary damages to compensate for the damage or injury caused by the animal.

In reality, this type of potential liability should be covered by third party liability insurance.

A detailed analysis of when each of these Acts will apply and the duty of care owed to visitors is covered in the Rewilding in England & Wales: Liability to Individuals on Land note published in this series of briefings and applies to damage or injury caused by animals.

Under the Health and Safety at Work Act 1974 (“HSAW Act”), anyone undertaking rewilding as some form of business or operation which otherwise generates income (including on a self-employed basis), owes a duty of care to ensure that any person who may be affected by the rewilding activities is not exposed to risks to their health or safety.

Liability under the HSAW Act is criminal liability and is typically enforced by the Health and Safety Executive (the “HSE”). If an offence is established, the person found to be in breach could be ordered to pay a fine and/or face up to two years imprisonment.

Landholders including rewilders should be aware that the HSE regularly investigates incidents involving cattle and members of the public in England and Wales, with the two most common factors in these incidents being cows with calves and walkers with dogs. The HSE has also previously prosecuted farmers where a member of the public has been killed by livestock.¹

Landholders including rewilders must undertake adequate risk assessments to ensure that their duty under the HSAW Act is complied with and follow this HSE guidance.

For further details on liability under the HSAW Act, please see the Rewilding in England & Wales: Liability to Individuals on Land and Rewilding in England & Wales: Public Access notes published in this series of briefings.

Nuisance can impose on landholders an obligation to take action to stop or prevent things from occurring on their land which adversely impact their neighbour’s enjoyment of their own land. Such interference must be “substantial” or “unreasonable” and may or may not take the form of physical damage.

If animals kept by a rewilder are in some way adversely impacting a neighbour’s enjoyment of their land and an amicable solution cannot be found, the neighbour could potentially bring an action in nuisance. This would be a civil claim and could lead to an order requiring the rewilder to stop the nuisance and/or to pay damages to the neighbour.

Further information about nuisance and its potential relevance to rewilders is provided in the Rewilding in England & Wales: Liability to Neighbouring Landholders note.

The Animals Act 1971² (the “Animals Act”) sets out certain circumstances in which the “keeper” of an animal can be held liable for damage or injury caused by animals – without any need for a finding of fault or breach of duty on their part.

Liability under the Animals Act is civil liability meaning that it could give rise to an order to pay monetary damages to the injured party. Rewilders should consider whether their third party liability insurance would cover the payment of such damages.

There are four broad questions a rewilder should consider when assessing liability under the Animals Act:

1. Who is the “keeper” of the animal (if anyone)?
2. Does the animal belong to a “dangerous species” or not?
3. Is a defence available?
4. Does the fact pattern fall within one of the specific scenarios covered in the Animals Act?

These four questions, together with some practical steps that can be taken to limit potential liability under the Animals Act, are covered below.

Who is the “keeper” of the animal (if anyone)?

Only the “keeper” of an animal may be liable for any damage caused by the animal, under the Act. The “keeper” is the person that, broadly speaking, “owns the animal or has it in his possession”³. Once someone is the keeper of an animal, they will remain so until someone else becomes the keeper, even if they abandon the animal in question.

It is possible for more than one person to be the keeper of an animal at the same time.

Determining who the keeper of an animal is can be a very fact-specific assessment. The key question seems to be whether the relevant individual has at least some degree of control over the animal. If no one has a degree of control over the animal and at no stage in the past has had a degree of control, it is likely that the animal is “living wild”, does not have a keeper, and no liability under the Animals Act can arise if it causes damage.⁴

Where a person has at least some control over the animal (e.g., because they introduced it into an enclosed rewilding project) or has erected fencing to keep the animal within the project grounds, they may well be considered as the keeper and be held liable for any damage.

The rewilder will, therefore, be the keeper of animals that they legally own or physically possess (but not legally own) – in which case they could, in principle, be liable for damage caused by that animal.

Does the animal belong to a “dangerous species” or not?

Once the keeper of the animal that caused the damage or injury has been confirmed, it must be established whether the animal belongs to a “dangerous species”

Under the Animals Act, all species are divided between those that are “dangerous” and those that are not. This distinction is important as it may change the degree to which the “keeper” is held liable. As to animals belonging to a “dangerous species”:

• A “dangerous species” is a species which is not commonly domesticated in the British Islands and whose fully grown animals are, unless they are restrained, likely to cause severe damage⁵. Under the Animals Act ‘species’ is defined to include “subspecies and variety”, meaning that this assessment may be done at this sub-species or variety level.
• Unfortunately, there is no set list of “dangerous species”, and case law has generally focused on horses and cattle, many species of which are commonly domesticated in Great Britain (and therefore not “dangerous species”). But a rewilding project may involve animals that are not obviously “commonly domesticated”– e.g., certain breeds of historic breeds of cattle or Konik ponies – and that could cause severe damage, because of their temperament or their size. In that case, the animal could possibly be considered a “dangerous species” but it is unclear.⁶

The position of animals such as European bison (which have never been commonly domesticated in Great Britain) is much clearer and it is very likely that such animals would be classified as a “dangerous species” under the Act.

• Where an animal belongs to a “dangerous species” and causes damage, “any person who is a keeper of the animal is liable for the damage”⁷ . Liability is “strict” in these cases, which means that it will not matter whether or not the keeper is at fault for the damage caused by the animal or whether or not they even realise that it belongs to a “dangerous species”. There are, however, certain defences available (see practical example 4 below).

As to animals not belonging to a “dangerous species”, the “keeper” will be liable for the damage caused by the animal, again on a strict liability basis – but only if all three of the following conditions are met⁸ :

• the damage is of a kind likely to be caused by the animal in question unless restrained, or is likely to be severe if caused by the animal;
• the likelihood of the damage is due to characteristics which are not normally found in the species, or are not found except at particular times or in particular circumstances; and
• those characteristics were known to the keeper.

Livestock and other farm animals (including domestic cattle, horses, sheep, pigs, goats, poultry etc.) will in most cases not be animals belonging to a “dangerous species”, as they are commonly domesticated. But this could be different for other animals that form part of a rewilding project. As noted above, this has not been considered in detail by the law or in any reported cases.

Is a defence available to the keeper?

A keeper has three separate defences available in order to avoid being held fully liable for the damage caused by animals in the circumstances described above. These are the same for dangerous species and for non-dangerous species.

The three defences are that:

• The person suffering the damage is wholly or partly to blame for that damage. This could be the case where someone teases a dog and is then bitten (albeit it will be difficult to prove this if there are no other witnesses).
• The person suffering the damage voluntarily accepted the risk of it occurring. This, in brief, means that they appreciate the risk, but go ahead anyway. ⁹
• The person suffering the damage was trespassing. This generally means that the keeper of an animal will not be held liable for damage caused by that animal to a person that is not (explicitly or implicitly) invited onto the land on which the animal is kept¹⁰ .

See the “practical steps” box at the start of this note for discussion of practical steps that a rewilder may wish to take to increase their chances of being able to rely on one of these defences.

Do any of the specific scenarios apply?

There are also some more specific scenarios in respect of which liability for animals can arise, namely:

(a) Dog attacks:

• The Animals Act specifically makes the keeper of a dog liable if it kills or injures livestock¹¹.
• A rewilder/livestock owner can use the Animals Act to avoid being held civilly liable for killing or injuring a dog that is “worrying or about to worry” their livestock if certain conditions are met¹².

(b) Straying livestock (cattle, horses, sheep, pigs, goats, poultry, and deer not in a wild state):

• Where livestock strays onto land owned or occupied by another, or where horses are on land without lawful authority, the person to whom the livestock/horses belong¹³ will be liable for damage caused to the land or property on it, as well as any expenses the rewilder or occupier of that land has had to incur in keeping the livestock or horses pending their return to the original owner¹⁴.

Note that the Act confirms that “any livestock belongs to the person in whose possession it is”.

That said, there are a few defences available to the person to whom the livestock/horses belong, in case a specific scenario applies, namely¹⁵:

1. if the person suffering the damage is to blame for it him/herself;
2. if the livestock/horses strayed from a highway, where they had a right to be; or
3. if the straying would not have occurred if the rewilder or occupier of the land had not breached a duty to put up fencing¹⁶.

Conclusion regarding the Animals Act

It follows that, where a rewilding project involves animals, then it is likely that the rewilder will come under the definition of the “keeper” of those animals, to the extent that they retain some degree of control over the animals. In those circumstances, the rewilder must carefully consider whether those animals belong to “dangerous species” or not.

If they do, then the rewilder, as the keeper of those animals, will be strictly liable for any damage caused by those animals.

If they do not, then the rewilder may still be strictly liable, but only if the three additional conditions are satisfied – in essence if a particular animal has characteristics not common to the species which make it likely that it would cause severe damage or the type of damage suffered, and the keeper knew about these characteristics.

A rewilder can avoid liability if at least one of the three defences set out under section 3, above, applies.

Separately, a rewilder may be held liable for damage caused by straying livestock/horses, unless one of the three defences set out in under section 4 (b) (i)-(iii) is available.