Barry j. Reiter Melanie a. Shishler

Joint Ventures

(1999)

PART THREE, Implementing the Business Plan

CHAPTER 5, STRICT LIABILITY

D. THE

SCIENTER ACTION (LIABILITY FOR HARM CAUSED BY DANGEROUS ANIMALS)

1) The Elements of Liability

Under the scienter action, the keepers of dangerous animals are strictly liable for injuries and harm caused by them. [Note 23: In Manitoba the common law actions of scienter and cattle trespass (section E in this chapter) have been replaced with a comprehensive regime of strict liability for damage caused by all animals, Animal Liability Act, S.M. 1998, c. 8.] Scienter, which means knowledge, is the central element of this cause of action. The plaintiff must prove not only that the animal was dangerous but also that the keeper knew that the animal was dangerous. For the purposes of this action, animals are divided into two classes: animals ferae naturae and animals mansuetae naturae. [Note 24: The classification of animals is a question of law.]

Animals ferae naturae are those that are considered, by their nature, to be dangerous to people. They include such animals as tigers, elephants, wolves, and bears. These animals are conclusively deemed to be dangerous and their keepers are conclusively presumed to know that such animals are dangerous. A keeper is strictly liable even though the injury may not have been of the kind that led the courts to categorize the animal as ferae naturae.

Animals mansuetae naturae are by their nature harmless to people and include domesticated animals and cats and dogs. A normally harmless animal may, however, have shown a dangerous propensity to cause damage of the kind suffered by the plaintiff. In those circumstances, the keeper is strictly liable under the scienter action if he was aware of its dangerous nature before it attacked the plaintiff.

In recent years, an additional element has been introduced into the scienter action. Some courts now require proof that the animal that caused the injury escaped from the control of the defendant keeper. [Note 25: See J. Irvine, "Case Comment on Lewis v. Oeming" (1983), 24 C.C.L.T. 2.] This requirement operates to protect defendants whose animals have been caged or tethered at the time that the plaintiff was injured. In Maynes v. Galicz, [Note 26: (1976), 62 D.L.R. (3d) 385 (B.C.S.C.).] for example, the scienter action was held to be inapplicable in respect of a caged wolf. The plaintiff child was bitten on the hand when she ventured too close to the cage. This additional requirement is another example of the pervasive influence of fault doctrine on the torts of strict liability. Proof that the animal remained under the control of the keeper is another way of saying that the keeper took reasonable care in respect of the animal. Consequently, once control becomes an issue, the focus is drawn to the defendant keeper's conduct and the adequacy of the control exercised. The adequacy of the control depends upon the foreseeability of danger in the circumstances and the measures that the keeper took to avoid that risk of injury. The strict liability for dangerous animals is thereby adulterated by demanding a determination of the reasonable care of the keeper.

The rule of remoteness of damage in the scienter action has not been authoritatively established. The cases seem evenly divided between a directness rule and foreseeability. The use of the foreseeability rule introduces fault concepts into the equation but it is consistent with the rule that the defendant is responsible only for injuries of a kind that the animal mansuetae naturae had shown a propensity to cause.

2) Defences

There are a number of defences to the scienter action. To a large extent, they mirror the defences in the rule in Rylands v. Fletcher. Four of the defences - default of the plaintiff, consent, trespass of the plaintiff, and illegality - address common concerns and often overlap. They withhold the advantage of strict liability from the plaintiff where he is, for one reason or another, undeserving or to some degree blameworthy.

a) Default of the Plaintiff

There is no liability if the injury is the result of the plaintiff's fault. This mirrors the nineteenth-century common law rule in negligence where contributory negligence was a complete bar to an action. It has been applied most frequently where the plaintiff entered an animal's cage, came too close to the animal, or attempted to feed or pet the animal. Some of these situations may now be similarly resolved on the ground that there has been no loss of control of the animal by the keeper. This position is out of step with current policies that do not favour the allocation of all personal injury losses to a careless plaintiff, and it seems a particularly harsh result in the scienter action, based as it is on the defendant's knowledge of the danger of his animal. Apportionment is a much fairer result but the provincial apportionment legislation was not written with strict liability torts in mind. [Note 27: Nevertheless, the common law is exhibiting more flexibility in the use of apportionment in cases not controlled by legislation: see above note 20.]

b) Consent

Consent is established where the plaintiff has voluntarily exposed herself to the risk of injury by the animal. Placing oneself in harm's way with knowledge of the danger posed by the animal is probably sufficient. This, too, reflects the defence of voluntary assumption of risk as it was interpreted in nineteenth-century negligence law and is closely related to the defence of default of the plaintiff. Where the plaintiff is injured as a result of coming too close to an animal, cleaning the cage of a dangerous animal, or petting an animal, the defences appear to be interchangeable. In negligence law, the defence of voluntary assumption of risk has been restricted severely, and an agreement between the plaintiff and the defendant that the former accepts both the physical and the legal risk of injury must be established by the defendant. These negligence principles do not appear to have intruded into the scienter action as yet.

c) Trespass by the Plaintiff

There is no liability if the defendant was trespassing at the time of the injury. The defence, which is consistent with those of default of the plaintiff and consent, reflects the old common law rule that the occupier of premises is under no obligation to a trespasser other than not to intentionally or recklessly injure her. That minimal obligation to trespassers, however, no longer represents the law. At common law and under provincial occupier's liability legislation, the standard of care is, in all but exceptional circumstances, much higher, being generally one of common humanity or reasonable care. It is not clear how these changes will affect the scienter action.

d) Illegality (Ex Turpi Causa Non Oritur Actio)

At the time of the injury, the plaintiff may have been involved in some illegal or wrongful act. For example, a dog that is known to be dangerous may bite a burglar. The conventional view is that the illegality of the plaintiff's act is a complete defence to the scienter action. There is, however, generally no need to rely exclusively on the illegality defence in the scienter action. The other defences of default of the plaintiff, consent, or trespass of the plaintiff will normally render the same result. There is also doubt about the current status of the illegality defence because the Supreme Court has largely abolished the defence in respect of personal injury actions in negligence and intentional torts. [Note 28: Hall v. Hebert, [1993] 2 S.C.R. 159.] It is not yet clear what effect that will have on the scienter action.

e) Deliberate Act of a Stranger and Act of God

Neither defence is firmly established in the scienter action but the close affinity of the rule in Rylands v. Fletcher suggests that the defendant may not be liable if the escape of the animal was caused by the deliberate act of a stranger or an act of God. Both defences require proof that the animal escaped because of a deliberate act of a stranger or an intense or a natural phenomenon that was utterly unforeseeable and so could not reasonably be guarded against. The defences, therefore, operate to exculpate a defendant who can establish a complete lack of fault. It is not, however, immediately apparent why, in a regime of strict liability, an innocent plaintiff, rather than the innocent keeper of the animal, should bear the loss from unforeseeable circumstances. This explains why there continues to be doubt about the applicability of the two defences in the scienter action.