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Bluebook 21st ed.

Philip H. Clarke, Liability for Animals on the Highway: Legislative Reform in the
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Clarke, P. H., Liability for animals on the highway: Legislative reform in the
commonwealth, 34(4) Int'l & Comp. L.Q. 786 (1985).

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Clarke, P. H. (1985). Liability for animals on the highway: Legislative reform in the
commonwealth. International and Comparative Law Quarterly, 34(4), 786-804.

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Philip H. Clarke, "Liability for Animals on the Highway: Legislative Reform in the
Commonwealth," International and Comparative Law Quarterly 34, no. 4 (October 1985):
786-804

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Philip H Clarke, "Liability for Animals on the Highway: Legislative Reform in the
Commonwealth" (1985) 34:4 Int'l & Comp LQ 786.

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Philip H Clarke, 'Liability for Animals on the Highway: Legislative Reform in the
Commonwealth' (1985) 34(4) International and Comparative Law Quarterly 786.

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Commonwealth." International and Comparative Law Quarterly, vol. 34, no. 4, October
1985, p. 786-804. HeinOnline.

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Philip H Clarke, 'Liability for Animals on the Highway: Legislative Reform in the
Commonwealth' (1985) 34 Int'l & Comp LQ 786

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 LIABILITY FOR ANIMALS ON THE HIGHWAY:
LEGISLATIVE REFORM IN THE COMMONWEALTH

PHILIP H. CLARKE*

I. INTRODUCTION

FEW areas of law, if any, have been the subject of more formal and con-
sistent proposals for law reform than the rule in Searle v. Wallbank'
("the rule") which, except where there were "special circumstances",
exempted anyone responsible for an animal 2 from liability for negli-
gence or nuisance in respect of loss or damage caused by the animal
straying on to a highway. Although taking its name from a case reported
in 1947, the rule is generally regarded as having been part of the com-
mon law in England for centuries 3 and as such formed part of the com-
mon law inherited by the various Australian colonies when they were
settled in the eighteenth and nineteenth centuries. 4 In the last 18 years it
has been the subject of law reform reports in England, 5 New Zealand, 6
and every Australian state. 7 However, although each of these reports

* Senior Lecturer in Law, Monash University.

1. [1947] A.C. 341.

2. As well as applying to farm animals, including poultry, the rule applied also to dom-
estic animals such as dogs and probably cats: Ellis v. Johnstone [1963] 2 Q.B. 8; Brisbane
v. Cross [1978] V.R. 49.
3. See the discussion of the history of the rule in the speeches of Viscount Maugham and
Lords Porter and Du Parcq in Searle v. Wallbank [1947] A.C. 341 itself and the judgment of
Mason J in S. G. I C. v. Trigwell (1979) 142 C.L.R. 617,632. On the other hand, in Bracken-
borough v. Spalding UDC [1942] A.C. 310, 321, Lord Wright expressed the view that the
rule was "modern"; this view, however, has not been accepted in subsequent cases.
4. Conflicting views have been expressed concerning whether the rule was part of the
law inherited by the Australian colonies; e.g. the decisions in Jones v. McIntyre [1973]
Tas.S.R. 1 and Thomson v. Nix [1976] W.A.R. 141 appear to proceed on the basis that local
conditions made it incapable of application in Tasmania and Western Australia when they
were settled. However, the decisions of the New South Wales Court of Appeal in Kelly v.
Sweeney [1975] 2 N.S.W.L.R. 720, the Victorian Full Court in Brisbane v. Cross [1978]
V.R. 49 and especially the High Court of Australia in S.G.I.C. v. Trigwell (1979) 142
C.L.R. 617 have settled this dispute in favour of the view that it did form part of that law.
5. The Law Commission, Civil Liabilityfor Animals (1967), Law Com. No.13.
6. The Torts and General Law Reform Committee, Law Relating to Liabilityfor Ani-
mals (1975).
7. New South Wales, Civil Liability for Animals (1970), Law Reform Commission
Report No.8; this report was implemented by the (NSW) Animals Act 1977, s.7. Queens-
land, Civil Liabilityfor Animals (1977), Law Reform Commission Working Party No.18;
South Australia, Law relating to Animals (1969), Law Reform Committee Report No.7;
Victoria, The Law relating to Animals on Highways (1978), Statute Law Revision Com-
mittee; Tasmania, Animals Straying upon the Highway (1980), Law Reform Commission
Report No.27; Western Australia, Liability for Stock Straying on to the Highway (1981),
Law Reform Commission Report on Project No. 11.

(1985) 34 I.C.L.Q.
OCTOBER 19851 Liabilityfor Animals

recommended the abolition or substantial modification of the rule, and

although it has been abolished by judicial decision in Canada 8 and Scot-
land, 9 until recently legislative reform had occurred only in England and
Wales1 ° and in New South Wales. However, 1983 and 1984 saw a rush of
law reform in this area, with legislation abrogating or substantially abro-
gating the rule being passed first in Western Australia and then in South
Australia and Victoria."
The passage of the Western Australian Act in particular is a good
example of the slow and tortuous path that legislative law reform is
often required to travel in England and Australia. It was preceded by
two law reform reports; the first was presented by the Western Austra-
lian Law Reform Committee in 1970 and recommended that the rule be
abolished. This report was not implemented by statute. However, in
Thomson v. Nix 12 the Full Court of Western Australia in effect imple-
mented by judicial decision the Committee's principal recommendation
in so far as it decided that the rule did not apply in Western Australia.
Subsequently, however, the High Court of Australia in State Govern-
ment Insurance Commission v. Trigwel113 cast doubt upon the correct-
ness of the Full Court's decision and as a result the Law Reform
Commission (which succeeded the Committee in 1972) was asked to
report on the matter again. It did so in June 1981.14 However, it was not
until 1983 that a bill was introduced dealing with this subject. That bill,
with one major exception relating to the amount of damages recover-
able by a successful plaintiff, was designed to implement the Com-
mission's report. However, in the state's Upper House (the Legislative
Council) the opposition successfully amended the bill to implement the
Commission's recommendations in respect of that matter also. As a
result, when eventually passed, the Act, read with an accompanying

8. Fleming v. Atkinson (1959) 18 D.L.R. (2d) 81. However, the rule may still be in
force in Saskatchewan; see Lane v. Biel (1971) 17 D.L.R. (3d) 632.
9. Although the rule was applied in Fraserv. Pate 1923 S.C. 748, it was rejected in
Gardinerv. Miller 1967 S.L.T. 29.
10. Animals Act 1971, s.8(1); this Act does not extend to Scotland or Northern Ireland:
s.13(4).
11. Western Australia, Highways (Liability for Straying Animals) Act 1983. South Aus-
tralia, Wrongs Act Amendment Act (No.2) 1983; this Act added a new Part 1A to the
Wrongs Act 1936 and therefore reference will be made in this article to that Act as
amended. Victoria, Wrongs (Animals Straying on Highways) Act 1984; this Act added a
new Part VIII to the Wrongs Act 1958 and therefore reference will be made to that Act as
amended.
12. [1976] W.A.R. 141.
13. (1979) 142 C.L.R. 617.
14. WALRC Report on Project No.11: Liability for Stock Straying on to the Highway.
This report was preceded by a working paper issued in 1980. As the Commission's Execu-
tive Officer and Director of Research at the time, the author was the person principally
responsible for drafting both the working paper and the report.
 Internationaland ComparativeLaw Quarterly [VOL. 34

amendment to the Dog Act 1976-1977, implemented the Commisssion's

report almost completely.
The recent Australian Acts are of more than local interest because in
a number of important respects, especially relevant in jurisdictions in
which legislative reform has not yet occurred, the changes they have
made to the common law differ considerably. Broadly speaking, they
represent three different approaches to reform. Thus, the Victorian Act
adopts the English approach which may be termed "simple abrogation".
Although section 1(1) of the English Act abolishes the common law
rules relating to dangerous animals and cattle trespass, sections 2 and 4
impose statutory obligations which are substantially the same. For this
reason, as far as the rule is concerned, the effect of the Act can be des-
cribed as simple abrogation. The South Australian Act, on the other
hand, adopts the New South Wales approach which abrogates not only
the rule in Searle v. Wallbank but also the other special rules that related
exclusively to liability for damage caused by an animal. Finally, the
Western Australian Act adopts reforms which, in some noteworthy
respects, are without precedent in this area of law. The purpose of this
article is to analyse the main provisions of the three Acts and in each
instance compare them with those in England and New South Wales.

II. THE MAIN PROVISIONS OF THE ACTS

A. Abrogation of the Rule

Section 33 of the Victorian Act and section 3(1) of the Western Austra-
lian Act abolish so much of the common law relating to liability for neg-
ligence as "excludes or restricts the duty which a person might owe to
others to take reasonable care to see that damage is not caused by ani-
mals straying on to a highway". Although there are slight differences in
syntax, the wording of both provisions is in all material respects identi-
cal to that in section 8(1) of the English Animals Act which is commonly
regarded as having abrogated the rule in England and Wales. This is no
doubt not a coincidence.
Although, as mentioned, section 8(1) of the English Act is regarded
as having completely abrogated the rule, and almost assuredly the
equivalent Victorian and Western Australian provisions will be thought
of as doing the same, it is arguable that none of them has this effect.
This is because all three provisions specifically refer only to the tort of5
negligence, whereas the rule applies also to the tort of public nuisance.'
Whilst it has never been made clear in the present context, there is
authority which suggests that an animal straying on to a highway could

15. S.G.I.C. v. Trigwell (1979) 142 C.L.R. 617,637-638.

OCTOBER 19851 Liabilityfor Animals

constitute a public nuisance, either because it obstructs or hinders free

passage along the highway or because it makes using the highway
dangerous, 1 6 and that liability is strict. For example, in Ellis v.
Banyard17 it was envisaged that at least "crowds of cattle whose mass
might constitute an obstruction to travellers along the highway" 18 would
be a nuisance, and in Pitcher v. Martin19 Atkinson J held that a dog
taken on to the highway became a public nuisance when it escaped
creating a danger to users of the highway. Should straying animals
create a public nuisance in either of these ways, it is possible that the
person responsible for them would be strictly liable for any resulting
injury or damage suffered by persons using the highway. The matter,
however, is uncertain as the authorities on this point conflict. Thus,
there are dicta in Ellis v. Banyard20 and Pitcher v. Martin21 which sug-
gest that liability for nuisance will arise only if the defendant was negli-
gent in allowing the danger or obstruction to occur. 2 2 On the other 24
23
hand, more recently, in Morton v. Wheeler and Dymond v. Pearce
members of the Court of Appeal have said that, in the case of a public
nuisance constituted by an obstruction of the highway, liability is strict.
These possibilities were raised in argument in S. G.I. V. v. Trigwel125 and
considered by Mason J with whom, in that respect, Stephen and Gibbs
JJ agreed. According to Mason J, public nuisance could be the basis of
liability in respect of injury caused by straying animals at least where
they "seriously interfered with the common right of passage over the
highway". 2 6 However, most important, he went on to decide that the
rule applied to public nuisance, as well as to negligence, so that liability
could not arise in this way.
Trigwell's case in particular suggests that by referring only to negli-
gence, sections 33, 3(1) and 8(1) respectively of the Victorian, Western
Australian and English Acts leave the rule extant as far as public nuis-

16. In Trigwell (supra n.15) Mason J said that "to constitute a nuisance there must be
an obstruction to the highway", which suggests that the creation of a danger which does
not obstruct the highway would not be a nuisance. However, cases such as Dollman v.
Hillman Ltd. [1941] 1 All E.R. 355, Holling v. Yorkshire Traction Co. Ltd. [1948] 2 All
E.R. 662 and Cartwright v. McLaine & Long Pty. Ltd. (1979) 24 A.L.R. 97 show that a
public nuisance can be created by a danger which does not do that.
17. (1911) 106 L.T. 51.
18. Idem, p.53 (per Kennedy U).
19. [1937] 3 All E.R. 918.
20. Supra n.17.
21. Supra n.19.
22. See also Dollman v. Hillman and Cartwright v. McLaine & Long Pty. Ltd., supra
n.16.
23. The*Times, 1 Feb. 1956.
24. (1973) 1 Q.B. 496.
25. (1979) 142 C.L.R. 617.
•26. Idem, p.638.
 Internationaland ComparativeLaw Quarterly [VOL. 34

ance is concerned. Thus, it remains available to protect persons who are

responsible for animals from the possibility of being held strictly liable
for public nuisance should the animals cause injury or damage by stray-
ing on to a highway. It should be noted that this partial retention of the
rule was probably intentional. As will be seen below, the Western Aus-
tralian Act has created a regime to govern liability for animals straying
on to the highway based solely on fault and the Victorian and English
Acts seem designed to do this also. Retention of the rule as a defence to
strict liability for nuisance is entirely consistent with this approach.
Although different in structure, the South Australian Act is consistent
with the provisions discussed above. Thus section 17a(1), which pro-
vides that" . . . liability for injury, damage or loss caused by an animal
shall be determined in accordance with the principles of the law of negli-
gence", together with section 17a(4), which provides that in proceedings
relating to injury, damage or loss caused by an animal it shall be no
defence that this resulted from the animal straying on to a highway, in
effect abolish the rule as far-as liability for negligence is concerned.
However, because the rule is not specifically abrogated and because
liability for nuisance is expressly retained in section 17(10), it would
appear that the rule will continue to operate in South Australia to the
limited extent it does in England, Western Australia and Victoria.
In contrast to the provisions considered above, section 7 of the New
South Wales Animals Act does abrogate the rule completely. As a
result, although section 9 of the Act also provides that the rule in
Rylands v. Fletcher27 shall not apply in relation to damage caused by an
animal, the possibility remains that strict liability for public nuisance
could arise in New South Wales in respect of animals straying on to a
highway.

B. The Duty of Care

None of the Acts specifically imposes any new duty of care in relation to
animals straying on to a highway. However, the abrogation or partial
abrogation of the rule in Searle v. Walbank effected by them allows the
common law of negligence to apply to that situation. Since their pas-
sage, if an accident is caused by an animal straying on to a highway, the
person responsible for its control will be liable for the tort of negligence
if the accident was attributable, or at least partially attributable, to a
breach on his part of the duty of reasonable care imposed by the law of
negligence.28

27. (1868) L.R. 3 H.L. 330.

28. Davies v. Davies [1975] 1 O.B. 172; Kelly v. Sweeney [1972] 2 N.S.W.L.R. 720,737.
This is reinforced in South Australia by the new s.17a(1) of the Wrongs Act (supra n.11).
OCTOBER 19851 Liability for Animals

It is important to emphasise that this new application of the law of

negligence does not, as such, require that reasonable care be taken to
prevent an animal from straying on to a highway. 29 Rather, in this con-
text, the duty is to take reasonable care to prevent the animal causing
harm by such straying. 30 This is important because it means that, in
some cases at least, it may be possible to fulfil the duty and thus avoid
liability for negligence by taking precautions other than those designed
to prevent straying, for example, by erecting signs warning users of the
highway that animals are likely to be found straying on it. This is
especially relevant in those parts of the jurisdictions under consideration
where fencing may not be warranted in view of its expense and the small
amount of traffic using the local highways. Indeed, section 17a(7) of the
South Australian Act specifically provides that the fact that in a particu-
lar case such measures were not taken "does not necessarily show"
(emphasis added) that reasonable care had not been taken. Almost cer-
tainly this is also the position at common law. However, both at com-
mon law and under the South Australian Act it would no doubt be rare,
in practice, for the duty of reasonable care not to require some warning
or protective measures to be taken.
The duty is also only to take reasonable care. Subject to what is said
below concerning dangerous animals, the duty does not impose an
absolute obligation to prevent injury or damage. Consequently, as long
as the person responsible for an animal has taken all the precautions
that are reasonable in the circumstances to prevent this happening, liab-
ility for negligence will not arise should the animal, despite those pre-
cautions, cause an accident by straying on to a highway. Thus, for
example, in McCafferty v. Van Praet,31 where horses escaped from a
corral using a snowbank caused by snow drifting against the fence of the
corral, the defendant was held not to have been negligent because this
event could not have been reasonably foreseen by him. Furthermore,
the burden is upon the plaintiff to prove negligence. Consequently, in
Wolfe v. Dayton,32 for example, where horses escaped through a gate
which had become unlatched, the plaintiff's claim failed because he was
unable to show that the unlatching of the gate was attributable to fault
on the defendant's part, there being no evidence that the lock was defec-
tive or that in any other way he was responsible for this having occurred.
All the Acts refer simply to "animals" without restriction. As a result,
it would seem that they apply to all animals so that liability for negli-

29. Wark v. Steel 1946 S.L.T. (Sh. Ct. Rep.) 17, 22; Gardner v. Miller 1967 S.L.T. 29,
33; Kelly v. Sweeney [1972] 2 N.S.W.L.R. 720, 737-738.
30. Ibid.
31. (1972) 35 D.L.R. (3d) 323.
32. (1974) 55 D.L.R. (3d) 552. See also Crosby v. Curry (1970) 7 D.L.R. (3d) 188 and
Palmer v. Woodruff (1981) 82 A.P.R. 251.
792 Internationaland Comparative Law Quarterly [VOL. 34
gence may arise in accordance with them in respect of an animal of any
species that strays on to a highway. However, the species may well be
relevant when determining whether the person responsible for the stray-
ing animal had been negligent. Thus, for example, the duty of reason-
able care may in practice require less of the keeper of a small domestic
animal, especially one such as a cat that is difficult to restrain, than for a
large animal such as a horse or cow which, because of its size, consti-
33
tutes more of a danger to persons using the highway.

C. Negligence Criteria
Following the lead of the English Law Commission in its report, Civil
Liability for Animals, 34 the Western Australian Commission recom-
mended that abrogation of the rule in Searle v. Wallbank be accompa-
nied by the enactment of a number of criteria which, among other
matters, a court might consider when determining liability for negli-
gence. 35 This, the Commission argued, would act as a valuable reminder
of the vastly different conditions in which animals are kept and would
also indicate to persons keeping animals what factors affect the precise
standard of care expected of them. The Commission's recommendation
was implemented by the Western Australian Act in section 3(4) which
provides that a court may consider, among other matters;
(a) the general nature of the locality in which the relevant part of that
highway is situated (in this subsection called "the locality");
(b) the nature and amount of traffic using that highway;
(c) the extent to which users of that highway would expect to encounter
animals on that highway and could be expected to guard against the
risk associated with their presence;
(d) the common practice in the locality in relation to-
(i) fencing and the taking of other measures to prevent animals
from straying on to highways in that locality; and
(ii) the taking of measures to warn users of that highway of the likely
presence of animals thereon;
and
(e) the cost of fencing, or of the taking of measures, referred to in para-
graph (d) of this subsection or of both, as the case requires.
These criteria were all recommended by the Western Australian
Commission and are broadly similar to those contained in the Law Com-
mission's report 36 with the exception of paragraph (e), which has no

33. See North, The Modern Law of Animals, p.157, and the South Australian Act
(supra n.l), s.17a(6)(b).
34. Law Com. No.13 (supra n.5), para.57.
35. WALRC Report, op. cit. supra n.14, at para.6.13.
36. Supra n.5.
OCTOBER 19851 Liabilityfor Animals

equivalent. As both Commissions intended, these criteria are not

designed to change the law so that they all refer to matters which the law
of negligence already requires the courts to- consider in appropriate
cases. Thus, for example, in relation to paragraph (d), in the recent
Canadian case of Pellizzari v. Miller,37 OsborneJ noted that in respect
of the quality of the defendant's fences and his inspection of them there
was " . . . no evidence that his standard of care involved any marked
departure from that of other farmers". This influenced the judge to con-
clude that the defendant had not been negligent. However, this does not
mean that a defendant will always be able to avoid liability by establish-
ing that at the material time his fences were in as good a condition as
anyone else's in the locality. According to Cole v. Kernahan,38 whilst
evidence of the prevailing standards will always be admissible, this will
not automatically be conclusive in the defendant's favour as those stan-
dards may not necessarily be satisfactory. This, of course, is in accord-
ance with the rule that " . . . in the last analysis the standard of
reasonable care is measured by39 what ought ordinarily to be done rather
than what is ordinarily done".
Perhaps the most notable criterion is that contained in paragraph (e)
relating to the cost of taking measures to prevent animals straying. Pre-
sumably, its effect is to indicate that where the cost of taking such
measures is relatively high then the defendant's failure to adopt them
should not be regarded by the court as constituting evidence of negli-
gence to the same extent as it would if that cost were low, and vice
versa. Viewed in this way the paragraph appears to be a particular appli-
cation of the rule, now well established, that regard may be paid to the
defendant's financial resources when considering the extent of his duty
of care and whether or not he has fulfilled it. 40 However, it is likely that
the cost of fencing and the defendant's ability to meet that cost will be
assessed only broadly and even then it will only be one of many factors
considered by the court. As a result, it is unlikely, for example, that a
person keeping animals on land adjacent to a busy highway would be
able to argue successfully that the high cost of fencing, or his own impe-
cuniosity, should excuse him from liability for an accident attributable
to his failure to take reasonable steps
41
to fence in the animals or in other
ways prevent them from straying.
Although the South Australian Act does not contain any negligence
criteria equivalent to those in the Western Australian Act, it does

37. (1981) 35 O.R. (2d)700, 702.

38. (1970) 2 N.S.R. (2d)690, 693.
39. Fleming, The Law of Torts (6th ed., 1983), p. 1 13 .
40. See e.g. Goldman v. Hargrave [1967] 1 A.C. 645, 663; British Railways Board v.
Herrington [1972] A.C. 877, 899; Leakey v. National Trust [1980] 1 Q.B. 485, 526.
41. Cole v. Kernahan (1970) 2 N.S.R. (2d) 690, 693.
 Internationaland ComparativeLaw Quarterly [VOL. 34

specify a number of matters of general application that are to be con-

sidered by the courts which are relevant to animals straying on to the
highway. Thus, it requires regard to be paid to the "nature and dis-
position of the animal", the measures, if any, taken for its "custody and
control" or "to warn against any vicious, dangerous or mischievous pro-
pensity" it may have, and "any other relevant matters".
The New South Wales, English and Victorian Acts, on the other
hand, do not contain any equivalent criteria. In the case of New South
Wales, this is in accordance with the recommendation of its Law
Reform Commission which argued that they were unnecessary and
might create difficulty which would not otherwise exist.42 However, as
noted above, the Law Commission has recommended the enactment of
a provision similar to that in the Western Australian Act although,
unlike the Western Australian Commission, it advocated that the courts
be required to have regard to the criteria specified. Interestingly, clause
8(2) of the original English Animals Bill would have implemented this
recommendation with the addition, in the fifth criterion relating to the
seriousness of the risk of injury compared with the steps that would be
necessary to reduce or avoid it, of reference to whether, where fencing
could have avoided or reduced the danger, this was the normal practice
in the area in which the accident occurred. This aspect of the bill
attracted considerable interest in the second reading debate. 43 Follow-
ing the change of government in June 1970, the bill was reintroduced in
substantially its original form. However, during its passage through the
House of Lords, 4 the criteria were replaced by what is now section 8(2)
of the Act.
Section 8(2) of the English Act creates an exception to liability for
negligence by providing, in effect, that it is not, of itself, negligent for
someone to place animals on unfenced land if that land is " . . . com-
mon land, or is land situated in an area where fencing is not customary,
or is a town or village green and he had a right to place the animals on
that land". In Davies v. Davies45 the Court of Appeal held that this
exception applied not only to the owner of such a right but also to per-
sons licensed by him to place animals on the land. As far as "common
land" is concerned, the exception followed a recommendation of the
Law Commission 46 and appeared in the original bill. It was expanded,
however, during the bill's passage through Parliament because in the
opinion of its sponsors, without such an exception, the imposition of the

42. NSWLRC Report (supra n.7), para.22.

43. See e.g. Parliamentary Debates, House of Commons, Vol.795, cols.514 and
524-554.
44. Parliamentary Debates, House of Lords, Vol.313, cols.457-458.
45. [1975] 1 Q.B. 172.
46. Op. cit. supra n.5, at para. 44.
OCTOBER 19851 Liabilityfor Animals

law of negligence would make it impossible in practice for people to

graze their animals on the kind of land now covered.
Although section 8(2) creates an important qualification to the ordin-
ary application of the law of negligence, because it says merely that a
person shall not be regarded as having been negligent "by reason only"
of placing animals there, it does not exclude liability for negligence
entirely. Thus, in Davies,47 Lord Denning MR said that if the defendant
negligently drove an animal from an area covered by the provision into
the path of an oncoming car he might be liable; that, however, may well
have been the case even before the rule was abolished. 48 More import-
ant perhaps, the words "by reason only" would appear to leave it open
to argument that, in certain circumstances at least, where the land in
question is unfenced, anyone using it for grazing purposes should take
steps to warn users of the highway that animals may stray on to it. For
example, if the land was adjacent to a busy highway it would be argu-
able that, whilst using the land was not of itself negligent, using it with-
out such a warning was.

D. Abolition of Special Rules

At common law, the special rules 49 of strict liability that related to
dangerous animals applied to injury or damage caused by such an ani-
mal whilst straying on to a highway. 50 In such a case, the person suffer-
ing injury or damage was therefore able to recover damages from the
owner, 51 and the person in control 52 of the animal, even though it had
strayed on to the highway without fault on their part and even though
the plaintiff may have been guilty of contributory negligence. 53 The rule
in Searle v. Wallbank provided no 54 protection as it was formulated so as
not to apply to dangerous animals.
Consistently with its view that liability for animals straying on to the

47. [1975] 1 Q.B. 172, 177.

48. See e.g. Bativala v. West [1970] 1 Q.B. 716.
49. These rules are discussed in Clerk and Lindsell on Torts (13th ed., 1969), paras.
1552-1557; they still apply in all Australian states except NSW and SA. However, they
were abrogated for England and Wales by s.1(1)(a) of the Animals Act 1971.
50. Brock v. Copeland (1794) 1 Esp. 203; Hudson v. Roberts (1851) 6 Ex. 697; Scott v.
Edington (1888) 14 V.L.R. 41. The latter two cases involved animals taken on to the high-
way and then inflicting injury. See also Manton v. Brocklebank [1923) 2 K.B. 212,231, and
North, op. cit. supra n.33, at p.69.
51. Because liability was strict it could not be delegated by the owner. As a result he
could be liable even though he was not in immediate control of the animal at the time it
escaped: Higgins v. William Inglis & Son Pty. Ltd. [1978] 1 N.S.W.L.R. 649.
52. McKone v. Wood (1831) 5 Car. & P. 1; Fischer v. Stuart (1979) 25 A.L.R. 336.
53.. Higginsv. William Inglis & Son Pty. Ltd. [1978] 1 N.S.W.L.R. 649. However, if the
plaintiffs negligence was the only cause of his loss, the defendant would not be liable:
Marlor v. Ball (1900) 16 T.L.R. 239.
54. Searle v: Wallbank [1947] A.C. 341, 346-347, 356-357 and 358.
 Internationaland ComparativeLaw Quarterly [VOL. 34
highway should be governed by the law of negligence only, the Western
Australian Commission recommended that the Act abolishing the rule
should exclude the possibility of strict liability arising in this area. The
Act implements this recommendation in section 3(3) which provides
that:
A court shall determine the liability in tort of a person for damage caused
by animals straying on to a highway solely according to the law of Western
Australia relating to liability in tort for-
(a) negligence; or
(b) intentional acts or omissions.
Leaving aside for the moment paragraph (b), by stating positively that
liability shall be determined according to the law of negligence, the sec-
tion prevents the special rules applicable to dangerous animals and the
rule in Rylands v. Fletcher 5 operating in respect of injury or damage
caused by an animal straying on to a highway. As a result, two different
liability regimes now apply to animals depending upon whether the
plaintiffs injury or damage was "caused" by the animal "straying on to
a highway". Thus, if it was, liability will arise only if the plaintiff can
establish that the person responsible for the animal had been negligent
in allowing it to stray or not warning the plaintiff of its likely presence on
the highway. On the other hand, if an animal causes injury or damage
otherwise than by straying on to a highway, then liability can arise not
only in cases of negligence but also if the animal was dangerous, so that
the special rules relating to dangerous animals are brought into oper-
ation, or if its straying amounted to cattle trespass. 56 In the latter two
cases liability will be strict. In this connection it should be noted that the
determining factor is not where the accident occurs but whether it is
attributable to an animal "straying on to a highway". Thus, for
example, if an elephant, whilst being driven along a road as part of a cir-
cus procession, escaped from control and injured a spectator, liability
would be determined in accordance with the common law relating to
dangerous animals, 57 not section 3(3), because having been taken on to
the road deliberately the elephant could not be said to have strayed "on
to a highway" as that section requires.
One area of uncertainty resulting from the dual system of liability
created by section 3(3) concerns liability for injury or damage attribu-
table to a dangerous animal straying on to the highway and then mani-
festing its dangerous propensity. For example, although it is clear that if

55. (1868) L.R. 3 H.L. 330.

56. An action for cattle trespass can be brought only by the occupier of the land tres-
passed upon. However, it can be brought in respect of personal injury (Wormald v. Cole
[1954] 1 Q.B. 614) as well as for damage caused to land, goods or livestock.
57. See Behrens v. Bertram Mills Circus Ltd. [1957] 2 Q.B. 1.
OCTOBER 1985] Liability for Animals

a lion should escape from an animal park or zoo and collide with a
motorist on a highway, liability would now, 58 because of that section, be
determined in accordance with the law of negligence, it is not clear
whether this would be the case if the lion savaged the motorist instead.
In such a case it may be arguable that section 3(3) does not apply on the
ground that the injury was caused, not by the lion "straying on to a high-
way", but by it being free to manifest its dangerous propensity. If such
an argument were unsuccessful and section 3(3) held to apply, then the
Act will have reduced, at the expense of people using highways, the
potential liability of those who keep dangerous animals. This is because
the strict liability to which they were formerly subjected in respect of
such accidents will have been replaced by the lesser duty to exercise
reasonable care imposed by the law of negligence. Although such a
reduction in potential liability would be understandable in cases where
the plaintiff's loss was caused by a collision with a dangerous animal,
arguably, it would be less defensible where such loss was caused by the
animal manifesting its known, dangerous propensity. Strict liability in
this area has been seen " . . . as an illustration of the strict liability
which modern law places on those who expose the community to excep-
tional risks inherent in dangerous things ' 59 and, it is submitted, there is
nothing about the injury being inflicted by a dangerous animal manifest-
ing its known dangerous propensities on a highway which would justify
an exception being created in such cases simply because the animal had
escaped on to the highway shortly before it attacked the plaintiff. How-
ever, should the argument advanced above not be accepted, perhaps
this reduction in potential liability can be regarded as the price paid for
the advantages of having a single set of rules to determine all cases
involving civil liability for loss caused by, and to, 6° animals straying on
to the highway.
The inclusion of paragraph (b) of section 3(3) was not recommended
by the Western Australian Law Reform Commission and how it will
operate is unclear. Thus, although it is conceivable that in certain cir-
cumstances the intentional torts of battery and assault could be commit-
ted by one person deliberately driving or setting an animal on to another
person, 61 or threatening to do so, and that the tort of public nuisance
could be constituted by deliberately blocking the highway with animals,
it is unlikely that the animals in such cases would be viewed as "stray-

58. Before the Act was passed, liability would have been strict: idem, pp.17-18. The
rule provided no protection in the case of dangerous animals (supra n.54).
59. Fleming, op. cit. supra n.39, at p.328.
60. Liability for injury caused to animals on the highway by e.g. a motorist has for some
time been determined by the law of negligence.
61. Scott v. Shepherd (1773) 2 B.W. 1 892, 895; see, generally, Trindade, Intentional
Torts: Some Thoughts on Assault and Battery (1982) 2 Oxford J.L. Studies 211, 217-219.
 Internationaland Comparative Law Quarterly [VOL. 34

ing" so as to bring them within the section. Perhaps, therefore, the para-
graph was included to leave open the possibility of liability arising under
Wilkinson v. Downton62 or Beaudesert Shire Council v. Smith63 should
someone deliberately allow animals to stray on to the highway with the
intention of causing injury or damage to a passing motorist or pedestrian
or perhaps even the owner 64 of the animals. However, these possibilities
are somewhat fanciful and it is submitted that in practice paragraph (b)
will rarely, if ever, be called into operation.
The English and Victorian Acts contain no equivalents to section 3(3)
of the Western Australian Act. In England this means that the
"keeper" 65 of a dangerous animal may be strictly 66 liable under section
2,67 which deals with liability for dangerous animals generally, in respect
of injury or damage 68 caused by it straying on to a highway. 69 The result
in Victoria is that the common law rules relating to dangerous animals
continue to apply in respect of injury or damage caused or inflicted by a
dangerous animal that has strayed on to a highway. Moreover, in both
jurisdictions, the absence of such a provision means that the rule in
Rylands v. Fletcher and the various intentional torts may apply in cases
where an animal has escaped on to a highway. Thus, unlike the position
in Western Australia, in England and Wales and in Victoria abolition of
the rule in Searle v. Wallbank has increased the range of potential lia-
bilities to which persons responsible for animals are subject, in relation
to injury or damage caused by them straying on to a highway, rather
than resulted in the replacement of a limited form of liability in such
cases by a more general one.
62. [18971 2 Q.B. 57. In this case Wright J considered liability where "the defendant
has . . . wilfully done an act calculated to cause physical harm to the plaintiff-that is to
say, to infringe her legal right to personal safety, and has in fact thereby caused physical
harm to her. That proposition without more appears to me to state a good cause of action,
there being no justification alleged for the act": idern, pp.58-59.
63. (1966) 120 C.L.R. 145. According to the High Court of Australia in this case," . . a
person who suffers harm or loss as the inevitable consequence of the unlawful, intentional
and positive acts of another is entitled to recover damages from that other" in an action for
damages on the case: idem, p.156.
64. This would be on the basis that if the animals were injured or killed whilst straying
on the highway this was damage caused by them within s.3(3).
65. The "keeper" of an animal is defined in s.6(3) of the Animals Act 1971. This pro-
vision is discussed below.
66. Although liability under s.2 is strict, it is not absolute in so far as certain defences
are created by s.5.
67. This section substantially enacts the common law rules relating to dangerous ani-
mals that were abolished by s.I(1)(a) of the Act.
68. If the animal belongs to a dangerous species, liability extends to "any damage" it
causes: Animals Act 1971, s.2(1). If it does not belong to such a species, liability extends
only to "damage of a kind which the animal, unless restrained, was likely to cause or
which, if caused by the animal, was likely to be severe": Animals Act 1971, s.2(2)(a). This
distinction reflects the position that formerly existed at common law.
69. The authorities referred to supra n.50 in relation to the position at common law
would seem to be equally applicable to s.2.
OCTOBER 1985] Liabilityfor Animals

The New South Wales and South Australian Acts are quite different
from the other three. Not only do they abolish the rule in Searle v. Wall-
bank, as do the latter, but they also abolish entirely all the strict liability
rules that were applicable only to animals.7 ° In addition, they abolish
the rule in Rylands v. Fletcher in so far as that rule could apply in rela-
tion to damage caused by an animal. 71 Consequently, with one excep-
tion, liability for accidental injury or damage caused by an animal is now
to be determined in those jurisdictions by the law of negligence, regard-
less of the nature of the animal involved, the location of the accident or
what the animal had been doing immediately beforehand. Other than in
the case of dogs, to which the special provisions of the Dog Acts apply,
this will in practice be all but the most unusual cases. The exception
referred to relates to liability for nuisance. As mentioned previously,
the total abrogation of the rule in New South Wales has meant that lia-
bility for public nuisance might now arise in that state should animals
stray on to a highway. As public nuisance is not a common law rule
applicable exclusively to animals, it was not abrogated by section 7(2)
which applies only to such rules; indeed, it is implicitly preserved in rela-
tion to them by section 7(1) which provides that "liability for damage
caused by an animal depends on so much of the law relating to liability
as does not include the common law abrogated by subsection (2)". That
provision would also seem to leave open the possibility of liability aris-
ing in respect of the intentional infliction of damage of the kind dis-
cussed above in relation to the Western Australian Act.

E. The Persons Liable

As far as liability for negligence is concerned, following the abolition of
the rule in Searle v. Wallbank, the person on whom liability will fall in
all the jurisdictions under consideration is the person who was in con-
trol 72 of the animal before it strayed on to the highway. This is because
the law of negligence, unlike the common law relating to dangerous ani-
mals and cattle trespass, imposes a duty of reasonable care upon such a
person, rather than upon the person who owns the animal. 73 Conse-

70. In New South Wales this is effected by s.7(2) of the Animals Act 1977. In South
Australia it is the result of the combined effect of s. 17a(1) and (9) of the Wrongs Act 1936,
as amended (supra n.ll).
71. In the New South Wales Act, this is done specifically in s.9. In the South Australian
Act it results from the general terms of s.17a(9).
72. Fardon v. Harcourt-Rivington [1932] All E.R. 81, 83; Draper v. Hodder [1972] 2
Q.B. 556.
73. In the case of dangerous animals and cattle trespass, liability is also imposed on the
owner of the animal regardless of whether he is in control of the animal: Alsop v. Lidger-
wood (19916) 22 A.L.R. (C.N.) 13; Fischer v. Stuart (1979) 25 A.L.R. 336. See also supra
n.51.
800 Internationaland ComparativeLaw Quarterly [VOL. 34

quently, if an accident is caused by an animal straying on to a highway,

the person responsible for its control will be liable if negligence on his
part can be established, even though he did not own the animal; con-
versely, the owner will not be liable unless he was in control of the ani-
mal at the relevant time or was vicariously liable for the person who
47
was.
In respect of injury or damage caused by a dangerous animal in Eng-
land and Wales, section 2 of the Animals Act 1971 imposes liability
upon its "keeper". Section 6(3) of the Act provides that a person shall
be a keeper of an animal if he owns it, has it in his possession (unless he
has taken it into his possession to prevent it causing damage or to
restore it to its owner) 75 or is the head of a household in which a mem-
ber under the age of 16 owns the animal or has it in his possession. Thus,
as was the case at common law, 7 6 it is possible for an animal to have
more than one keeper, namely its owner (owners) and the person (or
persons) who has it in his possession. All these persons would be jointly
liable under section 2 of the Act. Once having become the keeper of a
dangerous animal, a person remains so until another person becomes its
keeper by virtue of the Act. As no special provision is made for danger-
ous animals in the Victorian Act, liability for injury or damage caused
77
by such animals remains governed by the common law.

F. The Retrospective Operationof the Acts

As section 3(1) of the Western Australian Act expressly deems that the
part of the rule which it abrogates was never part of the law in that state,
it is retrospective in operation. Thus, a judgment 7s handed down after
the Act came into operation will be given in accordance with that sec-
tion regardless of whether the events giving rise to the action occurred
before that time. Subsections (3) and (4), however, may not be retro-
spective. The Act does not expressly provide that they are to operate
retrospectively and because they affect substantive rights and duties
there is a strong presumption 79 that they have a prospective operation
only. If this should prove to be the case, then actions based on events
occurring before the Act came into operation will be determined in
accordance with the common law, except to the extent it is modified by

74. Milligan v. Wedge (1840) 12 A. & E. 737.

75. This exception is created by s.6(4) of the Animals Act 1971.
76. Supra nn.51 and 52.
77. Ibid.
78. Although s.3(1) of the WA Act (supra n.ll) applies to actions commenced before
the date on which the Act came into operation, it does not apply to such actions if they had
proceeded to judgment before that date, even though an appeal was then pending: s.3(2).
79. Gardnerv. Lucas (1878) 3 App.Cas. 581, 601; Maxwell v. Murphy (1957) 96 C.L.R.
261, 267; Fisher v. Hebburn Ltd. (1960) 105 C.L.R. 188, 194.
OCOBER 1985] Liabilityfor Animals

section 3(1). However, the presumption against retrospectivity is rebut-

table 80 and it is arguable that the relationship between subsections (1),
(3) and (4) shows that Parliament intended them all to operate retro-
spectively and that therefore they should operate in that way. This
uncertainty, however, will probably be unimportant in practice. This is
because few cases, if any, are likely to arise that will not be determined
in accordance with the rules of law or considerations referred to in sec-
tion 3(3) and (4), regardless of whether or not the courts involved are
able to rely on those provisions directly.
None of the other Acts under consideration was made retrospective.
In the case of the English Act this was the result of a combination of the
presumption against retrospectivity and the fact that section 8(1) simply
abolished the rule without providing that it was deemed never to have
formed part of the relevant law. In the case of the others, it was pro-
vided expressly that were not to apply to acts or omissions occurring
before their commencement.

G. Limitation on the Amount of Damages Recoverable

Almost certainly, the most controversial aspect of the Western Austra-
lian Act is the unique section 3(5) which provides that:
There shall not be recoverable by way of damages in respect of any one
cause of action in tort for negligence arising out of damage caused by ani-
mals straying on to a highway an amount exceeding $500,000.
As mentioned above, although this provision was introduced into the
original bill only as a result of an opposition amendment, it followed a
recommendation of the Western Australian Commission81 that a limit
be placed on the amount of damages recoverable in such cases. The
Commission made this recommendation to reinforce the significance of
the information it obtained regarding the cost to farmers and graziers of
obtaining public liability insurance. 82 Apparently the Commission anti-
cipated that the likely opponents of its recommendation that the rule be
abrogated would be farmers and graziers who feared that abrogation
would expose them to the risk of having to pay ruinous damages to suc-
cessful plaintiffs. To allay this fear and thereby reduce opposition to its
83
principal recommendations, the Commission obtained information
which showed that the cost of getting appropriate public liability insur-

80. Pardo v. Bingham (1870) L.R. 4 Ch. App. 735, 740; Zaimal bin Haslim v. Govern-
ment of Malaysia [1980] 2 W.L.R. 136.
81. WALRC Report, op. cit. supra n.14, at paras.6.16-6.21.
82. Idem, para.6.17.
83. Ibid. The Law Commission tried but was unable to obtain similar information: see
op. cit. supra n.5, at para.56.
 Internationaland ComparativeLaw Quarterly [VOL. 34
ance was relatively low. It implied that, through such insurance, farmers
and graziers should bear the costs associated with accidents caused by
their straying animals, rather than the users of the highways, and said
that they could do so inexpensively. However, at the time, the amounts
being awarded as damages in personal injury cases in Australia were ris-
ing sharply 84 and it was feared that, were this trend to continue, farmers
and graziers, even with apparently large amounts of insurance cover,
could not be confident that they would be fully indemnified should they
be found to have been negligent. Therefore, the Commission recom-
mended that "an upper limit be fixed beyond which damages cannot be
awarded, in respect of any one accident, against the person who kept
the animal which caused the accident". 85
The Act differs from the Commission's report in two respects. First, it
does not provide for the maximum amount recoverable to be increased
regularly as the Commission recommended. Consequently, for this to
occur the Act will need to be amended on each occasion. A more suit-
able arrangement would have been for the Act to refer to a "prescribed
amount" and provide that the precise figure be set by regulation. This
would enable the government to vary the maximum quickly and easily
and without the need for legislation. Second and more important, sec-
tion 3(5) imposes a limit on the amount recoverable "in respect of any
one cause of action", whereas the Commission had recommended a
limit "in respect of any one accident". Thus, if several persons are
injured in an accident involving a straying animal, each will be able to
recover up to the maximum amount as each will have a separate cause of
action. The Commission, however, envisaged that in such a case those
persons would only share the maximum amount if the total of their indi-
vidual awards exceeded that amount.8 6 The Act is thus more generous
to the victims of accidents involving straying animals than was the Com-
mission's report. However, it leaves farmers and graziers more exposed
than implementation of the report would have done as the total amount
for which they are potentially liable in a given case will vary depending
upon the number of persons injured. This largely defeats the purpose of
the limitation for it means that they are not able to know in advance

84, This was a result of the decision of the High Court in Atlas Tiles Ltd. v. Briers
(1978) 21 A.L.R. 129 not to follow the House of Lords in British TransportCommission v.
Gourley [19561 A.C. 185, concerning the regard to be paid to the plaintiff's liability to pay
income tax, and dicta in the High Court in Barrell Insurance Pty. Ltd. v. Pennant Hills
Restaurant Pty. Ltd. (1981) 34 A.L.R. 162 suggesting the discontinuation of the practice of
discounting lump sum awards of damages to allow for the income earning capacity thereof.
However, in Cullen v. Trappell (1980) 29 A.L.R. 1, a differently constituted High Court
reversed Atlas Tiles saying that Gourley should be applied in Australia and the effect of
Barrell Insurances was reversed by statute.
85. WALRC Report, op. cit. supra n.14, at para.6.19.
86. Idem, p.40, n.3.
OCTOBER 1985] Liability for Animals

what their potential maximum liability is and protect themselves by

obtaining an insurance policy that will indemnify them against liability
up to that amount. Perhaps this difference between the Law Reform
Commission's report and the Act represents a compromise between the
government and the opposition on this issue.

III. DOGS

AT common law, the person responsible for the control of a dog was
required by the law of negligence to take reasonable care to see that it
did not cause harm to other people or their property.8 7 However,
because the rule in Searle v. Wallbank applied to dogs8 8 liability did not
arise if a dog caused injury or damage by straying on to a highway unless
one of the exceptions to the rule applied. 89 This position, however, was
changed radically in Western Australia and New South Wales by the
Dog Acts 9° which imposed strict liability upon the owner of a dog, or the
person deemed by the Act to be the owner, for any injury or damage it
caused. Because liability was not limited to canine activities such as bit-
ing or scratching and did not depend upon there being physical contact
between the dog and the plaintiff, strict liability could arise under those
Acts in respect of personal injury or property damage caused, for
example, by a car colliding with, 91 or swerving to avoid, a dog 92 straying
on to a highway.
In England and South Australia, the Dog Acts imposed strict liability
only in limited circumstances 93 and such liability has never extended to
injury or damage caused by a dog merely straying on to a highway.
Abrogation of the rule, however, has meant that in those jurisdictions
liability for negligence can now arise in such a case. This is also the pos-

87. Fardon v. Harcourt-Rivington[1932] All E.R. 81; Draper v. Hodder [1972] 2 Q.B.
556.
88. Gibb v. Comerford [1942] I.R. 295; Ellis v. Johnstone [1963] 2 Q.B. 8; Brisbane v.
Cross [1978] V.R. 49, 63.
89. E.g. in Ellis v. Johnstone [1963] 2 Q.B. 8, 26, Donovan LJ suggested that if it were
established that a dog frequently rushed on to a highway "more like a missile than a dog"
then the rule would not apply as such conduct would come within the "special circum-
stances" exception referred to by Lord Du Parcq in Searle v. Wallbank [1947] A.C. 341,
360, and Lord Evershed MR in Brock v. Richards [1951] 1 K.B. 529, 535. See also
S.G.I.C. v. Trigwell (1979) 142 C.L.R. 617, 637.
90. (WA) Dog Act 1903, s.24; the successor to this provision, s.46 of the Dog Act
1976-1977, was more equivocal on this point and may have imposed liability only in cases
of negligence. (NSW) Dog Act 1966, s.20.
91. Martignoniv. Harris [197112 N.S.W.L.R. 102.
92. Twentieth Century Blinds Pty. Ltd. v. Howes [1947] 1 N.S.W.L.R. 244.
93. Under the English Dog Act 1906, s.1, the owner of a dog is strictly liable for injury
done by the dog to "cattle" or "poultry" as defined. In South Australia, under the Regis-
tration of Dogs Act, s.25, the owner is strictly liable for damage or injury inflicted on
horses, sheep, cattle or poultry.
804 Internationaland ComparativeLaw Quarterly [VOL. 34
ition in Victoria as section 22 of the Dog Act 1970 imposes liability only
when a dog" . . . rushes at attacks worries or chases any person or any
horse cattle sheep or poultry . . ." Consistently with this approach,
when the rule was abrogated in New South Wales and Western Austra-
lia, the Dog Acts in those states were amended to remove strict liability
for accidents caused by dogs straying on to a highway. 94 Therefore liab-
ility for injury or damage caused by a dog straying on to a highway is
now to be determined in all five jurisdictions in accordance with the rel-
evant provisions discussed above.

IV. CONCLUSION

ALTHOUGH abrogation of the rule is an important and long overdue

reform, because many accidents involving straying animals occur in situ-
ations in which negligence cannot be established, it is no panacea. 95 As a
result, especially in Australia where a large number of accidents are
caused by wild animals (kangaroos in particular) straying on to high-
ways, motorists would well be advised to carry personal injury as well as
property insurance. Only if some form of "no-fault" personal injury
insurance scheme is introduced for motor vehicle accidents will this no
longer be necessary.

94. (NSW) Dog (Amendment) Act 1977, s.2; (WA) Dog Amendment Act 1983, s.3.
95. WALRC Report, op. cit. supra n.14, at Chap.7.