Vicarious Liability

Vicarious liability is an exception to the general rule in tort law that a person is personally liable for the damage they cause. It refers to a
situation where the liability of a person (the "offender" or tortfeasor) for committing a tort is delegated to another party (D), even if D did
not participate in the tort or was not at fault. This delegation occurs due to the relationship between the offender and D.

The typical relationship that leads to vicarious liability is that of master and servant or employer and employee, as distinct from an
employer-independent contractor relationship.

This discussion will cover two main instances of vicarious liability:

1.​ Vicarious Liability of an employer for their employee (the most common instance).
2.​ Special cases like the vicarious liability of vehicle owners for their drivers, and other intentional torts.

Elements of Vicarious Liability: What Must Be Proved?

To hold an employer vicariously liable, an injured third party must prove:

●​ The offender was the employer’s employee.

●​ The employee committed a tort.
●​ The employee committed the tort in the course of their employment.

Employee vs. Independent Contractor

Distinguishing between an employee and an independent contractor is crucial because an employer is generally vicariously liable for the torts
of employees committed during their employment, but not for the torts of independent contractors.

The Label Used in the Contract

The determination of the work relationship (employee/employer) is usually a question of mixed fact and law. However, if it depends solely
on written documents, it may be a question of pure law.

●​ The terms of the contract are not conclusive where liability to third parties is concerned. Courts consider all the facts of the case
and do not necessarily find any one factor conclusive.
●​ Example: Airfix Footwear Ltd. v. Cope [1978]: A worker classified as self-employed by tax authorities was found to be an employee
for employment protection legislation.
●​ Example: O’Kelly v. Trusthouse Forte plc [1983]: "Regular" casual bar staff, who worked only when called and could refuse work,
were held not to be employees for unfair dismissal claims, emphasizing a lack of "mutuality of obligations."
●​ The label chosen by the parties (independent contractor/employee) is not determinative. See also Ferguson v. John Dawson &
Partners (Contractors) Ltd [1976], Warner Holidays Limited v. Secretary of State for Social Services [1983], and Young and Woods v.
West [1980].

Tests Developed to Determine Employee vs. Independent Contractor

Courts have developed several tests to help distinguish between a contract of service (employee) and a contract for services (independent
contractor):

1.​ The Control Test​

 ○​ This was the traditional test, focusing on the degree and right of control exercised by the engaging party over the
worker. The greater the control, the more likely the worker is an employee.
○​ Salmond and Heuston, The Law of Torts (21st Edition): An employee works under the employer's supervision regarding
how work is done; an independent contractor is their own master, exercising discretion over the mode and time of
work.
○​ Example: Yewens v. Noakes (1880): A servant was defined as anyone subject to the employer's command regarding the
manner of work. If the employer only determined what was to be done, the person was an independent contractor.
○​ Example: Honeywill and Stein Limited v. Larkin Brothers Limited: The test depends on whether the employer "retains
the control of the actual performance."
○​ Inadequacy of the Control Test: This test became less adequate with the rise of skilled workers. Employers often don't
have the specialized skill to dictate how a professional does their job.
■​ Example: Morren v. Swinton and Pendlebury BC [1965]: Lord Parker CJ stated that "Superintendence and
control cannot be the decisive test when one is dealing with a professional man, or a man of some particular
skill and experience."
■​ Example: Gold v. Essex County Council [1942]: A radiographer was held to be a servant of the hospital,
making the hospital vicariously liable for his negligence, even though the hospital could not dictate his
professional skill.
○​ The control test's emphasis has been reduced but not abandoned. It remains a relevant factor, but not the sole decisive
one.
2.​ The Integration Test / The Organisation Test​

○​ Proposed by Lord Denning LJ in Stevenson Jordon and Harrison Ltd v. MacDonald and Evans [1952].
○​ Under this test, an employee's work is an "integral part of the business," while an independent contractor's work,
though for the business, is only "accessory to it."
○​ This test has been less used as a formula and is sometimes seen as a broader way of looking at control.
3.​ The Economic Reality Test​

○​ This test looks at the underlying nature of the relationship.

○​ Example: Market Investigations Ltd v. Minister of Social Security [1969]: The court considered whether an interviewer
was "in business on her own account," or an employee whose employer took the risk of loss and chance of profit.
Control was relevant but not decisive.
○​ This test was accepted by the Privy Council in Lee Ting Sang v. Chung Chi-Keung [1990]. It considers factors like method
and frequency of payment, power of selection, suspension and dismissal, and the parties' intention.
4.​ The Mutuality of Obligation Test​

○​ This approach examines whether there's a mutual obligation for the employer to provide work and for the worker to
accept any work offered.
○​ If this mutuality is in doubt, the relationship might be classified as self-employment or outside the "employee"
concept.
5.​ The Multi-Factor Approach​

○​ It's generally accepted that no single test is conclusive. Courts explicitly use a multi-factor approach.
○​ Example: Ready Mixed Concrete (South East) Ltd v. Minister of Pensions and National Insurance [1968]: A lorry owner
contracted with a concrete company. Despite being described as an independent contractor, he had to paint his lorry in
company colors and wear a uniform. Mackenna J found him to be an independent contractor after laying down
conditions for a contract of service:
■​ The servant agrees to provide work and skill for wages.
■​ The servant agrees to be subject to the employer's control to a sufficient degree.
■​ Other contract provisions are consistent with a contract of service.
○​ In Ready Mix, the driver owned the lorry and bore the financial risk, which suggested an independent contractor status.
○​ The guidelines in Ready Mix are not rigid. As Cooke J stated in Market Investigations Ltd. v. The Minister of Social
Security, "No exhaustive list can be compiled... nor can strict rules be laid down as to the relative weight which the
various considerations should carry."
○​ Other factors courts may consider:
■​ The degree of control over the worker’s work.
■​ Their connection with the business.
■​ The terms of the agreement between the parties.
 ■​ The nature and regularity of the work.
■​ The method of payment of wages.
○​ Ultimately, courts consider a variety of tests, and the weight given to each depends on the specifics of the case.

The Status of Borrowed Employees

When a general employer (E1) lends an employee (A) to a temporary employer (E2), and A commits a tort injuring a third party (B), the
question is which employer is liable.

●​ General Principle: The general employer (E1) generally remains liable unless they can prove they temporarily divested themselves
of all control over the servant at the time the tort was committed.​

●​ There is a presumption in law that the permanent employer remains liable (Texaco Trinidad Inc. v. Halliburton Tucker Ltd.).​

●​ The burden of proof is on the general employer, and it is a heavy one to discharge.​

●​ Leading Authority: Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd [1947]​

1.​ Facts: A harbour authority (appellant) hired out a mobile crane with its operator to stevedores (X, respondent). The
contract stated the operator would work as X's employee, but the harbour authority retained dismissal power. X
controlled what boxes to load and where to place them, but not how the crane was manipulated. A third party was
injured due to the operator's negligent crane handling.
2.​ Question: Was the operator E1's or E2's servant at the time of the accident?
3.​ Held: It was not enough that the temporary employer controlled the task to be performed; it had to be shown they also
controlled the manner of performing the tasks. The general employer (harbour authority) was held liable as they still
controlled the manner in which the crane was worked, especially since it was their crane and the driver was
responsible to them for its safe keeping.
●​ When dealing with "borrowed servants," the court still gives significance to the control test, though other factors are considered:​

1.​ The type of machinery loaned: The more complicated it is, the more likely the permanent employer remains liable.
2.​ The duration of the service under the temporary employer.
3.​ Who pays the employee.
4.​ Who pays National Insurance contributions, income tax, and other taxes.
5.​ Who retains the power of dismissal.
6.​ Whether the two employers themselves have attempted to regulate the matter.
●​ See also Texaco Trinidad Inc. v. Halliburton Tucker Ltd (1975) for the presumption against a transfer of a servant.​

The Course of Employment

An employer is only vicariously liable if the tort was committed by the employee during the course of their employment. This occurs if:

1.​ The act is expressly or impliedly authorized by the employer.

2.​ It is an unauthorized manner of doing something authorized by the employer.
3.​ It is necessarily incidental to something the servant is employed to do, or (based on case law developments) "closely/sufficiently
connected" to the servant’s employment.

The question of whether a tort was committed in the course of employment is a question of fact in each case.

Implied Authority

●​ Example: Poland v. Parr & Sons (1927)

 ○​ Facts: An employee reasonably believed children were stealing company property and struck one, causing serious
injury.
○​ Held: Despite being unreasonable, the act was within the course of employment. Bankes LR: "a servant has an implied
authority upon an emergency to endeavour to protect his master’s property if he sees it in danger." The employer can
be liable for the wrongful exercise of this discretion.
○​ Limits (Atkin LJ): If the servant's excess act is "so great as to take the act out of the class" (e.g., firing a shot), it may not
be in the course of employment.
○​ Principle: If an employee acts without express authority but intends to promote the master's legitimate interests, the
master will be liable for a tortious act unless it is so extreme or outrageous that it cannot be incidental to the
employee's duties.
●​ An employee who wrongly arrests someone after a supposed theft has ceased is generally not acting within implied authority, as
the motive shifts from property protection to "vindication of justice."
●​ Example: Warren v. Henly’s Ltd [1948]: A garage attendant attacked a customer out of vengeance after a dispute over payment.
The employer was not liable as the act was extreme and "not so connected with the acts which the servant was expressly or
impliedly authorised to do."

Unauthorized Manner of Doing Something Authorized by the Employer

An employer is liable for negligent acts committed by an employee in an unauthorized mode of doing what they are authorized to do.

●​ Example: Century Insurance Co v. Northern Ireland Road Transport Board (1942)

○​ Facts: A lorry driver negligently threw down a lighted match while transferring petrol, causing an explosion and fire.
○​ Held: The driver was in the course of his employment. Negligence in lighting a match while discharging duties was
negligence in those duties.
●​ Example: Limpus v. London General Omnibus Co. (1862)
○​ Facts: Defendants forbade bus drivers from racing. A driver disobeyed and caused a collision.
○​ Held: Defendants were liable. The driver was still acting in the course of his employment; the prohibition merely
regulated how he did his authorized job (driving).
●​ Distinction between Century and Beard v. London General Omnibus Co.: In Century, the driver was authorized to deliver gasoline,
and the tort occurred during that process. In Beard, the conductor was not authorized to drive the bus (only collect fares), so the
tort occurred while doing something unauthorized.

Determining Course of Employment: Factors to Consider

1.​ Authorized limits of time and place:​

○​ If the tort is committed during working hours or a reasonable time before or after, the court is more likely to hold the
employer liable.
○​ Example: Ruddiman & Co. v. Smith (1889): A clerk, 10 minutes after hours, left a tap on, causing flooding. His employers
were liable as washroom use was incidental to employment, and the negligence occurred shortly after work.
2.​ Whether a detour by the employee amounts to a “frolic of his own”:​

○​ Principle (Parke B in Joel v. Morrison (1834)): If the employee deviates from their master's business for a "frolic of his
own," the master is not liable. If it's a deviation while still on master's business, the master might be liable.
○​ It's a question of degree, considering the extent and purpose of the deviation. Was it for the employer's business or the
servant's own?
○​ Example: Whatman v. Pearson (1868): An employee deviated a quarter mile from his route to get a midday meal,
leaving his employer's horse and carriage unattended, which ran away and injured a third party. The employer was
liable because the deviation was minor and obtaining refreshment was reasonably incidental to employment.
○​ Contrast: Storey v. Ashman (1863): A driver, on a return journey, deviated significantly to pick up a cask for a friend's
private purposes. The employer was not liable for negligence during this detour, as the driver was clearly on "a frolic of
his own."
○​ See also Dunkley v. Howell and Smith v. Stages [1989] for general guidance on "course of employment."
3.​ Express Prohibition:​

○​ Prohibitions that limit the sphere of employment: Disobedience typically means the employee is outside the course of
employment, and the employer is not liable.
 ○​ Prohibitions that merely deal with conduct within the sphere of employment: Disobedience often does not prevent
employer liability, as the employee is still doing their authorized job, just in a forbidden way.
○​ Example: Limpus v. London General Omnibus (1862): A bus driver, expressly forbidden from racing, caused a collision.
The employer was liable because the prohibition controlled conduct within the sphere of employment, not the sphere
itself.
○​ Example: Canadian Pacific Rly Co. v. Lockhart (1942): Employees were forbidden from driving uninsured cars for
company business. An employee did so and caused injury. The employer was liable because the prohibition concerned
the manner of doing work (using an uninsured car), not the act of driving itself.
○​ Contrast: Clarke v. William Brewer Co. Ltd (1939) (Privy Council): Employees were prohibited from driving the
employer's truck on Sundays unless instructed. An employee drove it on a Sunday without permission for personal
business. The employer was not liable because the prohibition limited the sphere of employment (driving on Sundays).
4.​ Prohibitions against giving lifts to unauthorized passengers:​

○​ Example: Twine v. Bean’s Express Limited [1946]

1.​ Facts: The plaintiff's husband was given a lift in a van driven by the defendant's employee, X, despite
instructions and a notice forbidding unauthorized passengers. T was killed due to X's negligence.
2.​ Held: The employer was not liable. While the driver was on his proper route, giving a lift to an unauthorized
person was "totally outside the scope of his employment."
○​ Contrast: Rose v. Plenty (1976)
1.​ Facts: A milkman, contrary to instructions, took a 13-year-old boy on his milk float to help deliver milk. The
boy was injured due to the milkman's negligence.
2.​ Held: The employer was vicariously liable. The prohibition against boys on the float merely affected the
manner of doing the job. Lord Denning also distinguished it by noting the lift was for the employer's benefit
(to further the business).
○​ Compare: Subhaga v. Rahaman (1964): A driver gave a lift to an unauthorized passenger, but there was no express
prohibition or notice. Giving the lift was deemed a wrongful mode of doing authorized work.
○​ Contrast: Battoo Bros. Ltd v. Gittens (1975): Even without an express prohibition, the employer was not liable. The key
distinctions were:
1.​ The employee charged the passengers a fee.
2.​ He would have had to deviate several miles from his designated route (even though the accident occurred
before the deviation).
3.​ The court applied the reasoning from Twine v. Bean's about the presence of the passenger being reasonably
anticipated by the employer.

Intentional Torts - "The Test of Sufficient Connection"

In cases of intentional torts like theft, deceit, and assault, courts have moved beyond the traditional authorized/unauthorized modes
distinction and apply a "sufficient connection" test between the wrong committed and the scope of the employee’s employment.

Theft

●​ Example: Morris v. C.W. Martin & Sons Ltd [1966]

○​ Facts: A furrier subcontracted cleaning a fur coat to a firm. An employee of the firm stole the coat.
○​ Held: The firm was held liable, not for negligence in hiring, but for breach of its non-delegable duty as a bailee for
reward. This duty required the firm to ensure care was taken. The firm couldn't prove its employees exercised due
diligence.
○​ Primary liability might also arise if the employer negligently hired a dishonest employee.
●​ Example: Nahhas v. Pier House (Cheyne Walk) Management Limited [1984]
○​ Facts: The defendant negligently hired an ex-"professional thief" as a porter. The porter used a tenant's key to steal
jewelry from their flat.
○​ Held: The employer was held primarily liable for the theft due to negligent hiring.

Deceit/Fraud

Courts were initially reluctant to hold employers liable for employee fraud. This changed in the mid-19th century.
 ●​ Example: Lloyd v. Grace Smith & Co [1912]
○​ Facts: A solicitor's managing clerk fraudulently persuaded a client to hand over title deeds and then disposed of
property for his own benefit.
○​ Held (House of Lords): The solicitor was held liable. Fraud in such cases involves employee deception, and liability
depends on the extent of the employee's authority, whether actual or apparent. In Lloyd, the solicitor had allowed the
clerk to deal with such matters, creating apparent authority.
○​ Conclusion: In cases of fraud, the employer may be vicariously liable only when the employee has acted within their
ostensible authority.
●​ Example: Dubai Aluminum Co. Ltd v. Salaam [2002]: This case considered whether a law firm was vicariously liable for a senior
partner's conduct in drafting fraudulent documents without his partners' knowledge. (The extract ends before the full details of
the decision on contribution are provided).

Private Nuisance

●​ Definition: A balancing act by the court to determine if a defendant's unreasonable and unlawful conduct in using their property
injures a neighbor's enjoyment of their land. Similar to defamation, where freedom of speech is balanced against the right to not
have one's reputation injured.​

●​ Criteria for Unreasonableness/Excessive Use of Land:​

○​ Locality: What constitutes a nuisance depends on the character of the neighborhood (e.g., Sturges v Bridgman).
○​ Sensitivity of the Claimant: An abnormally sensitive claimant is unlikely to succeed, as the test is based on a
"reasonable user" (e.g., Robinson v Kilvert). However, if the activity would harm individuals of ordinary sensitivity, it
can be a nuisance (McKinnon Industries v Walker).
○​ Utility of the Defendant's Conduct: Activities benefiting the community are less likely to be considered a nuisance
(Harrison v Southwark Water Co), but a business causing constant odor in a residential area can be a nuisance (Adams v
Ursell).
○​ Malice: While not strictly necessary to prove, evidence of malicious behavior can negate reasonableness (e.g., Christie v
Davey, Hollywood Silver Fox Farm v Emmett). However, if the act is lawful, motive is irrelevant (Bradford Corporation v
Pickles).
○​ State of the Defendant's Land: An occupier can be liable for naturally occurring hazards if they are aware and fail to
take reasonable steps to prevent injury, considering their resources (Leakey v National Trust).
●​ Interference with Use or Enjoyment of Land:​

○​ The claimant must prove indirect and usually continuous interference (e.g., noise, smells, physical encroachment like
overhanging branches).
●​ Who May Sue:​

○​ The owner or a person in occupation with a proprietary interest, such as a lessee (e.g., Malone v Laskey, Hunter v
Canary Wharf).
●​ Who May Be Sued:​

○​ Creator of the Nuisance: Any person who creates the nuisance, regardless of land ownership (Thomas v National Union
of Mineworkers).
○​ Occupiers: The landowner and occupier (e.g., tenant) can be sued for nuisances caused by themselves, employees, or
independent contractors if the activity involves a special danger of nuisance. Occupiers can also be liable for nuisances
caused by third parties if they are aware and fail to prevent it.
○​ Landlord: May be liable if:
1.​ Nuisance existed at the time of lease and the landlord knew or ought to have known.
2.​ Lease agreement makes provision for landlord to do repairs or they have a right to deal with repairs (Wringe
v Cohen).
3.​ The landlord authorized the nuisance (e.g., allowing an activity that inevitably causes nuisance) (Tetley v
Chitty).
●​ Defences:​
 ○​Prescription: If the nuisance has continued for 20 years without interruption and the claimant knew about it (Sturges v
Bridgman).
○​ Statutory Authority: If a statute authorizes the activity causing the nuisance (Allen Gulf Oil Refining Ltd).
○​ Coming to the Nuisance is no Defence: It is not a defence to argue that the claimant moved to an area where the
nuisance already existed (Miller v Jackson).
●​ Remedies:​

○​ Injunction: A discretionary equitable remedy to stop the activity causing the nuisance.
○​ Damages: Monetary compensation for injury to land or loss of enjoyment (e.g., lack of sleep, discomfort).
○​ Abatement: Self-help remedy allowing the claimant to take steps to end the nuisance (e.g., cutting overhanging
branches), usually with notice.

Public Nuisance

●​ Definition: A crime and a tort where a harmful activity affects the public or a section of the public, or materially affects the
reasonable comfort of a class of Her Majesty's subjects (e.g., pollution, obstruction on a public highway).
●​ Remedy: Prosecution or relator action by the Attorney General. A claimant can sue if they suffer "particular damage" beyond that
of the general public.

Rylands v Fletcher

●​ Definition: Strict liability for damage caused by isolated escapes of dangerous things brought onto land through a non-natural use.​

●​ Principle (Blackburn J): "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."​

●​ Requirements:​

1.​
Defendant brought something onto his land that is likely to do mischief: The dangerous thing must be accumulated or
brought onto the land through unnatural use; not naturally occurring (e.g., Giles v Walker). Storage of metal foil strips
was not considered to have a special risk and damage was not foreseeable in British Celanese v Hunt.
2.​ The thing escapes: The dangerous thing must escape from the defendant's land to an area outside their control (Read v
J Lyons).
3.​ Escape caused by non-natural use: "Some special use bringing with it increased dangers to others, and must not merely
be the ordinary use of land or such a use as is proper for the general benefit of the community." The definition varies
and considers context (Cambridge Water Co v Eastern Leather Company, Transco plc v Stockport Metropolitan Borough
Council).
4.​ Foreseeable damage caused: The harm caused by the escape must be foreseeable (Cambridge Water Co v Eastern
Countries Leather).
●​ Remedies:​

1.​ Damages: For physical harm to neighboring land and other destroyed property.
2.​ No recovery for personal injury.
3.​ Injunction: Can be granted by the court.
●​ Defences:​

1.​ Consent: Claimant's consent to the dangerous thing's existence/accumulation, without negligence by the defendant.
2.​ Common Benefit: The dangerous item was maintained for the mutual benefit of both parties.
3.​ Act of a Stranger: Damage caused by a third party not acting under the defendant's instructions, provided the
defendant could not have foreseen and guarded against it (Box v Jubb).
4.​ Statutory Authority: A statute explicitly permits or obliges the activity causing the escape (Green v Chelsea Waterworks
Co vs. Charing Cross Electricity Co v Hydraulic Co).
5.​ Act of God: Escape due solely to unforeseeable natural hazards (Nichols v Marsland, Greenock Corporation v
Caledonian Railway).
6.​ Default of the Claimant: The escape was the claimant's fault.
Liability for Animals

Liability for torts caused by animals is typically categorized into four main areas:

1.​ Liability for Cattle Trespass

2.​ Liability for Dangerous Animals (Scienter Action)
3.​ Liability for Dogs
4.​ Liability in Negligence

Liability for Cattle Trespass

This action arises when the defendant's cattle (including cows, bulls, horses, donkeys, sheep, pigs, goats, and poultry) are intentionally driven
onto or independently stray onto the plaintiff's property.

●​ Strict Liability: The owner of the cattle is strictly liable for any damage caused by the trespass. This means liability applies
regardless of the owner's intention or negligence in the animals' escape.​

○​ Case Example: In East Coast Estates Ltd v Singh (1964), the defendant's cattle strayed and damaged "pangola grass."
The court held the defendant strictly liable, irrespective of his efforts to prevent the escape.
●​ Recoverable Damages: Damages can be recovered for harm to land and crops, injury to other animals, damage to chattels, and
personal injuries to the plaintiff.​

●​ Defence: Straying from Roadway: It is a defence if animals stray from a roadway where they are being lawfully driven onto
adjacent land without negligence.​

●​ Statutory Defence (Jamaica - Trespass Act, Section 14):​

○​ An owner of trespassing stock may have a defence if they can prove their land is enclosed by good and sufficient fences
and they took all other reasonable precautions for confinement, but the animals escaped due to an uncontrollable
cause or accident.
○​ This defence is defeated if the plaintiff can show they fenced their own land with a fence sufficient to keep out ordinary
tame cattle and horsekind.
○​ Case Example: In West v Reynolds Metal Company, the defence failed because the defendant's land was not fenced on
all sides, even though the borders with the plaintiff's land were sufficiently fenced.
●​ Parties to an Action:​

○​ Generally, only a person with a legal or beneficial interest in the land can sue for cattle trespass. (e.g., Aziz v Singh -
plaintiff whose steers were tethered on a third party's land could not sue for cattle trespass, but succeeded in scienter).
○​ Trespass Act (Jamaica - Section 12): This section may be interpreted to allow non-occupiers to sue for injury or damage
sustained from cattle trespass, stating "any injury done by stock trespassing on to the land of other persons."
●​ Trespass from the Highway:​

○​ Common law presumes that owners of land adjoining a highway accept the risk of ordinary, non-negligent straying
animals from the highway. Thus, there is no liability in cattle trespass if animals stray without negligence.
○​ Trespass Act (Jamaica - Section 13) Additions:
■​ This immunity does not apply if the plaintiff has fenced their land to keep out livestock.
■​ The burden is on the defendant to prove their stock were being lawfully driven along the highway.

Liability for Dangerous Animals (The Scienter Action)

Animals are categorized for scienter actions:

●​ Animals ferae naturae (Naturally Fierce): Wild or dangerous animals (e.g., lions, tigers, gorillas, bears, elephants). The owner is
strictly liable for harm caused by these animals, regardless of past behavior.​
 ●​ Animals mansuetae naturae (Naturally Tame): Domesticated species (e.g., cats, cows, dogs, donkeys, goats, sheep). Liability arises
if:​

○​ The animal is predisposed to behave in a harmful manner.

○​ The owner had knowledge (scienter) of this specific harmful predisposition before the harm occurred.
●​ Principles of Scienter Liability (outlined by Kodilinye, 2000):​

○​ Classification of Species: Whether an animal is ferae or mansuetae naturae is a question of law for the judge.
○​ Specific Knowledge: The owner's knowledge must relate to the particular harmful propensity that caused the damage
(e.g., propensity to attack humans, not just other animals).
○​ Proof of Propensity: It is not necessary for the animal to have caused that specific type of harm previously; exhibiting a
tendency is sufficient. The saying "every dog is allowed one free bite" is inaccurate.
○​ Imputed Knowledge: Knowledge of an animal's vicious propensity can be imputed to the defendant if acquired by
someone with full custody/control of the animal, or inferred if gained by a third party (e.g., keeper's wife) and likely
communicated.
○​ Location of Attack: The location of the animal's attack (plaintiff's land, defendant's premises, highway, etc.) is
immaterial.
○​ Vicious/Hostile Propensity: For mansuetae naturae animals, the propensity must be vicious or hostile. Liability does
not arise for mere playfulness or common non-aggressive behavior (e.g., frolicking horses, dogs chasing each other).
○​ Case Example: McIntosh v McIntosh (1963) - A jackass injuring a plaintiff while attempting to serve a jenny was not a
nuisance because it was merely displaying a "natural propensity," not a "mischievous" one, even though the owner
knew of previous similar attempts.
●​ Who Can Be Sued: The person who keeps and controls the animal, even if not the owner. (e.g., Mckone v Wood - occupier liable
for vicious dog; contrast North v Wood - father not liable for daughter's dog).​

●​ Defences:​

○​ Plaintiff's Default (e.g., trespasser bitten by guard dog).

○​ Contributory Negligence.
○​ Teasing an animal.
○​ Volenti non fit injuria (voluntary assumption of risk).

Liability for Dogs

In some jurisdictions (e.g., Jamaica, under the Dogs (Liability for Injuries by) Act), strict liability is imposed for harm caused by dogs. Under
these statutes, there is no need to prove science or negligence, making it easier to succeed against the owner or person in control of the dog.

Liability in Negligence

A plaintiff can succeed in negligence if there was a special risk of injury to others that the defendant was aware of (e.g., leaving children
unattended with dangerous dogs).

●​ Rule in Searle v Wallbank: The owner of property adjoining a highway is generally not obligated to fence their land to prevent
domestic animals from straying onto the highway and causing harm.
●​ Exceptions to Searle v Wallbank: A landowner may be required to fence if a dog frequently dashes onto the road, becoming "more
like a missile than a dog" (Ellis v Johnstone).
●​ Direct Negligence on Highway: If the defendant actively takes their animals onto the highway and is negligent in controlling them,
they will be liable for any resulting harm.