A GUY'S VIEW: Man’s best friend, or dangerous beast?

In recent weeks, animals and their behaviour and treatment have been the centre of attention. Animals share our space, hence contact between them and us is inevitable.

For legal purposes, the English common law recognised two distinct types of animals based on how humans perceived their nature. Two Latin terms marked this divide: ferae naturae and mansuetae naturae.

Ferae naturae refers to wild animals. This would include animals like lions, tigers, elephants and the like. The nature of such animals is such that it makes it unsafe for them to ordinarily be in our environment without careful restraint.

Mansuetae naturae speaks of animals that are tame. Man has domesticated many of them. Their nature is more docile and they may not present an inherent danger to man. This includes cattle, poultry, cats and dogs.

There are many species of dogs and their temperaments are as different as there are breeds. It is generally recognised that, although domesticated, dogs need to be treated differently from the other animals that fall into the mansuetae naturae category. In recognition of this, many countries have introduced legislation to deal specifically with dogs.

Until 1980, Barbados’ legal position was that of the English common law. That changed with the Animals (Civil Liability) Act of that year. That Act codified much of the common law, abolished some aspects of the common law, and introduced a new approach to some animal issues.

While Barbados has not introduced dog-specific legislation, the Animal (Civil Liability) Act, Cap. 194A, includes a section that speaks directly to dogs. Section 8 is instructive:

8. (1) Subject to section 9, the owner of a dog is liable for any damage caused by that dog.
(2) In an action under subsection (1)) it shall not be necessary for the aggrieved party to prove
(a) a previous mischievous propensity in the dog;
(b) that the owner knew of the dog’s vicious or mischievous propensity; or
(c) that the damage was attributable to neglect on the part of the owner.

This section reflects the position taken in a number of countries: that of strict liability. In essence, it provides that as long as a dog has caused damage, the owner, or caretaker, is liable. Put differently, there is no need to establish negligence on the part of the keeper of the dog.

This position reflects an acknowledgement that a dog is of such a nature that he who brings it into the community must bear the responsibility of keeping the community safe from it. Although domesticated, a dog is not a sheep.

Section 8 declares that its operation is subject to section 9. Section 9 is a section of exceptions to section 8. It provides an exception from liability where the damage done by the dog was wholly the fault of the person who suffered the harm. For example, if a person runs the risk of teasing the dog and is injured as a result of this folly, he is to blame for his hurt and no liability may attach to the owner of the dog.

An exception is also provided where the dog owner took reasonable care to prevent the dog from causing damage. What would constitute reasonable care would depend on the circumstances of each case. In one case, it may be reasonable to keep a gate closed. But it is possible to find that this is not enough if the fence if low and the dog is a known jumper.

Every year famers report cases of livestock being mauled by dogs. To help to bring clarity to this situation it may be useful to reproduce sub-section (c) of section 9, so as to explain the responsibility it places on the dog owner. That subsection provides that, “in the case of livestock

He (the dog owner) proves that at the material time the livestock was trespassing on land in his possession and he in no way caused the dog to attack the livestock, or

he proves that at the material time the dog was in the custody or control of a person whom he reasonably believed to be a fit and proper person to have such custody or control, or

he proves that the livestock was killed or injured on the land on to which it had trespassed and either the dog belonged to the occupier or its presence on the land was authorised by the occupier.”

It should be noted that the burden of proof in all of these cases is on the dog-owner.

There is no room for an explanation where a dog attacks livestock other than on the land of the owner of the dog, except where the dog was in the custody and control of a responsible person. In such a case, liability may move from the owner of the dog and attach to the person in whose custody and control it was at the time that it caused damage. In all cases of a dog attacking livestock outside of the premises of the owner or caretaker, liability attaches to somebody.

Where a dog trespasses onto a farmer’s land and is molesting or is attempting to molest livestock, the owner of the livestock may act to protect his livestock. If the livestock has strayed onto another’s land, the owner or occupier of that land may also act in defence of the livestock. If the dog is injured or killed in these circumstances, the person inflicting the injury on the dog may not be liable.

Some species of dogs have been banned outright in some countries. The pit bull is usually among any ban on dogs that one may find. This dog is notoriously aggressive and has a reputation for causing harm all over the world. However, there are people who like these dogs and are willing to defend their right to own them.

There are also people who make decent money from breeding such dogs. Some train them, either for fighting or otherwise. One should expect, therefore, that any attempt to ban this dog in Barbados would be met with some resistance. In the final analysis, the authorities have to act to protect Barbadians.

Protecting residents from dangerous animals cannot be limited to banning one or two species of dogs. It must extend to insistence on licensing and prosecution in the absence of compliance with the law. It must include insisting that no dog should be in a public place except on a leash that is capable of restraining it, and it must be in the company of a person who is able to control it. Protection must include a strict liability offence for any dog found outside of the owner’s or caretaker’s premises other than on a leash, whether it escaped or not, and whether it has caused damage or not. Failing to comply with these provisions should attract a dissuasive sanction.

Barbados Advocate

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