MUSINGS - ‘The gorilla and the boy’


There is a joke that made the rounds sometime ago about this fellow who woke up one morning and discovered that a gorilla was on his roof. It is arguably in sufficiently good taste to bear repetition even in a Sunday family newspaper such as this.
So the fellow looks up the yellow pages and, sure enough, there’s an ad for “Gorilla Removers”. He calls the number, and the gorilla remover says, “I will be there in 30 minutes”. The gorilla remover arrives and gets out of his van. He’s got with him a ladder, a baseball bat, a shotgun and a huge, ferocious looking dog of uncertain progeny.
“What are you going to do?” the homeowner asks.
“I’m going to put up this ladder against the roof, then I’m going to go up there and knock the gorilla off the roof with the bat. When the gorilla falls off, the dog is trained to grab the gorilla’s testicles and bite them. The gorilla will then be subdued enough for me to lock him in the cage in the back of the van”, says the gorilla remover,  and hands the fellow the shotgun.
“What do I need the shotgun for?”  asks the homeowner.
The gorilla remover replies, “If the gorilla should knock ME off the roof, you must immediately shoot the dog.”
There was no need for a gorilla remover on May 29 this year at the Cincinnati Zoo when a three-year-old child fell into the enclosure housing Harambe, an imposing 17-year-old silverback gorilla. Rather, the call would have been for a child remover. In these days of the new journalism, where every incident becomes immediate fair game for social media communication, a video of the event went viral. 
The outcome was the shooting of the gorilla by the zoo authorities in order to protect the boy from possibly being mauled to death by the gorilla who, it was claimed, could crush a coconut with his bare hands.
One aftermath of this outcome is that this ostensibly sensible decision proved not to be the popular one, as some of those who had no problem with this majestic animal being held in captivity for populist entertainment, nevertheless wondered about the lack of value placed upon its life in the incident.
Some argued that the child was in no clear and imminent danger, given similar previous incidents between gorillas and small children and the almost maternal treatment ostensibly displayed by Harambe towards the child here on some occasions during the episode. 
This, alas, is a non-starter. The gorilla is classified in law as an animal “ferae naturae” (wild by nature), a categorisation that makes the owner strictly liable for any harm that it causes, whether the animal has previously exhibited such a propensity or not. I am not aware that the law in Cincinnati differs from this. Thus, circuses and zoos are liable if one of their wild animals should be the cause of injury to an individual. We may surmise therefore that the zoo authorities may have acted out of a sense of avoiding possible liability to the parents of the child, and the consequential negative reputational damage to the establishment, as much as out of a desire to avoid the nightmare scenario of such a frightfully strong animal rending an infant from limb to limb in full view of horrified onlookers.
Indeed, those moments when the animal suddenly dragged the child through the water by his feet were far from tender and drew an audible collective gasp from the spectators. This merely served to demonstrate further the unpredictability of an animal of this classification and, hence, that too of a probable happy outcome to the entire affair. 
Confronted with the argument that it was a straight contest for the primacy of a life between that of a human and that of a magnificent specimen from an allegedly endangered species, those against the destruction of the gorilla naturally turned their attention to the mother and her “negligent” supervision of the child. Last Friday morning, I watched an intriguing discussion on CNN between two female lawyers who held contrasting points of view on this matter.
Over the years, I have had consciously to warn first-year students of the law of negligence that liability for harm should not be presumed as established simply because there is the existence of harm to an individual. The victim must still establish that the elements of the tort are severally satisfied in order for there to be liability. One of the discussants appeared to have committed this elementary error, being prepared to attribute culpability to the mother simply because the child fell into the enclosure. She would not be swayed from this view by the fact that the mother was also simultaneously attending to her other children and sought to confirm her assertion by relating the fact that such an incident had not occurred in 38 years, assumedly the period for which the zoo had been in existence.
It is clear that if the mother is to be held civilly liable at all for anything, it would have to be to the zoo for causing the death of its gorilla through a failure properly to control the wanderings of her son. This determination is likely to involve complex issues such as whether the “chain of causation” between the mother’s negligence of not keeping a proper lookout and the death of Harambe remained unbroken despite the zoo’s meditated decision to shoot the gorilla, or whether this action on the zoo’s part was constrained by the consequence of the mother’s inadvertence in the first place, leaving the zoo without a free choice in the matter. 
Criminal liability of the mother, on the other hand, would be based on some statutory provision to that effect, but this should also require that the mother acted without due care and attention for the safety of the child. I have not discovered such legislation in Cincinnati, but that in Tasmania is apposite. The Children, Young Persons and their Families Act 1997, provides, by section 91:-
(1) A person who has a duty of care in respect of a child must not intentionally take, or fail to take, action that could reasonably be expected to result in –
(a) the child suffering significant harm as a result of physical injury or sexual abuse; or
(b) the child suffering emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged; or
(c) the child’s physical development or health being significantly harmed.
Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both.
(2) Proceedings for an offence under subsection (1) may only be brought after consultation with the Secretary.
(3) A person may be guilty of an offence under subsection (1) even though the child was protected from harm by the action of another person.

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