ANIMAL LIABILITY IN INDIA; PART-1

INTRODUCTION

Liability for animals can be defined as the accountability on the owner or the person responsible for the animal, for the acts or damage done by that animal, the liability is strict and there is no requirement of establishing the intent or negligence of the owner but it has to be established either the dangerous nature of animal or the owner has the knowledge of the vicious propensity of the animal which is not common to that animal. Since civil law is not codified in India, there is no such law or provision in the constitution detailing liability for animals, so cases in India are decided by certain precedents and internationally accepted rules, mostly English precedents and provisions are followed while deciding cases. Understanding the liability for animals requires one to study three rules namely, 1). The scienter rule, 2).

Liability under cattle trespass, 3). Ordinary liability in tort. These are the three main rules used by the courts in India to decide on matters relating to liability for animals. This series will extensively discuss about the scienter rule, and the various cases decided in this regard

SCIENTER RULE

The term scienter basically means, knowledge, as in knowledge of facts or knowledge of an act or the nature of an act in some cases, so the scienter rule states that if the defendant has the knowledge of the harmful nature of the animal or the propensity of vicious nature of the animal the owner will be liable for the damage done by his/her animal. For the purpose of deciding liability this rule is classified into two different sub heads; a). Animals ferae naturae (animals dangerous by nature), b). Animals mansuetae naturae (animals harmless by nature).

1).   ANIMALS FERAE NATURAE-:

Under this heading, the animal in question is of dangerous nature, and it is presumed that the owner knows the nature of the animal and he/she is strictly liable for any damage done by that animal. Thus, if a boar does damage to any person the owner will be strictly liable for the damage done, and there is no requirement of proving negligence in this case, the defendant cannot claim that the boar was a tamed one, or circus trained, or it acted out of fear not viciousness. In the case of ‘Nitin Walia minor through (Sh. Vijay Pal Walia) vs. union of India and others1, it was held that the defendant at that time three years old visited the national zoological park, Delhi with his family on 20th march 1988, the boy was filled enormous joy on reaching the enclosure where the white tigress was kept, the whole family was keenly watching the tigress and the boy who had never seen such an animal was amazed by it, the tigress was kept in a caged enclosure behind iron bars and a railing before that, the boy in his naivety stood near the railing without realising the possible repercussions, and the tigress suddenly grabbed his hand and tried to pull it inside the enclosure, seeing this the family members came to his rescue and tried to get rid of the tigress, but by then it was too late the damage was already done, the boy’s right arm was seriously injured, he was heavily bleeding, and was in unimaginable pain, the family members took him to the hospital situated inside the zoo premises but ironically in a zoo where such ferocious animals are kept the medical facility was a total failure as the doctors expressed their inability to treat the boy, the appellant’s father rushed him to the All India Institute of Medical Sciences (AIIMS), where

the boy’s right arm had to be amputated up to two and a half inches from the shoulder to avoid any further loss of limbs or life, the boy was an indoor patient for over a month only to

1 Nitin Walia minor through (Sh. Vijay Pal Walia) vs. union of India and others, A.I.R. 2001 del. 140, (del. H.C. 2001).

be discharged on 25th April 1988 with permanent disability. Here, the court following the rule of scienter held that the zoo is the keeper of animals of vicious nature with the propensity to bite or cause harm to mankind, and even though there were safety measures like keeping ferocious animals behind iron bars and in cages, which apparently was not enough as the zoo authorities have also put wire mesh on the iron bars after this incident, the zoo is still strictly liable for the damage done by the white tigress and the respondents need not prove negligence on the side of the respondents. This case correctly explains the rule of scienter as it clearly demarcated the white tigress as an animal dangerous in nature, and though she was caged and put behind iron bars it was still held that the zoo authorities will be liable because they were the keeper of such animal and according the scienter rule the keeper keeps such animal at his own peril.

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