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THWAITES et al. v. JACKSON.
R-, Nuwara Eliya, 882.
Brute animal—Injury by hunting doge—Liability of owner for damage*—Direct
and consequential damages.
The owner of a pack of banting doge, which killed a calf whilestanding loose on a high road, is liable in damages to the owner ofthe calf.
The damages may include not only the value of the calf, but also theloss of milk consequent upon the death of the calf.
Folkard e. Anderson (Rdmanuthan's Reports, 1802, p. 08) commentedupon.
Per Bonser, C.J.—There seems to be no justification for the pro-position stated in Folkard r. Anderson that the amount of compen-sation should not exceed the value of the animal which caused theinjury.
HE plaintiffs raised this action for the recovery of damagesarising from the loss of a calf killed by some hounds
belonging to the defendant. Plaintiffs claimed Rs. 20 as thevalue of the calf, and Rs. 80 for loss of milk and butter consequentupon the death of the calf.
The defendant pleaded that the plaintiffs were not entitled tomaintain this action, and answering to the merits, averred thatwhile he was exercising with all proper care and precaution theright of hunting with his hounds, the calf in question strayed onthe road, crossing the trail or scent of the defendant's hounds,and was seized and killed by them, notwithstanding all his effortsto prevent it; that the plaintiffs by their negligence contributedtowards the accident; and that he tendered Rs. 20 to theplaintiffs as the value of the calf, which they refused to accept.He denied that plaintiffs had suffered any other damage.
The Commissioner held that plaintiffs’ action was maintainablein law, but dismissed it, being of opinion that “ the first plaintiff“ was in the wrong in allowing his calf to stray on to and along“ a public highway untended, and the defendant was in his right“ when he passed along the highway with his hounds coupled.”
The plaintiffs appealed.
Dornhorst (Juyewardene with him), for appellant,—
The Commissioner is wrong in holding that the defendant is notliable in damages to the plaintiff for the injuries caused by his dogs.
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The case of Folkard v. Anderson (Ramandthan, 1360-62, p. 68)1895.
settles the question. The law is also stated in Voet, IX. tit. 1, p. bokseb, CJ.•538 s also in Van Leeuwen's Commentaries, bk. IV. ch. 89, § 6.
Baiva, for respondent,—
The defendant is not liable, because the calf was in a placewhere it ought not to have been, and the plaintiff contributedto the accident by which the injury was occasioned. The rulethat the owner of a dog is liable for injuries which it causedto another’s animal, whether or not the owner knew of the viciouspropensities of the dog, must be taken with the limitation that theanimal injured was lawfully at the place where it receivedthe injury (footnote at p. 324 of Kotze's translation of vol. II. ofVan Leeuwen's Commentaries, edition of 1886). The presence ofthe calf on the high road was a violation of section 94 of OrdinanceNo. 10 of 1861, it being an offence to turn loose an ox, horse, &c.,on a high road.
24th July, 1895. Bonser, C.J.—
The facts are not really in dispute. The defendant is the ownerof a pack of hounds : he had been out hunting with them, and wasreturning home in company with his brother with the houndsalong the high road. On their way they passed the plaintiffs’house, which stands close to the road. The calf had strayed on theroad ; the hounds seized it, and in spite of all the efforts of thedefendant and his brother to prevent the hounds attacking the calf,tore it to pieces. The defendant, on finding out who the ownerof the calf was, seems to have acted as a man of good feelingwould act. Seeing that his hounds had caused the death of thiscalf, he wrote to the plaintiff and offered her Rs. 20, at which heestimated the value of the calf, and an apology for what hadhappened.
But it appears that the loss of the calf itself was not the onlydamage that resulted from the act of the hounds. The cow, themother of the calf, which was giving milk, owing to the loss ofthe calf, suddenly ceased to give milk. It is stated to be a wellknown fact that in Ceylon milch kine, if they lose their calf,cease to give milk, and that therefore the death of the calfnecessarily occasioned further damage by reason of the loss ofmilk. The plaintiff therefore declined to accept the Rs. 20offered, and claimed an additional sum of Rs. 80 for loss of themilk.
I think that under the circumstances the loss of the milk was
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*8>a- a natural and probable consequence of the death of the calf, andBouse*, CJ. therefore, if the defendant was liable for the death of the calf,he must be liable for these further damages.
The question, therefore, which we have to consider is, whetherthe defendant is liable for the death of the calf. The law whichgoverns the case of injuries caused by animals is the Homan*Dutch law, which differs from the English law. The lawwill be found stated in Voet, bk. IX. tit. 1, under tho headingSi quadrupes pauperiem fecisse dicatur, and, shortly speaking,it is this, that if an animal of an ordinarily gentle dispositioncommits any damage without any fault on the part of itsowner, or without any provocation on the part of the personor animal injured, the action de pauperie lies at the suit of theperson injured or the owner of the animal injured, againstthe owner of the animal which inflicted the injury. That actionis a noxal action, that is to say, it is open to the defendant,instead of paying the damage, to hand over the animal to theplaintiff in satisfaction of his claim ; but if he did not hand overthe animal, he was liable to pay whatever damage was assessed.If, however, there was any fault on the part of the owner of theanimal, if he had incited the animal to commit the injury, or ifhe had taken the animal to a place where it ought not to be, orif he had not held the animal in when another man might havedone so, or was in any other way in fault, then the actio depauperie would not lie, but he was liable under the lex aquiliato the full amount of the damage, and could not avail himself ofthe privilege of giving up the animal in compensation
In the present case, it was said that the defendant was not liablebecause the calf waB wrongfully on the highway, and reliancewas placed upon a note in the English translation of Van Leeii-wen'8 Commentaries of (he Roman-Dutch Law, vol. II., p. 324,where the translator, the Chief Justice of the Transvaal, who is aneminent jurist, limits the general proposition as stated in the textof Van Leeuwen by this qualification, that the animal injured waslawfully at the place where it was injured, and for this qualifica-tion he refers to a case decided by the High Court of the CapeColony. Unfortunately we have not got a report of that case,which it is quite possible to give that qualification a meaningnot inconsistent with the law laid down by Van Leeuwen.It may be that, if the injured animal was trespassing on theproperty of the owner of the animal which did the injury, theowner would not be liable. But the facts of this case show nothingof that kind. As far as the defendant was concerned, the calf waslawfully in the place where it was injured.
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Then it was suggested that its presence on the road was unlaw-ful nnder section 94 of the Ordinance No. 10 of 1861, whichrenders it an offence to turn loose, or suffer to be turned loose,any ox, sheep, or goat on any road, but this calf was not an ox, norwas there any evidence that it was turned, or suffered to be turnedloose on the road.
Then it was suggested—and it was the ground apparently onwhich the Commissioner decided against the plaintiff—that theplaintiff was guilty of contributory neligence by allowing the calfto be on the road untended. It seemB to me that this defencecannot avail the defendant. Assuming that there was negligencein not having the calf attended by some one, yet the negligence,if it is to be a defence, must be shown to have contributed directlyto the death of the calf.
There is no evidence to show that, if some one had been therein charge of the calf, the hounds would not have killed it. If thedefendant and his brother could not prevent the hounds fromkilling the calf, it is not likely that anybody else would have beenable to prevent it. This defence, if valid, would lead to this result:that all persons must cease to use the high road for the passage ofcalves and such-like animals when the defendant’s pack of houndBis likely to pasB that way. That is a proposition which refutesitself.
I therefore hold that the defendant is liable for the death ofthis calf, and that he is liable to the amount of damages claimedby the plaintiff.
But as a matter of fact the question of the defendant’s liabilitywas never in dispute.
Two issues were framed by the Judge—first, did the action lie ?which he decided in favour of the plaintiff ; second, if it did lie,what was the amount of damages ?
The only issue on which evidence was given was that as to thequantum of damages, and it appears to me that the Commissionerwas wrong, after trying the question as to the quantum ofdamages, in turning round and dismissing the action withoutgiving the parties an opportunity of adducing evidence on theissue of liability. In fact, he decided against the plaintiff withouthearing her. The only evidence given for the plaintiff wasevidence as to the amount of damages.
I may mention that in the case of Folkard v. Anderson(Rdmanathan's Reports, 1860-62, p. 68) the law on this subject ofinjuries by animals is fully laid down. There is, however, onestatement in the judgment in that case which I think theauthorities hardly Bupport. It is there stated that the limit of
Bossn, C J.
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1895. the liability of an innocent owner is that the amount to be givenBonser O.J. for compensation must not exceed the value of the animal whichdid the injury. I doubt whether that is a correct statement ofthe law. My impression is that there is no such limit to theamount of compensation. It is the duty of the Court to awardthe amount of damages, whatever that may be, and the only wayby which the defendant can escape the payment of the fullamount of the damages is by surrendering the animal whichcaused the injury.
THWAITES et al. v. JACKSON