Cattle trespass was an ancient

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

tort A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with cri ...

whereby the keeper of

livestock Livestock are the Domestication, domesticated animals that are raised in an Agriculture, agricultural setting to provide labour and produce diversified products for consumption such as meat, Egg as food, eggs, milk, fur, leather, and wool. The t ...

was held

strictly liable In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. Und ...

for any damage caused by the straying livestock. Under

English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...

the tort was abolished by section 1(1)(c) of the

Animals Act 1971 The Animals Act 1971 (c. 22) is an Act of Parliament (UK), act of the Parliament of the United Kingdom the purpose of which was to codify civil liability for damage done by animals in England and Wales. Section 1 broadly provides for the abolit ...

, but the tort continues to subsist in other common law jurisdictions, either in its original form as a common law tort, or as modified by

statute A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...

. Liability for cattle trespass is similar to, but conceptually distinct from, the old common law ''

scienter In law, ( in British English, in American English, Law Latin for "knowingly", , ) is a legal term for intent or knowledge of wrongdoing, or reckless disregard for the truth. An offending party then has knowledge of the "wrongness" of an act ...

'' action in relation to strict liability for animals which are known to be vicious. In many of the reported cases, claims for cattle trespass and ''scienter'' are pleaded in the alternative.

History and development

The first recorded writ for cattle trespass was issued during the reign of King John (1199-1216). However the tort initially related to the keeping of animals; it was not until 1353 it was expanded to cover liability caused by their escape. Since its inception, cattle trespass appears to have been a tort of strict liability, and so the defendant is liable irrespective of whether or not they were

negligent Negligence ( Lat. ''negligentia'') is a failure to exercise appropriate care expected to be exercised in similar circumstances. Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a negl ...

or otherwise at fault. CH_cow_2_cropped

Although the name of the tort refers to cattle, the tort encompasses a wide array of livestock, including horses, oxen, sheep, pigs, donkeys, goats, fowls, geese and ducks. It also has been suggested academically that it would include peacocks, turkey and tame deer. However it does not apply to either dogs or cats. Numerous different reasons have been suggested as to why dogs should be exempt, none of which are entirely satisfactory. The tort also limited recovery to "damage natural to the species of the animal." Damages contrary to the species of the animal was not thought to be foreseeable and therefore not recoverable.''Cox v Burbridge'' (1863) 13 CB(NS) 430. A horse escaped and kicked a child; recovery was not allowed on the basis that it was not in a horses natural nature to kick humans. The alternative claim in ''scienter'' also failed as the animal was not shown to have a prior propensity to be dangerous. Furthermore, because the action relates to trespass, only the possessor of the land had standing to sue for cattle trespass. Similarly, the defendant against who a claim may be made is the possessor of the animal (rather than its owner).

Strict liability

Although the tort was principally a tort of strict liability, certain aspects of it were fault based. For example, if the owner was herding his livestock along the public highway, he would only be liable for any damage caused by the livestock to neighbor properties if he failed to use sufficient care. However, if the livestock escaped from an enclosure, he would be strictly liable for failing to prevent their escape.

Criticism

In terms of its historical development, cattle trespass belongs in the same broad of group of strict liability torts for failure to control as . Such strict liability torts have been criticized as "anachronistic" in modern times. Whilst a number of cases such as and have gradually abrogated a number of the old strict liability torts such as trespass to the person toward fault-based torts which require proof of negligence, no such evolution has yet occurred in

in relation to "escape based" torts. Whilst the

House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...

chose to preserve the strict liability elements of the rule in ''Rylands v Fletcher'' in , they also limited claims to damage to property. Had cattle trespass remained a separate tort under English law at the time, it seems reasonable to infer it would also have been so limited. In refusing to abolish the strict liability elements of the tort, the House of Lords declined to follow the position taken by the

High Court of Australia The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...

in '' Burnie Port Authority v General Jones Pty Ltd'' (1994) 179 CLR 520 and abolish the strict liability test. Further reform at common law by the courts has in England to the tort have been precluded by the codification of the tort in the Animals Act 1971. But it is noteworthy that the Animals Act broadly preserved the old form of strict liability for animal escapes, but that section 4(1) of the Animals Act limits claims to damage to property (and is thereby consistent with ''Transco plc v Stockport Metropolitan Borough Council''.

Remedies

In addition to being able to sue for damages, a person who suffered loss as a result of trespassing livestock was formerly able to seize and sell the livestock under a common law remedy known as distress damage feasant. Under English law that right has now been abolished by section 7(1) of the Animals Act. Although the injured party is still entitled to detain the livestock, any sale must be conducted by public authorities.

Footnotes

{{Reflist English tort law Cattle in culture