by Deji Olunlade

Charla Nash, was attacked by her friend’s pet chimpanzee (Travis) when the friend, Herold, invited her to come over and help lure Travis back into her house after the chimp escaped. The 14 year old chimp went berserk and attacked Charla, ripping off her nose, hands, lips and eyelids before it was shot dead by police officers. Charla sought redress in the law court and was awarded the sum of $4 million as damages to cover her medical care.

Therefore, this brief write-up serves to inform the general public especially lovers of pets and those who are daring enough to keep wild animals to exercise tremendous caution in keeping them out of the way of other people and likewise, encourage government to actively pursue legislation that will deter future recurrence and also consider animal rights as an addendum.

 

The story of Abraham Omonigho, who had two dogs chew off the skin of his scalp and whose pictures have gone viral on all major news website in the country, is similar to that of Charla Nash and evokes a strong sense of pity and empathy. It makes one wonder what would have caused dogs to have attacked a four year old, seemingly, because dogs are generally regarded as man’s best friend and usually domesticated. But in this type of situation, what remedies may be open to the victim and his parents peradventure a civil suit is instituted against the owner of the dogs.

Generally, there is the time-honoured principle referred to as the “One Free Bite Rule” which, loosely put, means a dog is entitled to one free bite. This doctrine protects the owner of a dog from strict liability in the event that his dog has bitten someone but has never bitten anyone or any other person before. However, there is a modern shift to a different legal phenomenon which stipulates what is referred to as scienter action and explained below.

Where a victim is bitten by a dog that has never displayed dangerous propensities, the owner of such dog is not strictly liable for the injuries. However, several countries have passed laws and enactments that has abolished this rule and imposed strict responsibility even in instances where the animal has not shown dangerous tendencies.  This should also be the case in Nigeria in order to afford citizens the opportunity of having a right to claim against tortfeasors in this realm of civil action.

This is what is legally referred to as the scienter action i.e liability for dangerous animals, therefore, it is trite law that strict liability is usually imposed upon a person who keeps a dangerous animal which causes damage to another. It is common knowledge that animals can be broadly categorized into wild and domestic animals but the focus of this write up using Abraham Omonigho’s case as a reference point will be strict liability for keeping domestic animals that cause injury to others. These animals, of course, will range from cows, horses, goats, camels, cats to dogs.

This right ensures in favour of a person who is or whose animal is a victim of dangerous animal against the owner of dangerous animal and it is a strict liability offence. There are conditions that can make the owner of such animal liable in tort and as a result incur damages. These are

• That the particular animal has a vicious tendency
• The owner of such animals knows of that particular vicious or dangerous tendency.

In case of animals in this class, the keeper or owner will be liable upon the proof of the animal’s vicious tendency (scienter) and the knowledge of such viciousness by the owner. Having said that, animal owners are in fact, legally responsible for and answerable to the wrong or injury caused by animals in their custody or possession. Where damage is caused by an animal of dangerous or wild specie, the owner of the animal is generally liable.

It is not required to show or prove that the dog owner was negligent or careless even. The real focus of the action is the owner of the dogs or animal, as the case may be, is aware that the dog is vicious or leans towards mischievous inclinations. Negligence or lack of care on the part of the owner in keeping or restraining the dog does not have to be shown or established. It needs not be shown. The main fault lies in the fact that such a person made a decision to keep dangerous animals and must naturally be held responsible for consequence of the acts of such animal.

How is it then possible to impute the knowledge of the owner of a dangerous dog that he was fully aware of the dangerous propensities of the dog?

These can be established through the following:

• the general reputation of the dog, maybe within the neighbourhood or ascribable to that particular specie of dogs
• the size and breed of the dog, or
• the fact that the dog is kept chained or muzzled.

Therefore, this brief write-up serves to inform the general public especially lovers of pets and those who are daring enough to keep wild animals to exercise tremendous caution in keeping them out of the way of other people and likewise, encourage government to actively pursue legislation that will deter future recurrence and also consider animal rights as an addendum.

Of course, there are numerous exceptions to the strict liability rule which includes:

• Where wild animals are kept under a public duty. Thus, people like zoo keepers are not strictly liable for injuries inflicted by animals under their care.
• strict liability will hinge on the status of the plaintiff on the defendant’s land i.e where the person is a trespasser on another’s property amongst other exceptions which are not discussed in this article.

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Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.