Friends, Romans, I’m not here to praise my rhino

Tigers, pitbulls ... Romans and therefore Roman law, understood something about damage by wild animals.

Lions, bears, cheetahs, elephants, tigers, rhinoceroses, crocodiles and hippopotamuses were used for public contests against other animals and gladiators and for hunts. When emperor Titus inaugurated the Colosseum in 80 CE, 5,000 beasts were killed in a single day.

The Romans understood the risk of the animals turning the tables. A famous sculptor working on the figure of a lion was attacked by a leopard that had escaped from a nearby cage. The Roman praetors (magistrates with lawmaking powers) developed a special action known as the actio de feris. A person who

Patrick Bracher

brought wild beasts into the vicinity of a public road, or kept them within that vicinity, was liable for any damage they did without the injured party having to prove negligence.

The person in charge of the animal did not have to be its owner to be liable. There has been a debate whether this strict liability is still part of our law but it seems to be a fair outcome for the victim of such an attack. Perhaps we can rather extend the actio de feris to self-drive motor vehicles!

The law for domesticated animals is more nuanced. It is thought that the actio de feris originally referred to dogs and boars. Now dogs are seen as domesticated animals, although the extent to which some breeds of dogs are still wild animals will be debated furiously among owners and victims.

The praetors developed the actio de pauperie, which imposed strict liability for the misbehaviour of domesticated animals, because there are many ways in which they can constitute a constant source of danger. The 1927 leading case on liability for damage caused by domestic animals suggested that, where dogs are involved, the law refers to a vicious dog and not to a “lady’s lap dog”— a curious distinction.

Strict liability applies to the owner of a domestic animal that acts “contrary to its nature”. This implies that the animal acts viciously or perversely in a way not expected of such a domesticated animal. It is recognised that bulls gore, dogs bite and horses kick but if they do so perversely or viciously, unprovoked, the owner is liable for the consequences.

This strict liability, without proving negligence, does not apply to the person in charge of the domestic animal who is not the owner. In that case, negligence has to be proved.

Negligence is always a balance between the steps that can be taken to avoid the possible consequences and the seriousness of the consequences if they occur. It also refers to what the reasonable person would do in the circumstances. Whether it is reasonable, having regard to the consequences, to keep a breed of animal that has a propensity for vicious behaviour will always be a question of fact regarding the circumstances under which the animal is kept and how the event occurred.

The courts are unlikely to apply the actio de feris to a dog but what is required of the reasonable person in charge of a dog will be strongly influenced by the known behaviour of the animal itself or its particular

A SCULPTOR WORKING ON THE FIGURE OF A LION WAS ATTACKED BY A LEOPARD THAT HAD ESCAPED breed. Even the owner of a large boisterous dog, known to jump up and hug people, which injures a frail person may be liable for negligence even though they are not strictly liable as owner.

In both these actions, the difficulty is sometimes in proving ownership of the animal. There is often no law requiring registration as owner of a domestic animal nor of foreign breeds of wild animal. Which is why claims for strict liability are usually pursued together with alternative claims based on fault.

Either way, liability for the bad behaviour of wild or domestic animals is likely to fall on the owner or custodian of those animals.

● Patrick Bracher (@PBracher1) is a director at Norton Rose Fulbright.