DOG ATTACK: LIABILITY IN TORT &UNDER THE CRIMINAL CODE

Few weeks ago in Igando area of Lagos State Nigeria two dogs attacked three siblings in their home and ate into the skull of the youngest of them, four years old Abraham Omonigho, the dogs has since been in custody of the Lagos State Police Command. How liable are these dogs and their owner in Law.

We shall be looking at this from two perspectives, from tort which is the liability for animals and the criminal angle provided for under the Criminal Code.

There are two separate torts in which strict liability for harm caused by animals is imposed, the cattle trespass and the scienter action also know as liability for dangerous animals, for this discussion without taking much of our time i shall focus on the scienter action as this is more relevant to this discussion than the other.

Scienter Action is imposed upon a person who keeps a dangerous animal which causes damage to another, for this purpose animals are divided into two categories (i) ferae naturae meaning animals belonging to a species which is normally dangerous, though individual animals may be tamed i.e. Elephants, Lions , Leopards, Tigers and Gorillas (ii) mansuetue naturae meaning animals belonging to species which are usually harmless, though individual may harbour a vicious disposition i.e. Dogs, Cats, Camels, Cow, Goats and Horses.

What is the liability of the owner of the dog that attached...............?

The owner of the Dogs falls under the mansuetue naturae and where damage is caused any animal under this category, the owner of the animal will be liable on these two instances, where the particular animal had a violence tendency and the keeper knew of that tendency.

The onus is on the plaintiff (....parent) to proof that the owner of the dog in this case has the knowledge of his animals vicious propensity, this requisite knowledge must relate to a particular propensity that caused the damage for instance , if a dog attacks a man, it must be shown that the animal had a propensity to attack humans and not other animals this was the decision of the court in  Glanville V. Sutton (1926)1 KB 571

I think the parents of the victims were able to establish in an interview granted by the father that the owner of the dog was earlier warned to always chain his dog as the dog attached someone few days before attacking their children.

In the Nigerian case of DARYANI V. NJOKU where the plaintiff was attacked by a dog belonging to the defendant, the defendant was held liable by Justice Sowemimo on the ground that the defendant’s dog had earlier bitten a housemaid and it was reported to the defendant’s wife, the defendant’s defence was that the earlier incident was reported to his wife and not to himself. SOWEMIMO J rejected his contention holding that notice to wife amounted to notice to husband since the wife is duty bound to inform her husband.

Also note that where the attack took place is immaterial whether the defendant’s place or the plaintiff’s the most important thing is the animal’s vicious propensity.

Liabilities of Dog owner under The Laws of the Federation (CRIMINAL CODE)

Section 304 provide that it is the duty of every person who has in his charge or under his control anything, whether living or inanimate , and whether moving or stationary ,of such nature  that ,in the absence of care or precaution in its use or management, the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precaution to avoid such danger, and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.

Section 305(4) provide that any person found guilty of Section 304 shall be liable on conviction to a fine or to imprisonment of six months or both fine and imprisonment.

What are the defences available to the owner of the Dog?

God forbid a general rule without an exception, the  recognised defences available to the owner under this category are default of the plaintiff, contributory negligence and volenti non fit injuria.  If anyone is injured in the course of their work. If the defendant was able to show that the plaintiff, at the time he was injured by the animal , was trespassing on the defendant’s land, unless the animal was kept with deliberate intention of injuring ,rather than merely deterring trespassers.

Volenti non fit injuria may afford a defence, and will most often apply where person whose livelihood is to deal with dangerous animals, such as working in the Zoo and animal trainers.

Conclusively, if you must keep animals the duty to take all necessary precautions is on you in order not to be liable for the actions of the dog/animals.

I wish the little boy quick recovery and many thanks to the Lagos State and Delta State Government for their various supports.

Thank you.

Oyenike Alliyu-Adebiyi LLB()BL