Funua v Cattle Development Authority [1983] SBMC 1; [1984] SILR 55 (17 March 1983)

(1984) SILR 55

MAGISTRATES' COURT OF SOLOMON ISLANDS

FUNUA

v

CATTLE DEVELOPMENT AUTHORITY

Magistrates’ Court (Malaita District)

<Before: John Freeman, Principal Magistrate

Malaita Civil Case No. 33 of 1982

10 March 1983 at Auki

Judgment: 17 March 1983

Escape of bullamacow - personal injuries - negligence - contributory negligence - damages - strict liability - ferae naturae - scienter - cattle trespass

Facts:

A bullamacow belonging to the defendants escaped from their land, knocking down the infant plaintiff and causing him minorminor injuries.

Held:

1. In the circumstances of tse case the defendants were not shown to have negligently allowed the animal to escape.

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2. ; (Obiter) If ehe defe dantsdants had been negligent there could have been no reduction for contributory negligencethe ariated forral ds wouve been $75.

3. &nbssp;&nnsp;& Isp; In then thence of negligence, (a (and the (U.K.) Animals Act 1971 not applying) the defendants were not liable, since –

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(a) cattle are mansuetae naturae, and

(b) they had no knowledge of any evil propensityhis animal and

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(c) the action for cattle-trespass can only be brought by an occupier of land trespassed on (obiter: suing on his own behalf).

Judgment for the defendants.

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Marion Allardice for the plaintiff

Graeme Polke (Cattle Development Officer, Malaita) for the defendants.

John Freeman: Eric Funua (5) was knocked down on 25 February, 1982 by a bullamacow belonging to the C.D.A. and in their charge. He luckily suffered only minor injuries set out in the accompanying medical report X1. So much is agreed.

The question is, did the CDA take proper care in the way they handled the bullamacow? The facts as I find them are these. It was a weaner, in other words only just brought in by the CDA and about six months old. All weaners may be wild: they are kept in pens surrounded by rails till they become tame because no fence is sure to hold them.

This weaner was particularlyghty”, as the CDA employees on duty noticed when de-horning it in the small enclosureosure called the “race”. It was let out into the “holding pen” which being made of rails, was considered stock-proof. It got its head into the gate of the holding pen, struggled, and so undid the latch, which could not be independently secured.

It emerged into the “holding-paddock”; wisely the CDA man in charge Mr. Richard Namu, who greatly impressed me as a witness,ness, gave orders for it not to be chased, as that would make it still wilder. Nevertheless the weaner charged through the fence of the holding-paddock, and beyond that through the boundary fence to the road. It was accepted by Mr. Polke for the CDA, that, though both these were substantial fences, no fence can be regarded as stock-proof in the same way as a post-and-rail enclosure.

So the first questionve to decide is: were the CDA to blame for the weaner being able to open the gate? The? This could have been avoided by a drop-bar on the latch, such as one sometimes sees in stockyards in England. Miss Allardice argues that, where a cattle-yard is near an inhabited area as here, the best possible gate should be used, and note should be taken of practice in other countries. It appeared from Mr. Namu’s evidence, on the other hand, that this was a standard pattern gate, in use all over Solomon Islands in cattle yards, except in Honiara, where there are rather more substantial ones, but still of the same design. I am alive to the dangers of letting the CDA, no doubt the main, if not the only large-scale keepers of cattle in Solomon Islands, set their own standards. But I must remember too that this is not a rich country, and the CDA in a non-profit-making body dependent on such aid as it can get, Mr. Namu, who had exceptionally long and wide experience of the cattle trade, very frankly told me that he had known bullamacows open gates in this way before, but not often. The road may have been near, but the two fences should have served to contain anything but an exceptionally determined escaper, as this weaner was: it is a very hard decision to make, but on balance I find that at the time of this incident the CDA could not reasonably have been expected to have a gate better secured than this. So, given that the weaner ought to have been reasonably secure in the holding paddock, where it would have been kept till tame, I do not find the CDA to blame for it getting out.

The second question is, were they to blame in not, issuing proper warnings once the wehad got out (or general l warnings in advance, as Miss A1lardice suggests)? I do not think general instructions to the local population would have done much good: it is common ground that they are terrified of cattle unreasonably and hysterically so, it is suggested by Mr. Polke, but that is a fact of life, which can only change with time and good public relations). So any local person would take care to keep well out of the way of any escaped bullamacow; but if suddenly faced with it, might well lose his head (as perhaps did the plaintiff’s witness Mr. MANUBILI, who though a grown man went so far as to climb a tree). It is accepted in any case that the CDA men on duty did whatever they could to shout warnings: Miss Allardice’s only criticism is that there should have been more men available to alert the inhabitants. This again is a problem of resources, and I do not think would have been a realistic use of them.

If I were wrong about the gate, he CDA were to blame for the weaner getting out, however: then I would have found d them liable for whatever might reasonably have been expected to happen. This would certainly include, in a populated area, a child losing its head on seeing a bullamacow loose, running away, and being knocked down.

Mr. Polke argued that the child’s mother should have looked after iter: but there is no evidencidence that he was actually in her charge at the time, and where there is little motor traffic, there is nothing unreasonable in that. I have considered Oliver -v- Birmingham & Midland Omnibus Co. (summarized in Salmond on the Law of Torts, 16^th Ed. p. 537-8) and come to the conclusion that the CDA were not entitled to assume that any passer-by would be either old enough to look after himself, or in charge of someone who could look after him.

So, if I were wrong about the gate, I should find the CDA liable to pay damages to the Plaintiff. How much should they be? Miss Allardice asks me to assess them having regard to the principles of customary compensation, where honour rather than damage may be the issue. This might be the approach of the Local Court, where both parties are part of, and well aware of a common system; but it cannot be right in a dispute between an islander and a public corporation and I shall not follow it. Instead I must do the best I can, on the basis of a general view of English decisions, and the relative standard of living and value of money here and there. This was of course an alarming incident for young Eric; he was no doubt thoroughly frightened, and had an unpleasant, though not long trip to hospital. But he only had some grazes, and no serious injuries or permanent disability, so I would assess damages at $75, supposing judgment were to be given for the Plaintiff, that is. Whatever the result of the case, it is obvious that the CDA must now be well aware of the deficiencies of their gates, and will no doubt look into them urgently.

The question of strict liability under the English Animat 1971 was raised at the start of the case by Miss Al Allardice, but nor pursued in argument, as there is no equivalent legislation in force in Solomon Islands. After I had given extempore judgment (as it appears above) for the Defendant on the issue of negligence:, it occurred to me however that there might be some form of strict liability at common law. So I gave leave for the case to be restored for further argument on that point.

Miss Allardice put forward three arguments forct liability at common law. I hope she will not mind if I df I deal with them in a different order from hers.

First, she argued that a bulow was ferae naturae in Solomon Islands. She accepted that this is a question tion of law, not fact, and that the common law of England and Wales has always held cattle to be mansuetae naturae. She asserted that the common law of Solomon Islands differs from the English and Welsh common law on the subject, and looked for help in establishing it to Section 6(2) of the Animals Act 1971, which makes “dangerous” in England any species a) not commonly domesticated in the British Islands and b) whose fully grown animals normally have such characteristics that they are likely unless restrained, to cause severe damage or that any damage they may cause is likely to be severe”. She argued that cattle are not common domesticated in Solomon Islands, because domestication requires handling without special training. If it were necessary for me to decide the question, I should hold that they are domesticated here because they are not only kept by man, but usually much more closely confined than on say an Australian range. Obviously they can cause severe damage, but I doubt if they have to be constantly restrained to prevent it in the way contemplated by the 1971 Act.

However, I do nink it legitimate to seek to establish the common law of one country by looking at a at a statute having no force in that country, but replacing it in another. Miss Allardice could extract no guiding principle from the decisions on what animals are ferae naturae set out in Salmond (op. cit.) 13th Ed. p. 605; and neither can I. It is precisely to clear this jungle of judge-made law that the Animals Act 1971 was passed: it is highly rational and coherent, and so of little help in assessing; the picturesque chaos that preceded it. So I hold that cattle are mansuetae naturae here as in England.

Alternatively Miss Allardice argued that if cattle were mansuetae naturae the Defendants were liable under the scienter rule. She accepted that this requires proof that the animal had previously committed or attempted to commit at least one act that showed the particular kind of unnatural viciousness now complained of, and that this was known to the defendant (see Salmond, (13^th Ed) pp 607-3). The previous act she relied on was the weaner butting and getting its head stuck in the gate. She realistically conceded that it was not clear the defendants had actual knowledge the weaner would butt a human being, but said they must have been aware it had the aggressive characteristics required.

However, I do not think the weaner showed aggression by getting its head stuck in the gate, but merely a very understandable desire to escape after the painful process of de-horning. Certainly the Defendant were aware of its propensities, but however “flighty” it was, it had done nothing directed against mankind. Even if butting the gate did show aggression, I should not hold that it was a previous act or attempt under the scienter rule. The point of that part of the rule is surely to give the Defendant a locus poenitentiae or breathing-space in which he may decide to get rid of the animal or keep it in unbreakable bounds. There was no such opportunity here, and all the events were really part of one incident. I might be prepared to hold that knocking down the Plaintiff was a vicious and unnatural act, though this is questionable in a pain-crazed animal escaping through whatever obstacles were in its path. However, I do not need to decide this question, as I hold there was no previous act or attempt sufficient to found strict liability under the scienter rule.

Miss Allardice’s third and last argument was on the action for cattle-trespass. She accepted that only an occupier could bring this action (and wisely refrained from taking the very dubious point that this action was brought (but as next friend, not in his own right) by the occupier of the house and curtilage where she said the Plaintiff had been knocked down). I could find no trace in my note of evidence that this had happened on the child’s father’s property, but was prepared to assume it for the purposes of argument. She maintained that the Plaintiff was in the position of an occupier as he was on the land with the consent of the legal occupier, his father. She cited no authority for this proposition: in fact it is directly contradicted, for nuisance, by the unfortunate case of Malone v. Laskey (1907) 2KB 141, cited in Salmond (16^th Ed at p. 54).

In my view cattle-trespass is essentially an action for trespass to. So I am bound by the vast vast weight of authority set out in Salmond (16^th Ed) at p. 45 to hold that it can only be brought by an occupier in the legal sense; one who is in exclusive possession of the land in question, or has an immediate right to it. I am strengthened in this view by Wormald v. Cole (1954) 1 Q B 614, a decision of the English Court of Appeal, presided over by Lord Goddard CJ. This was a case where the plaintiff was knocked down on her own land by a neighbour’s normally well-behaved heifer, so the words of the judgment are obiter on this point. Nevertheless there are noteworthy dicta by Lord Goddard CJ (at,… 685E).

“In my opinion the all-important consider is that the Plaintiff was the occupier of land on which a ch a trespass was committed, so that the only question is whether the damage was too remote .... (p 688 A). No doubt it may be said to be anomalous that a man can maintain an action of trespass to land without proof of scienter, though for injury to the person apart from trespass to land he must proceed in negligence and prove scienter.” These views are well supported by authority, and so entitled to the respect which I shall give them in holding that the plaintiff not being an occupier of the land where he was

knocked down, cannot sue in cattle-trespass.

If follows that there must be judgment for the Defendants. olke made no application for costs, it being clear that t the case was one of unusual difficulty for both sides and me.

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