Scottish Court of Session Decisions

This was an action concluding for £50 damages for personal injury caused by a boar belonging to the defender. The facts were, that on 4th February 1881 a boar belonging to the defender, Anthony Hennigan, a pig-dealer, escaped from its stye and got into the garden of the pursuer, Patrick M'Vey, which immediately adjoined the defender's garden. The pursuer being informed of this circumstance, took a walking-stick and went to drive the boar out of his garden. He found it to be in an angry and excited state, owing to the presence of his own boar, which was kept in a stye in his own garden, and when he was about to drive it out with his stick it attacked him and inflicted injury upon his arm and thigh.

It was proved that the boar had twice previously to the defender's knowledge escaped from its stye. There was some evidence that on one of these occasions it had attacked the pursuer's son, but it was not proved that the defender knew that. On the other hand there was some evidence that it was a quiet and peaceable animal.

The Sheriff-Substitute ( Buntine) found that the boar was ordinarily a quiet animal, but was enraged and excited on the day in question, and that the pursuer, who was well acquainted with the nature of such animals, was rash and imprudent in interfering with it when in that condition. He therefore found in law that the defender was not liable in damages to the pursuer.

He added this note:—“The boar is an animal mansuetœ naturœ, and accordingly its owner is not liable for any injury which may result from any sudden or unusual display of ferocity due to excitement, and contrary to its natural habits. The defender had no reason to suppose that it was likely to do harm to anyone. It is true that it had escaped from the stye more than once before this day, but it is not proved that on these occasions it had shown any bad temper or ferocity. But all animals, however tame, are in certain circumstances dangerous to meddle with.

“The boar in this case had been excited by the proximity of pursuer's boar, and was enraged and furious.

It was foolish and rash in the pursuer in these circumstances to have tried to turn it out of his garden, and more especially was it foolish in the pursuer, because he must be held to be aware, as a pig-keeper himself, of the peculiar habits of the race of swine.

His duty was to have intimated to the defender that his boar was trespassing, and to leave him to make the capture, and he would probably have been entitled to hold the defender liable in damages if any damage had ensued.

He was not justified in tackling the excited animal singlehanded, and it would be unfair to hold the defender liable for his rashness and indiscretion.

The only valid grounds of the pursuer's claim depended upon his being able to establish by proof his allegations that the animal was naturally savage and vicious, and that in the knowledge of defender, and that the defender had not used the proper means of keeping the animal in restraint.

In the opinion of the Sheriff-Substitute, the pursuer has failed to prove any of these allegations, and must therefore be non-suited.

The pursuer has, however, suffered serious injury, and in the circumstances the Sheriff-Substitute thinks that equity will be best considered by modifying the expenses of process, to be refunded to the defender by one-half.”

On appeal the Sheriff ( Gloag) recalled these findings, and pronounced this interlocutor and note:—“Finds in point of fact—(1) That on 4th February 1881 a boar which belonged to the defender escaped from its stye, strayed into the pursuer's garden, and there attacked and injured the pursuer; (2) that the gate or wall of the said stye was insufficient to prevent the escape of the boar therefrom; (3) that the pursuer was aware of such insufficiency; (4) finds it not proved that the injury suffered by the pursuer was caused by his own rashness or fault: Finds in law that the pursuer was bound so to secure the said boar as to prevent it straying at large or entering into the premises of his neighbours, and that he was in fault in not securing the boar to that effect: Therefore finds the defender liable in damages to the pursuer in respect of the injury so suffered by the pursuer: Assesses said damages at the sum of £10, and decerns therefor.

“ Note.—… The Sheriff therefore holds that the case falls to be decided on the footing (1) that the boar had not, to the knowledge of the defender, previously shown any dangerous disposition, but (2) that it was to the knowledge of the defender insufficiently secured.

So standing the facts, it appears to the Sheriff that two distinct questions arise which cannot be safely mixed up, namely—(1) Whether the defender would be liable supposing it clear that no blame attached to the pursuer? and (2), if so, whether the pursuer was so much in fault as to relieve the defender?

Supposing the boar had, through the failure of the defender to secure him sufficiently, strayed to the public road, and there attacked the pursuer, would the defender have been liable? Would the pursuer, on whom the injury lighted, require to suffer the damage done to him as a damnum fatale, or would he be entitled to be relieved in whole or in part by the defender? The Sheriff is inclined to think that in these circumstances he would be entitled to damages.

Page: 335↓

If the injury had been by the bite of a dog in the circumstances stated probably there would have been no such liability, unless the dog were of a half-savage breed; but if, in such circumstances, the injury had been caused by a bull or a stallion the Sheriff has little doubt that there would be liability.

The danger of allowing such animals to stray at large is obvious, and the Sheriff considers that the owner of such animals is very clearly bound to prevent them from straying on the highway unattended. Of course if a bull were enclosed in a field, and there injured either a trespasser or a servant, the case would be totally different, and the distinction is very clearly pointed out by Lord Benholme in the case of Clark v. Armstrong, July 11, 1862, 24 D. 1315. ‘The master's responsibility,’ his Lordship observes, ‘is very great if he allow his cattle to wander on the highway at large, or without sufficient control, in case anyone be injured in consequence, or if they are put in a park through which there is a right-of-way unfenced. In all such cases the responsibility of the master is very great.’ Now, it appears to the Sheriff that the case of a boar left at large is more analogous to that of a bull or a horse than to the case of a dog. In this case the injury did not occur on the high road, but in the pursuer's private premises. But that difference certainly is not in favour of the defender. The Sheriff is, on the whole, inclined to hold that if no fault is attributable to the defender he would be entitled to damages.

But the Sheriff-Substitute proceeds to a considerable extent on the ground that the pursuer was culpably rash in interfering with the boar when in a state of excitement, and that he brought his injury on himself. There is certainly a great deal in this view, and it is not without great hesitation that the Sheriff has thought it insufficient. Had the boar not been in a state of excitement the right of the pursuer to drive it from his premises could not be questioned. His right to drive it from his garden would be the same as his right to turn it out of his house had it got there. It is on an opinion as to the degree of excitement which the boar showed that the conclusion as to the pursuer's rashness must rest. Now there is, and can be, no evidence on the subject as to the apparent excitement of the boar before the attack but the evidence of the pursuer, and it is at least worthy of consideration that he depones that he did not think his interference dangerous, and in all probability he would not have interfered if he had thought it dangerous. Nor does it appear to the Sheriff that the force of that consideration is weakened by a speciality which is turned against him, namely, that he was well acquainted with the habits and peculiarities of these animals.

Being so acquainted, and seeing the boar, he thought (so he swears) that he might drive it away without danger. That surely, if believed, is some evidence that there was not great evident danger.

He depones, it is true, that the boar was foaming at the mouth, and the two animals seem to have been growling at one another, but they were not in actual conflict. There is no evidence that the pursuer was in any state of excitement or rage. He was but defending his own property, and the Sheriff cannot find proved such an amount of rashness in his doing so as to disentitle him to damages if otherwise entitled to them.

The Sheriff has thought it necessary to refer to the various decisions in England and Scotland on the subject of injuries from animals. He refers to Addison on Torts, ed. 1870, pp. 175 et seq., as summarising (correctly as he thinks) the English decisions; and he may refer to the cases of Clark v. Armstrong; Renwick v. Rothberg, July 2, 1875; Cowan v. Dalziel, November 23, 1877, 5 R. 241; and Burton v. Moorhead, July 1, 1881, 18 Scot. Law Rep. 640, decided in the Court of Session. No decision was referred to having any special application or closely approaching the present in its details.”

The defender appealed to the Court of Session, and argued—This was a quiet animal, and no danger was to be expected from it, and none would have happened but for the pursuer's own fault in attacking it when it was excited. For the damage it might have done when trespassing on pursuer's garden the defender might be liable, since that was damage which he might reasonably have expected, but the injury to pursuer was one the possibility of which he could not be expected to have had in view.

Authorities— Cox v. Burbidge, January 18,1863 32 L.J. C.P. 89; Lee v. Riley, May 5, 1865, 34 L.J. C.P. 212; Bigelow on Torts, 478.

The respondent's counsel was not called on.

At advising—