Scottish Court of Session Decisions

Counsel for the defender in support of their objection regarding the want of specification in the pursuers averments submitted the following considerations—( a) That the pursuer does not condescend on the particular field to which he refers, and does not specify what is the insufficiency or defect in the fencing of which he complains; ( b) that the defender expressly avers as regards the field in which he had sheep grazing on and previous to the day of the accident that the gate and fences of that field were in a thoroughly sound state of repair, and were sufficient to contain, and did contain, the defender's sheep within the field. Moreover, the defender avers that the fences of the field consist of a dry stone dyke topped by a wire fence which had been re-wired and made thoroughly secure in June 1922, and that they are fully 4 1 2; feet high on the inside; ( c) that the defender in his pleadings expressly calls on the pursuer to specify at what points and in what respects the gate and fences of the field to which the pursuer refers were in a defective condition or were otherwise insufficient; and ( d) that the pursuer has taken no notice whatever of the demand for further specification, neither giving the information desiderated nor explaining the failure to give the information.

Now prima facie the pursuer is in a position to identify the field to which he refers and to specify what is the defect in the fencing, and that being so, I am of opinion that he is bound to make specific his averments on these matters, and is not entitled to have his case sent for trial unless his pleadings are satisfactorily amended. I refer to Watherston v. Murray & Company, 1884, 11 R. 1036, as bearing out the view which I have expressed.

Assuming, however, contrary to my opinion, that the pursuer's averments can be regarded as they stand as sufficiently specific, I proceed in the second place to consider whether they disclose any actionable wrong on the part of the defender.

The argument submitted by the pursuer's counsel on this the outstanding question in the case seemed to me to proceed on the erroneous assumption that if in point of fact the sheep escaped on to the road through the negligence of the defender in the fencing of this field, the defender must therefore be held legally responsible for the accident which, as the pursuer avers, happened to him. In other words, the argument as put by the pursuer's counsel ignored the primary necessity of basing the alleged negligence upon a duty, express or implied, owed by the defender to the pursuer.

Negligence per se, however, does not infer legal liability. I refer to the opinion to that effect of Lord President Dunedin and Lord Kinnear in Clelland v. Robb, 1911 S.C. 253. In the words of Lord President Dunedin—‘Negligence per se will not make liability unless there is, first of all, a duty which there has been failure to perform through that neglect.’

In the present case the pursuer's counsel were unable to cite any precedent for the pursuer's claim, or any authority to the effect ( a) that the defender was under a duty to the pursuer as a member of the public using the road to keep the defender's sheep from straying on the road, or ( b) that the accident and consequent damage to the pursuer can be held to be the natural or probable consequence of the presence of the sheep upon the road to the effect of involving the defender in liability for the accident. The common law both in Scotland and England is substantially the same on the subject, and precedent and principle in both countries seem to me to be adverse to the pursuer's claim.

In 1862 Lord Justice-Clerk Inglis in an action of damages for injuries done to the pursuer by a bull referred to the legal obligation on the owner of the animal as follows:—‘I do not apprehend that there is any substantial difference between the laws of Scotland and England on the point.… The law of Scotland will not any more than that of England make a master responsible for injury done by a domestic animal unless it be an animal of unusually vicious habits and propensities and known to the owner to be so’— Clark v. Armstrong, 1862, 24 D. 1315, at p. 1320.

Then in 1915 Lord Justice-Clerk Scott Dickson expressed an opinion to the same effect— Milligan v. Henderson, 1915 S.C. 1030, at pp. 1035–6.

Stated generally, the law as to the owner's responsibility for a domestic animal is the same in Scotland and England, and in both countries there is a great body of authority to the effect that the owner is not liable on the ground of negligence for allowing such an animal to be at large unless he had reason to anticipate some vicious or dangerous or mischievous habit or propensity.

The cases illustrate the clear distinction which the law has established between, on the one hand, domestic animals of a mild nature, e.g., sheep, fowls, pigs, dogs, cattle, and horses not known to have shown any vicious, dangerous, or mischievous habit or propensity, and on the other hand animals fierce by nature, e.g., elephants, monkeys, boars, or animals of vicious, dangerous, or mischievous habits or propensities or easily infuriated.

As regards the former class the owner is not responsible for injuries of a personal nature done by them, but as regards the latter class the man who keeps them must keep them secure at his peril—Lord Esher in Filburn v. People's Palace Company, 1890, 25 Q.B.D. 258, at p. 260.

The present case, taking the pursuer's own averments, comes within the class of which the following are examples:—(1) The sheep case, Heath's Garage, Limited v. Hodges, 1916, 2 K.B. 370; (2) the fowls case, Hadwell v. Righton, 1907, 2 K.B. 345; (3) the sow case, Higgins v. Searle, 1909, 100 L.T.R. 280; (4) the cattle case, Ellis v. Banyard, 1911, 28 T.L.R. 122; (5) the bull case, Clark v. Armstrong, 1862, 24 D. 1315; (6) the dog case, Fleming v. Orr, 1855, 2 Macq 14; (7) the horse cases, ( a) Cox v. Burbidge, 1863, 13 C.B. (N.S.) 430, 134 R.R. 586; and ( b) Jones, &c. v. Lee, 1911, 106 L.T.R. 123.

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