Cattle trespass

Cattle trespass was an ancient common law tort whereby the keeper of was held strictly liable for any damage caused by the straying livestock. Under English law the tort was abolished by section 1(1)(c) of the Animals Act 1971, but the tort continues to subsist in other common law jurisdictions, either in its original form as a common law tort, or as modified by statute.

Liability for cattle trespass is similar to, but conceptually distinct from, the old common law scienter action in relation to strict liability for animals which are known to be vicious. In many of the reported cases, claims for cattle trespass and scienter are pleaded in the alternative.

The first recorded writ for cattle trespass was issued during the reign of King John (1199-1216). However the tort initially related to the keeping of animals; it was not until 1353 it was expanded to cover liability caused by their escape.

Since its inception, cattle trespass appears to have been a tort of strict liability, and so the defendant is liable irrespective of whether or not they were negligent or otherwise at fault.

Although the name of the tort refers to cattle, the tort encompasses a wide array of livestock, including horses, oxen, sheep, pigs, donkeys, goats, fowls, geese and ducks. It also has been suggested academically that it would include peacocks, turkey and tame deer. However it does not apply to either dogs or cats. Numerous different reasons have been suggested as to why dogs should be exempt, none of which are entirely satisfactory.

The tort also limited recovery to "damage natural to the species of the animal." Damages contrary to the species of the animal was not thought to be foreseeable and therefore not recoverable. Furthermore, because the action relates to trespass, only the possessor of the land had standing to sue for cattle trespass. Similarly, the defendant against who a claim may be made is the possessor of the animal (rather than its owner).

Although the tort was principally a tort of strict liability, certain aspects of it were fault based. For example, if the owner was herding his livestock along the public highway, he would only be liable for any damage caused by the livestock to neighbouring properties if he failed to use sufficient care. However, if the livestock escaped from an enclosure, he would be strictly liable for failing to prevent their escape.

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