Scienter

Scienter is a legal term that refers to intent or knowledge of wrongdoing. This means that an offending party has knowledge of the "wrongness" of an act or event prior to committing it. For example, if a man sells a car with brakes that do not work to his friend, but the seller does not know about the brake problem, then the seller has no scienter. If he sells the car and knew of the problem before he sold the car, he has scienter. The word has the same root as science, the Latin scienter (knowingly), from scire (to know; to separate one thing from another).

The scienter action is a category within tort law in some common law jurisdictions which deals with the damage done by an animal directly to a human. It had a long history in English law, although it was abolished by the Animals Act 1971. An action in those common law jurisdictions where it has not been extinguished by statute, is in addition to the torts of negligence and nuisance, or more bespoke torts like cattle trespass. Where an animal is known to behave in a certain way, and that is expressed on a person causing injury, an action can be taken in this tort. This tort is not available in New South Wales, The Australian Capital Territory, South Australia or New Zealand. In these jurisdictions the actions involving animals need to be in nuisance or negligence. To be successful the plaintiff needs to take action against the person in control of the animal, and it is strict liability, requiring no more than proof of injury, that the animal had a problematic trait, and the person in control knew about the trait in the animal. Being strict liability, there is no need to argue fault in the form of wilful intent or negligence on the part of the animal or its controller. The only defence is if it can be proved the plaintiff voluntarily assumed the risk of injury by their actions, or if the plaintiff was the cause of the injury. It is common to distinguish between harmless animals and wild animals. No scienter is needed for wild animals. Animals are classed as wild or harmless on the basis of species or kind, not on the basis of being a tame individual. An elephant is considered wild irrespective of its use. The scienter action is referred to in Rylands v. Fletcher in that one who keeps a wild thing “must keep it at his peril” to make reference to part of Justice Colin Blackburn’s comment.

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