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Court of Appeal

McQuaker v. Goddard
United Kingdom: England & Wales
[1940] 1 KB 687

Case Details
Printable Version
Summary:   A camel bit the hand of a visitor to a zoo. The visitor contended inter alia that the camel was a wild animal and that, therefore, the common law rule should apply that the keeper of a wild animal of a type with a propensity to attack people should be held liable for harm that such an animal causes irrespective of whether the keeper was negligent. Held: a camel is not to be regarded as a wild animal as a camel 'is, in all countries, a domestic animal, an animal that has become trained to the uses of man, and a fortiori accustomed to association with man.' Whether an animal is to be regarded as wild or domestic is a question of law for the judge, not of fact for the jury. This case has been taken as authority that, whether an animal is to be regarded as wild or domestic is to be judged according to the genus or class of which it belongs, not the characteristics of the individual animal.

Opinion of the Court:

Lord Justice SCOTT:

This case has been very well argued by Mr. Harold Brown for the appellant, and is a case of general interest. It is also one in which this Court joins with the learned judge in the Court below in expressing sympathy for the plaintiff, in that, as the law stands, he is not entitled to any remedy in respect of the serious injuries which he received. In expressing that sympathy, I, however, do not desire to imply any sort of blame against the defendant, who was the owner of a zoological garden where the camel was kept which bit the plaintiff's hand.

[His Lordship stated the facts of the case and continued:] The plaintiff himself thinks that he was lifted off the ground by the camel and shaken. I express no opinion about that, because it is quite clear that the injury done to the plaintiff's hand was very serious; and it may be that his recollection of those incidents is not strictly accurate.

The plaintiff subsequently brought an action against the defendant to recover damages for the injury he had suffered.

He put his case in his amended statement of claim mainly on two alternative grounds: (1.) the usual form of action against the owner or keeper of an animal, where the plaintiff succeeds in showing that a propensity to bite or otherwise attack mankind was known to the defendant; (2.) on the ground that the camel is a wild animal, at any rate in England, and that English law holds the owner or keeper of a wild animal with a disposition to attack mankind as under a duty to prevent that animal attacking anybody, an absolute duty the breach of which results in a liability in damages, without any proof of knowledge of the propensity on the part of the animal, and without any proof of negligence.

Another ground put forward in the statement of claim was, that even if a camel is properly to be regarded as a domestic animal in respect of which knowledge of a propensity to bite or injure mankind is essential, and although the plaintiff could not establish the scienter, that is to say, prove the defendant's knowledge of such propensity in this camel, yet on the facts of the case, the defendant was guilty of negligence, in that the fence was not sufficiently high or solid to prevent the camel from putting his head over it, and pressing down the wire so as to be able to reach people who were standing on the lawn.

Those issues raised by the statement of claim were met by traverses on the part of the defendant, who raised a further point, namely, that the plaintiff took the risk voluntarily upon himself. That point we can disregard, as we have heard nothing of it in this Court.

Shortly, those are the facts, and I think all the facts, that are material to the issues which arose between the parties. The plaintiff called witnesses to prove that all camels have a tendency to bite, that is to say, that they are treacherous and may at any time bite, but it was not very strong evidence. It was certainly not so strong as the evidence of the two witnesses called on behalf of the defendant. One of these was a man who had had experience extending over many years in dealing with camels as transport animals, and he spoke to their being obviously domestic animals, just as free from vice as many animals of the domestic kind in England, such as bulls, stallions, or dogs. But the chief witness called for the defendant was a man who had been a keeper of camels at the Zoological Gardens in Regent's Park, London, for a great number of years. He spoke to the nature of camels as he got to know them there, and no doubt with other expert knowledge about them; and he said that the idea that camels have a natural tendency to bite human beings is not true. He proved, among other things, that at the Zoological Gardens the camels are kept within iron railings, which, it is true, are six feet high, but which are six inches apart, so that it is quite easy for people to put their hands through and to feed the camels; and that he had never known of a case of biting.

Broadly, those are the results of the evidence on the two sides, with one qualification. It was quite clearly established by the defendant's witnesses in my view that camels do not exist anywhere in the world to-day as wild animals. There is no race of wild camels which could be captured and tamed like elephants. Wild elephants do exist both in Asia and in Africa, in great numbers. Though they can be tamed, and can be taught to be extremely clever, as for instance, in the teak forests of Burmah and in India, they are apt to be savage, and to attack human beings in certain circumstances. But nowhere in the world are camels wild. In every country where they exist they are domestic animals used for carrying either people or loads on their backs, or for draught purposes. Those are the facts relating to the species camel.

There was no evidence given in this case that the defendant had any knowledge that this camel was vicious; nor, indeed, was there any evidence to the effect that this camel was vicious as distinct from camels as a class. Nor was there any evidence that the defendant had any knowledge of such propensity of camels as a class to bite, as was alleged by the plaintiff's witnesses. If the evidence of the camel-keeper from the Zoo and of the other witness called for the defendant is to be accepted, that propensity to bite was much exaggerated by the plaintiff's witnesses; and it is plain that the plaintiff's witnesses had not nearly the same experience or means of knowledge, to constitute them valuable expert witnesses about camels, as the defendant's witnesses had.

On the question of law, it is important to bear in mind that, in the common law of England, a rule was laid down long ago that domestic animals are to be regarded in quite a different light from wild animals. Wild animals are assumed to be dangerous to human beings because they have not been domesticated. Domestic animals are assumed not to be dangerous. That is why, in English law, the keeper of a wild animal must keep it in at his peril: so that if he lets it out and it causes injury to the person or property of any human being, the keeper or owner of the animal, as the case may be, is liable in damages for the injury so caused; and why in the case of domestic animals, the presumption of law is to the opposite effect. There the plaintiff has to prove that the defendant was aware of the particular propensity to hurt human beings which was evinced in the case where, ex hypothesi, the plaintiff suffered; unless he proves that knowledge, there is at common law no liability upon the defendant. That liability has, in the case of dogs worrying sheep and certain other animals, been altered by legislation. But, apart from that exceptional statutory case, there is no liability without proof of knowledge of the defendant; the scienter, as it is called in law.

In the present case it was argued strongly on behalf of the plaintiff appellant, that the camel stands in a different category from ordinary English domestic animals, because it has not become a domestic animal in England. In my view that argument is fallacious. If an animal does not exist in a wild state in any part of the world, it has ceased altogether to be a wild animal, whether in England or in any other country. It is, in all countries, a domestic animal, an animal that has become trained to the uses of man, and a fortiori accustomed to association with man. With regard to that argument, it is also well to remember that it is the function of the judge and not of the jury to decide whether an animal belongs to the class of domestic animals or to the class of wild animals. I need say no more for the moment on this head - I think Clauson L.J. will probably add a few words on that aspect of the case. It is enough for the purposes of my judgment to say that in this case the learned judge in my view rightly decided that the camel must be regarded as a domestic animal.

If that is so, then the cause of action that the plaintiff had was not on the higher basis of absolute duty that rests upon the keeper of a wild animal, as it does upon a man who brings on his land any foreign matter or animal likely to escape and do damage, which is part of the law of this country as laid down by the House of Lords in the case of Rylands v. Fletcher (1868) L. R. 3 H. L. 330. The plaintiff's only course was either to prove knowledge by the defendant of the propensity to bite on the part of this camel or, on the other hand, to establish a case of negligence. However, I keep open the possibility of a general propensity to bite in all camels being established on different evidence in some future case.

I deal with the first of the alternatives left to the plaintiff in the present case. He produced no evidence at all that, at the time when he was unfortunately injured, the defendant had any knowledge that this camel had a propensity to bite people. Further, no evidence was given by any witness that the defendant had knowledge of the alleged propensity of most camels or many camels to bite people.

On the latter point, however, Mr. Harold Brown submitted to the Court that, as the defendant was a keeper of zoological gardens, the Court ought to presume that he had expert knowledge of the habits and nature of all camels as a species. In my view, it is not necessary to say more than that on the facts of this case, as proved by the evidence, no such propensity was established as would bring into operation any such presumption, even if in law it existed. Evidence was given for the plaintiff that some camels did bite, and that there was a risk of any camel biting; but the evidence of the defendant's witnesses to the opposite effect was very much stronger. The question of the character of a particular species of animals as to whether it is a wild animal or a domestic animal being an issue to be decided by the judge, it may follow in law that where the question is whether a particular class of domestic animal, such as a camel, is alleged to have a general propensity to bite, that issue is also one that should be decided by the judge. In these observations I am making certain legal assumptions in favour of the plaintiff's argument, but in my view, it is not necessary for the Court to decide them. It is clear that there was no evidence of knowledge on the part of the defendant that this camel had a propensity to bite; and there was no evidence that it had in fact such a propensity. In my view the plaintiff's own evidence, disregarding the defendant's evidence altogether, did not amount to evidence of such a general propensity as would justify the proposition submitted by Mr. Harold Brown, even if valid, that this defendant keeping an animal of that class ought to be presumed, because he has a zoological garden where he keeps the animal, to have such knowledge as would raise that presumption. That being so, in my opinion the plaintiff made no prima facie case on that alleged ground, any more than on the ground that this particular camel had a vicious propensity, and that the defendant knew of that vicious propensity. Consequently, in my judgment the learned judge was right in not leaving the issue on that part of the case to the jury. He rightly decided that there was no evidence to go to the jury on either of those two contentions. In saying that, I assume that Mr. Harold Brown made the wider submission plain to the learned judge. I am not sure that he did, but I have given him the benefit of the doubt.

The other aspect of the case was that of negligence. The plaintiff put it in this way. He contended that the defendant ought to have known that it was dangerous to have so flimsy and ineffective a fence as this wire-netting fence within which the camel was kept. But, as I put to Mr. Harold Brown in argument, that submission rested upon the unproved assumption that the defendant knew that there was a danger of the camel not only putting its head over the fence, and pressing it down, but of its then biting somebody. If he had not that knowledge, there was nothing to give rise to any duty on his part to have a more effective fence. This case differs wholly from the case which he cited to us, decided by the Court of Appeal towards the end of last year, of Aldham v. United Dairies (London), Ld. [1940] 1 KB 507. I may say, however, that that was a case where there was independent evidence of negligence, apart from any knowledge of a propensity to bite on the part of the pony, to cause injury to mankind. For that reason, in my view, that authority has no bearing upon the present case.

These considerations lead me to the general conclusion that the learned judge's judgment in this case was wholly right, and is open to no attack at all. The various cases on the law as to dangerous animals were considered by us: but the law is so well known that I do not think it necessary to refer to them.

In my opinion the appeal should be dismissed with costs.

Lord Justice MACKINNON:

I agree. The law upon this topic has been settled for a very long while. The leading cases begin with a decision of Lord Holt in 1699. (Mason v. Keeling (1699) 12 Mod. 332; 1 Ld. Raym. 606.) The principle has nowhere been better laid down than in the judgment of Bowen L.J. in Filburn v. People's Palace and Aquarium Co., Ld. 25 QBD 258, 261, where he said: "The broad principle that governs this case is that laid down in Fletcher v. Rylands L. R. 3 H. L. 330, that a person who brings upon his land anything that would not naturally come upon it, and which is in itself dangerous, must take care that it is kept under proper control. The question of liability for damage done by mischievous animals, is a breach of that law which has been applied in the same way from the times of Lord Holt and of Hale until now. People must not be wiser than the experience of mankind. If from the experience of mankind a particular class of animals is dangerous, though individuals may be tamed, a person who keeps one of the class takes the risk of any damage it may do. If, on the other hand, the animal kept belongs to a class which, according to the experience of mankind, is not dangerous, and not likely to do mischief, and if the class is dealt with by mankind on that footing, a person may safely keep such an animal, unless he knows that the particular animal that he keeps is likely to do mischief." This is a case in which an animal, a camel, having done harm to the plaintiff, he sues the defendant as owner of the camel. The question of the defendant's liability depends primarily upon the question into which of the two classes of animals specified by Bowen L.J. does the camel come. Is it of a class of wild animals of which individuals may be tamed; or is it of the other class of animals which are tame, or mansuet' natur', but notoriously may sometimes develop vicious habits? If it is in the second class, then the plaintiff, in order to establish the defendant's liability, must prove that the defendant knew that this particular animal which he kept was likely to do mischief. The learned judge has held, upon overwhelming evidence, that the camel is within the class of tame animals, and not within the class of wild animals. The evidence was conclusive that, in fact, camels are among the oldest domesticated animals in the world.

That being so, though a particular camel may have vicious tendencies, as particular dogs or cattle may have vicious tendencies, the defendant is not liable unless the plaintiff proves that he knew that this particular animal was likely to do mischief. There being no evidence to that effect, the plaintiff fails to prove what is an essential element in his cause of action against the defendant. That being so, the learned judge rightly gave judgment for the defendant, and I agree that the appeal should be dismissed.

Lord Justice CLAUSON:

I agree. I should be content to say that I can find no flaw in the judgment of the learned judge in the Court below. I should like, however, to add a word as to the part taken in the matter by the evidence given as to the facts of nature in regard to camels. That evidence is not, it must be understood, in the ordinary sense evidence bearing upon an issue of fact. In my view the exact position is this. The judge takes judicial notice of the ordinary course of nature, and in this particular case of the ordinary course of nature in regard to the position of camels among other animals. The reason why the evidence was given was for the assistance of the judge in forming his view as to what the ordinary course of nature in this regard in fact is, a matter of which he is supposed to have complete knowledge. The point is best explained by reading a few lines from that great work, the late Mr. Justice Stephen's, "Digest of the Law of Evidence." In the 12th edition, Article 62 is as follows: "No evidence of any fact of which the Court will take judicial notice need be given by the party alleging its existence; but the judge, upon being called upon to take judicial notice thereof, may, if he is unacquainted with such fact, refer to any person or to any document or book of reference for his satisfaction in relation thereto, or may refuse to take judicial notice thereof unless and until the party calling upon him to take such notice produces any such document or book of reference." From that statement it appears that the document or book of reference only enshrines the knowledge of those who are acquainted with the particular branch of natural phenomena; and in the present case, owing to some extent to the fact that there appears to be a serious flaw in a statement in a well known book of reference on the matter here in question, the learned judge permitted, and properly permitted, oral evidence to be given before him by persons who had, or professed to have, special knowledge with regard to this particular branch of natural history. When that evidence was given and weighed up with the statements in the books of reference which were referred to, the facts became perfectly plain; and the learned judge was able without any difficulty whatever to give a correct statement of the natural phenomena material to the matter in question, of which he was bound to take judicial notice.

I agree that the appeal should be dismissed.

Lord Justice SCOTT:

[Replying to and refusing the Appellant's application for leave to appeal the present decision to the House of Lords:] I do not think we ought to give that leave. On the facts proved, of which the learned judge and this Court are entitled to take judicial notice, there is nowhere in the world a camel which is wild and not domesticated and used in the service of man, and the law is clear that in England, as elsewhere, the camel is a domestic animal. It is not open to you to contend that the camel is a wild animal anywhere.

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