Full Title Name:  The Regulation and Protection of Animals Kept for Companionship: A Critical Analysis and Comparative Perspective

CHAPTER II

LIABILITY FOR DAMAGE CAUSED BY COMPANION ANIMALS

2.1        CIVIL LIABILITY INCURRED FOR DAMAGE CAUSED BY ANIMALS

2.1.1     Introduction

Roman law is credited with providing the foundations for all European systems of law, and accurately so. Its influence is still apparent in many legal systems today including our own. Our Civil Code is perceptibly Roman in substance, with some provisions having changed very little since. One thus feels compelled to begin with a brief consideration of the manner in which Roman law provided for liability arising out of acts of animals.

The law of the Twelve Tables [1] gave the actio de pauperie for damage caused by quadrupeds; pauperie referring to the fact that the act causing the damage was without any legal wrongdoing. Plainly animals are not endowed with the capacity required to commit an illegal act. Being a noxal action the surrender of the noxa or offending body to the injured party was sufficient to extinguish liability on part of the owner. [2]

The actio de pauperie was also found under Title IX of Book IV of the Institutes of Justinian where it was limited to animals acting contrary to their nature and did not extend to animals ferae naturae or naturally savage. Domestic animals were expected to behave in a decent manner and the only excuse was an external cause, such as a wasp stinging the animal or provocation by the person or animal injured. [3] The lex Aquilia gave a separate action against the owner of an animal ferae naturae when kept in captivity, provided the injured party was not at fault. [4]

A couple of differences are immediately apparent between the Roman position and ours. Unlike the former, our Civil Code does not provide separate actions to be resorted to depending on whether the animal is domestic or naturally savage, granting a single action based on the relationship one has with the animal regardless of the category of animal instead. The relationship that must exist for liability to attach to a person has been widened beyond ownership so that a person using an animal can be liable in the owner’s place if the damage occurs during the time the animal is being used by him. Also, Justinian’s Institutes provide an exception from liability following the commission of an injurious act by an animal where the act was the result of an external cause. Our provision does not explicitly grant any exceptions from liability. Lastly, despite acknowledging that an animal commits no legal wrong in committing the act, Roman law allowed the owner of an animal to either pay damages to the injured party or simply hand over the offending animal itself, as though the animal were responsible and were thus being punished for the act committed. Thankfully resorting to the unpleasant practice of noxal surrender to escape payment of damages is no longer an option, a most welcome departure from Roman law.

There may well be differences, as is to be expected given the amount of time that has lapsed since, but our present law on liability for acts committed by animals is nevertheless clearly derived from Roman law. In Nazzareno Scicluna v Paolo Zahra [5] the Court confirmed that the liability laid down in our Civil Code emanates from the actio de pauperie under Roman Law.

2.1.2     Liability under our Civil Code

Section 1040 of our Civil Code sets out the liability of the owner of (or person using) an animal as follows :

The owner of an animal, or any person using an animal during such time as such person is using it, shall be liable for any damage caused by it, whether the animal was under his charge or had strayed or escaped.

This section was previously numbered 1083 but the content remained unchanged when it became the present section 1040. Prior to section 1083 of the Civil Code we had section 746 of Ordinance VII of 1868 which read thus :

Il proprietario di un animale o, pel tempo in cui ne usa, quegli che se ne serve, e responsabile pel danno cagionato da esso, tanto se si trovi sotto la sua custodia, quanto se siasi smarrito o sia fuggito.

This was clearly taken from section 1154 of the Italian Civil Code of 1865 which provided that :

Il proprietario di un animale o chi se ne serve, pel tempo in cui se ne serve, e obbligato pel danno cagionato da esso, tanto se si trovi sotto la sua custodia quanto se siasi smarrito o sia fuggito.

2.1.3     Nature and basis of the responsibility under section 1040

The liability that arises under section 1040 is necessarily indirect for it is the person who is responsible for the animal who must make good for any damage caused.

One wonders if this liability, which is not qualified further by section 1040, can be avoided where the owner or person using the animal shows that he is not at fault. Initially one may be inclined to think that fault of some form is to be assumed where the animal has strayed or escaped for it is up to the owner or person using the animal to ensure that the animal remains within his sphere of control, but on further deliberation the issue becomes less straightforward because it is possible to envisage events beyond the control of the owner or user that can lead to such a result. Section 1040 does not tell us whether proof to counter this liability is admissible and if so what sort of proof can be brought forth by a defendant in an action under this provision, thus doubt arises as to the nature of the liability.

A preliminary reading of the intellectual labours of jurists and the decisions of the Courts does not reveal a uniform opinion on the nature of and the basis for the liability incurred.

Respected jurists have construed this form of liability differently from one another. The Courts, to which one must inevitably turn to for an unequivocal interpretation, have most inconveniently exhibited inconsistency in their choice of approach to endorse and hence in their interpretation of the said liability. This does give rise to some confusion yet legal literature and decided cases taken as a whole may provide us with an indication of the direction to proceed in, and ultimately it is only by ascertaining which views have been given a greater degree of application by the Courts that some certainty can be reached.

Presumption of fault as well as the principle of quem sequitur commodum eum teneat incommodum have both been put forth as constituting the basis for this liability. Though they differ significantly both have been favoured by the Court at one point or another, what remains to be seen is whether either one of these doctrines has predominated to become the preferred basis for liability by the Court today.

2.1.4     Presumption of culpa

A presumption of culpa has often been identified as the basis for liability under our law so that it is presumed by the Court that the owner or user of an animal did not adequately watch over the animal to ensure it did no harm.

This was the basis adopted in Giuseppa Giorgio et v Giorgio Grech et [6] where the death of a woman was caused by a fight amongst dogs belonging to the defendants. The Court commented that this liability ‘e` fondata in una presunzione di colpa sia per averlo abbandonato o lasciato fuggire.’

The same basis was affirmed in Paolo Mallia v Annetto Xuereb Montebello [7] where the plaintiff claimed that pigeons belonging to the defendant had damaged agricultural produce growing in his land situated within the limits of Żabbar.

‘Din ir-responsabilita` tal-proprjetarju ta` l-animal jew ta` dak li jkun qiegħed jagħmel użu minnu’ said the Court ‘hi bażata fuq presunzzjoni ta` ħtija ‘‘in vigilando’’ jew ‘‘in custodiendo’’. Min għandu animal jew min jisserva b’animal hu tenut li jissorveljaħ biex jimpedixxi li jagħmel deni u konsegwentement jekk dan l-animal jikkaġuna dannu hu verosimili li kien hemm nuqqas ta` viġilanza da parti tal-proprjetarju jew da parti ta` min kien qiegħed, f’dak il-ħin, jisserva biħ. Il-liġi tippreżumi kwindi li kien hemm nuqqas ta` sorveljanza u ta` kustodja da parti ta` sidu jew ta` disattenzzjoni ta` min kien qiegħed jisserva biħ, u kwindi ta` ħtija, il għaliex mingħajr ħtija ma jistax ikun hemm responsabilita`.’

Consequently, a person who seeks a remedy under section 1040 does not need to prove that the owner or person using the animal was at fault because this is presumed to exist in any case. Nevertheless, presumptions may or may not admit of proof to the contrary, that is they are juris tantum or juris et de jure respectively. It is important to know what kind of presumption this provision contains because whether or not the defendant is able to bring proof to the contrary, in other words whether he is given an opening to clear himself from responsibility, will depend on it. According to the Court ‘din il-presunzzjoni mhix min dawk li ma tammettiex il prova kuntrarja’ [8] .

Though apparently interpreted in a most favourable manner from the defendant’s point of view there are still definite limits to the circumstances that will avail him. Proof of absence of fault in the sense of having been diligent will have no bearing whatsoever on the outcome of the action. In the words of the Court, ‘l-konvenut jista biss jeħles bil-prova tal-każ fortwitu jew tal-forza maġġuri jew tal-ħtija ta` min ikun sofra d-dannu.’ [9]

The understanding that a presumption of fault constitutes the basis of liability and is a presumption juris tantum can also been gleaned from recent pronouncements of the Court. The Court’s observations in Collin Smith u Bernd Smith v Peter Muscat Scerri [10] decided in 2003 reflect this position. Here two Alsatians and a Labrador belonging to the defendant attacked and killed two Yorkshire Terriers belonging to the plaintiffs who took action under section 1040. In interpreting the liability that arises the Court fell back on a much earlier judgment [11] where it was said that the relevant norm entailed ‘una presunzione di colpa nei riguardi della responsabilita` dal danno cagionato o provocato dall’animale’.

Responsibility for the damage ‘si contrae anche quando non sia intervenuta colpa da parte del proprietario dell’ animale o di colui che se ne sia servito; ma al dire del Giorgi, con altri concordanti citati nelle sentenze di questi Tribunali, la presunzione suddetta non e` ‘juris et de jure’ e ammette la prova liberatoria; sia dimostrando il fortuito o la forza maggiore, sia provando la colpa o l’ imprudenza dell’ offeso che si pareggia ad un evento di forza maggiore .’ [12]

But, of course, where the animal has not acted in the injurious manner complained of on account of any such circumstances but has done so and caused damage ‘‘per proprio impulso’’ or ‘‘secundum natura’’ then ‘dana jimplika r-responsabilita` tas-sid, mingħajr dana ma jista` jiġi ammess jipprova l-assenza tal-ħtija tiegħu, billi r-responsabilita` tiegħu hija preżunta mil-liġi.’ [13]

Once again jurisprudence has elaborated upon the letter of the law so that section 1040 has acquired a wider dimension, admitting of proof to offset responsibility. The same exercise of interpretation is evident from decisions of the Court of Cassation under section 1154 of the Italian Civil Code of 1865. Geri confirms that ‘la giurisprudenza relativa al vecchio codice erasi orientata verso l’ammissibilita` del fortuito, nonche` della forza maggiore, del fatto del terzo e dello stesso danneggiato’ [14] .

The addition of salvo che provi il caso fortuito to the norm, now being section 2052, found in the present Italian Civil Code however has given cause to jurists and the Courts alike to consider whether or not the nature of this liability remains unchanged.

According to the Corte di Cassazione [15] the two provisions are equivalent notwithstanding the addition. This because the caso fortuito stated in section 2052 corresponds to forza maggiore whilst the other instances of exculpatory proof remain admissible insofar as they are firmly established by jurisprudence.

Despite admitting exculpatory proof to oppose responsibility ‘la giurisprudenza, pressoche` unanime, afferma che la presunzione di cui l’art. 2052 deve essere considerata assoluta, cioe` iuris et de iure ’ [16] . Once proof is admissible to rebut a presumption under section 2052, the Corte di Cassazione’s declaration that it is iuris et de iure is a little peculiar.

It is instantly apparent that the interpretation given to liability under section 2052 contrasts with the position obtaining under our law for our Courts have repeatedly declared the liability to be an objective liability which is nevertheless rebuttable and hence to be considered juris tantum , as also put forth by Giorgi in his comment on section 1154 of the Italian Civil Code of 1865.

2.1.5     Quem sequitur commodum eum teneat incommodum

A second doctrine which attempts to explain the basis for liability is not linked to a presumption of fault but consists of the simple principle that he who derives a benefit from the ownership or use of an animal must also bear those burdens which the animal’s actions give rise to, including having to make good for any damage it causes.

It is fair to note that the next judgment, which reflects the second justification for liability, was chosen specifically because it was delivered just three years after the Court advocated the first doctrine in Paolo Mallia v Annetto Xuereb Montebello. This is indicative of the fact that the Courts were battling with the uncertainty our provision presented and were attempting to solve it through interpretation, the difficulty being the existence of alternative interpretations.

In Nazzareno Scicluna v Paolo Zahra [17] the Court asserts that the basis on which a person incurs liability for the actions of an animal owned or used by him is the principle of ‘‘quem sequitur commodum eum teneat incommodum’’ so that he who enjoys the ‘‘commodum’’ must also suffer the ‘‘incommodum’’. In the words of the Court ‘ġeneralment dana l-istitut huwa bażat fuq in-nozzjoni tar-responsabilita objettiva, in bażi għal-prinċipju ‘‘quem sequitur commodum eum teneat incommodum’’.’

Again, the Court was willing to concede that ‘ma jistax jiġi eskluż li dina r-responsabilita` obbjettiva tiġi nieqsa meta jirriżulta li l-inċident li fiħ kien involut animal, kien dovut għall-każ fortwitu, jew forza maggiore; jew għall-ħtija tad-danneġġjat’.

The liability arising under section 1154 of the Italian Civil Code of 1865 for damage caused by animals, the content of which is reflected in our provision, has likewise been held to constitute an expression of the ubi commoda, ibi et incommoda principle by the Corte di Cassazione. [18]

The Court’s approach to the indirect liability arising out of section 1040 is gradually revealed in its judgments. One can hardly be bashful at this point for it is quite obvious that, having seemingly entertained both without any constancy, our Courts have been unable to decide and have thus continually gone back and forth between the two doctrines as the basis for liability. Annoying it may well be, but of great consequence it is not for, all things considered, whether this liability is based on presumed culpa or the commodum principle the outcome remains the same, that is while the owner or user is liable irrespective of culpa the existence of special circumstances will benefit him.

Thus there is an objective liability placed on the owner or user of the animal to the effect that liability cannot be avoided simply by proving the absence of fault on his part, nor by proving the exercise of due diligence. The overwhelming majority of judgments have commented thus, with this sentiment being expressed as far back as 1891 in the case of Giovanni Sammut v Col. Emilius Hughes [19] . Given the overall consistency shown throughout the years it may safely be said that showing one is not at fault is a fruitless exercise. On the other hand, there are special circumstances that will allow the owner or the person using the animal to escape responsibility for the damage caused by it. Our case law reveals that this possibility is limited to situations where an external cause prompted the animal to act in that manner, more specifically where the damage was due to casus, force majeur or the fault of the injured party himself.

2.1.6     Exculpatory proof

As noted earlier, although section 1040 makes no mention of any circumstance which would come into play to eliminate responsibility for the owner or the person using the animal, our Courts have long accepted that there are instances when liability is not necessarily translated into responsibility.

As far back as 1906 our Courts had already held that the provision establishing liability ‘mette a carico del proprietario la responsabilita` del danno cagionato dall’animale, talche` egli non ne viene esonerato allegando la mancanza di colpa da parte sua, ma vuolsi dimostrare il fortuito o la forza maggiore, o il fatto colposo di un terzo, ovvero di chi ha sofferto il danno, come causa diretta di questo.’ [20]

In Collin Smith u Bernd Smith v Peter Muscat Scerri [21] the Court said that ‘għal dik li hi prova liberatorja . . l-konvenut jeħtieġlu jfornixxi l-prova tal-każ fortuwitu biex jisottragga ruħu mir-responsabilita`. In other words, the defendant must bring proof of ‘ un fattore esterno, che puo` consistere anche nel fatto del terzo, o nella colpa del danneggiato, ma che deve comunque presentare i caratteri dell’ imprevedibilita`, inevitabilita` e assoluta eccezzionalita`.’ [22]

In Lorenzo Mercieca v Salvatore Zammit [23] a dog belonging to the defendant bit the plaintiff’s son. The defendant submitted that the plaintiff was at fault for he had allowed his son to enter the garage while the dog was tied up nearby, and that he should have therefore been absolved of responsibility. The Court observed that the child had been to the garage previously without any incident of the sort happening but it also transpired that the dog had acted in this manner before with other persons, this being a fact the owner of the dog ought to have known but one that others, including the plaintiff, would not necessarily be aware of. If the plaintiff Mercieca had been at fault for letting his son enter the premises Zammit would have been off the hook, but the Court decided that this was not the case and therefore Zammit was held responsible for the injury caused to the child by his dog.

The same prova liberatorja was also raised by the defendant in Collin Smith u Bernd Smith v Peter Muscat Scerri [24] in an attempt to circumvent responsibility. He contended that the owner of the dogs which died following an attack by his own dogs had contributed by not keeping his dogs on a leash whilst walking them, that this amounted to fault of the injured party and that he should therefore not be held responsible. The Court heard and believed witnesses who testified that the plaintiff did in fact have his dogs on a leash and concluded that there was no blame to be put on the plaintiff. And so the defendant was held liable.

2.1.7     The active subject of the action  

The active subject of an action for damages under section 1040 is whomsoever happens to be on the receiving end of an injurious act committed by an animal owned by or being used by another. The damage suffered may consist in harm to his own person, to that of his child or to an animal owned by him, or in damage to his property.

2.1.8     The passive subject of the action and the notion of use

The passive subject of the action is given by section 1040 to be the ‘owner of an animal, or any person using an animal during such time as such person is using it’.

The use of the word or in preference to and makes it sufficiently clear that liability is intended to attach to either one or the other. This has long been accepted and it is not the first time that the Court has declared that ‘r-responsabbilita` mhux kumulattiva imma alternattiva.’ [25]

The owner is the first person in line for responsibility. It is only when the owner has placed the use of the animal at somebody else’s disposal and the latter is using the animal at the time of the injurious act that such person is called to answer for the damage caused. Clearly, the plaintiff cannot choose to take action against the owner instead. Moreover, ‘la soggezione alternativa dell’uno o dell’altro di costoro a tale responsabilita` importa che essa sia operante soltanto nei confronti dei terzi - estrane sia ala proprieta` che all’uso dell’animale - e non possa essere fatta valere da uno degli obbligati verso l’altro’. [26]

The fact that a person who is not linked to the animal by ownership can still be a defendant in an action for damages undoubtedly calls for an enquiry into the notion of use.

Establishing whether a relationship with an animal is one of use is seldom straightforward so that quite often it is a case of the Court considering all the facts carefully and simply reaching the most reasonable conclusion. Perhaps this explains why one rarely comes across a clear definition of use in jurisprudence.

In Anthony Farrugia ne v Carmello Calleja [27] the Court decided that the facts of the case added up to use. One day a black dog appeared on a farm and soon took it upon himself to guard the farmer’s cows and his farm in general. In the few months that followed, the farmer allowed it to remain and fed it. As the Court pointed out, he would not have done so had the dog’s presence not been of benefit to him. Indeed the black dog guarded his farm and his cows ‘u f’dan is-sens kien jaqdiħ u jserviħ’ so that the farmer was held to be using the animal in terms of section 1083, now 1040.

In Mark Anthony Amato v Charles Spagnol u b’digriet tal-21 ta’ Novembru 1989 gie kjamat fil-kawza Albert Howard [28] the Court had to consider the meaning of the word use because the original defendant Spagnol was not the owner of the animal and did not agree that his relationship with the animal was one of use in terms of section 1040. Spagnol kept a horse belonging to Howard in his field and took care of it because the two were friends and because he felt that Howard was neglecting the animal. One day the horse bolted from the field and damaged the plaintiff’s car. Action was taken against Spagnol who asked the Court for Howard to be joined into the suit. The Court decided it would follow the interpretation given in Zammit Pace noe v Vella according to which the responsibility for damage caused by an animal falls upon ‘dik il-persuna li, f'dak il-mument ta` l-inċident, l-annimal ikun fis-servizz tagħha (mhux f'idejn min jew kustodja ta` l-annimal - iżda servizz)’. Thus use is to be understood as service. This did not appear to be the case with Spagnol who indeed ‘kien jieħu ħsiebu pero` għan-nom u għall-benefiċċju tas-sid; ma kellux użu esklussiv jew għat-tul ta` żmien. Kien jitimgħu, jnaddfu u jagħtih eżerċizzju pero` qatt fl-interess tiegħu. Dan ma jirrendiħx responsabbli fil-konfront tat-terz (bħal stable boy). Howard baqa' responsabbli għaż-żiemel avolja ż-żiemel kien fil-kustodja tal-konvenut Spagnol. Spagnol kien biss rappreżentant tas-sid’.

‘L-użu għandu jiġi interpretat fis-sens normali tal-kelma b'tali mod illi min bi pjaċir iżomm annimal għal ħaddiehor u mhux biex jinqeda biħ huwa stess ma jistax jingħad illi qed jagħmel użu minnu.’ [29]

Accordingly, ‘il solo affidamento dell’animale per ragioni di custodia, di cura, di governo o di mantenimento, non valendo a trasferire il diritto di usare dell’animale per trarne vantaggi, non sposta a carico del terzo la responsabilita` per danni cagionati dall’animale stesso’. [30]

2.1.9         The animal

In Paolo Mallia v Annetto Xuereb Montebello [31] the Court defined the term animal very broadly. Because the provision itself draws no distinction the Court held it to be ‘applikabbli għall-animali kollha li jistgħu jkunu obbjett ta` dritt ta` proprjeta, kwindi għall-animali domestiċi u anke għal-bestji feroċi meta dawn ikunu oġġett ta` proprjeta privata’, thereby including the pigeons involved in this particular case and subtly revealing that the law regards animals as little more than property.

Geri concurs with this generally held principle which encompasses all those animals that are capable of being owned and emphasizes that there is no juridically relevant distinction to be made between different species of animals [32] . He then qualifies this with ‘purche` sussista da parte dell’uomo il potere-dovere esclusivo di governo sull’animale stesso.’ [33]

That being said, the Italian Courts have pointed out that certain animals cannot fall within the ambit of this provision, specifically animals found in a hunting reserve. This exclusion may be redundant nowadays given that hunting has by and large become an activity that is frowned upon and reserves for such purpose have in general ceased to operate. Nevertheless, for the sake of comprehensiveness, it should be noted that the said animals have been declared res nullius [34] placing them outside the realm of ownership and hence of the application of the relevant provision. Geri agrees that this classification results in a serious defect of ownership or use with regards to such animals but says that the real reason the provision is inapplicable is more accurately explained by the ‘carenza di titolarita` del potere di governo sugli animali della riserva’ [35] . In other words liability cannot attach to the owner of the reserve because he is ‘del tutto privo di quel potere-dovere di vigilanza, sorveglianza e controllo, sul quale e` fondata la responsabilita`.’ [36]

For an action to succeed under section 1040 the Court must be satisfied that the animal that allegedly caused the injury or damage complained of is the very same animal that belongs to the defendant or that was being used by the defendant at the time of the incident.

As to proving that the identity of the animal causing the damage corresponds to the identity of the animal owned or in use by the defendant, the Court has said that ‘min jinvoka r-responsabilita li minna jittratta iċ-ċitat artikolu 1083, irid neċessarjament jipprova illi kien proprju l-animal tal-konvenut li kkaġuna d-dannu li tiegħu ikun jitlob ir-risarċiment. Ingħad min issa, pero`, li din il-prova tista tirriżulta anke min presunzzjonijiet meta dawn ikunu gravi, preċiżi u konkordanti.’ [37]

Such was the case in Nazzareno Scicluna v Paolo Zahra [38] where the Court took into consideration several factors which gave rise to a legitimate presumption that the animal did indeed belong to the defendant. The plaintiff was cycling towards Rabat when a dog (kelb tal-kaċċa) ran towards him, causing him to lose his balance and fall off his bicycle, the outcome being a damaged bicycle and a broken wrist. The defendant admitted to owning a kelb tal-kaċċa that was similar to the one described by the plaintiff and, rather honestly, to not closing the ‘xatba’ when he left the house shortly before the plaintiff came along on his bicycle. Once these facts were volunteered, it was inevitable for the Court to begin with the observation that a dog collided with the plaintiff right in front of the defendant’s home and that this dog apparently came out onto the road from within the house with the open ‘xatba’ and swiftly come to the conclusion that the offending dog could have been none other than Zahra’s dog.

Confirming the identity of the animal that had caused the damage proved much more difficult in Middle Sea Insurance p.l.c. kif surrogata fid-drittijiet tal-assigurat tagħha Paul Vella abbażi tal-polza ta’ assigurazzjoni u tal-liġi u l-istess Paul Vella v Victor Sammut [39] .

Two dogs ran out onto a main road in Mġarr and Vella knocked one of them down. He claimed for the damage sustained to his car because he had comprehensive coverage. Middle Sea Insurance paid out and then took action against Sammut qua alleged owner of the animal that was the cause of the damage in order to recoup the amount. Sammut claimed not to be the owner of the animal which was hit by Vella’s vehicle and the Court emphasized that for an action for damages to succeed under section 1040 the plaintiff must necessarily prove that it was actually the animal belonging to the defendant that caused the damage.

The police officer who had been called to the scene testified that the driver had told him the dog belonged to Sammut and that Sammut himself had confessed to being its owner. The Court was unconvinced for had this confession been made by Sammut at the time it would certainly have found its way into his police report. Moreover, the police officer did not answer satisfactorily when asked about other important aspects, in particular brake marks and vehicle speed. Meanwhile, Sammut presented three witnesses who supported his story.

The Court held that the facts and circumstances were not such to give rise to presumptions of ownership which were sufficiently ‘gravi, preċiżi u konkordanti’ [40] . To succeed the plaintiffs needed to prove ‘b’mod pre ċiż u talment gravi u konkordanti illi kien tabilħaqq il-kelb tal-konvenut li kkawża d-danni.’ In the absence of such proof no responsibility could be attached to Sammut.

2.1.10   The causal nexus

For liability to arise it is indispensable for there to be a causal nexus between the animal and the damage caused.

The animal must be ‘interessato nella produzione dell’evento dannoso in modo specifico cioe` non mediante un semplice rapporto di occasionalita` . . ma in seguito ad un vero e proprio nesso causale, la cui mancanza rende impossibile l’evento, secondo una rappresentazione intellettuale a posteriori. Eliminando cioe` col pensiero il fatto derivante dall’animale anche l’evento scompare.’ [41]

Direct contact between the animal and a person or thing is not in itself sufficient to bring about liability. If a mule is minding its own business in its owner’s field when a car drives into the field and into the mule, the driver certainly cannot expect to hold the owner of the mule responsible for the damage sustained to the vehicle upon impact. The animal’s behaviour must be the cause of the event that gives rise to the damage so that ‘la materialita` della collisione con l’animale non basta a radicare il nesso causale richiesto dalla legge per l’applicazione dell’art. 2052’. [42] This is equally applicable to section 1040.

As was held in a judgment of the Corte di Cassazione [43] , where a person approaches a dog that is generally known to all as being of a non-aggressive and friendly disposition but erroneously supposes it to be aggressive and lifts his foot as though to kick it, hence provoking the animal’s reaction, such person will be unsuccessful in having the owner declared responsible. In such circumstances ‘il fatto dell’animale dovrebbe essere considerato come una mera occasione e non gia` quale causa determinante dell’evento.’ [44]

Conversely, a causal nexus may subsist even where the act causing the damage is not actually executed upon the body of the person or property of the plaintiff. Behaviour exhibited by an animal could prompt a person to react in such a manner that results in him injuring himself or his property, and this without there being any direct contact between them. To illustrate, say a man breaks an arm while jumping over a wall to escape a dog which is running towards him baring very sharp teeth and harbouring presumably unfriendly intentions. What we have here is an act committed by an animal which not only features predominantly in the events leading up to the injury but which is in fact the cause of the injury. In this case the act is the chase, without which the man would not have scaled the wall, for he would have had no other reason to do so, and broken his arm.

2.1.11   Damages

The damages that may be awarded in an action with a favourable outcome are of two types, damnum emergens and lucrum cessans . Damnum emergens is compensation for losses actually sustained and for expenses incurred in consequence of the act, while lucrum cessans is compensation for the loss of future wages or other earnings provided the act has caused the partial or total permanent incapacity of the plaintiff. [45]

Pacifico Fenech v William Ronald [46] is mainly concerned with the process of awarding damages. After being bitten in the leg by an Alsatian belonging to the defendant, the plaintiff was left with nerve damage and partial permanent disability. Understandably, he sued.

With regards to damnum emergens , the list put forth by the plaintiff is illustratory of the kind of losses and expenses that could fall under such heading. It included the loss of actual wages, medical expenses, travel and accommodation expenses and a scooter. Of course it is up to the Court to then decide whether the request is reasonable and fair. It often is not and in this case the Court reduced the total amount claimed by more than half. In calculating lucrum cessans the Court took into consideration his permanent disability which was determined to be 7 percent and his earnings over the previous years. It also ascertained his age at the time of the incident and his working life expectancy, settling on a multiplier of 21 years. The following formula was used to compute the amount due : average annual income x multiplier x percentage of disability. A percentage was then deducted from the total obtained in view of a lump sum payment.

2.2        CRIMINAL LIABILITY INCURRED FOR DAMAGE CAUSED BY ANIMALS

Apart from being liable for civil damages under the law of tort, the owner of an animal may also be held criminally responsible for any injury or damage caused by it. The Criminal Code establishes a number of contraventions against the person and property, some of which can be directly or indirectly utilized to render a person criminally liable for the actions committed by his animal.

Section 339(1)(g) of the Criminal Code provides that any person who ‘sets his dog at another person, or does not endeavour to restrain the same, when molesting any person’ is guilty of a contravention against the person.

This applies where the owner is already molesting the person and then seemingly overdoes it by setting his dog on him or standing by while the dog does so of its own accord. The animal here is the instrument of the owner’s intentions. The way the provision is worded gives the impression that if one were not molesting a person at the time of the animal’s intervention this section would not apply, but then again one would presume that the actual fact of setting the dog on somebody or allowing it to do so is equivalent to molesting a person and thus this norm could apply anyway. But because words are chosen with great care by the legislator and each one has its intended weight then one ought to conclude that it would not apply where no molestation is occurring beforehand, thereby avoiding giving this provision application where it has none.

Section 340(d) of the Criminal Code opens up an indirect opportunity to attach criminal liability for actions committed by animals in that, although it does not expressly mention animals, it is a provision catering for damage to property in general which can be and has been resorted to where an animal has given rise to such damage.

The provision served this purpose in Il-Pulizija v Maria Paris [47] where the defendant was held criminally responsible for the damage caused by an animal belonging to her. Action was taken by the police under section 354(d) of the Criminal Code, now section 340(d), which provides that a person who ‘commits any other violation of another person’s property, to the prejudice of the owner or holder thereof, not specified in the preceding paragraphs of this article, nor otherwise provided for in this Code’ is guilty of a contravention against property.

Il-Pulizija v Maria Paris [48] is an appeal from the decision of the Court of Magistrates. The defendant Paris owned a cat which had picked up the disagreeable habit of eating birds belonging to a certain Joseph Pace Bonello who lived in the same street. The birds were kept on the roof of his home so presumably the cat simply strolled from roof to roof to get to that of Pace Bonello who would then find feathers and nibbled birds. Over a period of three months Pace Bonello had observed a white cat leaving his own roof and going in the direction of Paris’ roof and thus, concluding that the white cat was the culprit, reported the matter to the police. Paris was duly warned by the police and no incidents occurred thereafter.

‘Sid l-annimali jkun’ said the Court ‘responsabili kriminalment jekk l-annimali, malament jagħmlu ħsara fil-proprjeta` aljena’. It proceeded to point out that with contraventions, as this criminal offence is classified, the moral element is satisfied ‘bis-sempliċi volontarjeta`, mingħajr ma hemm bżonn l-intenzjoni doluża, ossija ‘‘mens rea’’. Il-volontarjeta` tista` tkun mhux biss fatt pożitiv, imma anki fatt negativ, ċjoe` fatt ta` negliġenza’. And so the Court proceeded to establish whether Paris was negligent.

The Court began with a consideration of the classification pertaining to the bird-loving animal, immediately drawing a distinction between those animals which are domitae or mansuete naturae and those which are ferae naturae . The cat was deemed to fall within the former category and hence not to be an animal of a dangerous disposition. On this basis the Court stated that, unless the animal had previously exhibited a vicious propensity, the owner could not be held responsible for damage caused by it without his knowledge. Several English judgments are cited in support of this theory, one of which [49] also concerned a cat with a particular fondness for a neighbour’s birds. Following this line of reasoning, the Court then had to determine whether the cat had demonstrated such propensity and if so, whether Paris was aware of it. ‘Jekk kellu dan il-vizzju partikolari, u kienet taf bih, u naqset li tieħu l-passi meħtieġa, allura hemm in-negliġenza li tirrendiha responsabili taħt id-dispożizzjoni tal-Kodiċi Kriminali’.

The cat exhibited what the Court referred to as a ‘particular vice’, that of repeatedly going to Pace Bonello’s to eat birds. And though cats are known to be partial to birds, and not in a good sense, the Court felt that this particular cat’s behaviour went beyond an ordinary cat’s interest in birds. From the moment in which Paris was informed of the report filed by Pace Bonello ‘inħoloq fiha l-obligu li tieħu l-passi meħtieġa biex tirrimedja’, an obligation which was not encumbent upon her prior to becoming aware of the cat’s vicious propensity. The Court noted that Paris did in fact take the necessary steps to ensure her cat no longer went to Pace Bonello’s aviary, consequently ‘ma kienx hemm negliġenza mill-parti ta` l-appellant; għaliex hekk kif saret taf bil-vizzju tal-qattus hija rimedjat’. Had she done nothing after being spoken to by the police ‘allura kienet tkun responsabili; imma la rrimedjat hi ma inkorriet ebda responsabilita` kriminali’. The Court thus overturned the Court of Magistrates’ decision and passed a verdict of not guilty.

This judgment is interesting in that the Court of Appeal went against all those principles enunciated by the Civil Court regarding liability for actions committed by animals, according to which the owner of this cat would have been held civilly responsible for the damage caused because from the facts of the case it is evident that none of the extenuating circumstances allowed by the Court to escape liability are present. So had Pace Bonello opted to sue for damages instead perhaps he would have been more successful and would also have been compensated for the loss of the birds, compensation which is not catered for in a criminal action, the scope of which is punishment and not restitution. This case therefore highlights the difference between civil and criminal liability. Lastly, it is interesting to note that the Court addressed the legal category of the animal, a distinction found under Roman Law and a practice our Civil Court has always avoided.

[49] Buckle v Holmes 23 - 03 - 1926 Court of Appeal : Law Reports 1926. 2 K.B., p. 125

[Chapter 3]