Australia: The shooting of Harambe at Cincinnati Zoo: An Australian public liability perspective

The shooting of Harambe at Cincinnati Zoo:

An Australian public liability perspective

Key Points

• All organisations must take reasonable steps to ensure that their facilities and premises are built in such a way that ensures all entrants – people and animals – are protected. This would include undertaking appropriate risk assessments.
• This will, most importantly, reduce risk to individuals, but also provide organisations with the best chance of successfully defending a claim being made against them.

Background

Recently, a gorilla named Harambe at Cincinnati Zoo was shot dead after a three year old boy fell into his enclosure. The shooting sent social media and news outlets into a spin.

The boy suffered minor injuries but survived the ordeal. There was speculation the mother would sue the zoo in negligence. It appears that she no longer intends to do so.

The Sydney Morning Herald (and other news outlets) reported that animal rights activist group "Stop Animal Exploitation Now" (SAEN) has filed a federal negligence complaint with the US Department of Agriculture against the zoo. SAEN allege that the zoo failed to construct the enclosure to protect both the public and the gorilla and that there was a clear violation of the Animal Welfare Act.

Regardless of what side of the fence you sit in this emotionally charged debate, it is clear the incident raises some interesting public liability issues. We briefly consider these below, from an Australian perspective.

The Law

In Australia, liability in tort may arise from injuries or damage caused by animals.¹ In an environment such as a zoo where wild animals are kept, the likely tort is negligence.²

From a negligence perspective, one of the central issues would likely be whether the enclosure was constructed in such a way so as to avoid the reasonably foreseeable risk of harm to people and animals. This is not a straightforward issue and would depend upon the nature of the construction of the enclosure and what steps the zoo did or did not take to ensure that the enclosure was appropriately constructed.

Evidence of reasonable steps might include, for example evidence of undertaking a risk assessment of the enclosure and the way in which people interact with the animals.

Issues such as the fault of the plaintiff (or in the Cincinnati Zoo case, the fault of the plaintiff's parents), voluntary assumption of risk, obvious risks and/ or defences relating to public bodies and officers under Civil Liability Legislation and the provisions of the Occupiers' Liability Legislation may all come into play.

For the purposes of Occupiers' Liability Legislation (and common law), the nature of the premises and the age an ability of the entrant ought to all be taken into account for the purposes of the duty of care of an occupier. Given that organisations such as zoos attract young children who are known to be inquisitive and climb, the question would likely be asked whether an enclosure that a three year old boy was able to climb into was indeed appropriately constructed.

Equally however, there are penalties available for entering an enclosure.³ Further, an organisation might itself bring an action against a person (or the parents/ guardians of a minor) for entering an enclosure, such in in the Cincinnati Zoo case.⁴

Another likely issue to be raised is the relevance of any contract formed between an entrant and an organisation, such as a zoo. Generally an entry ticket to such premises includes various waivers in favour of the organisation, and warnings and duties directed to the entrant. An organisation may seek to rely upon the terms of that contract if a claim is made against it.

Conclusion

This article does not purport to provide the answers to what is an emotionally charged debate with strong opinions on both sides. It is however intended to be thought provoking and to act as a timely reminder to organisations, including but not limited to zoo's, to ensure that they take all reasonable steps to ensure that their facilities and premises are constructed so as to protect people and animals.

Footnotes

¹ LexisNexis, Halsbury's Law of Australia, vol 4 (as at 7 June 2016) 20 Liability of Owners and Keepers of Animals, 'Liability Generally' [20-410].

² Ibid, [20-410].

³ See for example, regulation 13(a) and 23 of the Zoological Parks Authority Regulations 2002 (WA).

⁴ Ibid, regulation 6

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.