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