30 May 2019

As the dust settles on the final season of HBO’s Game of Thrones, I think it is fair to say we are all asking ourselves the same question: When a dragon burns down a property, can the property owner recover damages?

Whilst the law of Westeros is vague at best on this subject, Scotland and England each have their own statute governing strict liability for animals (i.e. liability without proof of negligence). 

In Scotland, the Animals (Scotland) Act 1987 provides that an animal’s keeper has strict liability if the animal is of a species whose members are by their physical attributes or habits likely to injure severely, kill or cause damage.  Some species are deemed by the Act to have such attributes, e.g. dogs are deemed likely to injure, kill or cause damage by biting, savaging, attacking or harrying.  So when a dog bites a postman, the dog’s keeper has strict liability. 

By a curious omission the statute has no deeming provision for dragons.  However, it is probably safe to assume the court would decide a dragon is likely to injure severely, kill or cause damage by virtue of its physical attributes – most notably its ability to breathe fire.  We can therefore rest easy that the dragon’s keeper can be held strictly liable in Scotland.

In England, the Animals Act 1971 applies.  The animal’s keeper has strict liability if the animal is of a “dangerous species”, i.e. a species, sub-species or variety not commonly domesticated in the UK and Ireland, and whose fully grown animals have such characteristics that they are likely, unless restrained, to cause severe damage.  On the basis that dragons are not commonly domesticated on these shores, and fully grown they are likely to cause severe damage, English property owners can also hold the dragon’s keeper strictly liable.   

But what happens if GOT mania causes a large increase in dragon ownership in the UK?  This would have no effect on strict liability in Scotland, but in England dragons becoming commonly domesticated could see them no longer classified as a “dangerous species” (!)

For non-dangerous species, the 1971 Act still imposes strict liability in certain circumstances.  But unlike in Scotland, the focus is on the particular animal rather than the wider species.  Strict liability arises if:

• the damage was of a kind which this particular animal was likely to cause if unrestrained, or which if caused by the animal was likely to be severe;
• the likelihood of damage (or of it being severe) arises from characteristics of this particular animal which are not normally found in the species generally (or only found at particular times or in particular circumstances);
• the characteristics of this particular animal were known to the keeper. 

There is strict liability under this provision if the particular animal causes damage by doing something which is not characteristic of its species generally.  So when a dog bites someone in England, the court will have to consider the particular dog, its species and the circumstances of the incident to decide whether the test is met.  As for our pet dragons, since raining fire from on high is a characteristic normally found in the species generally, there would be no strict liability for damage caused. 

In conclusion, whilst the law is well settled in the North, there may be a pressing need for law reform south of the border should dragons become commonly domesticated in the UK and Ireland.  On the other hand, that might be the least of our worries.    

Dracarys

Contact: Mark Morton, Partner macm@bto.co.uk T. 0141 221 8012