Date: Tue, 27 Mar 2007 01:37

From: Neil Foster

Subject: John Murphy and more on animals

Dear Vaughan et al

I certainly wouldn't disagree with this, though off the top of my head I can't think of any cases that support it. Certainly seems easier than cases where the plaintiff in an emergency has to choose between putting different people in danger - apart from the old standby of Dudley (no defence of necessity for cannibalism) are there any other cases where the question has come up of whether it is negligent to prefer the safety of one's own family, say, as against the safety of a stranger?

Regards
Neil Foster

Neil Foster
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Vaughan Black 27/03/07 4:30 >>>

Dear all,

The question posed by John Murphy puts me in mind of a small group of cases I have been collecting, thinking that one day I might write something about them. In these cases someone is driving a car when an animal -- say, a cat -- runs in front of it. The driver then swerves to avoid killing the cat, but loses control of the vehicle and crashes, injuring a passenger (or pedestrian, or sometimes just someone's property). In suits by the passenger against the driver the courts hold that where swerving to avoid killing the non-human puts a human at any significant risk of physical injury, negligence law requires one to drive straight ahead and kill the non-human.

In short, negligence law requires one to cause certain death to a non-human if that is the only way to avoid significant risk of injury to a human.

I assume this conclusion attracts general agreement?

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