The price of a four-legged friend: Non-economic damage award in Australian pet litigation

Abstract

It has been suggested that the continuing legal status of animals as property is at odds with our societal viewpoint of them, and fails to recognise the closeness of the human-animal bond. One area of law where this conflict manifests is in the provision of non-economic damages to pet owners, when a third party negligently causes their pet's death or injury. Traditionally, the law has disallowed damage recovery in this scenario due to the animal's proprietary legal status. However, judicial activism has occurred in some United States courts and recovery been permitted, resulting in the law being unclear and inconsistent. Australian sociological research demonstrates the depth of the public's affection for their animals and it is likely to be only a matter of time before Australian courts are faced with similar non-economic damage claims in relation to pet harm. This article seeks to discover what lessons from the US experience can be applied, with adaptation, to the Australian context. The proposal is that Australia should avoid the judicial activist approach, since this encourages unlimited liability and inconsistency. Instead, reform should be proactive and occur through legislative intervention.