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May 20, 2020 Feature

Valuation of Companion Animals: A Possible Solution to the Puzzle

By Stephen Tuck
Elephant etching

Elephant etching

Andrew_Howe/E+ via Getty Images

The last edition of TortSource published an intriguing article on the challenges involved in seeking non-economic loss damages for harm to companion animals. See Lenore Montanaro, Valuation of Companion Animals, 22(2) TortSource 6 (2020).The article drew a contrast between economic loss associated with harm to an animal used commercially and the compensation proper to a pet, which oftentimes is considered a member of one’s family. On one hand, this is a reasonable distinction to make, noting the ruthlessly mechanistic analysis that can be taken for animals whose use is primarily economic. Consider the following observation:

Analyzing where and how societies get their sources of energy is basic to understanding the history of any economy, culture, or ecosystem. It would be nearly impossible, for example, to understand the history of the twentieth century without at least some consideration of fossil fuels. We clearly could not tell the history of the American city without accounting for the role of the automobile, for instance. Likewise, to analyze the economics of ... most anywhere else in the preindustrial world, without considering the role of animal power would be to miss a major part of the story.

Alan Mikhail, Unleashing the Beast: Animals, Energy, and the Economy of Labor in Ottoman Egypt, 118 American Historical Review 317 at 323 (2013).

Paradoxically, a reductive view of the value of animals can show us how the non-economic value of their loss may be evaluated.

Tropical climes are notoriously hard on machinery. Supplies of all sorts and spare parts and supplies, in particular, were never in rich supply in Burma during the Raj. George Orwell, who knew the time and place well, described the experience of a British functionary in his 1934 novel Burmese Days:

Nearly thirty coolies were missing, the sick elephant was worse than ever, and a vast pile of teak logs which should have been sent off ten days earlier were still waiting because the engine would not work. …. The engine was finally persuaded to run, or at least to totter. The sick elephant was discovered to be suffering from tapeworms. As for the coolies, they had deserted because their supply of opium had been cut off — they would not stay in the jungle without opium, which they took as a prophylactic against fever.

Because of the vagaries of “tottering” machinery, much of the economic activity of Burma at that time was powered not by engines but by elephants (tapeworms notwithstanding). Human nature and economic life being what they are, this inevitably led to disputes over the elephants themselves.

In 1914 or 1915, Mr. Maung Dwe of Burma captured an elephant and trained the elephant to work. About six months later, he sold theelephant to Mr. Maung Sin, for whom the animal worked until June 1917, when it became lost in the jungle. The elephant appears ultimately to have joined a herd of wild elephants. In June 1918, Mr. Maung Shwe recaptured the elephant. He was able to put the elephant back to work very soon after. Sin sued successfully for recovery of the elephant. The defendant appealed to the Lower Burma Chief Court.

Higinbotham J took his bearings from the legal encyclopedia Halsbury’s Laws of England. According to Halsbury a person could have only “qualified” property in a wild animal. If a wild animal escaped to its former liberty, the ownership was lost. See 1 Halsbury’s Laws of England (1st ed., 1907) ¶¶798–799. His Honour continued –

Elephants are animals which, though by nature wild, are peculiarly amenable to training and quickly become tame. If any such tame and trained animal should go off with a wild herd of other elephants and remain at liberty so long that when recaptured, it had to be dealt with and trained as if it were a wild animal, which had never before been tamed and trained, I think it would be correct to say that it had reverted to its natural state and was in fact a wild animal. In such case, the former owner would have lost all property to it. But if on recapture it was found to be tame and could be put to work again almost at once, I think it would be incorrect to say that it was a wild animal.

Shwe v. Sin, AIR 1921 Lower Burma 1 at 1-2. In this case, the recaptured elephant had been returned to work in a very short time and appeared trained. The elephant thus was not a wild animal when recaptured, and so Sin remained the owner.

His Honour’s (and indeed, Halsbury’s) analysis prompts the question of precisely what aspect of the elephant was the subject of Maung Sin’s proprietary right. The elephant’s trained capacity to work appears to be what was owned. This capacity was simply a particular form of its ability to interact with humans. The unjustified absence of this ability is uncontroversially compensable. For instance, an animal’s ‘ability’ to be bred or fattened has a value which (should the animal not have such a capacity to the knowledge of a vendor but not a purchaser) may found an action for breach of contract. Couchman v Hill [1947] 1 All ER 554 (Eng. Ct App.). TThe destruction of that ability might be the basis for an action in conversion or detinue (the apparent cause of action in Shwe’s Case).

This line of analysis indicates how interference with the emotional connection between a person and their pet may also be compensable. The pet’s capacity to relate to its owner reflects its experience with that owner. That experience is a particular form of training, even if the ‘training’ is simply the repetition of experience causing the animalto become used to being fed in a certain place or even curling up on a particular lap by the fire. If the animal were to be lost, the loss of that training seems uncontroversially compensable: an economic value can be ascribed to it based on the time spent playing fetch with Fido or petting Moggy and also based on any monetary expenditure. This may also provide a basis for a claim for the value of the owner’s emotional return on investment as a result of so training the animal—failing to compensate for the loss of this emotional reward logically must undervalue the training supplied to create it. So analyzed, the loss of the investment of time and money in the owner’s relationship with their pet should become co-extensive with the owner’s non-economic loss.

Though Ms. Montanaro describes with great clarity the high value our culture places on its pets—and also the difficulty of putting a coherent case for non-economic loss compensation for their destruction— these difficulties can be overcome. The first step may be to work from the basis that the loss is economic first and emotional second.

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By Stephen Tuck

Stephen Tuck is a solicitor with the firm of Patrick Robinson & Co in Melbourne, Australia, practicing largely in personal injury litigation.