I. INTRODUCTION
1.1 This is the tenth report in the Community Law Reform Program. The Program was established by the then Attorney General, the Hon F J Walker, QC, MP, by letter dated 24 May 1982 addressed to the Chairman of the Commission. The letter contained the following statement:
This letter may therefore be taken as an authority to the Commission in its discretion to give preliminary consideration to proposals for law reform made to it by members of the legal profession and the community at large. The purpose of preliminary consideration will be to cring to my attention matters that warrant my making a reference to the Commission under s10 of the Law Reform Commission Act 1967.
The background and progress of the Community Law Reform Program are described in greater detail in the Commission's Annual Reports since 1982.
II. BACKGROUND TO THE REFERENCE
1.2 The Police Association of New South Wales wrote to the Commission in October 1983 expressing concern “at the lack of protection afforded to its members in regard to attacks by dogs under the present legislation” and drawing attention to the limited criminal liability imposed by s6 of the Dog Act 1966.
Section 6(1) of the Dog Act 1966 provides that:
The owner of a dog that attacks or causes injury to a person or animal shall be guilty of an offence against this Act and liable to a penalty not exceeding $200.
Section 6(2)(a) states that subsection (1) shall not apply if the attack or injury by the dog:
occurs on any land, vehicle or premises -
1.3 Section 6 of the Dog Act was amended in 1981. Prior to 1981 there was no subsection (2) and s6 simply provided that the owner of a dog that:
shall be guilty of an offence.
The Police Association stated that as a result of the amendment:
there is no provision in the current legislation whereby the owner of a dog is legally committed to ensure the safety of persons entering or leaving his property for lawful purposes.
The Association observed that “the duties of Police Officers regularly require them to lawfully enter private property on a daily basis”.
1.4 During our inquiries, it became apparent that the provisions of the Dog Act dealing with civil liability for attacks or injuries by dogs were also a cause of concern. The relevant section of the Dog Act is as follows:
20. (1) Subject to subsection (2), the owner of a dog shall be liable in damages in respect of -
(a) bodily injury to a person caused by the dog wounding that person; and
(b) damage to the clothing of a person caused by the dog,
in the course of attacking that person.
(2) Subsection (1) does not apply in the case of -
(a) an attack by a dog occurring on any land, vehicle or premises -
(b) an attack by a dog which is in immediate response to, and is wholly induced by, intentional cruelty to, or intentional provocation of, the dog by a person other than the owner of the dog, his servants or his agents.
(3) This section does not affect the liability apart from this section of any person for damage caused by a dog.
1.5 The following aspects of this provision have given rise to concern:
1. Damages are available pursuant to s20(l) only in respect of “bodily injury to a person caused by the dog wounding that person ... in the course of attacking that person”. As employed in criminal law the term “wound” means a breaking of the skin. Consequently, a person who suffers a fractured bone in the course of a dog attack but whose skin is not broken may not be able to claim under s20. There is a recent District Court decision to the effect that “wound”, for the purposes of s20 of the Dog Act, does not require the plaintiff’s skin to be broken, but this interpretation has not been considered by a higher court.1
2. In order to claim under s20, the bodily injury must have been caused in the course of an attack on the plaintiff. Clearly, there may be circumstances in which a person may suffer bodily injury as a result of conduct of a dog which does not involve a direct personal attack. The plaintiff may be injured by someone running to avoid an attack or the injury may be incurred as the plaintiff acts to avert a threatened attack. These situations would appear to be outside the scope of s20.
3. Similarly, dogs may be the cause of injury even though not behaving in a hostile manner. Dogs engage in other types of behaviour, such as running or simply obstructing passage on a footpath which may result in injury to a person. Section 20 would not apply to such injuries.
4. As the provision is limited to bodily injury, injuries resulting in nervous shock are probably excluded.
5. The only property damage for which the owner of a dog which attacks is liable is damage to the clothing of the plaintiff. Compensation for other items that may be damaged in the course of the attack (for example, spectacles or a camera) cannot be recovered under s20. The plaintiff must pursue a separate common law action.
6. As compensation is not payable for damage to possessions other than clothing no claim can be made for damage caused to a vehicle such as a motor bike, bicycle or car in which the plaintiff may have been travelling.
7. No liability is imposed if the dog is provoked by anyone other than the owner or the owner s servants or agents. Thus, the owner would not incur liability if the dog was provoked by the owner’s child or spouse.
8. The definitions of the owner’s land, vehicle and premises are not drafted so as to exclude private premises which are used for public purposes. Section 20(2) may relieve the owner from liability even though the attack occurs in the public area of the owner’s shop or on the open platform of a commercial vehicle.
1.6 During its preliminary consideration the Commission received a letter from eight residents of Mullumbimby who suggested, inter alia, that s20(2) should be amended. Section 20(2) provides that absolute civil liability will not be incurred where the attack by the dog occurs on any land, vehicle or premises of which the owner of the dog is an occupier or on which the dog is ordinarily kept. The signatories to the letter suggested that absolute civil liability should cover all situations “where an attack by a dog causes severe multiple injuries and/or any injury requiring multiple stitching, regardless of whether such an attack occurs on the owner’s premises, land or vehicle”. The Commission also received a submission from the late Mr T J Martin, QC, a retired judge of the District Court, who argued for the reform of s20. His submission pointed to several anomalies in the present legislation and suggested that the need for an “attack” to have occurred should be removed from the legislation. Mr Martin joined the Commission later as a consultant to the reference.
1.7 The Commission has made extensive inquiries in an effort to assess the impact of private ownership of dogs on the community. Submissions were sought from local councils through the Local Government and Shires Associations of New South Wales, from the Traffic Authority of New South Wales, the Department of Local Government, the Australian Postal Commission, the Sheriff’s Office of New South Wales, the RAS Kennel Control, the Insurance Council of Australia, from the Government Insurance Office and the NRMA as well as from several private dog breeding and training organisations.2 Surveys on different aspects of the problem were conducted for the Commission by the Australian Bureau of Statistics, the Traffic Authority of New South Wales, the Australian Postal Commission and the Sheriff’s Office. A summary of the information obtained is presented below.
A. Survey of Census Collectors’ Experience
1.8 A national population census was conducted by the Australian Bureau of Statistics on 30 June 1986. Collectors from the Bureau visited each household in the State two or three times to deliver and collect the census forms. At the Commission’s request the Bureau conducted a survey in which 2,500 collectors were asked three questions about their experiences with dog attacks during the census. Replies were received from 2,058 collectors. From those replies the Bureau estimated that of the 9,930 collectors employed in New South Wales, 873 or 8.8%, were attacked by dogs, 106 seriously enough to contemplate making a claim for compensation. Attack was defined in the questionnaire to mean a bite resulting in some injury or damage to clothing. The majority of the attacks (87.4%) occurred on private land.
1.9 Other figures produced by the Bureau showed further cause for concern. It estimated that “3,749 or 37.8% of collectors ... had, on at least one occasion, to employ means other than personal delivery or collection at the door because of threatening behaviour by a dog on private land”. In total collectors were estimated to have been prevented from delivering or collecting the forms by normal means on an estimated 12,878 occasions and on many more occasions were able to make the delivery or collection only by the timely intervention of the owner or by returning to the house later in the day when the owner was available to control the dog. Interference from other animals was less frequent but the Bureau reported that “one collector was bitten by a horse and another was ‘bailed-up’ by a horse, while a third met with a large bull standing guard at a house. A few collectors were driven off by geese, two were pursued by pet emus, one was attacked by nesting plovers, and another had the misfortune to be chased by a large pig”.
B. Traffic Authority of New South Wales
1.10 Statistics provided by the Traffic Authority of New South Wales indicated that animals were involved in or were the cause of a more serious traffic accident in about 10% of all cases. Dogs were the animals involved in just over half of these cases. The statistics kept by the Authority relate to accidents which involve the driver in either hitting the animal or in swerving to avoid it. Only accidents causing injury or requiring a tow-away service were recorded.
C. Australia Post
1.11 In the year July 1985 to June 1986 205 accidents involving dogs were reported to the Australian Postal Commission in New South Wales. Seventy five per cent of these incidents occurred on private land and “in a large number of cases the owner of the dog was present at the time of the attack”. In most cases (75%) the injuries caused did not entail time lost from work. In the remaining 53 cases the injuries were more severe and a total of 444 days was lost from work. Falls from motor bikes accounted for most of the serious injuries incurred. Australia Post paid out $23,955 as a direct result of injuries caused by dogs. No figures were provided on indirect costs.
D. Insurance Industry
1.12 In the 12 months to June 1986 the NRMA received 31 claims involving injuries caused by dogs. The average cost of a claim for personal injury was $15,000 while the average cost of a claim for property damage was $580. The NRMA had received 21 claims for property damage between May 1985 and October 1986. The GIO did not provide statistics on the numbers and average cost of claims involving injury or damage caused by dogs, but did indicate a range of settlements of between $3,000 and $32,000. The Home Building and Home Contents policies of both insurers cover injuries caused by dogs to a maximum of $5 million.3 Representatives of the Insurance Council of Australia also reported that the home building and contents policies of most insurance companies now cover injuries and damage caused by dogs owned by the householder.
E. Police Department
1.13 The “Hurt on Duty Incidents” statistics kept by the Police Department showed that in 1983 there was an average of one dog attack a month which resulted in a police officer having to take at least one day off work.
F. Metropolitan Water Sewerage and Drainage Board
1.14 Attacks by dogs are not a significant problem for the Board. It does not keep statistics on the number of instances of injuries occurring but an officer of the Board was willing to gauge that there would be no more than two or three attacks each year on its 50 meter readers.
G. Sydney County Council
1.15 In 1983 officers of the Council lost nine days from work due to injuries caused by dogs. Seventeen other reported incidents of dog attacks did not result in time lost from work.
H. Sheriff’s Office
1.16 There were 140 officers attached to the Sheriff’s Office in 1983. The Office does not keep statistics on the numbers of attacks which its officers suffer but believes the problem to be significant. Comments submitted by officers at 18 court houses throughout the State in response to the Commission’s request for information in 1984 revealed a range of attacks from the trivial to the very serious involving skin grafts. Most officers responding regarded the problem as serious. Some officers told of experiences in rural areas where they were forced to stay in their cars and sound the horn to avoid attack. Others told of dogs attacking the vehicle in which they were sitting and one achieved some notoriety when an incident in which he used ammonia to subdue an attacking dog was reported on a popular television program.
I. Local Government and Shires Associations Questionnaire
1.17 In June 1986 the Commission sent a set of nine questions to the Local Government and Shires Associations for circulation to their members. Forty seven councils responded to the circular providing information on many aspects of the public control of dogs. A summary of the responses made by the councils follows.
1. Complaints Received by Councils
1.18 Each week councils receive a large number of complaints about dogs. Depending on area and density of population councils reported receiving between one and 50 complaints from the public each week. As could be expected the number of complaints increased with the density of population. In a few areas complaints about dogs made up from one half to three quarters of the complaints received by the council.
2. Cost of Control
1.19 The costs incurred by councils in enforcing the Dog Act are significant, sometimes exceeding the income derived from registration and impounding fees by more than 100% and mostly exceeding it by one third. The average urban council spends between $13,000-$20,000 more than receipts taken for dog control while in country areas councils spend between $l,000-$16,000 beyond the revenue received from registration and impounding fees. Some councils spend substantially more, the costs seeming to relate to whether it is necessary to employ full-time staff to police the Act. Most councils regarded the expenditure on dogs as acceptable, suggesting only increases in registration and impounding fees to redress the problem and not more stringent control provisions.
3. Number of Dogs Involved
1.20 The number of dogs seized by councils each year varied between country and urban areas, from two dogs in one country area to 1801 in Liverpool and 1907 in Penrith. Most councils found it necessary to destroy at least 40% of the dogs they impounded, but again there was a wide variation in rates from 4.26% of dogs impounded in Mosman to 82% in Maitland and 94% in Grafton. No local characteristics or policies seemed to account for these variations.
4. Problems of Enforcement
1.21 A problem consistently identified by councils concerned the difficulties they had in enforcing the provisions of the Dog Act. One concern was the waste involved in often ineffective pursuits of dogs by council officers. Under s10(1) of the Act council officers may seize a dog found uncontrolled in a public place or on private property without the consent of the owner. This provision is difficult to implement because many dogs can avoid capture by retreating to private property, leaving it to the council officer to make inquiries whether the property entered is occupied by the owner of the dog or not. Further problems were created by owners who released their dogs outside working hours so that councils had to employ personnel at overtime rates if they wished to enforce the Act effectively.
1.22 The most significant obstacle identified by councils arises from the present requirement in the Act that penalties for offences can only be recovered in the Local Court. Councils are therefore faced with an extensive commitment of time and resources when attempting to prosecute even minor offences.
1.23 Many councils suggested that the solution to these problems lay in the introduction of a system of on-the-spot infringement notices to enforce the provisions of the Act. This would often remove the need to seize dogs under s10 and would also relieve councils of the rather cumbersome process in which they engage at present of prosecution of offences through the Local Court.
J. Summary
1.24 The Commission’s investigations revealed two areas of real concern in relation to the control of dogs. First, it is clear that councils are spending significant amounts of time and money on the enforcement of the Dog Act, yet are not achieving the results they would like. There is also public dissatisfaction with councils’ achievements in this area. Most of the problems seem to relate to the control and collection of dogs which stray on public land and to the cumbersome procedures for prosecution of offences.
1.25 The second problem area concerns the question of public access to private land. The complaint of the Police Association, experiences reported by employees of the Sheriff’s Office and Australia Post and the survey conducted by the Australian Bureau of Statistics indicate that dogs do pose a considerable hazard for those who must enter private land in the course of their employment. The Bureau of Statistics estimates that 8.8% of its collectors were attacked by dogs, the great majority of attacks occurring on private land. The Bureau also found that nearly 13,000 calls by collectors had to be repeated, abandoned or other means of delivery or collection used, because dogs had hindered or prevented access to the property. Such a level of inefficiency is probably not acceptable in the performance of public functions, but solutions to it are not obvious. The local councils did not see the solution as lying in the enactment of compulsory fencing provisions nor did they report a high level of complaint on the question from the public. Most of the public complaint to the councils was directed at the numbers of dogs allowed to roam free and at the nuisance and mess they created in public places.
1.26 Aggressive behaviour by dogs on and near their owners’ properties causes concern to those who must visit private properties regularly. Demands for the reintroduction of criminal penalties for acts occurring on private land are usually supported by reference to the alleged unreasonable behaviour of some owners in continuing to keep a dog which has attacked someone, perhaps a child, in the past. The Police Association complained that when reports are made of serious attacks having taken place on private land the police cannot intervene usefully. Often they risk a further attack on themselves if they do. The complaint is made that the availability of a civil claim in negligence does not adequately address the problem of repeated attacks.
III. THE REFERENCE
1.27 The Commission sought a reference from the Attorney General to review the provisions of the Dog Act in February 1985. The reference was received on 4 August 1985 and was in the following terms:
1. whether, and if so the circumstances in which, criminal and/or civil liability, beyond that presently provided for in ss6 and 20 of the Dog Act 1966, should be imposed on an owner or person who has the effective care and control of a dog which causes harm to any person or property;
2. any related matter.
IV. POLICY CONSIDERATIONS
1.28 The Commission’s task has been to review the provisions of the Dog Act and to recommend appropriate legislative changes. However, one thing which has become clear from this review is that the effectiveness of any scheme for the control of dogs relates very much to community values and public understanding of the law. Because of this the Commission recognises that all problems associated with dogs cannot be solved by legislative change alone.
1.29 One theme recurred constantly in the Commission’s investigation. Ignorance and lack of understanding on the part of some dog owners is probably the most significant problem encountered in the public control of dogs. The common experience of those concerned with dog control is that many dog owners are unaware of their responsibilities under the Dog Act particularly with respect to such matters as dogs being set free in public areas and dogs fouling streets. Further, obligations which go beyond those imposed by the Dog Act are often overlooked. Many matters, such as the selection, care and training of dogs cannot be adequately addressed by legislation and must remain the responsibility of the owner.
1.30 The Commission is of the opinion that the education of dog owners to gain their understanding and co-operation in the acceptance of responsibility is of equal importance to legislative amendment. While the Commission can recommend legislation to buttress the powers of local councils and provide incentives with respect to dog control, ultimately the solution lies in co-operation between dog owners and complainants.
1.31 Education programs, which not only inform people of their obligations under the Dog Act, but which also address the attitudes of dog owners, are needed. Too often, issues of dog control are reduced to arguments from extreme positions (for example from those who support dog ownership and those who do not) when what should be developed is a climate of greater co-operation. Such programs foster good community relations while also reducing public expenditure.
1.32 A number of councils are already conducting such campaigns with success. For instance for a number of years Lane Cove Council has conducted an education program on dog control and care which it reports has had a significant effect in reducing the numbers of dogs impounded and owners prosecuted. Warringah Shire Council has run a series of advertisements in local newspapers encouraging people to take their dogs to obedience classes. In response to this the membership of local dog clubs has more than doubled and new training areas have had to be set up.
1.33 The potentional of education programs run on a larger scale to change public attitudes is illustrated by the success of the litter reduction program which has operated in New South Wales in recent years. There are marked similarities between problems of litter control and dog control. In both cases legislative deterrents can only go part of the way and an effective solution will require co-operation from the public and general recognition that the matter deserves attention. In New South Wales the State Pollution Control Commission has operated an education program on litter reduction known as the “Do-the-right-thing” campaign. Over the eight years that this program has operated, there has been, according to established measurement procedures, a 70% reduction in litter in the Sydney region.
V. ACKNOWLEDGEMENTS
1.34 In preparing its Report the Commission has had assistance from many people. As a consultant on this reference the late Mr Trevor Martin QC has made an invaluable contribution to the deliberations of the Commission in the preparation of this Report. Thanks are due also to the Australian Bureau of Statistics for conducting a special survey for the Commission, the Australian Postal Commission which prepared a lengthy and detailed submission and the Local Government and Shires Association which circulated a list of questions prepared by the Commission to its members. A full list of the names of the many individuals and organisations who have assisted the Commission in its work on the reference appear in Appendix B.
FOOTNOTES
1. Harden v Ridges [1983] 2 NSWLR 586.
2. A full list of submissions sought and received appears in Appendix B to this Report.
3. Up to this limit of $5 million the cover extends to all property damage and injury or death to a person occurring as a result of an accident involving a dog - whether occurring in or outside the home insured.
