I. COMMON LAW
A. Introduction
2.1 In its Report on Civil Liability for Animals in 1970 this Commission said:
The law as to liability for damage done by animals is a potpourri of special rules of mediaeval origin. These special rules, for the most part, are such as to give rights of action which are additional to the rights of action which, in modern times, lie in respect of damage generally (that is, whether or not the damage was caused by an animal). A person who has suffered damage caused by an animal can frame his action for redress on modern principles - for example, in negligence; or he can frame it under the special rules which are peculiar to liability for damage done by animals; or he can, by including separate causes of action in the one proceeding, get the better of both worlds - modern and mediaeval.1
An attempt is made here to briefly describe each of these causes of action relating to liability for injury caused by animals. The special rules referred to above are discussed first, then the torts of negligence and nuisance as appropriate to actions involving damage or injuries caused by dogs. The tort of trespass is also mentioned briefly, although its application to the problems in hand is limited.
B. The Scienter Principle
2.2 The “special rules of mediaeval origin” to which the Commission referred in its 1970 Report are those which are now known under the collective title of the scienter principle. The term “scienter” derives from a latin term used in ancient writs to mean that the act complained of had been done knowingly or wilfully.2
2.3 Under the scienter principle the liability of the person responsible for the dog [hereinafter “the owner”] for damage caused by the animal depended upon proof either that the animal belonged to a species or class which was known to be dangerous3 or that the owner had previous knowledge of the particular animal’s vicious nature or propensity although it belonged to a species not generally regarded as dangerous.4 The owner of an animal belonging to a species considered dangerous was liable for any harm done by it without proof of scienter. To establish liability in the owner of a “harmless” animal, however, scienter, or proof of knowledge of the animal’s propensities from past experience, had to be shown.5 As dogs were placed in the class of “tame or harmless” animals scienter had to be proved in relation to each animal, or more precisely, in relation to each act of each animal.
2.4 Normally scienter was proved by showing that, to the owner’s knowledge, the animal had behaved in a similarly vicious way in the past. The principle is encapsulated in the judgment of Willes J in Cox v Burbidge:
As to animals which are not naturally of a mischievous disposition, the owner is not responsible for injuries of a personal nature done by them, unless they are shewn to have acquired some vicious or mischievous habit or propensity, and the owner is shewn to have been aware of the fact. If the animal has such vicious propensity, and the owner knows of it, he is bound to take such care as he would of an animal which is ferae naturae, because it forms an exception to its class.6
The rule is quite clear. It requires proof of the subjective element that the owner had actual knowledge of the propensities of the particular animal from its past conduct. This subjective test is not satisfied by proof of the generally known characteristics of the species to which the harmless animal belongs. There must be proof that the owner had actual knowledge of the traits of the particular animal, even where the complaint alleges conduct of a type typical of the species.7
2.5 The misconduct to be proved must have amounted to something quite serious. The good natured, but boisterous dog which frightens people and other animals by constantly bounding up to them may not be vicious,8 nor may the dog which displays ferocity when guarding the person or property of its owner.9 The accepted view seems to be that, in order to be proved vicious, the dog must be shown to have behaved in a way which is “offensive or hostile to man, if not to beast”.10 Fleming says:
[A] mere propensity to perpetrate occasional damage because of playfulness or some other non-aggressive characteristic, especially when it is shared by the rest of its species - such as an inclination of horses to shy, of unbroken fillies to be high-spirited, of cats and dogs to chase each other or runnings across traffic - is not sufficient for strict liability.11
2.6 The harm for which the owner is liable under the scienter rule must be within the risk contemplated. It is only harm which is attributable to the animal’s vicious propensity for which the owner is liable,12 but where scienter is established liability is imposed even where the owner is shown to have taken every care to avoid the harm, for liability under the rule is strict. Liability is also imposed where it was an unforeseeable act of a third party which caused the harm.13 The only limit on the liability imposed seems to be that the harm must be “direct and physical”.14
C. Negligence
2.7 There is little doubt that an action in negligence is available as a remedy for injuries caused by a dog. It is used, not only in cases where the scienter action is not available (“collisions or other accidental injury caused by animals” is how Fleming puts it), but also as a complement to the scienter action.15
2.8 The elements of the cause of action in negligence were laid down by Lord Atkin in Fardon v Harcourt-Rivington in the following way:
... there is the ordinary duty of a person to take care either that his animal or his chattel is not put to such a use as is likely to injure his neighbour - the ordinary duty to take care in the cases put upon negligence.16
2.9 The elements of the negligence action have a much broader foundation than those of the scienter action. To prove negligence there is no need to show past vicious behaviour by the particular dog, nor is there any need to show that the harm resulted from an attack or other vicious conduct of a type known to have occurred in the past, although clearly these matters will be relevant to the court’s assessment of the foreseeable risks involved in the defendant’s conduct. This was summed-up by Pearson LJ in Ellis v Johnstone:
For the action of negligence, it is sufficient if the defendant knew or ought to have known of the existence of the danger, which does not necessarily arise from a vicious propensity of the animal, although perhaps some special propensity is required.17
D. Nuisance
1. Public Nuisance
2.10 Salmond defines the tort of public nuisance as:
a criminal offence . . . [falling] within the law of torts only in so far as it may in the particular case constitute some form of tort also. Thus the obstruction of a highway is a public nuisance; but if it causes any special and peculiar damage to an individual, it is also a tort actionable at his suit.18
A common example of public nuisance is conduct which either obstructs a public highway or makes it dangerous for use. Animals may be the cause of either complaint. They may be led or allowed to escape on to the highway in such numbers as to create an obstruction19 or the conduct of one animal may be such as to make use of the highway dangerous. It may be safely assumed that the tort does not have great application to the matters under discussion.20
2. Private Nuisance
2.11 The action for private nuisance clearly has application to the conduct of dogs, although it is limited. The limits are those imposed because of the identification of the action with the protection of private interests in land. As Dixon J (as he then was) said in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor
the essence of the wrong is the detraction from the occupier’s enjoyment of the natural rights belonging to ... the occupation of land.21
The cause of action is therefore appropriate to resolve disputes concerning noise, smell, disease or disorder caused by the dog but it does not have obvious application to the problems raised by this reference.22
E. Trespass
2.12 Trespass is an intentional infliction of harm on a person or an intentional and wrongful entry on the property of another.23 In both respects the tort of trespass is applicable to the conduct of dogs. The first type of trespass, trespass to the person, is especially relevant to the person who uses a dog as a guard dog. A person who incites a dog to attack commits at least an assault, and if the dog does attack, a battery. Both are trespasses to the person for which damages may be awarded.24 There may also be criminal charges laid for assault and battery. Anyone suffering such an attack is free within reason to employ whatever means are at hand in self-defence against the attack. If the attack appears serious enough self-defence by killing or severely injuring the dog is permissible. The liability of the owner does not depend upon knowledge of the dog’s previous viciousness. It is sufficient for the incitement to occur without regard to knowledge of the conduct it is likely to produce.26
2.13 The person who intentionally drives animals on land occupied by another is liable in trespass as well although the ancient action of cattle trespass has been abolished in New South Wales.27 The dog owner is not liable in trespass, however, if the dog enters land without incitement from the owner. A dog cannot commit a trespass against the wishes of its owner.28 Where a dog enters land accidentally there is a right in the owner to enter the land (although not by force) to recover the animal.29 Of most interest for the purposes of this reference are the rights of landowners when discovering an unwelcome dog on their land. Fleming is quite clear that:
In defence of property threatened with damage or destruction by marauding animals, the owner may adopt such measures as are necessary and reasonable to avert the danger and, in the last resort, may even shoot to kill.30
II. STATUTE LAW
A. Prior to the Dog Act 1966
2.14 The first New South Wales legislation regulating the ownership and control of dogs was the Dog Nuisance Act 1830.31 The reason for the legislation was stated in the preamble to be:
the Streets of the Towns of Sydney Parramatta Liverpool and Windsor are infested by the great number of dogs which are allowed to go loose at all hours of the day and night to the danger of passengers as well as to the great annoyance of the inhabitants at large.
This Act introduced strict criminal liability for any attack by a dog occurring on a public street but not for an attack on private property. Section 12 provided that:
if any dog ... shall be at large and shall attack any person passing in a street of any town or on any highway or turnpike road on foot on horseback or in a carriage the owner or proprietor of such dog shall forfeit and pay a fine
2.15 Further legislation in 183232 and 183533 extended the strict criminal liability to behaviour of a dog which fell short of attack. Section 8 of the Dog Nuisance Act 1835 provided:
if any dog shall in any street of the said towns or upon any highway in any part of the said Colony rush at or attack any person or horse or bullock whereby the life or limbs of any person shall be endangered or property injured the owner or keeper of every such dog shall forfeit and pay a penalty ...
Liability was thereby extended to the owner whose dog rushed at but did not attack a person, but the conduct had to be such that “the life or limbs of any person” were “endangered or property injured”. There was still no criminal liability imposed for any injury caused by the dog while on private property.
2.16 In 1875 the Dog Act34 was amended to impose strict civil liability on owners for injury caused by their dogs. Section 9 of that Act read:
The owner of every dog shall be liable in damages for injury done to any person property or animal by his dog and it shall not be necessary for the party seeking such damages to show a previous mischievous propensity in such dog or the owner’s knowledge of such previous propensity or that the injury was attributable to neglect on the part of such owner.
This provision did not distinguish between private and public property. The owner was made liable to pay for all “injury done to any person property or animal” with no requirement that the harm occur on public land.35 There was also no requirement that the harm should be the result of an attack or other conduct of a dog which normally would be regarded as canine in nature. This was a departure from earlier legislation which had imposed liability only where the dog attacked or rushed at the victim.36
2.17 A further provision of the 1875 Act37 allowed “any person” to destroy a dog “attacking any person or animal . .. if the attack be not on premises belonging to or occupied by the owner or keeper of such dog”. In 1898 the law was consolidated into the Dog and Goat Act. That statute regulated the control of dogs in the State until its repeal by the Dog Act 1966.
B. Dog Act 1966
2.18 Two matters preoccupied those debating the dog legislation in the Parliament of 1965. There was concern at the number of dogs wandering uncontrolled in public places. In the course of the second reading speech on the Bill, the responsible Minister advised the Legislative Assembly that the current law was inadequate to deal with “dogs whose owners have either abandoned them or simply do not care that the dog is running loose in the streets”.38 The solution to this problem was thought to be to give the local councils power to seize any dog which was found on public land (or in private property without the consent of the occupier) while “not under the effective control of some competent person”.39 Previously members of the police force had been responsible for the collection of unwanted and nuisance dogs. Under the 1966 Act their authority was to be restricted to seizure and delivery to the council.40 The other matter of concern which emerges from the debates was protection of the interests of responsible dog owners. Members thought that care should be taken to ensure that these dogs were not seized and destroyed by mistake. Therefore, s11 provided that on delivery to a pound the dog’s collar should be examined for the name and address of its owner, or a registration disc which would identify the owner, and notice of its impounding should be given to the owner. The owner was given 14 days in which to collect the dog whereas a dog whose owner had not attached some identification to its collar was to be kept for only seven days before destruction or sale.
2.19 The aim of the 1966 Act was clearly to reduce the nuisance caused by the large numbers of stray dogs found in public places without impinging too much on the rights of responsible dog owners. There was no requirement in the Act that a dog should be contained on private property and no provision was made for restraint of a dog whilst in public places apart from the special provision made for some species which were thought to be dangerous.41
2.20 This comparatively relaxed system of control was combined, however, with the strict regimes of civil and criminal liability which had appeared in the earlier legislation. Thus, s6 made the owner guilty of an offence if the dog:
(a) in or on a public place, attacks or causes injury to a person or animal; or
(b) in or on any other place, attacks or causes injury to a person who is lawfully in or on that other place.
“Owner” of a dog was defined in s4 to include the person by whom the dog was ordinarily kept and the owner or occupier of the premises where the dog was ordinarily kept.42 In exposing the owner to criminal liability for injury which occurred in places other than public land, s6(b) went beyond the previous law and imposed liability for attacks or injury occurring on private property. The origin of the provision was explained in the second reading speech:
[It] was particularly requested by the Police Department. Police constables, postmen, tradesmen and other persons who lawfully enter private premises should not be subject to attack by savage dogs, and if a person owns such a dog he should be obliged to keep it under proper restraint.43
2.21 The 1966 Act reduced the owner’s liability in another respect. The provision which imposed criminal liability in respect of a dog which rushed at a person or animal was not re-enacted in s6, so once again the offence became the attack or causing injury, and no liability was imposed for threatening behaviour.
2.22 The civil liability of the dog owner was not altered by the 1966 Act. In essence s20 of the Act simply carried forward the provisions of s9 of the 1875 Act.44
C. Dog (Amendment) Act 1977
2.23 The first change of any significance to the provision imposing absolute civil liability occurred in 197745 when s20 was repealed and replaced by the current provision which states:
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 -
(3) This section does not affect the liability apart from this section of any person for damage caused by a dog.
In addition, ss20A-20B were inserted to cover civil liability for any death caused by the dog’s actions and liability for any injury caused to another animal by the dog “attacking, worrying or chasing it”.46 Section 20C was also added to introduce the defence of contributory negligence into the dog legislation.
2.24 These amendments were introduced as a direct result of recommendations made by this Commission in its Report on Civil Liability for Animals of 1970.47 In June 1967, the Commission received a reference:
To review the law relating to damages caused by or to animals and incidental matters.
In its Report the Commission recommended that the special and very technical rules governing liability for animals which had developed over several centuries, such as the scienter action and cattle trespass, should be abolished.48 It recommended that liability should be imposed under the general principles of tort law.
The essence of our recommendations is that the law relating to liability for animals be brought into harmony with the law relating to liability for damage otherwise caused.49
The Commission’s recommendations were enacted in the Animals Act 1977 and the Dog (Amendment) Act 1977. Section 7 of the Animals Act provided for the integration of the law of animals into the general law of torts. It provided:
(1) Liability for damage caused by an animal depends on so much of the law relating to liability as does not include the common law abrogated by subsection (2).
(2) Any common law qualification, restriction, exclusion, extension or imposition of liability that had effect immediately before the commencement of this Act and related exclusively to liability for damage caused by an animal is hereby abrogated, whether or not -
2.25 The Commission was not content for the law relating to dogs to be governed by these general provisions alone. This topic was given special consideration because: “Dogs quite commonly have such size, strength, and other physical attributes as enable them to inflict serious bodily injury upon people and upon animals . . .“. Dogs also have “a natural tendency to worry or chase other animals; and animals worried or chased by a dog may suffer physical harm by exhaustion or by injury resulting from panic”.50 The Commission concluded therefore that “there should be some further liability in respect of dogs”,51 and said that it was common in other jurisdictions to impose “some measure of liability, without fault”, upon the owner of a dog.52 But the Commission was concerned to see that any additional liability for dogs would be only for injury and damage caused while they were behaving in a typically canine way. Therefore it recommended the enactment of the restrictive provisions for civil liability which appear in s20 of the Act. These provide that the type of bodily injury for which compensation is payable is limited to wounding caused by an attack and liability for damage to property is confined to damage done to clothing in the course of an attack on the plaintiff. The section does not apply to attacks which occur on the owner’s property.
2.26 The assumption behind these recommendations was obviously that it was acceptable for dogs to roam the streets, subject only to the possibility of seizure and impounding by the local council. The provisions of the 1966 Act also reflected general acceptance of that view with the two exceptions that those species of dogs thought especially dangerous and bitches on heat were not to be permitted to roam unrestrained on public land.53 The Commission did not recommend any change to the criminal liability imposed by s6 of the 1966 Act. That provision was retained unaltered.
D. Dog (Amendment) Act 1981
2.27 The outstanding inconsistency which remained after the 1977 Amendment Act was that s6 of the 1966 Act continued to impose strict criminal liability for injuries caused on private land, although the amendment to s20 in 1977 had relieved the dog owner of any corresponding civil liability. This anomaly was removed from s6 by the Dog (Amendment) Act 1981. In introducing the legislation to relieve the owner of criminal liability for injuries caused on the owner s property the Minister, the Hon H F Jensen, said:
It is considered that the offence of attacking and causing injury should only arise in similar circumstances to those in which liability for damages arises under the Act.54
In a further amendment in 1981 the courts were given extra powers to deal with dogs which had attacked or caused injury. Section 6(3) was added to allow the court to order the dog’s destruction or to “take such other action as the court directs”. It was envisaged that this provision would allow the court to order that, for instance, a large dog should be removed from the city.55
2.28 The most important aspect of the 1981 Amendment Act was the fundamental change in attitude reflected in its more general provisions. For the first time in the history of the legislation in New South Wales an attempt was made to control the access of dogs to public places. A new s8(1) provided:
Control of Dogs. The owner of a dog shall, if the dog is in or on a public place and is not under the effective control of some competent person by means of an adequate chain, cord or leash, be guilty of an offence.
This change in policy was said by the Minister to “properly reflect the prevailing attitudes of our community to dogs and to the responsibilities of dog ownership”.56 Other sections in the Amendment Act made provision for local councils to regulate the entry of dogs into public recreational, shopping and school areas and to supervise the types of leashes by which they were to be secured.57 For the first. time there was a legislative statement that it was unacceptable to allow a dog to go unleashed in a public place. Amendments were also made to ss10 and 11 of the Act to allow council officers and police to seize any dog found in a public place and “not under the effective control of some competent person by means of an adequate ... leash”58 and owners were made liable for any expenses incurred in destroying the dog and for maintaining it during detention.59
FOOTNOTES
1. NSW Law Reform Commission, Report on Civil Liability for Animals (LRC 8, 1970) para 5.
2. Williams, Liability for Animals (1939) at 273; Wharton’s Law-Lexicon (6th ed 1876).
3. Williams, note 2 at 293. Animals such as “a lion, a bear, a wolf .. . an ape or monkey”, known in law as ferae naturae.
4. Known in law as mansuetae naturae, ie of a harmless species, previously unknown to have been of a vicious nature. There are two sub-classes of harmless animals; those which are harmless by nature, like rabbits and those which have been domesticated like sheep and horses. Dogs fell into the second category. Street, The Law of Torts (4th ed 1968) at 263.
5. Such knowledge is presumed in relation to wild animals classed as ferae naturae. Williams, note 2 at 292-293, notes that in England in the seventeenth century ferae naturae was equated with imported species while mansuetae naturae described “beasts that ... break through the tameness of their nature, such as oxen and horses”. R v Huggins (1730) 2 Ld Raym 1574 at 1583 (92 ER 518 at 524 per Raymond LCJ).
6. (1863) 12 CB (NS) 430 at 439-440 (143 ER 171 at 174).
7. See Williams, note 2 at 287-288; Fleming, Law of Torts (6th ed 1983) at 330; Street, note 4 at 264.
8. Erle CJ directed the jury to this effect in Line v Taylor (1862) 3 F & F 731 (176 ER 335) but Williams, note 2 at 300 cites Price v Wright (1899) 35 NBR 26 in which a dog which clawed people was held to be vicious.
9. Sycamore v Ley (1932) 147 LT 342.
10. These are the words used by Fleming, note 7 at 331.
11. Id at 331-332. The examples Fleming gives are taken from case law.
12. Street, note 4 at 266; Fleming, note 7 at 332.
13. Street, note 4 at 266 cites Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1. The liability seems to be the same for animals mansuetae naturae as it is for animals ferae naturae once scienter is proved.
14. Ibid.
15. Fleming, note 7 at 334; but see the comments of the High Court in Simpson v Bannerman (1932) 47 CLR 378 referred to in para 3.18.
16. (1932) 48 TLR 215 at 217.
17. [1963] 2 QB 8 at 29-30 cited in Draper v Hodder [1972] 2 QB 556 at 572 per Edmund-Davies LJ.
18. Salmond, The Law of Torts (15th ed 1969) at 64-65. This definition was approved in Lewys v Burnett [1945] 2 All ER 555 at 560 and Trevett v Lee 1955 1 All ER 406 at 409.
19. State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 638 discusses this type of public nuisance; see also Pitcher v Martin [1937] 3 All ER 918.
20. The relationships between nuisance and the actions arising under the principles in the two cases, Rylands v Fletcher and Searle v Wallbank are not pursue ere as it is outside the terms of reference. The topics are discussed in NSW Law Reform Commission, Report on Civil Liability for Animals (LRC 8, 1970) paras 15-22.
21. (1937) 58 CLR 479 at 507.
22. The examples given appear in Fleming, note 7 at 384-385.
23. The old action of cattle trespass is not discussed here. It was abolished in New South Wales by the Animals Act 1977 s4(1). The ordinary law of trespass to land in its application to dogs was not altered by the Act, see s10(2)(b).
24. Luntz, Hambly and Hayes, Torts: Cases and Commentary (2nd ed 1985) para 12.4.08; Fleming, note 7 at 23.
25. By analogy with self-defence against an attack made by a human, the means of defence used would depend upon the circumstances of the case. Fleming, note 7 at 78.
26. Luntz, Hambly and Hayes, note 24.
27. See note 23; Fleming, note 7 at 37.
28. Williams, note 2 at 141-146.
29. Fleming, note 7 at 86. This is an application of the principle which allows the owner to enter land to recover chattels which have accidently come to be on another person’s land.
30. Id at 81.
31. 11 Geo IV No 8.
32. Dog Nuisance Act 1832 (2 Wm IV No 8).
33. Dogs Nuisance Act 1835 (6 Wm IV No 4).
34. Dog Act Amendment Act (No 2) 1875 (39 Vic No 6).
35. An identical section in the Dog and Goat Act 1898 was interpreted in Simpson v Bannerman (1932) 47 CLR 378 at 383 to imposed liability without condition or qualification”. However, the High Court thought that the every generality of the terms in which the liability was imposed would tempt later courts to give a restrictive interpretation to the provision.
36. Criminal liability only was imposed by the earlier legislation. This extension to non-canine acts was taken from the English Dogs Act 1865 s1.
37. Dog Act Amendment Act (No 2) 1875 s10.
38. NSW Parliamentary Debates Vol 59 at 2165, Mr P H Morton MLA, Minister for Local Government and Minister for Highways (18 November 1965).
39. Dog Act 1966 s10(1).
40. Ibid. Members of the police force shared this power with “any other person” and they were given no rights superior to any other person to destroy a dog which “attacks or causes injury to any person”. See s13.
41. Sections 7 and 8 require that some species, greyhounds for example, be muzzled and confined on leashes when in public places.
42. Section 4(3) makes the employer liable where the dog was ordinarily kept on the premises of an employee.
43. Note 38 at 2166.
44. Section 9 of the 1875 Act had appeared as s19 of the consolidation which occurred in the Dog and Goat Act 1898.
45. Dog (Amendment) Act 1977.
46. Section 20B(1).
47. NSW Law Reform Commission Report on Civil Liability for Animals (LRC 8, 1970) Appendix B.
48. Id at paras 13,18 and 26.
49. Id at para 33.
50. Id at para 35.
51. Id at para 34.
52. Ibid. The other jurisdictions mentioned in the Report were the United Kingdom, New Zealand, some provinces of Canada, other States of Australia, including South Australia, Tasmania, Victoria and Western Australia and the Australian Capital Territory.
53. Sections 7-9, which contained these restrictions, were not amended in 1977.
54. NSW Parliamentary Debates Vol 159 at 3892 (27 November 1980) The Hon H F Jensen was Minister of Local Government and Minister for Roads.
55. Ibid.
56. Id at 3886.
57. Dog Act 1966 ss9 and 10.
58. Section 10(1).
59. Section 11(8).
