I. INTRODUCTION

3.1 The following is a summary of the law, common law and statutory provisions, applying in New South Wales at present.

II. ABOLITION OF SCIENTER ACTION

3.2 The common law action based on the principle of scienter is no longer available in New South Wales. For all practical purposes it was abolished by the Dog Act Amendment Act 1875. By imposing strict civil liability and dispensing with the need to show previous mischievous propensity and knowledge of it s9 of that Act rendered the scienter action obsolete [para 2.16]. Technically, however, the action was not abolished until 1977 when the Animals Act was passed, stating in s7(2)(a):

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 - it related to the nature or propensity of an animal or any class of animal, or knowledge of any such nature or propensity ...

This Commission recommended an amelioration of the strict liability imposed by the 1875 Act in its Report on Liability for Animals in 1970. Its recommendations were introduced by the Dog (Amendment) Act 1977. The terms of s20 of the 1977 Act are set out above [at paras 1.4 and 2.23]. Under the Act liability is limited to harm caused by a dog while attacking a person or while attacking, worrying or chasing another animal.

The plaintiff who cannot show that the harm was caused during the course of an attack cannot recover under the statute [para 1.5].

III. DUTY TO CONTAIN AND CONTROL

A. Registration of Dogs

3.3 All dogs in New South Wales must be registered and should carry a registration disc on their collars. The responsibility to register falls on the owner, defined in s4 of the Dog Act 1966, as amended in 1981, to include both the person by whom the dog is ordinarily kept and the person who is the occupier of land or premises on which the dog is ordinarily kept. It is an offence not to register a dog [s5].

B. Containment on Private Land

3.4 An obligation is imposed on the owner to contain a dog within private property for it is an offence to allow a dog to go unattended outside the owner’s property or to enter certain designated public places such as school yards, playing fields and swimming areas [ss8 and 9]. Section 8(4) does contemplate, however, that councils will dedicate areas to which these restrictions do not apply so that dogs may be set free by their owners on some occasions. Any dog that wanders unattended is liable to be seized and impounded by a council officer [s10] [paras 2.18, 2.19, 2.28]. The impounded dog may be sold or destroyed by the council after seven days, unless the name and address of its owner appears on its collar, in which case no action to sell or destroy may be taken until 14 days after the owner has been given notice of its seizure [s11].

C. Control in Public

3.5 While outside its owner s property in a public place a dog must be kept under the “effective control of some competent person by means of an adequate chain, cord or leash” [s8] and faeces deposited by the dog in a public place must be removed promptly if the owner is to avoid committing a further offence [s9B(4)] [para 2.28].

IV. LIABILITY FOR BEHAVIOUR ON PUBLIC LAND

A. Offence of Attacking or Causing Injury

3.6 Section 6 of the Act makes it an offence for a dog to attack or cause injury to a person or animal on public land or on land on which the dog is not ordinarily kept. There is no corresponding criminal liability imposed for attacks occurring on the land, vehicle or premises on which the dog is ordinarily kept or of which the owner is an occupier [para 2.27]. It is a defence to show that the attack was provoked by anyone other than the owner or his agent or servant [s6(2)(b)]. On finding the offence proved the court may direct the owner to take such steps as it deems necessary to prevent a recurrence of the conduct [s6(3)(e)] [para 2.27]. It may also order that the dog be destroyed [s6(3)(c)(d)].

B. Civil Liability Imposed by Statute

3.7 As amended in 1977, s20 of the Dog Act allows damages to be recovered in respect of “bodily injury to a person caused by the dog wounding that person .. . in the course of attacking that person”. Section 20A extends the owner’s liability to a death which ensues from this conduct. Damages may also be recovered for “damage to the clothing of a person caused by the dog in the course of attacking that person” [s20(1)(b)] and for injuries caused to another animal by the dog’s “attacking, worrying or chasing it” [s20B]. To recover under these statutory provisions, however, the plaintiff must be able to show that the conduct occurred while the dog was away from the place where it is ordinarily kept for, as under s6, no liability is imposed for attacks occurring at home.

C. Civil Liability at Common Law

3.8 The common law complaints of negligence, public nuisance and trespass to the person are all available to compensate for injury and damage caused by a dog. These complaints may be used in preference to the cause of action provided by s20 and they allow recovery for a wider range of injuries. Under s20 damages may be recovered only when the injury is the result of an attack causing wounding or damage to clothing. The common law complaints allow claims to be made for indirect or consequential damage as well as for injuries occurring as a result of a direct assault on the victim [paras 2.7-2.12]. There can be little doubt that the common law action of negligence does apply in New South Wales although the High Court was not clear on the point in Simpson v Bannerman in 1932.¹ The action in trespass may broaden the scope of the owner’s liability by allowing recovery for threatening behaviour intended by the owner when setting the dog on the plaintiff although not inciting an attack [paras 2.12-2.13]. It is likely that this type of injury could also be compensated by an action in negligence for nervous shock.

V. LIABILITY FOR BEHAVIOUR ON THE LAND OF OTHERS

A. Dog Act 1966

3.9 Both ss6 and 20 of the Dog Act 1966, as amended in 1977 and 1981, apply to injuries and damage occurring on land occupied by someone other than the owner of the dog so long as it is not a place in which the dog is ordinarily kept [para 2.27].

B. Trespass

3.10 The common law action in trespass is available to land owners who believe that a dog has been sent in to their property deliberately by its owner [paras 2.12-2.13]. Of more importance are the defences to which the action in trespass gives rise. Even where the dog is not thought to be trespassing, in that its owner has not released it on the property deliberately, the land owner may take such steps as are reasonable to prevent the dog causing harm while there. As a last resort the land owner is entitled to kill the dog. Section 12 of the Dog Act also allows for the destruction by the occupier of any dog which attacks or is reasonably believed to be about to attack or molest stock on inclosed land as that term is defined in the Inclosed Lands Protection Act 1901. The Inclosed Lands Protection Act 1901, s3, defines inclosed land to mean “any lands, either public or private, inclosed or surrounded with any fence, wall or other erection ... or by some natural feature ... by which the boundaries ... may be known or recognised”.

VI. LIABILITY FOR BEHAVIOUR ON OWNER’S PROPERTY

A. Dog Act 1966

3.11 As amended in 1977 and 1981 the Dog Act imposes no liability for injuries or damage caused by dogs while on the land, premises or vehicles of their owners as defined in the Act [ss6 and 20] [para 2.27].

B. Common Law

3.12 Legal proceedings may be brought under the common law in negligence, private nuisance and trespass to the person. Such actions are available for injuries occurring on private land but it is often alleged that liability may be difficult to establish where the case concerns the conduct of owners on their own property [paras 2.7-2.13, 3.18].

VII. INADEQUACIES IN THE LAW

A. Duty to Contain and Control

3.13 The regime provided by the Dog Act requires that dogs be kept off public land unless on a leash and that those found unattended on public land may be seized and impounded. Both council officers and police have authority to seize, but the police function ends when the dog is handed to a council officer. If a dog attacks anyone while outside its owner’s property it may be destroyed by these officers or anyone else.²

3.14 One gap in their powers reported by these officers relates to the inefficiency and waste of time involved in chases which end on private land. Once a dog enters its owner’s land the powers of the collection officers to seize and impound are said to end and no effective action can be taken against the owner to ensure that the dog is restrained in future. In addition, the procedure for prosecution of offences under the Act is unwieldy and expensive in council time and money. Many councils suggest that a system of on-the-spot infringement notices may be an answer to this problem of enforcement.

B. Behaviour on Public Land

1. Criminal Liability

3.15 The regulation of the activities of dogs while on public land is both comprehensive and precise. While on public land dogs are to be restrained on leashes by their owners and any faeces left by them must be removed promptly.

3.16 If a dog attacks anyone on public land an offence is committed under s6, and s13 gives power to “any person” to destroy the dog. Detailed provisions exist in s6(3) to allow the court hearing charges in relation to an attack to make orders for the future control of the dog or its destruction.

3.17 Dogs which are loose on public land and which threaten attack are not specifically covered by these provisions. The problems presented by these dogs may be resolved by seizure and impounding. Despite substantial investment of public funds few councils seem satisfied with their performance in the control of dogs in public places. Currently there is no provision for members of the public to take action against these dogs, short of the s13 power to destroy a dog which is attacking, or by reporting the matter to the council.

2. Civil Liability

3.18 The limited application of s20 has already been discussed [paras 1.5, 3.7] as have the problems involved in use of the standard negligence claim in this area [paras 2.9, 3.8]. The most significant gaps in civil liability arise from difficulties of proof. In relying on the statutory definitions of ownership s20 overcomes one of the major problems arising in the use of a negligence claim. In effect it casts the onus on the defendant chosen to show that he or she is not the owner rather than requiring the plaintiff to prove ownership. Section 20 also relieves the plaintiff of the evidentiary burden imposed in a negligence action of showing want of care on the part of the defendant owner. However, as pointed out above, s20 is limited in its application and plaintiffs are forced to resort to the negligence claim where something other than an attack causing wounding is involved. The evidentiary problems with which plaintiffs are faced in the negligence action can make that action unattractive. Proving negligence on the part of a dog owner requires an examination of all the surrounding circumstances with the accompanying need to present a great deal of evidence and often to call a large number of witnesses. The conduct of such litigation can be expensive. Furthermore, court proceedings are more likely to result because there are additional grounds on which the common law action can be contested.

3.19 There is another problem identified by those who responded to the Commission’s requests for information which the Dog Act does not address. On many occasions it is the threatening behaviour of the dog which causes the injury and not an attack. This is a significant problem for those who regularly use the suburban streets. Amongst the regular users at risk are postmen, milk vendors, children, cyclists and motor cyclists, joggers and all those involved in home deliveries and collections as well as people exercising their dogs on leashes. The Commission has not been made aware of evidence that attacks by dogs causing injury are a very serious problem, but it has become aware of some weight of opinion which calls for stricter control of dogs which are a nuisance and threaten to attack or otherwise hinder the enjoyment of public places. The great majority of councils which responded to the Commission s survey reported substantial problems with stray dogs but only a few thought that the problem was getting out of control.

C. Behaviour on Land of Others

3.20 The dog which strays on private land occupied by someone other than its owner causes different problems depending on whether it is in a country or urban area. In country areas a straying dog may threaten stock on neighbouring properties. This was not identified as a serious problem by the councils which responded to our request for information. Most thought the power to destroy contained in s12 of the Dog Act to be both appropriate and adequate to the farmer’s needs.³

3.21 In urban areas the dog which strays on to a neighbour s land may create problems of a different type. The criminal sanctions of s6 apply to attacks occurring on private land other than the owner’s but as on public land there is no provision in the Act to curb the dog which worries or frightens its neighbours. Nor is there provision to deal with the dog which causes property damage or other annoyance on the neighbour’s land, s20 imposing civil liability only for personal injury amounting to wounding and for damage to the clothing of a person attacked. If a remedy exists it must lie in the common law actions of nuisance, trespass and negligence. Of course, the neighbour may always choose to resolve the problem by requesting seizure by the council under s10(1)(b) while the dog is outside its owner’s property.

3.22 The “owner” of a dog is defined in the Act to include not only the registered owner but also, the occupier of land on which the dog is ordinarily kept. As a result of this definition people who tolerate a neighbour’s dog on their land may find that the dog has so entrenched itself that it may be held to belong to their. Service of process under the Dog Act, and involvement in criminal and civil actions concerning the dog, may be the result, at least to the point where the onus of proof imposed by s4(2A)(a) is discharged by satisfying the court that the dog is “ordinarily kept by some other person of or over the age of 18 years”. The possibility that a dog may be found to have more than one owner cannot be discounted.⁴

D. Behaviour on Owner’s land

3.23 The only liability imposed on the owner while the dog is on the property where it is ordinarily kept is that imposed under the common lah. Objections to these actions as the sole bases of liability have been discussed above [paras 2.9, 3.8, 3.18]. The provisions of the Noise Control Act 1975 may assist neighbours in containing the noise of a dog by use of a noise abatement order or direction.⁵ Other nuisance caused by the dog (for instance rushing at the dividing fence, growling, and smell and litter) must be resolved under the common law. Excessive numbers of dogs kept on an urban block may attract the attention of the local council,⁶ but where the annoyance is caused by only one or a few dogs the common law provides the only legal recourse for the troubled neighbour.⁷

3.24 The most serious problem caused by dogs on their owner’s land, which has been brought to the Commission’s attention, occurs where the animals behave as watchdogs, behaviour either intended or unintended by the owner. Those affected by the problem fall into two categories. There are people whose employment requires and entitles them to enter private land uninvited. Members of the police force and those employed by other statutory authorities such as the Australian Postal Commission, the Metropolitan Water Sewerage and Drainage Board, the Australian Telecommunications Commission, local councils and the Sheriff’s Office must all enter private property unannounced on occasions. The second group comprises children and other innocent trespassers who may also enter unexpectedly and fall victim to a dog kept on the premises. The interests of the first group can be addressed by a system of warnings left by the owner. Those who seek to use dogs to hinder or prevent entry to their land may be required to take special measures to warn lawful entrants, but the child trespasser is not so easily protected. Security fencing would seem to be the only sure way of guaranteeing their safety. Conceptually, the interests of these two groups can be considered together, however, because they require thought to be given to means of preventing or avoiding attacks. Suggestions for systems of warnings to be provided by owners, notices of intention to gain access by statutory officers and acceptable methods of self-defence are considered in Chapter 4.

1. (1932) 47 CLR 378 at 385 per Starke J where Fardon v Harcourt-Rivington (1930) 47 TLR 25 was relied upon. The statement by Starke J connecting statutory and common law liability was said by Adam J in Trethowan v Capron [1961] YR 460 at 465 to “re-echo” views put in Wilkins v Manning (1897) 13 WN (NSW) 220.

2. Section 13.

3. Section 12 allows the occupier to destroy a dog which molests or nay molest stock.

4. Even a registered owner may disclaim an interest under s4(2A)(b) meaning that a transfer of ownership could take place on a very informal basis.

5. Noise Control Act 1975 ss52 and 59; Noise Control Regulations part VII.

6. Councils have power to regulate the keeping of animals under Local Government Act 1919 s289(e).

7. These neighbourhood problems may be more appropriately resolved by mediation at a Community Justice Centre.