I. TWO MAJOR AREAS OF COMPLAINT

4.1 Two major areas of complaint have been identified during the Commission’s inquiries. These are the complaint that the existing legislation offers no protection to the person who makes a lawful entry on private land and the complaint that there is no sufficient civil remedy available to those who are injured by a dog while on public land.

II. INJURY AND DAMAGE OCCURRING ON THE OWNER’S PROPERTY

4.2 The shortcomings in the law were identified earlier in the Report [paras 3.23-3.24]. There is no criminal liability imposed by the Dog Act 1966 for injuries occurring on the owner’s land [para 2.27] and the civil liability is limited to that imposed by the general law of negligence and occupier’s liability [paras 3.11-3.12]. Those who must enter private property as part of their employment claim they are entitled to greater protection than is offered by the current legislation. It is also claimed that the interests of other lawful entrants are not well served by the Dog Act 1966.

A. Balancing the Interests

4.3 The Commission is conscious that there is a balance of interests to be struck in its recommendations for reform. First, the dog owner’s right to privacy as an owner or occupier of property must be respected. However, members of the public also have an interest in being able to enter private property unharmed.

4.4 The balancing of these interests is a question which has been addressed by the law of torts already in the principles expounded in relation to occupier’s liability. Those principles were extended to the activities of all animals including dogs by the Animals Act 1977. Section 8 of that Act says:

Where damage results from a danger to a person entering premises, being a dancer due to the state of the premises or due to things done or left undone on the premises, the liability (if any) of a person as an occupier of the premises in respect of the damage depends only on the law relating to the liability of occupiers, notwithstanding that the danger is, or is associated with, the presence or behaviour of an animal in or on the premises.

4.5 Section 8 was passed at the suggestion of this Commission, along with the amendments made to the Dog Act in 1977. In the Report on Civil Liability for Animals the Commission recommended that the law imposing liability on dog owners should not be fully assimilated into the general law of animals.¹ Thus, s20 of the Dog Act, as amended in 1977, imposed strict liability upon the dog owner for acts occurring on public land but left the general law of tort, as set out in the Animals Act, including that relating to occupier’s liability, to apply to acts occurring on private property, including acts occurring in the owner’s motor vehicle.²

B. The “Right” to Have a Watchdog

4.6 In making the distinction between liability imposed on the owner’s land and that imposed elsewhere, the Commission was influenced by what it regarded as a “right” to have a watchdog. In acknowledging the interests of those who saw a need to keep a watchdog, clearly the Commission did not intend to confer a licence on occupiers to keep dangerous or potentially dangerous species on their properties, without liability for any harm caused. To do so would have been inconsistent with the requirements of reasonableness demanded by the law of occupier’s liability.

4.7 The Commission believes that it is still appropriate to consider the rights of dog owners in the context of the general laws of property and of occupier’s liability. Basic to these laws are the rights to use and enjoy property without interference and to exclude others. But these rights are not exercisable without restraint. There is a compromise to be made between the individual’s right to make full use of private land and the entitlement of neighbours and others to be protected from dangerous and annoying uses of that land. This compromise has been set for the general law by the law of occupier’s liability.

4.8 The common law was recently restated by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna.³ The ditty of care owed by the occupier of land to an entrant was said there to be a question to be decided under the ordinary principles of to be a question to be decided under the ordinary principles of negligence, reasonable foreseeability of a real risk of injury being the “touchstone” of the evidence of the duty while “the recourse of the discharge of the duty” was said to be the response expected of a reasonable man to the risk. This means that the dog owner would have to be conscious of the danger offered by the dog to all who may be reasonably expected to enter the property. Thus, one can imagine that if a Telecom pole stood in the owner’s garden, precautions would have to be taken to ensure that a dangerous dog did not come into contact with those who enter to service the wiring. An occupier who allows ready access to, say, the front garden of the property would be expected to so fence the property that casual visitors are not confronted by a vicious dog on entry. It is likely therefore that those who wish to keep a savage dog will be forced to provide secure fencing to restrain it from coming into contact with people entering the property. Where the intention is to exclude all from the property except invited guests, it will be open to the owner to do so by appropriate fencing. It may also be possible for an owner to so train the dog that fencing is not necessary to prevent interference with people entering the land. In such a case it will be a question for the court to decide whether, in all the circumstances, it was reasonable for the occupier not to fence. Where, for instance, a child is attacked by a watchdog on private land it will be for the court to assess whether the owner had a duty to fence so as to protect such innocent trespassers from the dog.

C. Rights of Entry

4.9 There are many people in the community who have been given, by statute or common law, the right to enter properties owned or occupied by others and there are others who may claim lawful access although not given any express legal authority. The interests of the two groups give rise to different considerations.

D. Entrants as of Right and Other Lawful Entrants

4.10 Those described here as entrants as of right are those who enter under authority given either by the common law or by statute. At common law, for example, members of the police force may enter private property in pursuit of a criminal or to prevent an affray.⁴ Under the Fire Brigades Act 1909 members of the fire brigade are given authority to enter property where a fire has occurred and to stay in possession for a reasonable time, presumably until they have controlled the fire.⁵ There are also others who seek safe entry to private premises for legitimate purposes. Amongst these we may number process servers, employees of gas and oil companies who service tanks attached to private houses, postmen and others who must deliver mail and goods to the door. Many others can be listed who have a need to approach the property without prior express permission, but who do not have statutory or other direct legal authority to do so.

4.11 If there is a distinction to be made between the two types of entrants it is perhaps that which the law itself makes. In the case of the entrant as of right a policy decision has been made already that they should be permitted to enter private land for certain purposes. In view of that decision perhaps it is also incumbent on those granting the authority to ensure that it nay be exercised with relative safety. Where no public authority has been given for the entry the same justifications for invading the privacy of occupiers cannot be used. An example of the distinction may be helpful. Where a member of the police force needs to enter private property to secure the arrest of a dangerous criminal the law makes the entry lawful. Where, however, the police officer enters to make inquiries or to seek information, there is no legal way of securing the entry uninvited. In this case, the absence of any provision to allow the entry is as much a matter of public policy as is the authority granted to enter in the first example.

E. Right of Self-Defence

4.12 There is another principle of common law to be taken into account when considering the rights of the lawful entrant. This is the right to defend oneself against attack. The right can be simply stated. It is a right to inflict such injury on the dog as is reasonably necessary for the defence of a person or property. The degree of force used must be in proportion to the harm apprehended. The Prevention of Cruelty to Animals Act 1979 makes it an offence to kill an animal “unreasonably, unnecessarily or unjustifiably”⁶ but justification is to be found in the Dog Act 1966 and under the common law. The two defences are very similar. Section 13 of the Dog Act 1966 allows “any person” to destroy a dog that “attacks or causes injury to anti person or animal”. This power is subject to two qualifications. The killing must be carried out within the terms of s18 so as to allow the dog to “die quickly and without unnecessary suffering” and the power to destroy does not extend to a dog which attacks or causes injury on land or premises occupied by the owner of the dog or on which the dog is ordinarily kept.⁷ Thus s13 does not provide power to defend oneself on the dog’s home territory, but the common law may provide a remedy. It permits the use of reasonable force in self-defence. If an attack is made or threatened the victim may use such force as is reasonably necessary to ward it off. In some circumstances this may extend to the destruction of the dog.⁸ Although s13 could be interpreted so as to abolish the right to destroy in self-defence on the owner’s land it cannot be interpreted to affect the wider right to ward off attacks and if the dog is killed in the process of warding of an attack, the common law could accommodate that so long as the killer had acted on an honest belief, held on reasonable grounds, that the killing was necessary to protect person or property from attack or injury.⁹ However, the killing must have taken place while the danger of attack continued. It would not be justified simply because a vicious dog has attacked when there is little likelihood of a repeat of the attack.¹⁰ The proportion of the retaliation is judged in the circumstances of the case, including the place of the attack, the size of the dog and the danger presented by it.¹¹ In that s13 is directed at destruction of the dog per se it seems that it would be unreasonable to interpret it so as to abolish part of this common law right of self-defence.

F. No Guidance as to Balance

4.13 Neither the dog legislation nor the case law gives clear guidance as to the balance of interests which should be made between the dog owner and a person entering private property. Some guidance is offered by the existing laws which regulate rights of entry on private land. A statutory authority to enter which includes a right to use force would seem to grant the power to dispose of a dog which is hindering access, by injuring or killing it if necessary. The person who acts pursuant 10 a statutory or common law right of entry should have power to do so without incurring injury from dog attack. The force necessary to avoid the attack is already well regulated by the common law and allows the courts a discretion to assess the proportion of the force used on a case to case basis.

4.14 Less licence should be extended to those who enter private property without authority.¹² Be they trespassers or uninvited callers, it would seem that the principle most appropriate to their conduct is that which regulates voluntary assumption of risk rather than that which allows the blameless victim to avoid injury. The most cogent point which can be made about these unlimited entrants is that if they are aware of the risks they should not enter. Thus the person who calls to read the meter, the person who wishes to sell to the householder, the unexpected friend and the trespasser should not be heard to say that they have acted in self-defence when the risks of entry were apparent before the gate was opened.

4.15 This does not address the situation where no warning is given of the possibility of attack. Where the uninvited or unauthorised entrant are not aware of the risks before entry, it would seem sensible to settle the rights of self-defence by reference to the same guidelines as are used to assess the occupier’s liability for the harm caused. The notice warning of the dog’s presence and temperament, and the stout gate to prevent accidental or unintended entry, may become very relevant to the liability to be imposed on the occupier. They should also be relevant to the question of whether the victim should be held to have voluntarily assumed the risk taken. The interests of the child trespasser, who cannot be forewarned of the danger, are also adequately addressed by the law of occupier’s liability, for the common law does cast a responsibility on the dog owner to secure the safety of any child who may reasonably be expected to enter, or to prevent their entry.

4.16 The interests of those who must enter for a public purpose, but who have not been granted statutory or common law power to do so, may be met by a practice already adopted by many government agencies. Rating authorities and those providing private services are accustomed to the problem of the threatening dog. Instead of entering on their first call they often adopt a practice of leaving a calling card requiring the occupier to make alternative secure arrangements for their next visit. Where a service is to be supplied to the occupier this method is usually convenient for all involved. Greater ingenuity is required where the visit is to result in an account for services already rendered, like the reading of water and electricity meters. On these occasions, where repeated requests to provide safe access have not met with success, appaiently some agencies have adopted a practice of estimating the fee to be charged. Other entrants are not so easily accommodated. The process server, the welfare officer and service personnel from public authorities which have installations on private property may have no statutory or common law right of entry, yet may well have a legitimate need for reasonably expeditious access. The regulation of their rights, beyond what is proposed for all other uninvited entrants, is beyond the scope of this inquiry, as it involves an assessment of matters of wider concern than the control of dogs. Such an assessment would be better made in a study of statutory rights of entry or during an inquiry into the powers of the particular agency involved.

4.17 There is, however, some assistance to be offered to statutory officers who have a duty to enter private property. A more formal means of securing their interests could be created. The Commission can envisage a system whereby the officer involved could approach a magistrate to secure a warrant for lawful entry. The magistrate could order the dog to be kept under control by the owner or if necessary subdued or destroyed by council officer experienced in the handling of dogs. It must be pointed out, however, that the Commission would regard use of such a procedure as exceptional, to be resorted to only where repeated attempts at securing safe entry, by use of oral and written requests to the owner to control the dog, had failed. The typical situation in which the Commission would envisage that use of the procedure would be appropriate is where a person was using a dog for an intentionally disruptive purpose such as to avoid arrest or service of process. Such a power of entry does not seem to be implied by s24 of the Dog Act. This provision allows council employees to enter land “for the purposes of this Act”. Those purposes do not currently include entry to assist another statutory officer in the execution of an official duty. Therefore a new provision of the type described will be needed to give the power to control during entry.

4.18 One means of introducing such a procedure would be to insert a provision similar to 512(1) of the Tasmanian Law of Animals Act 1962 into the Dog Act. Section 12(1) provides as follows:

Upon complaint that a dog is dangerous and is not kept under proper control, any two justices may, whether the dog was found at large or not, make an order commanding the owner of the dog to keep it under proper control and that if he make default the dog shall be destroyed or, if the justices are satisfied that the circumstances so require, that the dog be destroyed forthwith by such person or in such manner as they may direct.

Such a provision would also be of assistance where savage and repeated attacks occur on private land [discussed at 4.19-4.21 below] but would not necessarily meet the needs of statutory officers who may require more urgent entry. Consistently with the policy outlined above, the Commission recommends that those who can provide evidence of lawful authority to enter private premises may apply to a magistrate for an order to assist the entry. The provision suggested to implement this recommendation appears as cl 24A in the draft legislation in Appendix A. The order would be made on evidence that previous attempts to effect entry had failed because of the savage behaviour of the dog or because the officer feared that the dog would become savage if an entry were made. The Commission is of the view that a fairly high standard of proof should be required in relation to these matters to ensure that before seeking the order the officer had used all methods to secure the entry which were reasonable in the circumstances. Thus, if there was no critical urgency in making the entry, the officer would be required to have made approaches to the owner, by telephone or through the letter box if necessary, to have the dog controlled. It would only be on evidence of consistent refusal by the owner to respond to these requests for control that the magistrate would make the order. The order would require the owner to control the dog during the officer’s entry and throughout the period required to complete the activity for which entry was authorised. On default by the owner the order would authorise the officer to seek assistance from a council officer to restrain the dog during the entry or to destroy it if necessary. The Commission envisages that both orders would be contained in the one document. The officer would return to the property with a council officer in attendance, present the owner with the order to control, and instruct the council officer to proceed under the second order if the owner did not comply with the first. In order to ensure proper use of the orders, the Commission would require the officer effecting the entry to make a written report on the manner in which it was used to the magistrate who made it.

III. SAVAGE AND REPEATED ATTACKS

4.19 Concern has been expressed to the Commission that there is no criminal sanction provided in the Dog Act 1966 for savage or repeated attacks and that no action can be taken against the offending dog where the attack occurs on the owner’s private property.

4.20 The Commission is reluctant to suggest the creation of further criminal offences, especially where they are to be enforced on private as well as public property. The criminal sanction is well described as “the law’s ultimate threat” and as such should be “reserved for what really matters”.¹³ However, there is one situation which has caused considerable concern within the Commission. This relates to the dog which is deliberately kept for its vicious character. The maximum penalty of a $200 fine available of offences under s6 does not adequately reflect the seriousness of the offence committed when such a dog is set on someone who has not provoked it or where the dog which is not under proper control attacks and causes very serious injury. The Commission recommends the introduction of a new offence into the Dog Act directed toward the owner of a vicious dog which causes very serious injury. The crime of negligently causing grievous bodily harm in s54 of the Crimes Act goes some way towards satisfying the terms of the offence the Commission believes should be enacted. That crime can be committed by negligent act or omission and applies where really serious injury is inflicted.¹⁴ In order to be convicted under s54 the accused must be shown to have been so negligent as to have disregarded the safety of others in a manner which goes beyond establishing civil liability for negligence and amounts to a criminal offence.¹⁵ Doubt has been expressed whether a dog owner could be successfully prosecuted under s54. Accordingly the Commission recommends the creation of a new specific offence in the Dog Act. The new offence would impose criminal liability for serious injury which the owner or person responsible for control of the dog foresaw would occur but against which no reasonable precautions were taken. Such a crime would clearly be committed where it could be shown that the dog was savage and the owner encouraged or directed it to attack. It would also be proved where the owner of a savage dog did not exercise effective control over it although aware of its capacity to attack and cause injury. As guilt can be established only on proof of foresight by the owner and deliberate or reckless disregard of the consequences foreseen, the Commission believes there is no objection to extending the application of the crime to private as well as public property. The owner of a guard dog would not be exposed to criminal liability unless the circumstances of the dog’s management were such as to expose members of the public to the risk of savage attack. Such risks will be avoided by reasonable attention to fencing and notices warning of the dangers of forced entry. Where the management of a guard dog does not involve care taken to avoid foreseeable harmful contact between the dog and the public, the Commission believes the owner should be subjected to criminal liability even on private property. The Commission does not wish to outlaw the responsible use of a guard dog however. Therefore, we recommend that the defence of self-defence of person or property be made expressly applicable to the offence. The new offence appears as cl 6A in the draft legislation in Appendix A, the defence in cl 6A(2). The Commission recommends that the new crime carry a penalty equivalent to that imposed under the Crimes Act s35 for the offence of malicious wounding, that is, a maximum of seven years imprisonment. The charge could be heard on indictment or summarily on consent of the accused person [see Crimes Act 1900, s476 (2), (6), (7)]. This amalgam of the offences under ss3S and 54 has been chosen deliberately by the Commission to reflect the seriousness of the offence intended while avoiding the pitfalls of applying the concept of intended while avoiding the pitfalls of applying the concept of wounding to offences under the Dog Act. We intend that the new offence will be triggered by injury more serious than the simple dog bite which could amount to a wounding.

4.21 The question of control of the dog is not covered by this offence and is not adequately covered by the control provisions discussed above at paragraphs 4.17-4.18. The Commission recommends that there be introduced into the Dog Act a procedure similar to that contained in s12 of the Tasmanian Law of Animals Act. This would provide that wherever it is found, upon complaint that a dog is dangerous and not kept under proper control, a magistrate may order the owner of the dog to keep it under control or order that the dog be destroyed. Such a provision offers a remedy currently not available under the Dog Act but which the Commission believes ought to be available generally to members of the public. It should be available to those seeking redress in relation to behaviour of dogs both on private and public land and will provide a remedy in the following types of situations:

• to control the dog which is offering a threat to neighbours although contained within its own grounds. The Commission has in mind the dog which lunges at a dividing fence alarming neighbours at the possibility of escape;
• to control the dog which is on private land but not adequately fenced in that access is not denied to small children and others who cannot read warning signs. This could require a lock to be placed on a gate or a fence to be repaired or raised to a greater height to prevent access;
• to control the dog which roams public streets although regarded as a threat to the public. The remedy would allow the question of the dog’s potential for harm to be put in issue in legal proceedings, thereby providing a self help remedy to the public when other means of resolving the issue had failed;
• to allow a control order to be made where the victim would prefer not to lay criminal charges in respect of injury which has occurred. There are many victims who would be satisfied with reassurance that the incident with not occur again without resorting to criminal or civil proceedings.

It may also be that the possibility of destruction of the dog will provide a more effective deterrent to many dog owners than the threat of a fine.

IV. DEFINING PRIVATE PROPERTY

4.22 At present the distinction the Dog Act makes between private and public property is based on occupation by the owner with no reference to its availability to and frequency of use by the public. This has led to provisions which have been interpreted to exempt the owner of a dog from liability so long as the harm caused occurs on property which is occupied by the owner. The property may include areas which are also readily available to the general public. Thus, there is no clear view whether under the Dog Act the open tray of the owner’s truck, the deck of the owner’s boat, the tarmac of the owner’s service station or the floor of the owner’s shop are to be regarded as private or public premises or places, although all are open to the public, indeed sometimes intended for public use. The Commission believes the definitions of private and public property in the Dog Act should be capable of distinguishing between areas which are secured from entry by the general public by the owner of the dog and those which are not. For the purposes of the Act a public place should include private property to which the general public has ready access. Liability would be assessed by reference to use by the public rather than to the occupation or title of the owner. The definition of public place used in s4(1) of the Offences in Public Places Act 1979 would seem adequate. This defines “public place” as a place or a part of premises:

that is open to the public, or is used by the public, whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used, and whether or not the public to whom it is open consists only of a limited class of persons . .

4.23 We believe the definition of “public place” suggested in the legislation in Appendix A achieves these aims. It centres attention on the use made by the public of the place concerned, in that it defines “public place” as somewhere which is “open to the public, or is used by the public”.¹⁶ This definition (and the subclauses which extend the term so that it is not qualified by reference to admission fee, ordinary use or the extent of public use) seek to ensure that the provisions of the Act imposing liability for harm and nuisance caused by dogs operate in places where members of the public are likely to be inconvenienced or placed in danger by them. In settling the definition we were guided in particular by indications in the case law that the courts will refer to the purposes of the legislation when determining the meaning of the term in any statute.¹⁷ Thus, the expression “public place” will not only extend to places dedicated for public use. The term will also cover private land which is open to the public, whether deliberately for purposes of business or leisure, or de facto because of use made by the public with the acquiescence, although not necessarily the clear approval of, the owner or occupier.

4.24 The other situation in which the general law of occupier’s liability may not provide a completely satisfactory answer arises where the dog is being carried in a vehicle used by its owner. As currently defined in the Dog Act the private property of the owner includes a vehicle “of which the owner...is an occupier” or “on which the dog is ordinarily kept” [ss6(2) and 20(2)]. This clearly exempts the owner from liability where the victim trespasses on the vehicle in which the dog is kept, even if the vehicle is in a public place. Such an exemption is acceptable where the dog is secured within the vehicle. However, unnecessarily technical questions could arise as to whether the dog is ‘on the vehicle” where it is being carried on the back of an open vehicle.

4.25 The Commission sees merit in making a distinction between dogs which are restrained and those which are not in these cases. The same distinction is made in s8 between those dogs which are acceptable on public land and those that are not. The only exceptions to the requirement that a dog be controlled on a leash while on public land appear in s8(3) and (4). Dogs engaged in obedience trials, driving cattle and those being exhibited for show purposes need not be on a leash, nor need those which are on land set aside for their use.

Except where on specially designated public land, all these exceptions apply to situations where the dog is under the effective physical control of its owner. Dogs on the platform of an open vehicle which are not chained in any way are very often not under the effective control of their owners. They should therefore be subjected to the same constraints as any other dogs in a public place. The Commission recommends that the provisions of s5 be extended to dogs in or on open vehicles. This would require an amendment to the definition of vehicle so as to exclude those vehicles from which the dog can escape unassisted. The amendment suggested appears as cl 4(7) in Appendix A.

4.26 The Commission does not intend to affect the operation of ss6(2) and 20(2) in relation to injuries occurring on private land not owned or occupied by the owner of the dog. At present those provisions operate to impose strict liability for attacks and injuries caused by the dog while outside the owner’s land. They cover situations where the injury occurs while the dog is wandering on the property of a neighbour or other landowner within the vicinity. The provisions would also impose strict liability on the owner where the dog attacked while at a friend’s house or in business premises the owner was visiting. We recommend that such liability continue and that therefore no amendment be made to affect the operation of ss6(2) or 20(2) in this regard.

V. LIABILITY ON PUBLIC LAND

A. The Issue of Strict Liability

4.27 In its Consultative Memorandum on Civil Liability in Relation to Animals¹⁸ the Scottish Law Commission sought guidance on the question whether the rises presented by dogs were of such magnitude as to warrant the imposition of strict civil liability for harm caused by them. The response received by the Commission was “all but unanimous that dogs, as a class, constitute a special risk, and that strict liability should be imposed for every form of injury or damage which they cause”.¹⁹ This was a view which the Scottish Commission found to be “widely shared” in all jurisdictions which had considered the problem.²⁰ It therefore recommended that the owner should be liable for any harm caused which was “directly referrable to” the “physical attributes or habits” of the dog as a species.²¹ Such attributes were to include biting, savaging, attacking and harrying²² but liability was not to extend to harm caused by mere presence in a road or other place.²³

4.28 The route the Scottish Law Commission took in arriving at these recommendations is very similar to that taken by this Commission in 1970. It examined the types of civil liability possible and reached the conclusion that if strict liability was to be imposed it must be in response to a special risk. The special risk identified in relation to dogs lay in their propensity to attack. As there was still general public acceptance of the right of owners to allow their dogs to roam in public the Scottish Law Commission thought the special risk of attack could be addressed properly only by the imposition of strict civil liability [or attacks occurring on public land.²⁴

4.29 This Commission has reached the conclusion that a far more comprehensive system of liability is necessary to meet the hazards presented by dogs roaming unattended in public places. The existing penalties and council powers to seize and impound do not appear to have reduced the problem significantly and while dogs continue to roam free in public they will continue to cause harm for which the owner should be held responsible.

B. Regulation of Dogs in Public

4.30 The Commission makes two primary recommendations on the regulation of dogs in public places. The first gives council officers powers to impose on-the-spot infringement notices [discussed 4.31-4.36] while the second alters the law in relation to the civil liability imposed for harm occurring while the dog is away from its owner’s property [discussed 4.39-4.44].

C. On-the-Spot Infringement Notices

4.31 The Commission recommends that council officers be given the power to issue on-the-spot infringement notices against people who commit offences under the Act. The grant of this power will allow more efficient enforcement of the provisions of the Act. The offences provided for in the Act are all of a relatively minor nature, dealing with such matters as dogs which are unregistered, those which are found in prohibited places and dogs which foul footpaths.

4.32 At present, s22 of the Dog Act provides that penalties for offences under the Act can only be recovered by prosecution in the Local Court. Inquiries made by the Commission have revealed that this requirement is a source of continual frustration to councils in their efforts to control dogs. Prosecution through the courts is an onerous procedure. Current procedures involve preparation of written statements, instruction of a solicitor, the service of summonses and attendances at court. All are considered to involve an excessive commitment of time and to be too expensive, when only minor offences are involved.

4.33 As the fines and costs awarded generally do not cover the costs incurred by councils, prosecutions are confined to extreme cases. Further, magistrates have on a number of occasions commented adversely on the fact that such minor matters take up the time of the court as well as that of legal personnel, council staff and defendants.

4.34 These findings persuade the Commission to the view that a more effective enforcement procedure is called for and the introduction of a system of on-the-spot infringement notices is recommended. Such a system will relieve councils of much of the work involved in enforcement of the Act. Court proceedings will be necessary only where the person served with an on-the-spot notice refers the matter. It is also thought that once provided with an effective method of enforcement councils will become more active in the field and that their activity will serve a public education as well as an enforcement function. Public acceptance will be encouraged by the reduction in unnecessary costs incurred in court proceedings.

4.35 The introduction of a system of on-the-spot infringement notices may also remedy the difficulties encountered by councils with use of their powers under s10 of the Act. As the power to seize dogs under s10 is limited to seizure on land other than that occupied by the owner, dogs can often avoid capture by retreating to their owner s property. One problem with the on-the-spot notice system proposed is that it may allow council officers to serve notices on householders who are not the owners of the offending dog. The definition of owner contained in s4 gives rise to the possibility that someone who is not the owner of the dog, but to whose property the dog has retreated, may be served with an on-the-spot notice. Under 54(1) “owner” includes the occupier of land on which the dogs ordinarily kept. “Ordinarily kept” has been interpreted to include those who come into temporary possession of a stray dog brought home and fed by children.²⁵ Thus the definition of owner would appear to allow a council officer to serve an on-the-spot infringement notice on the occupier of the property to which the dog retreated in the reasonable expectation that the recipient is its owner.²⁶ The person served with a notice who denies ownership would have to raise one of the defences provided in s4 to shift responsibility to someone else.²⁷

4.36 The power to issue on-the-spot notices will supplement the existing power of councils to seize, impound and destroy dogs and it is to be hoped that the more effective enforcement procedure will lead to a reduction in the use of the seizure and impounding powers.

D. Injury and Damage Caused on Public Property

1. Criminal Liability

4.37 The Commission has received no complaints about either the criminal liability or the penalties imposed by s6 of the Dog Act. Section 6 makes the owner guilty of an offence punishable by a maximum fine of $200 if the dog “attacks or causes injury to a person or animal” on any land other than that occupied by the owner. It also provides for destruction or other disposal of the dog to ensure that it does not attack again in the future.²⁸

4.38 One aspect of s6 which has drawn comment is the wording of the defences of intentional cruelty and intentional provocation which appear in s6(2). It is a defence to the s6 offence if the owner can show that the attack was an “immediate response” to and was “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”. These defences have been criticised at two levels. First it is suggested that the owner is protected where provocation or cruelty is offered by a relative or close associate, although not a servant or agent, of the owner. Secondly, the provision seems to be inconsistent with the policy of the Act, as expressed in s8, that no dog should be on public land unless under “the effective control of some competent person”. The point is made that the public is entitled to assume that provocation and intentional cruelty will be avoided by the handler and that the dog should not be taken into public if provocation is likely and the dog is susceptible to it. Consistent with that policy the Commission recommends that the defences of intentional cruelty and provocation should be available only if offered by the victim or someone associated with or acting on behalf of the victim. Thus, at present if a dog led by its owner were to be provoked by one person so that it attacked another, the owner could avoid liability by using the s6(2) defence. If the provision was amended in accordance with the Commission's recommendation, the defence would no longer be available to the owner in this situation, unless the person offering the provocation was found to be acting on behalf of the victim. The Commission believes that this extension of the s6 liability strikes the correct balance between the interests of the owner being permitted to have the dog in a public place and the right of a pedestrian to make full and safe use of the same public place.

2. Civil Liability

4.39 As suggested in para 4.27, the Commission believes that the special risk of harm presented by dogs which go unattended in public places, requires a systematic response. In the foregoing the means by which criminal sanctions can be applied to redress the problem were canvassed. It was found that the Dog Act already contains provisions which penalise the owner of a dog which goes unattended or attacks or causes injury on public land. Both are offences of strict liability meaning that the owner has no defence available other than as provided in the Act. Thus in response to a charge of allowing a dog to go unattended on public land under s8 it is not open to the owner to show that the dog escaped through the intervention of a third party or by an unavoidable accident. When charged under s6, in respect of an attack, the owner cannot plead contributory negligence or voluntary assumption of risk by the victim except as those defences appear in the statutory forms of intentional cruelty and provocation.²⁹

4.40 The Commission recommends that such strict liability should also be applied in civil claims for damages.³⁰ This would mean that, consistently with the policy of the Act, the owner would be liable for all harm caused by the dog once outside the confines of its owner’s property. Under the Commission’s proposals liability would extend to all harm caused by the dog while in public and not just harm attributable to the exercise of its canine characteristics. Thus damages would be payable in respect of injuries and damage caused by the mere presence of the dog in a public place. There would be no need to prove that the harm was caused “in the course of an attack” as s20 provides at present. Nor would liability be restricted to the product of an attack which is described in s20(1)(a) as “bodily injury caused by the dog wounding” the person and “damage to the clothing”. All personal injury and property damage caused by the dog would be covered, the only possible limit being imposed by the need for satisfactory proof of causation. If causation could be proved the liability would also extend to harm caused by way of nervous shock. Section 20 also limits liability to injuries which are inflicted on the person attacked. This restriction should be removed to allow bystanders who have become involved, and others who may have intervened to assist the victim, to he compensated for their losses.

4.41 The reasons for recommending the imposition of strict civil liability should be made express. The major reason has been mentioned already [para 4.27]. This is that by their mere presence in public places dogs do present a special risk to the community. That assessment having been made, it is open to suggest that strict civil liability should be imposed on the owner to compensate the community for the risk.

4.42 The Commission was influenced by the following consideration in reaching the conclusion that strict civil liability should be imposed.

(a) The risk

Although precise statistics are not obtainable it is clear that dogs are responsible for a significant amount of harm in the community. This may range from the nuisance involved in clearing up after a garbage bin has been disturbed by a dog to the very serious injuries which may be caused in traffic accidents. Dogs behaving quite normally and unaggressively have the capacity to cause great harm in a busy city street. they may also inflict serious injury when behaving aggressively. The public inconvenience and loss incurred through dogs warrant the strong approach which the imposition of strict civil liability represents.

(b) Consistency in the law

The imposition of strict civil liability is consistent with the policy pursued by the law of New South Wales since 1875. The amendments made to the Dog Act in 1977 were the first occasion on which strict civil liability had been confined in its scope. The existing s20 is also inconsistent with those other provisions of the Act which impose strict criminal liability. Consistency between the civil and criminal liability imposed is desirable for the public education effect it has as well as for the clarity of purpose which it demonstrates.

(c) Allocation of risk and distribution of loss

It is well established legal theory that the primary aim of any compensation scheme is to allocate risk and redistribute loss.³¹ The correct allocation of risk in this case would seem to be to assign responsibility to the person who introduces the risk to the community and who derives the benefits from it. The beneficiary is clearly the owner. The loss incurred by the victim is also properly redistributed to the owner of the dog for it is the owner who is in the best position to reduce the risk it presents and to spread the loss throughout the community by insuring against loss caused by the dog. In practical terms this means that the owner will pay tor the benefit of having a dog and for any loss caused by it. Most household policies offer insurance cover against loss caused by animals owned by the insured, and most now cover the person insured for harm caused away from the insured property. The owner therefore has ready means available to avoid personal loss and by using insurance indirectly achieves a spread of the loss throughout the community. If insurance premiums should rise owners may be persuaded to be more responsible in the handling of their dogs.

(d) Owner responsibility

In practice it can be predicted that the imposition of strict civil liability may offer some of the necessary incentive for owners to contain their dogs within private property. It is the owners alone who have the capacity to control their dogs’ behaviour. Every incentive should be offered to them to do so. Those who are careful to ensure that their dog is properly controlled should not be troubled by the new regime.

3. Defences to Strict Liability

4.43 The Commission is of the view that the current defences to the action in strict liability should continue. These are the defences appearing in s20(2)(6) that the attack was in immediate response to, and wholly induced by, intentional cruelty or intentional provocation. As in regard to s6, the Commission further recommends that the defence be confined to cruelty or provocation offered by the victim or a person acting in concert with or at the direction of the victim. It should also continue to be open to dog owners to reduce their liability by showing that the victim contributed to the loss. These defences should allow the reasonableness of the victim’s conduct to be taken into account in assessing the distribution of the loss between the parties.

4.44 Where the damage is due partly to the negligence of the plaintiff this will constitute contributory negligence. The Commission is of the view that in such cases Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965 should replace s20C which currently governs contributory negligence under the Dog Act. Section 20C provides:

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

As the Commission believes the purpose of s20C can be Letter achieved under Part 3 of the 1965 Act it recommends that s20C be repealed in favour of s20(5) and (6) as they appear in Appendix A.

VI. INJURY AND DAMAGE OCCURRING ON THE LAND OF OTHERS

4.45 The Commission can see no reason why strict liability for both personal injury and property damage should not apply to the behaviour of dogs on all property other than the private property of the dog owner or the land on which tie dog is ordinarily kept.

4.46 This means that should a dog escape to the private property of a neighbour and cause injury or damage the owner of the dog will be strictly liable for its actions. The Commission recognises that neighbours may also ie concerned with other problems such as noise which may be caused by dogs, however, such matters cannot be dealt with within the scope of this reference. They are best left for consideration within the more general reference on relationships between neighbours which is before the Commission.

1. NSW Law Reform Commission, Report on Civil Liability for Animals (LRC 8, 1970) paras 34-40.

2. Animals Act 1977 s6; Dog (Amendment) Act 1977 s20(2)(a), where “premises” is defined to include motor vehicles.

3. (1987) 61 ALJR 180; 69 ALR 615. The majority of the High Court approved the statement of the law made by Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662-663.

4. Leigh, Police Powers in England and Wales (1975) at 172. Leigh also lists some situations in which private individuals are authorised by the common taw to entec private property. See also Watson and Purnell, Criminal Law in New South Wales (1971) Vol 1 para 3048.

5. Fire Brigades Act 1909 s20(e).

6. Prevention of Cruelty to Animals Act 1979 ss4(2), (3), 5(1) and 6(1). Section 19(1) of the Dog Act 1966 also makes it an offence to destroy any dog “contrary to the provisions of this Act”.

7. Dog Act 1966 s13 as amended in 1981.

8. Fleming, The Law of Torts (6th ed 1983) at 77-78.

9. Deeps v Cook (1938) 55 WN (NSW) 115 at 116-117 per Jordan CJ. The case concerned the killing of a dog which was attacking sheep.

10. Morris v Nugent (1836) 7 C & P 572 (173 ER 252 at 253).

11. Hanwa v Boultbee (1830) 4 C & P 350 (172 ER 735). Such principles can be extracted from the discussions of the facts in Morris v Nugent and Hanway v Boultbee although they are not made explicit in the judgments.

12. The High Court considered the implied invitation to enter private property when it is not fenced in Halliday v Nevill (1985) 59 ALJR 124 at 126. Brennan J in dissent at 131-132.

13. Packer, The Limits of the Criminal Sanction (1968) at 250.

14. DPP v Smith [1961] AC 290.

15. The most recent statement of the standard of negligence required appears in D (1984) 14 A Crim R 198 at 202 per Yeldham J for the Court of Criminal Appeal.

16. In R v Wellard (1834) 14 QBD 63 at 67 Grove J said:

A public place is one where the public go, no matter whether they have a right to go or not. The right is not the question.

18. Scottish Law Commission, Civil Liability in Relation to Animals (Consultative Memorandum No 55, 1982) paras 5.2-5.7.

19. Scottish Law Commission, Obligations: Report on Civil Liability in Relation to Animals (Scot Law Coin No 97, 1985) para 3.15.

20. Id para 3.16. The other jurisdictions mentioned by the Commission at this point were Ireland (Animals Act 1985) and New South Wales (Dog (Amendment) Act 1977).

21. Id para 4.4; Appendix A, Animals (Scotland) Bill cl 1(1).

22. Id cl l(3)(a).

23. Id cl 1(5).

24. See the arguments presented by the Scottish Commission in the Report, note 17, paras 3.16-3.18, 4.24-4.26 and in the Consultative Memorandum, Note 16, paras 5.2-5.7.

25. Porter v Cook [1971] 1 NSWLR 31d at 319.

26. Occupier is defined in s4(4) to mean “the person who is entitled to occupy [the land] as owner or mortgagee in possession or under a lease, license or permit”. Service on one occupier of a group would seem to be covered by Interpretation Act 1897 s21(b) which allows the singular to include the plural.

27. The defences are set out in s4(2A), (2B) and (3). Note also that s4(2A)(a) prevents adults shifting responsibility for ownership to their children.

28. Section 6(3)(c), (d) and (e).

29. These are the defences to common law actions in which proof of scienter is required. Discussed by the Scottish Law Commission in its Report, note 17 para 1.16.

30. Mr Russell Scott, Deputy Chairman of the Commission, dissents from this recommendation. His view is that the presence of a dog in a public place should not be sufficient of itself to provide the basis of unavoidable civil legal liability upon the owner or keeper. Mr Scott does not agree to this recommendation because it allows a dog owner no opportunity to offer a defence on the merits. In his opinion there is wide community support for the ownership and keeping of dogs and wide community acceptance of reasonable consequent risks, he objects to the possibility that unlimited liability under this recommendation could attach to a dog owner automatically, if, for example, a third person entered the dog owner’s land without the owner’s knowledge and deliberately or even maliciously released the dog from its normal safe containment. Mr Scott also expresses the view that legislation on this subject should not contain an unusual or unnecessarily wide definition of “public place”.