[Link to text only version of Appendix B]

A BILL

Relating to liability for damage caused by animals; for this purpose to amend the Impounding Act, 1898, and certain other Acts; and for purposes connected therewith.

BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:-

		PART I.
		PRELIMINARY.
Short title.		1. This Act may be cited as the "Animals Act, 1970".
The Crown.		2. This Act binds the Crown, not only in right of New South Wales, but also, so far as the legislative power of Parliament permits, the Crown in all its other Capacities.
Division of Act.		3. This Act is divided as follows:-
		PART I. - PRELIMINARY - ss. 1-3.
		PART II. - ABOLITION OF CERTAIN MATTERS - ss. 4, 5.
		PART III. - LIABILITY FOR ANIMALS - ss. 6-11.
		PART IV. - AMENDMENT OF DOG ACT, 1966 - s. 12.
		PART V. - AMENDMENT OF VARIOUS ACTS - ss. 13-15.
		PART II.
		ABOLITION OF CERTAIN MATTERS.
Cattle trespass.		4. (1) The tort of cattle-trespass is abolished.
		(2) This section does not apply to a case where a cause of action for cattle-trespass accrues before the commencement of this Act.
		(3) This section does not affect the construction of a reference in any Act to a trespassing animal.
		(4) This section does not affect the tort of trespass committed by a person by means of cattle.
Distress damage feasant.		5. (1) The remedy at common law of distress of an animal damage feasant is abolished.
		(2) This section does not apply to a case where an animal is distrained damage feasant before the commencement of this Act.
		PART III.
		LIABILITY FOR ANIMALS.
Application		6. This Part does not apply to a case where the acts or omissions giving rise to a question of liability occur before the commencement of this Act.
Interpretation		7. In this Part -
		"liability" means a liability in damages in tort.
		"occupier", in relation to any premises. means a person who is an occupier of the premises for the purposes of the law relating to the liability of occupiers for damage arising from dangers to persons entering premises, being dangers due to the state of the premises or due to things done or left undone on the premises.
		"premises" means any land, structure (fixed or movable), vessel, aircraft or other vehicle.
Generally.		8. (1) Liability for damage caused by an animal depends on the general law.
		(2) In this section, "general law" means the law relating to liability, excepting any common law qualification, restriction, exclusion, extension or imposition of liability relating specially to damage caused by an animal, whether or not the qualification, restriction, exclusion, extension or imposition—
		(a) is by reference to the nature or propensity of any animal or of any kind or class of animal, or knowledge of any such nature or propensity; or
		(b) applies generally or in the circumstances of escape on to a highway or in any other particular circumstances.
Occupier.		9. Where damage results from a danger to a person entering premises, being a danger due to the state of the premises or due to things done or left undone on the premises, the liability if any of an occupier of the premises in respect of the damage depends 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 on the premises.
Rule in Rylands v Fletcher (1868) L.R. 3 H.L. 330.		10. The rule in Rylands and Fletcher does not apply relation to damage caused by an animal.
Evidence.		11. (1) For the purposes of this section an animal is unlawfully on or in any premises if the animal is on or in the premises without the consent of the occupier of the premises or by lawful authority binding on the occupier.
		(2) Where -
		(a) a person is under a duty to another person to take reasonable care that he is not subjected to the danger of an animal causing damage to him; and
		(b) the animal causes the damage while it is unlawfully on or in any premises, the fact that the animal is unlawfully on or in the premises is evidence of breach of the duty.
		(3) This section does not apply -
		(a) where the premises concerned are a place used by the public as a road or way;
		(b) where the person under the duty is an occupier of the premises; or
		(c) where the animal concerned is a dog or a cat.
		PART IV.
		AMENDMENT OF DOG ACT, 1966.
Amendment of Act No. 2, 1966.		12. The Dog Act, 1966, is amended -
Subst. Sec.20.		(a) by omitting section twenty and by inserting in lieu thereof the following section:-
Liability for the wounding of a person.		20. (1) The owner of a dog shall be liable in damages in respect of bodily injury to and damage to clothing of a person caused by the dog wounding that person in the course of attacking him.
		(2) This section does not apply in the case of an attack by a dog occurring on any land vehicle or other premises -
		(a) of which the owner of the dog is an occupier; or
		(b) on which the dog is ordinarily kept.
		(3) This section does not apply in the case of an attack by a dog which is in immediate response to and is wholly induced by intentional cruelty to or intentional provocation of the dog by a person other than the owner of the dog, his servants or agents.
		(4) This section does not affect the liability apart from this section of any person for damage caused by a dog.
New secs. 20A, 20B, 20C.		(b) by inserting next after section twenty the following new sections:-
Liability where death caused.		20A. Where the death of a person is caused by: a dog wounding him, and the person (if death had not ensued) would, in respect of bodily injury to him caused by the wounding, have been entitled, pursuant to section twenty of this Act, to maintain an action against and recover damages from the owner of the dog, the wounding shall, for the purposes of the Compensation to Relatives Act of 1897, be treated as a wrongful act, neglect, or default such as would (if death had not ensued) have entitled the person injured to maintain an action against and recover damages from the owner of the dog in respect thereof.
Liability for injury to an animal.		20B. (1) The owner of a dog shall be liable in ] damages in respect of injury (whether fatal or not fatal) to another animal caused by the dog attacking, worrying or chasing it.
		(2) This section does not apply in the case of a dog attacking, worrying or chasing another animal on any land, vehicle or other premises
		(a) of which the owner of the dog is an occupier; or
		(b) on which the dog is ordinarily kept.
		(3) This section does not apply in the case of a dog attacking, worrying or chasing another animal where the attacking, worrying or chasing is in immediate response to and is wholly induced by intentional cruelty to or intentional provocation of the dog by a person other than the owner of the dog, his servants or agents.
		(4) This section does not apply in the case of a dog attacking, worrying or chasing another dog.
		(5) This section does not affect the liability apart from this section of any person for damage caused by a dog.
Contributory negligence.		20C. Where the owner of a dog incurs liability, which he would not incur but for section twenty or section 20B of this Act, to pay damages in respect of damage caused by the dog, and the damage is the result partly of contributory negligence on the part of the person who suffers the damage -
		(a) the liability of the owner to pay damages shall be treated for the purposes of Part III of the Law Reform (Miscellaneous Provisions) Act, 1965, as due to his "fault" and not as founded upon a breach of statutory duty;
		(b) the contributory negligence shall be treated, for the purposes of that Act, as "fault".
		PART V.
		AMENDMENT OF VARIOUS ACTS.
Amendment of Act No. 6, 1898.		13. The Impounding Act, 1898, is amended by omitting. section fifty-eight and by inserting in lieu thereof the following section:-
Subst. Sec. 58. Action for damages preserved.		58. The existence of any right given by this Act or its exercise shall not prevent any person from maintaining an action for damages on a cause of action which he would have otherwise.
Amendment of Act No. 7, 1913. Sec. 250. (Impounding and actions for trespass.)		14. The Crown Lands Consolidation Act, 1913. is amended by omitting from subsection one of section two hundred and fifty the words "trespass committed by stock" and by inserting in lieu thereof the words "the recovery of damages for damage caused by stock trespassing".
Amendment of Act No 41, 1919. Subst. Sec. 444.		15. The Local Government Act, 1919, is amended by, omitting section four hundred and forty-four and by inserting in lieu thereof the following section:-
No jurisdiction where title to land is in question. Cf. Impounding Act, 1898, s. 56.		444. (1) Nothing in this Part shall give jurisdiction to any justices in any matter where the title to land is bona fide in question.
Action for damages preserved. Cf. Impounding Act, 1898, s. 58.		(2) The existence of any right given by this Part or its exercise shall not prevent any person from maintaining an action for damages on a cause of action which he would have other wise.