Hartigan v Commissioner for Social Housing in the Act
[2017] ACTSC 100
•5 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hartigan v Commissioner for Social Housing in the ACT |
Citation: | [2017] ACTSC 100 |
Hearing Dates: | 13, 15, 16 July 2015 |
DecisionDate: | 5 May 2017 |
Before: | Penfold J |
Decision: | 1 Leave is granted to amend the statement of claim as set out in the draft amended statement of claim dated 15 July 2015, except that leave is not granted to amend the statement of claim to add proposed paragraphs [19A], [20A], [21A] and [22A]. 2 By 19 May 2017, the plaintiff is to file an amended statement of claim giving effect to the leave granted under order 1. 3 Judgment is entered for the defendant, with costs. |
Catchwords: | TORTS – NEGLIGENCE – General Principles – Duty of care – dangerous premises – Pitbull Terriers kept in public housing – whether tenant needed permission from Commissioner to keep dangerous dog in public housing – conventional occupier’s liability – whether dog formed part of the state of the premises – whether Commissioner owed duty of care to visitors to public housing – Commissioner’s capacity to control risk posed by presence of dangerous dogs in its leased premises – no duty on Commissioner to regulate keeping of dangerous dogs in public housing – keeping of dangerous dogs in general regulated by another authority – whether Commissioner liable as keeper of dogs kept in its leased premises. PRACTICE AND PROCEDURE – Amendment of statement of claim to add new basis of liability – no reasonable cause of action disclosed – leave to amend refused. |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 79, 86 Civil Law (Wrongs) Act 2002 (ACT), ch 4, ss 42, 43, 45, 110, 112, 168 Residential Tenancies Act 1997 (ACT), ss 76, 83 Unit Titles Act 1970 (ACT) |
Cases Cited: | Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 Bryan v Warwick & Anor [2002] WADC 192; 29 SR (WA) 152 Sullivan v Moody [2001] HCA 59; 207 CLR 562 |
Parties: | Jack Joseph Hartigan by his litigation guardian Joanna Elizabeth Mangan (Plaintiff) Commissioner for Social Housing in the Australian Capital Territory (Defendant) |
Representation: | Counsel Mr F Purnell SC (Plaintiff) Ms V Thomas (Defendant) |
| Solicitors Ken Cush and Associates (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 383 of 2013 |
Introduction
The plaintiff, an infant, brings action by his litigation guardian against the ACT Commissioner for Social Housing (the Commissioner), claiming that the Commissioner owed a duty of care to the plaintiff, breached that duty of care, and is accordingly liable to compensate the plaintiff for loss suffered by him as a result of the negligence of the Commissioner.
During the hearing, leave was sought to amend the statement of claim. Several of the proposed amendments were opposed, and leave was refused in relation to those amendments (at [299] to [322] below).
On 7 October 2010, the plaintiff, then aged six years, was taken to a house in Roe Street, Griffith, ACT (the Roe Street premises), which was managed by the Commissioner and occupied by Helen Hines (the tenant) who kept two dogs on the premises. Inside the house, one of the dogs attacked the plaintiff, causing him significant injuries. The dog was later destroyed.
It was conceded on behalf of the plaintiff that there was no point in taking action against the tenant because she was unlikely to be able to satisfy any judgment given against her.
Terminology
In evidence and submissions there have been numerous references to Housing ACT. I understand this to be another name for that part of the ACT administration headed by the Commissioner, and use this term where it is used in the evidence – no point has been taken about the different descriptions.
There are also numerous references in the material before me to Domestic Animal Services (DAS), which is another body within the ACT administration and which has responsibilities in relation to domestic animals in the ACT (at [84] and [85] below).
The two dogs involved in this case, including the one that was established to have attacked the plaintiff, are variously referred to in evidence and submissions as Pitbulls, Pitbull Terriers, Pit Bull Terriers and American Pitbull Terriers. No point has been taken about these discrepancies, and I have used the description “Pitbull Terriers” throughout, except in quotations from other material. There is also a mention of a “Staffy Cross” in one of the complaint records, but this does not seem to be a reference to the dog responsible for the attack.
The witnesses
Jack Hartigan
The plaintiff, Jack Joseph Hartigan (Jack), gave evidence that at the time of the incident he was six years old and was attending a primary school in Tuggeranong.
On the day of the incident he travelled to the address in Roe Street, Griffith with a school friend, Zack, and two adults, Mick (Michael Taylor) and Nicki (Nicki Sherring), one of whom had some clothes to deliver to the occupant.
When they arrived at the Roe Street address the occupant, Helen, opened the door. Two dogs were standing next to her; they were barking and seemed to be excited. He and the other visitors then waited at the door while Helen put the dogs in the backyard, before she let the visitors into the house.
Jack was in the lounge room with the adults when Nicki left the lounge room through a door leading to the kitchen. When she opened the door to the kitchen, Jack said:
the dogs came storming out... one of them ran past me ‘cause they missed me, and then the other one grabbed my leg.
Jack said that the dog bit his right leg and he fell to the ground:
and then the other dog got my head and it was basically a game of tug-of-war between the dogs. And it really hurt, from all the pain of them stretching me. And then the one on my leg let go and went onto my face.
Jack said that the dog then bit the left side of his face, around the area of his mouth and left nostril. The dog made contact with his left eye and knocked out his two front teeth.
The two dogs then began tugging at him again, before the adults responded. Jack said:
[Nicki] jumped on me and pulled one dog off for a little bit, until it growled and started barking, and then went for me again. And then Mick got up and then they all just started screaming, running around, and trying to tackle the dogs off. And then when they finally got the dogs off, they put them – they threw them in the backyard.
Immediately after the incident, Jack said, Helen had put a towel over his head, and then she and the other adults looked at his injuries. His parents were called and he was taken to hospital.
Jack described the injuries he suffered in the attack, which included scarring on his right leg and on his face around his mouth and left nostril. He said that his left eye is now “lazy” due to being struck by one of the dogs during the attack, and that he could not now grow hair on some areas of his scalp.
Since the incident, Jack has had to undergo several medical procedures, one of which involved the taking of a graft of skin from his leg to treat one of the wounds on his face, and another of which involved the stretching of skin on his head. He said that he was likely to undergo further procedures to address his injuries.
Jack said that after the incident he had not been able to participate in regular activities such as running, riding his bike or using a trampoline, but that this was no longer the case. The injuries to his mouth, which had required him to be fed through a tube for a short time after the incident, still caused him to occasionally bite his skin while attempting to chew.
Since the incident Jack has suffered nightmares and a fear of large dogs, and for a period ending a year or two earlier he had experienced bed-wetting. He said that the need to regularly attend hospital during school holidays meant that “I can’t have a lot of fun in the holidays, which bums me out”.
Under cross-examination Jack agreed said that he was currently able to play soccer without any difficulties attributable to the injuries he sustained in the incident, and that he was also able to run and ride his bike.
He said that he had seen a counsellor after the incident, but was no longer doing so.
Joanne Mangan
Joanne Mangan is the plaintiff’s mother and his litigation tutor in relation to these proceedings. On the day of the incident she went straight to the hospital to see Jack as soon as she heard he was injured.
That night she had waited for seven hours while her son underwent surgery, and he had then remained in hospital for between six weeks and three months thereafter, during which period he had three operations. Jack had appeared unhappy while he was in hospital, he was fed through a tube for a period, and at one point he was given morphine to treat his pain.
Jack had undergone 17 major procedures, in addition to some less-serious procedures which involved the injection of fluid into portholes that were implanted under his skin in an effort to stretch it; those procedures were intended to address his inability to grow hair on certain parts of his scalp.
Jack had been born with a “lazy eye”, but since the incident both of his eyes were now lazy; Ms Mangan said that “when he’s tired they roll and things like that”.
Jack had lost 13 teeth as a result of the incident, and he had since experienced difficulties with biting the inside of his mouth. He had begun to experience headaches since the incident, and Ms Mangan had not been aware of any such problems before the incident. He had also experienced difficulty walking in the immediate aftermath of the incident.
Since the incident Ms Mangan had observed her son experiencing “meltdowns”, during which he would become distressed and withdrawn. She had not noticed such episodes before the incident. She said that Jack still experiences bed-wetting, nightmares and difficulty sleeping and that, after the incident, bullying due to his obvious scars had affected his confidence.
Ms Mangan gave evidence that some time after the incident the tenant had contacted her to apologise for the incident; the tenant had expressed her fear that she might lose her house as a result.
A number of photographs were exhibited showing Jack’s injuries immediately after the incident, and at later stages of his treatment, including during the process of injecting fluid into implants placed under his skin in an effort to stretch the skin.
Gerald Silvey
Gerald Silvey lived in Roe Street, Griffith, in a property not far from the premises in which the incident occurred. Mr Silvey was called by the plaintiff.
Mr Silvey had lived in Roe Street since 1985, and the tenant had lived in the nearby property since 2004 or 2005. The tenant had continuously had dogs, primarily Pitbull Terriers, at her property since moving in.
Around 2008, the tenant had erected a sign outside her house saying “Dangerous Dogs”.
Mr Silvey said that the dogs kept by the tenant had regularly been seen outside her premises, and that they had managed to get out of the yard despite the installation of three different gates at various times. He explained that:
they’ve gotten out through the back fence, they’ve gotten out through the side fence, then subsequently through that neighbour’s back fence.
Mr Silvey said that over a number of years he and his wife had made many complaints in relation to the tenant’s dogs. Their complaints had been directed to Housing ACT and to DAS. Housing ACT had always told him to call DAS in relation to the dogs, and had never indicated that they bore any responsibility for animals or for the manner in which their tenants handled animals.
In November 2007 Housing ACT had written to Mr Silvey’s wife recommending that she maintain a diary of disturbances relating to the tenant, and that she make an official report to police. Mr Silvey said that he and his wife had followed this advice, maintaining a diary of events and then contacting police, although not in relation to the tenant’s dogs.
Mr Silvey said that dogs belonging to Ms Hines had been impounded a number of times, including on one occasion in April 2008.
In April 2008 Mr Silvey’s wife had told him that three dogs from the tenant’s residence had “bailed” her up and scared her. His wife had called DAS, who had attended the house and taken an affidavit from her. DAS staff had subsequently advised that two of the dogs from the tenant’s residence had been taken.
Mr Silvey said that on 30 May 2008 his wife had had contact with a staff member from Housing ACT, who had told her that Housing ACT would do nothing about the dogs at the tenant’s residence.
Mr Silvey was not aware of any action having been taken by Housing ACT to address the various complaints he had made concerning dogs at the tenant’s residence.
He said that the tenant had continued to keep dogs, which appeared to him to be Pitbull Terriers, on the premises in the years following the incident involving the plaintiff, and that he was aware of an incident in 2013 when the dogs escaped the yard and caused difficulties for a neighbour.
Under cross-examination Mr Silvey said that he and his wife generally directed their complaints concerning the tenant’s dogs to DAS, as “Housing had told us they didn’t want to have anything to do with them”.
He agreed that he was aware of rangers from DAS attending the property occupied by the tenant on a number of occasions, but he could not recall seeing them inspecting the property.
Documentary evidence
A large number of documents tendered on behalf of the plaintiff were admitted without objection, being:
(a)the tenancy agreement between ACT Housing and Helen Hines;
(b)the Commissioner’s Animals and Pets Policy (the Pets Policy);
(c)ACT Housing’s Crown lease over the relevant premises;
(d)a report from occupational physician Dr Leon Le Leu concerning the plaintiff’s injuries;
(e)a bundle of documents obtained from the Australian Federal Police (AFP) concerning police responses to the incident;
(f)a fact sheet concerning pets and animals that was distributed to ACT Housing tenants;
(g)two documents containing definitions of different kinds of residential premises; and
(h)records of complaints made to ACT Housing and Domestic Animal Services concerning dogs at the Roe Street premises, and correspondence created in response to those complaints.
Evidence of defendant’s involvement with tenant’s dogs
The documentary evidence included a considerable volume of material relating to the behaviour of the tenant’s dogs over an extended period, and the responses from Housing ACT and DAS to various complaints and notifications. It is unnecessary to canvass all that evidence in detail, but it is useful to refer at this stage to a sample of that evidence.
2005 and 2006
In February 2005, Housing ACT received a complaint from a neighbour of the Roe Street premises about (among other things) a dog at the premises that was constantly barking. Within the next week, officers of Housing ACT had gone to the premises twice and also contacted the RSPCA. The Housing ACT officer recorded that there were two dogs on the premises (one of which had barked constantly while she was there), and that the adult tenants of the premises had been incarcerated, but that the dogs appeared to be adequately fed and watered and that there was “nothing we can do”.
After this, Housing ACT or DAS received a further six complaints (at least five of them from Mr or Mrs Silvey) about the dogs from the Roe Street premises roaming the street, and two other complaints about the dogs at the premises. Complaints made to Housing ACT were re-directed to DAS, and DAS made at least five visits to the premises, at least two of which involved fence inspections.
2007
There were four complaints about the dogs from the Roe Street premises; two of them were made by the Silveys and reported the dogs roaming the street, the other two reported, respectively, that a dog from the premises had attacked a dog belonging to the complainant and that a dog from the premises had chased the complainant.
There was also a request from the dog pound to DAS to inspect the fence at the Roe Street premises in connection with a “Staffy Cross” that was considered to be dangerous. This inspection resulted in a “fail” for the fencing at the premises; among other things, the occupants had apparently been required to extend the height of the fences by “two feet”.
DAS seized a dog in connection with the attack on a complainant’s dog, left a notice at the Roe Street premises requiring a dog to be presented at the dog pound as a result of the complaint of chasing, and also checked the dog run at the premises in connection with a “dangerous dog licence”. There was no evidence whether the dog had been presented to the pound as required.
Housing ACT contacted the tenant about her dogs roaming the street, and advised her that if the situation was not rectified, she “might be served with a legal notice”.
2008
During the year, Mrs Silvey complained to Housing ACT, DAS and (jointly with Mr Silvey) to the Minister for Housing. Among other things, she reported in April that the dogs from the Roe Street premises “had her bailed up in the street on the weekend”. DAS made an unsuccessful attempt on 15 April to seize one or more dogs from the Roe Street premises, and some weeks later conducted a fence inspection at the premises.
In May the tenant advised an ACT Housing officer that her dog was now registered and in an approved dog run.
Housing ACT contacted the tenant several times, including by a letter dated 29 May noting the requirements that pets be kept under control, be kept on a leash when outside the premises, and not be allowed to interfere with the quiet enjoyment of the neighbours.
The letter from the Silveys to the Minister for Housing (at [51] above) was dated 24 June 2008; it mentioned a variety of complaints against the tenant, but relevantly referred to:
continuing breaches of requirements to keep dogs on leashes in ordinary street environment, exposing persons and other pets to attack from the bull terrier crosses and mastiff.
The Minister’s reply, dated 22 July 2008, assured the Silveys that Housing ACT took seriously allegations about inappropriate behaviour by public house tenants. It also enclosed a fact sheet about the legislative requirements for owning a dog in the ACT, and action that could be taken if dogs caused a nuisance, and recommended reporting such nuisance to DAS.
In July, Housing ACT wrote to the tenant about complaints that did not refer to the tenant’s dogs, but alleged that she and her guests:
are continually causing disturbances around [her] neighbourhood [and that she continues] to yell, scream and use fowl [sic?] language to all hours of the day and night.
The letter gave the tenant 14 days notice to remedy the breach of her obligation under her tenancy not to cause or permit nuisance, and not to interfere, or permit interference with, the quiet enjoyment of occupiers of nearby premises, and warned that a failure to remedy that breach would result in Housing ACT “commencing legal action through the Residential Tenancies Tribunal to seek a compliance order”.
In November, DAS received a complaint from Mrs Silvey about a “roaming” dog from the Roe Street premises. DAS officers went to the Roe Street premises but could not see any dog; they warned the tenants at the premises orally about allowing the dog to roam the street, and reminded them that the dog needed to be re-registered.
2009
There was one report to Housing ACT about the dogs from the Roe Street premises (received on 29 July). The complaint was recorded as follows:
Dogs are out at night and in the day, dogs did attack another dog and injured it badly police were called. Caller is very concerned about young children walking home from school. She stated it seems to her that someone has to be hurt or killed before anyone will do something about these tenants.
Some weeks later Housing ACT officers visited the premises, where the tenant told them that the dogs stayed in the house overnight and in the backyard during the day. The file note made by the Housing ACT officer on 17 August said:
I discussed the issues with the tenant, she advised the dogs stay inside the house over night and remain [in] the back yard through the day. I am satisfied with this due to the care she took with the dogs while at the property and discussions of this matter being bought [sic] up previously.
Counsel for the defendant submitted that the officer’s mention of the care taken by the tenant indicated that the officer was satisfied that the dogs posed no risk inside the house.
May and June 2010
DAS received a complaint on 17 May that two Pitbulls from the Roe Street premises were “jumping over fences into the backyard of residences and harassing people”, and that there were holes in the dogs’ yard. DAS officers went to the premises promptly and observed the dogs to be “extremely aggressive” and to be jumping in and out of four different yards. Police were called, and with their help one dog was caught and impounded, but the other dog could not be caught.
DAS officers returned to the premises the next day, and impounded the other dog. They inspected the fences but found “no issues with the padlock and fencing”. Arrangements were made for the dogs to be de-sexed.
DAS imposed on the tenant infringement notices of $100 in respect of each dog, and advised, by letter dated 8 June, that the dogs would only be returned to the tenant on conditions that:
(a)a fully-enclosed escape-proof dog yard be erected on the premises;
(b)the dogs were under the control of a responsible person aged at least 18 years, on adequate leashes or chains, and wearing muzzles, whenever they left the Roe Street premises; and
(c)the dogs be kept under effective control while on the premises so as to prevent them attacking or harassing another animal or a person.
On 18 May, Mrs Silvey reported the 17 May incident to Housing ACT, which replied on 19 May by letter recommending that Mrs Silvey seek help from DAS in relation to “disruptive animals”.
On 18 June DAS officers inspected the Roe Street premises, and recorded:
Fully enclosed dog yard had been [installed], gates self closing with padlock and fencing all good.
The tenant agreed to comply with the conditions outlined at [64] above, and was allowed to re-claim her dogs, apparently some time after 23 July when, the records indicate, the dogs were transported to the RSPCA for de-sexing.
July and early October 2010
Housing inspections were conducted at the premises on 12 July and 5 October. After the 5 October inspection, the Housing ACT officer recorded:
Nobody home – left a calling card.
Had falling out with her daughter a couple of weeks ago. Tnt advised that she has broken into her house as locks are not secure. Front SSD is also not secure as if you lock it with the key, you can flick the switch to unlock. Wants house to be secured properly.
Disputes sundry debt from 2005. Was incarcerated at time. HM to follow up + send copy of invoice + stat dec
Front & back lawn needs mowing
There were no complaints about the dogs until the plaintiff was attacked on 7 October.
After the attack on the plaintiff
Complaints about the dogs on the premises were received in January 2012 and August 2013.
Summary
It seems from this evidence that before the plaintiff was attacked:
(a)the tenant’s dogs were, much of the time, registered as dangerous dogs (for instance, at [58] above there is a reference to the tenants being “reminded” of the need to “re-register” the dogs);
(b)Housing ACT was aware that the tenant’s dogs were regarded as troublesome by the neighbours (apparently with justification, even before the attack on the plaintiff), and had repeatedly reminded the tenant of her obligations in relation to the behaviour of her dogs;
(c)DAS:
(i)had conducted a number of fence inspections, usually finding that the fences, gates and locks were appropriate and in working order;
(ii)had more than once either impounded a dog belonging to the tenant or given notice to the tenant requiring her to present the dog to the pound (although it is not clear whether the notices were complied with or whether any non-compliance was followed up); and
(iii)had responded quickly to the complaint about current dangerous activity by the dogs (as distinct from complaints about past activity), had impounded both dogs as quickly as possible, and had taken other steps to deal with the ongoing issues (at [62] to [66] above);
(d)although there were numerous complaints about the dogs roaming the street, there had been no complaints about the behaviour of the dogs while on the Roe Street premises.
The regulatory background
An overview of the regulatory background against which the events dealt with in this proceeding took place is useful in considering some of the plaintiff’s submissions.
Housing Assistance Act
The defendant is the Commissioner, a corporation established by s 9 of the Housing Assistance Act 2007 (ACT). The defendant’s functions, set out in s 11 of that Act, relevantly include:
(a)administering, on behalf of the Territory, programs and funding arrangements for delivering housing assistance in the ACT by way of—
(i) public rental housing; and
(ii) home ownership; and
(iii) financial assistance to home owners and tenants; and
(iv) community housing; and
(v) affordable housing;
The main objects of the Housing Assistance Act are set out in s 6(1) of that Act, and relevantly include the following:
(a)to maximise the opportunities for everyone in the ACT to have access to housing that is affordable, secure and appropriate to their needs; and
(b)to facilitate the provision of housing assistance for those most in need;
Subsection 6(2) says:
A person administering this Act must have regard to the objects of the Act to the maximum extent practicable considering the resources available to the person.
Residential Tenancies Act
In providing housing, the defendant operates under the provisions of the Residential Tenancies Act 1997 (ACT), which among other things provides standard clauses for residential leases in the ACT. That Act permits additional provisions to be included in residential leases, except for provisions that are inconsistent with, or modify, the standard clauses.
Under s 76 of that Act, the ACT Civil and Administrative Tribunal (ACAT) has jurisdiction “to hear and decide any matter that may be the subject of an application to the ACAT under” the Act or the standard residential tenancy terms. That jurisdiction was until 2009 conferred on the Residential Tenancies Tribunal.
The Residential Tenancies Act also provides for action to be taken by lessors in relation to breaches of tenancy agreements. The standard terms for tenancy agreements (included in Attachment A to the tenancy agreement in relation to the Roe Street premises) set out the circumstances in which a tenancy may be terminated at the instigation of the lessor. These are, in brief:
(a)for failure to pay rent (cl 92, requiring an order by the Tribunal (ACAT));
(b)for breach other than non-payment of rent (cl 93, requiring an order by the Tribunal (ACAT));
(c)with 26 weeks notice, but not so as to require a tenant to vacate during a fixed term of the tenancy (cl 94); and
(d)during a periodic tenancy, with four weeks notice if the lessor, a family member or other person with a relationship with the lessor is to move into the premises; with eight weeks notice if the lessor intends to sell the premises; and with 12 weeks notice if the lessor intends major building work in the premises (cl 96).
Thus, the defendant could evict a tenant who is in breach of a term of the tenancy agreement by giving 26 weeks notice (unless that period would finish within a fixed term of the tenancy), or, for a breach of the tenancy agreement, by obtaining an order from ACAT.
Section 83 of the Residential Tenancies Act sets out the orders that may be made by ACAT in dealing with a tenancy dispute. Those orders include an order giving vacant possession of the premises to an applicant (what might be described as an “eviction order”) (s 83(i) of the Act), but also include orders restraining action in breach of a residential tenancy agreement or requiring performance of a residential tenancy agreement (ss 83(a) and (b)); the latter is probably what is referred to in the plaintiff’s submissions from time to time as a “compliance order”.
There is no guarantee that the defendant could have obtained a compliance order, or an eviction order, quickly or indeed at all, and such an order would have been subject to appeal within ACAT and then to the Supreme Court (ss 79 and 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT)).
Furthermore, there is no guarantee that ACAT would have agreed to make either a compliance order or an eviction order if the tenant’s “breach” did not involve keeping a dog that had caused a nuisance, or interfered with the quiet enjoyment of the neighbours (cl 71 of the standard clauses) but simply involved, for instance, keeping a dog that had been identified, and was registered, as a dangerous dog in accordance with the requirements of the Domestic Animals Act 2000 (ACT).
Pets Policy
In its capacity as the lessor of public housing, the Commissioner maintained and implemented the Pets Policy (relevant extracts are set out at [173] below).
Domestic Animals Act
The keeping of domestic animals in the ACT is regulated under the Domestic Animals Act. That Act provides, among other things, a general registration system for dogs kept in the ACT, which includes a more stringent system of licences for dogs that have been identified as “dangerous” by declaration made by the registrar under s 22 of the Act. The Act also includes provisions for the destruction of dogs in certain circumstances, creates offences in connection with the keeping and supervision of dogs, and renders the keepers of dogs liable for injuries or damage caused by dogs in certain circumstances.
Powers under the Domestic Animals Act may be exercised by authorised persons appointed by the relevant director-general. Such a person may not exercise powers without first showing his or her photographic identity card (s 125). There is no apparent bar to officers of Housing ACT being appointed as authorised persons under the Domestic Animals Act, but such people would, in relation to the regulation of dangerous dogs, be exercising the powers of an authorised person under the Domestic Animals Act, not powers conferred on the Commissioner.
Regulation of Pitbull Terriers
The defendant says that in the ACT, unlike NSW, there are no prohibited breeds of dog. This is not challenged by the plaintiff.
The plaintiff drew attention to Schedule 1 to the Customs (Prohibited Imports) Regulations 1956 (Cth), which includes “American pit bull terrier or pit bull terrier” under a heading “Goods the importation of which is prohibited absolutely”. This may confirm that the presence of such dogs in Australia is seen, at least by the Commonwealth government and Parliament, as undesirable, but it does not establish anything about the defendant’s obligations in relation to the management of its tenancies.
The pleadings
In the statement of claim, the duty of care asserted is identified as a duty of care to the plaintiff:
13.1. to ensure the plaintiff would not suffer injury or damage while visiting the Property; and
13.2. to ensure the plaintiff would not suffer injury or damage because of the state of the Property; and
13.3 to ensure the plaintiff would not suffer injury or damage because of the defendant’s failure to remedy the state of the Property; and
13.4. in accordance with section 168 of the Civil Law (Wrongs) Act 2002.
In an amended statement of claim sought to be filed at the end of the hearing, some parts of which were resisted by the defendant (at [304] to [322] below), the plaintiff sought to add further elements to the duty said to be owed to the plaintiff, as follows:
13.5. to ensure that Helen Hines, the tenant, would not be allowed or permitted to have an American Pitbull dog on the property;
13.6. to ensure that no American Pitbull dogs were on the property at all;
13.7. to ensure no prohibited breed dogs namely an American Pitbull dog was on the property; and
13.8. to ensure a pet policy that provided a safe environment for residents, visitors and guests at the property.
The plaintiff also sought to add, into the statement of claim, a further statement of the defendant’s duty of care, as follows:
13A. The defendant as occupier of the property owed a duty to persons coming onto the property to ensure that anyone on the property did not suffer injury or damage because of the state of the property or things done or omitted to be done about the state of the property.
Basis of the plaintiff’s claim
In the course of the hearing and immediately thereafter, the plaintiff provided at least six sets of written submissions, five dated respectively 17 June 2015, 7 July 2015, 14 July 2015, 16 July 2015 and 20 July 2015, and one undated.
Two of the submissions provide a fairly orthodox recital of the facts and the legal arguments relied on, and arguments in response to the defence submissions.
The other four submissions (which rely heavily on the use of words entirely in upper case and bold fonts, claims that the defendant’s submissions are “nonsense”, and reminders of earlier submissions), make increasingly shrill claims about the defendant’s liability and rely increasingly heavily on particular findings by Mossop M in Harris v Commissioner for Social Housing [2013] ACTSC 186; 8 ACTLR 98 (Harris), despite the considerable factual differences between Harris and the current case.
I have struggled to draw these various submissions into a coherent set of arguments that can be sensibly addressed.
The plaintiff relies on two separate Acts in claiming that the defendant is liable for the injuries suffered by the plaintiff, being the Wrongs Act, and the Domestic Animals Act. Under the draft amended statement of claim, it seems that two different duties are asserted to arise from the defendant’s capacity as an occupier of the Roe Street premises, but it is not clear:
(a)whether the nature or scope of those duties is said to be different depending on whether the duty is owed to the plaintiff or to “persons coming onto the property” more generally; or
(b)whether the proposed additional duty is said to arise only under s 55 of the Domestic Animals Act or whether it is also said to arise under the Wrongs Act by reference to a different incident of the defendant’s capacity as a “occupier” of the Roe Street premises.
Claim under Wrongs Act – the arguments
The plaintiff’s primary claim is covered by ch 4 of the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act).
What needs to be shown by the plaintiff
The Commissioner says that the plaintiff must show:
(a)that the Commissioner owed him a duty of care;
(b)that the duty was breached, having regard to ss 42 and 43 of the Wrongs Act; and
(c)that the breach of duty “caused” the plaintiff’s injuries as explained in s 45 of that Act.
Section 42 describes the standard of care required of a defendant who owes a duty of care. Section 43 identifies the pre-requisites for a finding of negligence involving a failure to take precautions against a risk of harm.
Operation of public and other authorities
Section 110 of the Wrongs Act sets out principles that apply in decisions about whether a public or other authority has, or has breached, a duty of care. Those principles relate to matters including the limited resources available to such authorities and the scope for challenging the allocation of resources by the authority.
Section 112 of the Wrongs Act restricts the circumstances in which a public authority may be liable under that Act for a failure to exercise or to consider exercising a function of prohibiting or regulating an activity.
Existence of duty of care under s 168
The plaintiff says that, under s 168 of the Wrongs Act, the defendant is liable as the occupier of the Roe Street premises for the state of those premises. As the occupier, the defendant owes a duty of care to “anyone on the premises”; that duty is “to take all care that is reasonable in the circumstances to ensure that such a person does not suffer injury or damage because of ... the state of the premises” (s 168(1)).
The plaintiff notes that s 168 replaces the common law rules about the standard of care required of a occupier, but does not affect other common law rules about occupiers’ liability or any statutory or contractual obligations of an occupier.
Next, the plaintiff says that when he was on the Roe Street premises, he was a person to whom a duty under s 168 would be owed. This is not disputed.
The plaintiff also says that the presence of a dog on the premises is an aspect of “the state of the premises”.
If the presence of dogs on the premises was an aspect of the state of the premises for which the defendant was responsible or which the defendant could control, then the steps that could have been taken to ensure that people on the premises did not suffer injury or harm as a result of the dogs’ presence would have been to exclude the dogs from the premises or, possibly, to give and enforce directions about the management of dogs on the premises. If the defendant did not have the capacity to exclude the dogs from the premises, or even to give and enforce directions about the keeping of the dogs, then it could not control that aspect of the “state of the premises”, and there were no reasonable steps that the defendant could or should have taken.
In support of the claim that the defendant was liable to the plaintiff for the particular injury the plaintiff suffered while he was on the Roe Street premises, the plaintiff then makes submissions in relation to a number of the matters that are commonly considered by courts in determining whether a duty of care is owed to a plaintiff. However, it is notable that, in the draft amended statement of claim, some of these matters are raised not in relation to the pleaded liability under s 168 but in relation to what appears to be an entirely separate claim against that defendant that is said to arise under the Domestic Animals Act. These matters are discussed further at [239] and following below.
Breach of duty of care
The plaintiff says that the defendant breached its duty of care to him by failing to take reasonable steps to ensure that he was not injured as a result of the state of the Roe Street premises (including the presence of two dangerous dogs).
The exact nature of that asserted breach, or of the reasonable steps that the plaintiff says should have been, but were not, taken, is not so clear. The draft amended statement of claim lists 14 particulars of negligence, as follows:
14.1.Failing to ensure the Property was safe;
14.2.Failing to enforce the terms of the Tenancy Agreement;
14.3.Failing to require the Tenant remedy the breach of the Tenancy Agreement;
14.4.Failing to require the removal of the Dog at the Property prior to 7 October 2010;
14.5.Failing to ensure the Property was suitable for the keeping of the Dog;
14.6.Allowing and/or permitting the Dogs to remain on the property;
14.7.Failing to heed and/or act on its knowledge of the dangers of the Dogs;
14.8.Failing to assess the Dogs properly or at all for their suitability to remain on the property;
14.9.Failing to manage, supervise or control the Dogs adequately or at all;
14.10.Allowing the dogs to be inside the house on the property.
14.11.Failing to ensure the safety of visitors on or upon the property.
14.12.Permitting American Pitbull dogs to be on the property at all.
14.13.Permitting a prohibited breed dog namely an American Pitbull to be on the property.
14.14.Having a pet policy that did not ensure a safe environment for residents, visitors and guests at the property.
There is some inconsistency in these particulars of negligence, given that, while most of them seem to amount to a failure to prevent the keeping of the dogs on the premises at all, several of them (for instance, particulars 14.5 and 14.8) appear to contemplate arrangements under which the dogs might have been permitted to remain on the property. Likewise, in the plaintiff’s written submissions there are references to a failure to exclude the dogs from the premises, but also references to the defendant’s failure to give certain directions to the tenant about the arrangements under which the dogs are kept.
If the plaintiff’s basic proposition is that the defendant’s obligation was to ensure that dangerous dogs were not kept by its tenants on its premises, then the only relevant action by the defendant would seem to have been prohibiting the keeping of such dogs and enforcing that prohibition in whatever way was necessary. However, the directions suggested by the plaintiff, both in the amended statement of claim and in submissions, provide a broader range of options, and to that extent raise questions about causation.
As well, the plaintiff refers in submissions to other apparently more remote failures by the defendant, including:
(a)a failure to act under the Pets Policy by asking for licence or registration details for the dogs;
(b)a failure to seek further information to enable consideration of whether the dogs were suitable “pets” to be kept on the Roe Street premises; and
(c)a failure to review the Pets Policy in the light of knowledge of the dangerous propensities of certain dogs, including in particular Pit Bull Terriers.
The plaintiff also raises the need for a policy to be consistent with relevant legislation (Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 (Drake)), but without identifying the legislation said to be relevant or the nature of any inconsistencies between the Pets Policy and the allegedly relevant (if unidentified) legislation.
Causation
The plaintiff’s submission about causation is that “common sense dictates” that if the defendant had prevented the tenant keeping the dogs on the Roe Street premises, the plaintiff would not have been injured.
This submission is problematic in several ways, but particularly to the extent that the defendant’s alleged breach of duty is expressed not as a failure to exclude the dogs from the premises but as a failure to give directions aimed at excluding the dogs or ensuring that the dogs were properly restrained at all times.
Authorities relied on
In the plaintiff’s submissions, particular reliance is placed on several decided cases, being:
(a)Modbury Triangle v Anzil [2000] HCA 61; 205 CLR 254 (Modbury Triangle);
(b)Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 (Adeels Palace);
(c)Karatjas v Deakin University [2012] VSCA 53; 35 VR 355 (Karatjas); and
(d)Harris, a case involving an unsuccessful claim against the Commissioner for injury caused by the tenant of one of the Commissioner’s dwellings to the tenants of nearby dwellings.
Claim under Domestic Animals Act – the arguments
The plaintiff’s second claim, also pleaded under a “negligence” heading, is made under the Domestic Animals Act. Section 55 of that Act imposes on the keeper of a dangerous dog a strict liability for injury or damage caused by the dog.
The parties agree that the tenant would be liable under s 55 for the injuries suffered by the plaintiff, but as I have already noted, she has not been sued because she is assumed to have no way of meeting any damages award made against her.
However, in an attempt to overcome this problem, the plaintiff seeks to attribute that undisputed liability of the tenant to the defendant as the lessor of the premises occupied by the tenant. The plaintiff says that the defendant is also a keeper of the dog, and is “coextensively and concurrently” liable with the tenant under s 55 for the injuries suffered by the plaintiff. The plaintiff pleads that:
the defendant was vicariously responsible to the plaintiff for the strict liability of [the tenant] as keeper of the Dogs whilst the Dogs were on the property with the knowledge and control of the defendant [and that] the defendant had a special duty to the plaintiff whilst the Dogs were on the property which required the defendant to ensure that reasonable care was taken to all persons coming onto the property.
The defendant’s control over the keeping of dogs
The arguments
The defendant’s role in, and responsibility for, the keeping of dogs on the Roe Street premises is central to this case. It is vital in the determination of whether the defendant owed a duty of care and, if so, whether that duty was breached. It is also fundamental to the claim that the defendant is jointly liable with the tenant under the Domestic Animals Act.
It is accordingly convenient to deal first with the various factual questions that arise in relation to that issue.
The plaintiff says that the Commissioner, as the lessor of the Roe Street premises, had a right to control the keeping of dogs on those premises, and a responsibility for the keeping of any such dogs (either a responsibility that was imposed on it in some way, or a responsibility that it had by its actions assumed).
The defendant’s capacity to control is said to arise under the terms of the tenancy agreement entered into between the defendant and the tenant.
The plaintiff also points out that under the Pets Policy, the defendant had a right to ask the tenant to give licence or registration details for the dogs kept by her.
Next, the plaintiff says that the Pets Policy was inadequate, in that it did not require tenants to give information to the defendant to enable the defendant to determine whether a particular animal was appropriate to be kept on premises leased from the defendant; and it had not been reviewed taking account of the known dangers of dogs in general and the dangerous propensities of certain breeds of dogs in particular, including American Pitbulls such as the dog responsible for the attack on the plaintiff.
Finally, the plaintiff says that the defendant may not have considered the dangers of keeping certain pets in its premises.
The Commissioner concedes that it was the lessor of the Roe Street premises, where the dogs were kept, but says that it had no right to take any steps against the tenant in respect of her keeping pets in those premises, in particular because Attachment C of the tenancy agreement did not apply to the tenant’s tenancy.
The tenancy agreement
The tenancy agreement signed by the tenant Ms Hines consists of a “Schedule of Tenancy Details” and Attachments A, B, C, and D. The Schedule sets out the specifics of the tenancy such as the address of the property, the name of the tenant and the rent payable, and refers to the attachments in the following recital:
I acknowledge receipt of the following which set out the terms and conditions of this Tenancy Agreement, and that I have read and understood these documents:
Attachment A Prescribed Terms of the Residential Tenancies Act 1997
Attachment B Commissioner’s Additional Terms
Attachment C Rules of the Complex – Flat/Townhouse/Aged Persons Unit*
Attachment D Special Conditions*
Attachment E Energy Efficient Rating Statement
Attachment A, despite its description, appears to set out the terms of the tenancy, not the terms of the Residential Tenancies Act. The terms of the tenancy, however, are essentially the contents of Schedule 1 to the Residential Tenancies Act as that Act was in force on the date the agreement was signed (there are minor differences in such things as numbering and formatting).
Attachment A contains a variety of provisions that as expressed will not be applicable to all tenancies. For instance, clause 13 of Attachment A requires the lessor to provide certain information to the tenant, and that information is different for premises that are under the Unit Titles Act 1970 (ACT); clause 14 says that payment of a bond is not necessary unless required by the lessor; clauses 15 and 16 make provisions for any required bond; and clauses 17 to 20 make provisions that apply only where a bond is required or apply only where a particular party is required to lodge the bond with the Office of Rental Bonds. Attachment A does not even appear to be specific to tenancies for premises managed by the Commissioner.
Attachment B contains what are described in the attachment as “Commissioners [sic] Additional Terms”. These include provisions limiting who may live at a property rented from the Commissioner, provisions for payment of rent, and provisions dealing with renovations and alterations made by tenants. Like Attachment A, this attachment also contains provisions that are not applicable to all tenancies. In particular, clause 14 says:
If the Property is a flat, townhouse or Aged Persons Unit, Tenants must comply with the applicable Rules of the Complex.
Attachment C is the “Rules of the Complex” referred to in Attachment B. It is expressed to apply to “Flat/Townhouse/Aged Persons Unit”. The Rules include:
6. Pets must not be kept without written permission from the Commissioner.
Attachment D is headed “Special Conditions” and contains a single provision requiring rent to be paid by direct deduction from the tenant’s entitlements under the Social Security Act 1991 (Cth).
Attachment E was not attached to the exhibited copy of the tenancy agreement. It is not clear, but it does not seem to matter, whether it was intended to be part of Ms Hines’ tenancy.
The tenancy agreement is clearly a multi-purpose or template agreement. As noted, it contains a variety of provisions that that will not be applicable to all tenancies.
The Roe Street premises
The Crown lease under which the Commissioner held the Roe Street premises includes a plan showing a block roughly 45m x 18m in size, with what is described as a “brick residence” constructed against one side boundary of the block, and sharing a party wall with a similar house constructed on the adjoining block. In my view, the building on the block is properly referred to as a semi-detached house (although this does not necessarily exclude other descriptions of the building).
Operation of tenancy agreement
The plaintiff says that under Attachment C in the tenancy agreement, the tenant needed the Commissioner’s permission to keep dogs on the Roe Street premises, and that this is the source of the defendant’s capacity to control the presence of dogs on those premises.
The defendant says that Attachment C, and in particular the requirement to obtain written permission from the defendant before a pet may be kept, does not apply to Ms Hines’ tenancy, since the tenancy does not relate to a flat, townhouse, or aged persons unit.
The plaintiff makes two main points in support of the submission that Attachment C applies to the tenancy; he relies:
(a)first, on the inclusion of Attachment C in the bundle of documents making up the tenancy agreement and initialled by the tenant; and
(b)secondly, on the proposition that the premises are a townhouse or flat within the meaning of Attachment C.
Inclusion of Attachment C in tenancy document
Every page of the tenancy agreement signed by the tenant, Ms Hines, has been initialled, apparently by Ms Hines. That includes Attachment C. The plaintiff argues that Attachment C is therefore applicable to the tenancy and submits, curiously in my view, that if I find that Attachment C was not applicable to the tenancy, I must decide why the tenant was required to sign it.
As set out at [127] above, the tenant’s acknowledgement is that she has received the tenancy agreement and a number of attachments (the tenancy documents), and has “read and understood these documents”. I am satisfied that this is not in any sense an acknowledgement by the tenant that every part of the tenancy documents received and initialled applies to her tenancy, and nor, for present purposes, could any such acknowledgement override the explicit provisions within the documents specifying the limited application of various elements of those documents.
In other words, the fact that the tenant has initialled Attachment C does not establish that Attachment C is applicable to her tenancy. At most it may be taken to show an acknowledgement by the tenant that she has received, read and understood Attachment C. That form of acknowledgment is not inconsistent with the tenant’s understanding being that Attachment C did not apply to the tenancy – although in this case, what the tenant understood about the significance of Attachment C seems to be irrelevant.
Rather, it is necessary to look to the contents of the tenancy agreement to determine whether Attachment C applied to the tenancy in this case.
Scope of Attachment C
Clause 13 of Attachment B says that Attachment B has precedence over the “Rules of the Complex”. Clause 14 of Attachment B, also initialled by the tenant, states that Attachment C only applies to a “flat, townhouse or Aged Persons Unit”, and Attachment C is explicitly applicable only to such dwellings.
There has been no claim that the Roe Street premises were an aged persons unit, but the plaintiff says that Attachment C applied to the premises because those premises were a flat or townhouse.
The defendant says, however, that the tenancy did not relate to a flat or townhouse within the meaning of Attachment C and cl 14 of Attachment B.
Reference to “Flat” in Schedule of Tenancy Details
The plaintiff points to the fact that the Schedule of Tenancy Details describes the premises subject to the tenancy as “Flat 000 Block 00[xx] Section 048 Division 220 Address [xx] Roe Street, Griffith ACT 2603”, and says that therefore it “defines the premises as a flat”.
I am satisfied that this description is a template one which is used for various properties managed by the Commissioner, and that the insertion of “000” as the “Flat” identifier does not mean that the property is a flat numbered “000”, but means instead that the property does not have a number identifying it as a flat, and implies that the property is not treated as a flat by the lessor (ie the Commissioner). This is not a basis on which I could find that the Roe Street premises were a flat.
Meaning of “townhouse”
Next, the plaintiff submits that there are meanings legitimately given to “townhouse” that could include the Roe Street premises. These meanings are not, however, found in the tenancy agreement.
First, the plaintiff refers to the Australian Census dictionary published by the Australian Bureau of Statistics, which contains, under the heading “Dwelling Structure”, a “definition” of “townhouse” as follows:
Semi-detached, row or terrace house, townhouse, etc.: These dwellings have their own private grounds and no other dwelling above or below them. They are either attached in some structural way to one or more dwellings or are separated from neighbouring dwellings by less than half a metre.
This “definition”, or more accurately this category description, is contrasted, in the Census document, with headings of “Separate house” and “Flat, unit or apartment”.
The relevant category has been adopted for the purposes of the Census (specifically, to classify “the structure of private dwellings enumerated in the Census”) and is used “to monitor changes in housing characteristics, to help formulate housing policies and to review existing housing stock”. It is not immediately or obviously relevant to whether the Roe Street premises can be identified as a flat or a townhouse for the purpose of Attachment C of the tenancy agreement.
Perhaps more importantly, this is not a true definition which gives a meaning to a specified expression. The “definition” relied on simply brings various different kinds of dwellings into one of several categories against which numbers of dwellings are recorded; the “definition” would operate in the same way if the description of the dwellings that included townhouses was headed, for instance, “Category two”, but it would be clear in such a case that the fact that a dwelling fitted one of the descriptions included in the category did not mean that the dwelling also fitted any or all of the other descriptions included in that category.
As already noted, the tenancy relates to a dwelling that in my view is properly described as a semi-detached house. The house has its own private grounds and is “attached in some structural way to” the house on the adjoining block. Thus, it probably would be counted for Census purposes under the “Semi-detached, row or terrace house, townhouse” category. However, the fact that the Roe Street premises, as a semi-detached house, seem to fall within the category headed “Semi-detached, row or terrace house, townhouse” does not establish that it is also, or alternatively, a “townhouse” as distinct from a “semi-detached house”. The Census category may provide for several kinds of dwellings to be counted under a single heading, but this does not mean that each such dwelling is properly described by the names of all the kinds of dwellings mentioned in that heading.
As well, the defendant submits that interpreting the expressions “flat” and “townhouse” by reference to the rest of the tenancy agreement confirms that the Roe Street premises, not being part of any kind of residential “complex”, are not intended to be covered by those expressions. Other provisions of the tenancy agreement relied on by the defendant are:
(a)the definition of “complex” in Attachment B (cl 13), which refers to “the block of flats or units which includes” the property subject to the tenancy;
(b)the reference in cl 16 of Attachment B to “Additional Areas”, which includes “any balcony, courtyard, or garden and any garage, carport, storage area or other part of the Complex allocated for the sole use of the Tenants” under the tenancy agreement; and
(c)the references in Attachment C to stairwells, lifts, passageways and landings, and to rules regarding access to laundries and other shared facilities, and to parking spaces.
The exclusion of the Roe Street premises from Attachment C would also be consistent with the “fact sheet” description of premises to which the “Rules of the Complex” apply (albeit that the description is inconsistent with the words of the tenancy agreement) as “a flat, unit or apartment managed by a body corporate under the Unit Titles Act 2001”.
Finally, the plaintiff provided definitions of “town house” from the online Merriam-Webster dictionary (Merriam-Webster Dictionary, town house < being:
a house that has two or three levels and that is attached to a similar house by a shared wall
a house in the city or town; especially: a house in the town or city owned by someone who also has a house in the country
a house in town; specifically: the city residence of one having a country seat or having a chief residence elsewhere <stayed at their town house during the social season>
a usually single-family house of two or sometimes three stories that is usually connected to a similar house by a common sidewall; also: ROW HOUSE
The plaintiff relies in particular on the last definition, but there is no evidence before me that the Roe Street premises had two or more storeys. In any case, there is no reason why I would assume that the tenancy agreement provided under ACT legislation and used by the body responsible for public housing in the ACT was drafted by reference to an American dictionary.
The defendant referred to the Macquarie Dictionary definition of “townhouse”:
one of a group of dwellings each sharing a common wall with another, each sold under strata title, and each with ground floor access.
The Roe Street premises might fall under this definition, if two houses can be described as a group, and if those premises are covered by a strata title (or, in the ACT, unit title). There is, however, no evidence that the premises fall under the ACT’s unit titles legislation, and nor is that suggested by the form of the Crown lease (see also Lucas v Commissioner for Social Housing for the ACT [2011] ACTSC 11 at [22]).
Definition of “premises”
The plaintiff also claims to rely on the definition of “premises” as set out in the Residential Tenancies Act, which is as follows:
“premises” includes –
(a) any habitable structure, whether it is fixed to the land or not; and
(b) part of any premises; and
(c) any land, buildings or structures belonging to the premises.
The plaintiff says that this definition “gives context and meaning to the defendant’s tenancy agreement”, but without explaining what particular (or relevant) context or meaning it gives.
I accept that this definition is relevant to interpreting a tenancy agreement under the Residential Tenancies Act: For instance, the definition would be useful in answering a question about whether the tenancy agreement applied to the backyard of the house. However, I cannot see how this definition supports the proposition that the Roe Street premises are any particular kind of premises mentioned in the tenancy agreement.
Need to include free-standing houses
Finally, the plaintiff argued that as a matter of policy, even free-standing houses should have been covered by the requirement to obtain written permission for the keeping of pets. The submission is as follows:
10.The contention that a freestanding house would be excluded from requiring written permission and any involvement by the defendant as to the keeping of pets is inconsistent and directly at odds with the defendant’s own specific Animals and Pets Policy which recognises “the need for Housing ACT to protect and maintain its stock of dwellings” and “the dangers inherent in keeping a dangerous or vicious animal” upon the property.
11.If the defendant’s contention is correct, it would follow that the defendant, as an occupier, specifically did not consider the dangers of keeping pets upon the property.
I do not accept that the quoted material from the Pets Policy (at [173] below) is inconsistent with confining, to relatively high-density complexes, the requirement to obtain the Commissioner’s written permission before a pet can be kept.
Pet-keeping in higher-density complexes has potentially a far greater impact on other residents of such complexes than pet-keeping by residents of larger premises without common property and with more separation between the premises. This would justify greater regulation of the keeping of pets in such complexes.
On the other hand, the drawing of a distinction for some purposes between keeping pets in high or medium density complexes and in low density housing does not mean that other aspects of the policy cannot apply equally to the keeping of all pets; for instance, the reference to ensuring “that pets are kept in a manner which ensures their well being”, is clearly of general application to all public housing, as are the policy aspects referred to by the plaintiff relating to the protection of the defendant’s dwellings and the dangers of keeping dangerous or vicious animals in such dwellings.
At first glance, the implication of the plaintiff’s submission, namely that as a matter of policy the defendant should have required any tenant to seek its permission before keeping in public housing an animal that had been officially recognised as dangerous or vicious, may seem sensible; but on a second look it becomes clear that there is no reason why such a policy should only have applied to public housing, and no reason why it should not also apply to owner-occupiers. Furthermore, even if the policy proposal were sensible, that would not require it to be read into a written document that is not apt to implement it.
That is, the declaration of an animal as dangerous or vicious is significant as a matter of policy, if at all, to the keeping of dangerous or vicious dogs in any premises in the ACT. The apparent general undesirability of permitting dangerous or vicious dogs in residential premises does not permit me to read Attachment C to the tenancy agreement as if it required the defendant’s permission for the keeping of such animals in any public housing, rather than only in the kinds of public housing to which the document is expressed to apply.
Conclusion
I am satisfied that Attachment C of the tenancy agreement did not apply to the lease of the Roe Street premises, did not require the tenant to have the defendant’s permission to keep pets there, and therefore did not give the defendant a right to refuse permission to keep pets in those premises.
I reject the plaintiff’s assertion (at [139] above) that, having reached this conclusion, I must “decide” why the tenant was required to sign Attachment C. The most likely explanation would seem to be that, as noted at [134] above, the agreement is a template agreement and every tenant is offered the same tenancy agreement, with only the Schedule of Tenancy details (at [127] above) containing information identifying the specific tenancy – but there is no relevant evidence before me on which such a finding could be based, and no need for me to make such a finding anyway; the question simply does not arise in this matter.
Implication of Attachment C not applying to tenancy
The plaintiff also submits in this context that if the defendant is correct that the requirement for permission to keep pets included in Attachment C does not apply to the tenant because of the nature of the dwelling let to her, then it would follow that the defendant, as an occupier, “specifically did not consider the dangers of keeping pets upon” the premises concerned (at [163] above).
I am not convinced that this “follows” at all; more significantly, I do not know what would then follow from a finding that the defendant “specifically did not consider the dangers of keeping pets upon” the Roe Street premises. Perhaps the plaintiff intended this submission to be relevant to the question whether a duty of care, if found, had been breached, but this seems unlikely since it was included in the submissions about the scope of the tenancy agreement.
The Pets Policy
The defendant maintained the Pets Policy which, as put in evidence, included the following relevant provisions:
Context
This Policy details Housing ACT's requirements for a tenant wishing to keep animals and birds in public rental accommodation. It recognises:
• the need to ensure that pets are kept in a manner which ensures their well being in terms of both their environment (sanitary, comfortable conditions) and the manner in which they are treated (free from cruelty);
• the dangers inherent in keeping a dangerous or vicious animal;
• the importance of animals in people's lives in terms of their therapeutic qualities;
• the need for Housing ACT to protect and maintain its stock of dwellings; and
• that Housing ACT must work in conjunction with other organisations including the RSPCA, the Australian Federal Police and components of the Department of Municipal Services such as the Domestic Animal Service and Environment ACT to ensure appropriate management of animals.
...
Controlling your Pets
Tenants are responsible for controlling their pets. Should a pet cause nuisance or display vicious behaviour Housing ACT will investigate and take appropriate follow-up action. If complaints are substantiated, Housing ACT will;
• initiate action to remedy the problem; and/or
• involve an appropriate authority such as Environment ACT, the Domestic Animal Service, the Australian Federal Police or the RSPCA.
...
Obtaining Licences
Tenants who wish to keep pets are required to obtain and maintain any and all applicable licences and registrations and must comply with all applicable ACT Legislation and Codes of Practice.
Tenants who wish to keep animals such as snakes, other reptiles and other "exotic" animals, may be required to have and maintain a licence specific to the breed of animal. Also note that a dog which has been declared dangerous may only be kept if the owner obtains a Dangerous Dog licence.
In all cases tenants are responsible for obtaining and maintaining licences/registrations and must supply details to Housing ACT if requested. Details of licensing/registration requirements are available from Environment ACT as noted above.
A summary of important aspects of the Pets Policy was also set out in a “fact sheet” apparently aimed at tenants of Housing ACT, as follows:
Tenants do not require approval from Housing ACT to keep pets and animals (hereafter pets). However, tenants are required to obtain and maintain any and all applicable licences and registrations and must comply with all applicable ACT Legislation and Codes of Practice.
If the tenant resides at a flat, unit or apartment managed by a body corporate under the Unit Titles Act 2001, the tenant must comply with all rules and by-laws of the body corporate and the provisions of the Commissioner for Social Housing Tenancy Agreement - Rules of the Complex.
Tenant Responsibilities
Housing ACT is concerned for the well being of pets and the continued health and safety of the human inhabitants of its dwellings. In order to ensure both goals are met tenants are responsible for:
• ..., and
• controlling their pets (keeping control at all time [sic], especially those pets who may exhibit vicious behaviour).
...
Dealing with complaints
When complaints are received about nuisance caused by a pet Housing ACT will investigate to determine if the tenant is breaching their Tenancy Agreement. If the complaint is proven Housing ACT will work with the tenant to assist him/her to sustain their tenancy.
In those cases where all attempts to assist the tenant to comply with their Tenancy Agreement fail, Housing ACT will treat the situation the same as any other breach of the Tenancy Agreement and have no alternative other than to commence legal proceedings, through the ACT Civil and Administrative Tribunal, to remove the pet and/or the tenant from the dwelling.
It is notable that in the “fact sheet”, the premises identified as subject to “Rules of the Complex” (that is, Attachment C to the tenancy agreement) are described as “a flat, unit or apartment managed by a body corporate under the Unit Titles Act 2001”.
As noted at [123] to [124] above, the plaintiff also relies on the Pets Policy (at [173] above) in support of his argument that the defendant had control over the keeping of the dogs on the Roe Street premises.
The plaintiff says that:
(a)under the Pets Policy, the defendant had a right to ask for licence or registration details for the dogs kept by the tenant; and
(b)the Pets Policy was inadequate:
(i)in that it did not require tenants to give information to the defendant so that the defendant could determine whether a particular animal was appropriate to be kept on premises leased by the defendant; and
(ii)in that it had not been reviewed in relation to dangerous dogs.
Effect of Pets Policy
The policy advises tenants:
(a)that they must obtain and maintain applicable licences and registrations for their pets, and must comply with “all applicable ACT Legislation and Codes of Practice”;
(b)in particular, that dogs which have been declared dangerous may only be kept if the owner has a Dangerous Dog licence;
(c)that tenants must give details of any relevant licences and registrations to ACT Housing on request;
(d)that tenants are responsible for controlling their pets;
(e)that Housing ACT will investigate any nuisance or vicious behaviour by pets and “appropriate follow-up action” will be taken”.
Follow-up action to be taken by Housing ACT may consist of either or both of initiating “action to remedy the problem” and involving an appropriate authority such as DAS or the AFP. Under the “fact sheet” also provided by the defendant (at [136] above), the defendant’s approach, if a complaint about nuisance caused by a pet is proved, will be to “work with the tenant to assist him/her to sustain their tenancy”. If the defendant’s attempts to “assist the tenant to comply with their Tenancy Agreement” are not successful, then the defendant will “have no alternative other than to commence legal proceedings ... to remove the pet and/or the tenant from the dwelling”.
The plaintiff is correct to point out that the Pets Policy entitled Housing ACT to ask the tenant for information about licences or registrations in respect of the dogs kept on the Roe Street premises. There is no evidence that the defendant did ask the tenant for any such information, but there is evidence (for instance as mentioned at [58] above) that DAS was aware of those registration details, and it seems that the tenant’s dogs were generally properly registered and/or licensed.
However, the fact that the defendant could have asked for this information does not seem to take the plaintiff’s argument anywhere. There is no basis for saying that the defendant could or would have done anything particular with licence or registration information (or information that licences or registration were not up to date) except draw this to DAS’s attention if necessary. The evidence shows that DAS officers were well aware of the existence of the dogs and their presence on the Roe Street premises, and it is not apparent that an inquiry from the defendant to the tenant, even if it revealed that one or both of the dogs was not properly registered, would have led to anything more than advice from the defendant to DAS and then the tenant being pursued by DAS (not by the defendant) to update the licences or registrations under threat of having the dogs removed.
In particular, there is nothing in the tenancy agreement (once Attachment C has been excluded), and nothing in any relevant legislation that has been drawn to my attention, that would apparently have permitted the defendant to move immediately to terminate the tenancy if the dogs were at any point unlicensed or unregistered, or to take any other immediately useful action aimed at terminating the tenancy, or excluding the dogs from the premises, in response to receiving that information.
Inadequacy of Pets Policy
The plaintiff’s submission that the Pets Policy was inadequate, in that it did not require tenants to give the defendant the information necessary for it to determine whether their pets were suitable to be kept in the relevant premises, also does not seem to go anywhere. There is no basis for finding that the purpose of the Pets Policy was to enable the defendant to determine whether a particular pet could be kept at all. For tenancies covered by Attachment C, under which the defendant’s permission is required for the keeping of a pet, the defendant could have specified any reasonable requirement for the tenant to provide information about the proposed pet as a condition of determining an application for such permission. Apart from that, the suggestion that the defendant should have been able to require such information has no significance, since there was nothing in particular that the defendant would or could have done with the information.
The submission seems to assume a policy that gives the defendant both power and responsibility to control the keeping of pets, but the problem for the plaintiff is that clearly the Pets Policy does not do that.
If the plaintiff had established a duty of care by the defendant in relation to the keeping of pets in the defendant’s leased premises, the claimed inadequacy of the Pets Policy might be relevant to determining whether the duty had been breached. However, any such inadequacy does not seem to help the plaintiff to establish that the defendant had the capacity to control the keeping of dogs on the Roe Street premises, or to establish that the defendant owed any duty of care in relation to the keeping of pets in its premises.
Finally in this context it is necessary to deal with the curious submission made late in the day in reliance on Drake, in which Brennan J said:
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute ...
(emphasis added)
The plaintiff’s submission is as follows:
[c.] A policy MUST be consistent with any statute that is relevant to the matter. The policy must not allow or require the defendant to:
i. take into account relevant matters [sic];
ii. take into account irrelevant matters;
iii. serve a purpose foreign to the purpose [of] permitting or not permitting pets.
The authority for para 2(c) is [Drake] per Brennan J at page 6.5.
(emphasis in original)
The submission consists of a (partly accurate) paraphrase of Brennan J’s remarks, except that, rather than identifying the statute or other source of the asserted purpose, it simply assumes, and asserts, that the purpose “for which the discretionary power was created” is “permitting or not permitting pets” (which I have treated, although with some hesitation, as a reference to a purpose of regulating the keeping of pets).
In another submission, the plaintiff says:
The Policy was inadequate for its purpose, part of which was to ensure that a dangerous or vicious animal was not kept upon the premises or if that dangerous or vicious animal was kept on the premises that appropriate measures were in place to protect people in that premises
The basis of these assertions about the purpose of the Pets Policy is not at any point identified. The Pets Policy specifically does not reveal a purpose of preventing dangerous or vicious animals being kept on the defendant’s premises. It simply recognises “the dangers inherent in keeping” such animals, and notes the responsibilities of other agencies in that regard.
On its face, the Pets Policy:
(a)reminds tenants of the defendant’s interest in the keeping of pets in public housing, of the considerations the defendant regards as relevant to that matter, and of the obligations of tenants under other legislation relating to pet-keeping; and
(b)imposes a requirement on tenants to give the defendant certain information on request.
In the absence of any identified external basis for concluding that the purpose of the Pets Policy is in fact to regulate the keeping of pets in public housing, this submission goes nowhere.
Conclusion – significance of Pets Policy
I have summarised the effect of the Pets Policy at [178] above. I am satisfied that the policy did not suggest the possession or assumption by the defendant of any regulatory powers except its right to obtain certain information, and its intention to initiate appropriate responses to certain problems arising from the keeping of pets in the defendant’s premises; on the contrary, the policy makes it clear that other authorities are responsible for regulating the keeping of pets generally.
Did the defendant breach any duty of care?
If a duty of care was owed by the defendant to the plaintiff, however, it would only have imposed on the defendant an obligation to take “reasonable steps” to address the risk arising from the tenant’s keeping of dangerous dogs on the Roe Street premises (Harris at [186]).
I have already rejected the suggestion that “reasonable steps” would have involved the establishment and implementation of a separate or additional regulatory scheme relating to the keeping of dangerous dogs in public housing.
In terms of the steps that were, under the current arrangements, reasonably available to the defendant to address the identified risk, the evidence is that complaints made to the defendant were either acted on to the extent of the defendant’s powers, or passed on to DAS, within a reasonable time. The evidence does not suggest that the defendant failed to respond to any particular complaint or concern brought to its attention in respect of the tenant’s dogs by taking appropriate action within its area of responsibility (that action being, in many cases, passing on the complaints and concerns to DAS).
The evidence also is that between 29 May 2008 (when the defendant contacted the tenant reminding her about her obligations in relation to the keeping of the dogs) and 7 October 2010 (when the plaintiff was attacked), the records show there were:
(a)one complaint to DAS about a roaming dog from the Roe Street premises (November 2008), which was followed up by DAS officers who saw no dogs when they arrived in Roe Street, but warned the occupants of the premises about letting dogs roam the streets (at [58] above);
(b)one general complaint to Housing ACT about the behaviour of the dogs (29 July 2009), which was followed up, and produced the outcome that the tenant assured Housing ACT staff that the dogs were suitably confined (at [59] to [61] above);
(c)one complaint to DAS (17 May 2010) of an immediate problem with the dogs (at [62] above), which was followed up, and produced the outcome that the dogs were seized, fencing and other security was checked, the dogs were de-sexed, and the tenant was permitted to take her dogs back on agreeing to the conditions as set out at [64] above; and
(d)one complaint to Housing ACT (18 May 2010) about the incident reported to DAS the previous day (at [65] above).
It is worth repeating at this point the evidence about the exact circumstances of the dogs’ attack on the plaintiff (as set out at [10] and [11] above):
When they arrived at the Roe Street address the occupant, Helen, opened the door. Two dogs were standing next to her; they were barking and seemed to be excited. [Jack] and the other visitors then waited at the door while Helen put the dogs in the backyard, before she let the visitors into the house.
Jack was in the lounge room with the adults when Nicki left the lounge room through a door leading to the kitchen. When she opened the door to the kitchen, Jack said:
the dogs came storming out... one of them ran past me ‘cause they missed me, and then the other one grabbed my leg.
That is, the dogs were confined within the tenant’s premises and, indeed, separated from the tenant’s visitors by a door. The attack would not have happened if the dogs had been confined in an adequate cage in the backyard, and it would not have happened if the person who took the plaintiff to the premises had not opened the door behind which the dogs were confined. There was nothing that the defendant could reasonably have done, within the scope of the powers that I have found it possessed, to prevent the attack on the plaintiff. Indeed there is nothing that the defendant could have done to prevent that attack, even within the scope of the obligations suggested by the plaintiff, except to the extent that the obligation was framed as an unqualified obligation to exclude dangerous dogs from public housing.
There is no basis for finding that the defendant failed to take such steps as were reasonable to discharge any duty that the defendant as the occupier under s 168 of the Wrongs Act owed to the plaintiff. The defendant did not breach any duty that it owed to the plaintiff in that capacity.
However, if I had found that the defendant owed the plaintiff a duty otherwise than purely as an “occupier” of the Roe Street premises (presumably a duty in its capacity as the manager of public housing in the ACT), being a duty that required it to implement its own separate scheme regulating the keeping of dogs in public housing or excluding all dogs, or dangerous dogs, from such housing, then I would have been obliged to find that the defendant had breached that duty of care.
Causation
Since I have found that the defendant did not, negligently or otherwise, fail to discharge any duty of care that it owed to the plaintiff as an occupier of the Roe Street premises, the question of causation does not arise.
I do not see any point in attempting to make a finding about causation in the hypothetical situation of a finding that the defendant did owe such a duty of care, and a finding that the reasonable steps required to discharge that duty of care had not been taken by the defendant. This is, to a large extent, because the form of the plaintiff’s submissions about the nature of the duty of care and the reasonable steps it would have required of the defendant involve so many incompletely formulated alternatives and so many hypothetical propositions that it is impossible to describe properly the particular hypothetical circumstances in which causation would have to have been assessed.
However, since there is very little dispute about the evidence in this matter, I do not consider that there would be any difficulty in determining the question of causation if at some stage in the future different findings are made about the nature of any duty owed to the plaintiff and the actions the defendant would have been obliged to take to discharge that duty.
Duty to regulate the conduct of tenants
In the current case, the direct cause of the attack on the plaintiff was not the presence of the dogs on the Roe Street premises, but the tenant’s failure to confine them effectively when her visitors (including the plaintiff) arrived. An argument to the effect that the defendant should have excluded the dogs from the premises because there was a risk that the tenant might be negligent in confining them within the house would be equivalent to arguing that the defendant was obliged to regulate and monitor all the things that the tenant could have done in her premises that might have created a risk for visitors to her house.
On that basis, the question posed in this case would be similar to that posed in Harris, which also involved the nature and extent of the defendant’s obligation to monitor and constrain the presence of its tenant “John”, to ensure that his conduct did not damage others. In that case, Mossop M found that the defendant did not owe a duty to its other tenants to regulate John’s conduct, although those tenants were exposed to proximity to John by their status as the defendant’s tenants, and by the defendant’s decisions about which premises to allocate to them and to John (see [209] – [210] above). Furthermore, in this case, the plaintiff was not exposed to the tenant’s conduct by any actions of the defendant, but by the actions of the friends who had taken him there. The decision in Harris does not provide any support for a proposition that the defendant had a duty to protect the plaintiff from the actions of the tenant.
Conclusions – liability under Wrongs Act
For the reasons given above, the defendant owed no duty of care to the plaintiff, arising from “conventional occupiers’ liability” for the state of the Roe Street premises, to protect him from the risk of attack by a dangerous dog kept in those premises.
Nor have I been able to identify any other duty of care owed by the defendant to protect the plaintiff from the risk of attack by a dangerous dog kept in premises leased by the defendant to a tenant, but if such a duty did exist, the plaintiff has not established that the defendant negligently failed to discharge that duty.
Accordingly, the defendant is not liable to the plaintiff under or by reference to the Wrongs Act for the injury the plaintiff suffered as a result of being attacked by a dog on the Roe Street premises.
Domestic Animals Act
The plaintiff also seeks to rely on the provisions of the Domestic Animals Act directly to assert the defendant’s liability to compensate the plaintiff for the consequences of the dog attack. This claim was first raised at the hearing, and the defendant correctly pointed out that it had not been pleaded.
The plaintiff subsequently sought to amend the statement of claim to include relevant pleadings, to which the defendant objected on the grounds that the pleadings disclosed no reasonable cause of action and were embarrassing. The question whether the draft pleadings disclosed a reasonable cause of action, and the question whether the claim could be made out, largely raised the same issues, and accordingly I have considered those issues together.
The relevant provision of the Domestic Animals Act (as at 7 October 2010) was as follows:
55Compensation for injuries etc caused by dogs
(1)This section applies if—
(a)a dog attacks or harasses a person and the person suffers personal injury or property damage because of the attack or harassment; or
(b)a dog attacks or harasses an animal and the animal dies or is injured because of the attack or harassment.
(2)The keeper of the dog is liable to pay to the person, or the owner of the animal, compensation for any loss or expense because of the attack or harassment.
(3)Compensation may be recovered—
(a)whether or not a prosecution for an offence against this Act has been brought against the keeper of the dog in relation to the attack or harassment; and
(b)if a prosecution for an offence against this Act has been brought against the keeper—even if the keeper has been acquitted of the offence.
(4)In a proceeding for compensation under this section for loss or expense by a person (the plaintiff) for personal injury or property damage, it is a defence for the defendant to prove that—
(a)the attack or harassment happened to the plaintiff while the plaintiff was, without reasonable excuse, on premises occupied by the defendant; or
(b)the plaintiff failed to take reasonable care for his or her own safety; or
(c)the plaintiff provoked the dog.
(5)In a proceeding for compensation under this section for the death or injury of an animal, it is a defence for the defendant to prove that the attack or harassment happened to the animal while it was on premises occupied by the defendant or that the animal had provoked the dog.
(6)This section does not affect any right that a person has to recover damages or compensation apart from this section.
The Dictionary to the Domestic Animals Act contains the following relevant definitions:
keeper means—
(a) for a registered dog—the registered keeper of the dog; or
(b) for another animal—the owner of the animal.
register means the register kept by the registrar under section 5.
registered keeper, of a dog, means the person stated in the register as a keeper of the dog.
It does not appear to be in dispute that the tenant was the registered keeper of the dog concerned, or that the tenant is liable to the plaintiff under s 55. However, as noted at [4] above, the plaintiff sees no point in taking action against the tenant.
The plaintiff seeks to add the following material to the statement of claim:
19A.The obligations of strict liability of Helen Hines as keeper of the Dogs extended to the defendant whilst the Dogs were on the property.
20A.The obligations of the defendant and the keeper of the dogs were coextensive and concurrent by reason of the knowledge and control of the defendant,
Particulars
(a)Complaints to the defendant dated 7 February 2005, 8 February 2005, 12 September 2005, 16 August 2006, 23 October 2006, 14 April 2008, 29 July 2009, 18 May 2009.
21A.The defendant was vicariously responsible to the plaintiff for the strict liability of Helen Hines as keeper of the Dogs whilst the Dogs were on the property with the knowledge and control of the defendant.
22A.By reason of the strict liability imposed on Helen Hines as the keeper of the Dogs, the defendant had a special duty to the plaintiff whilst the Dogs were on the property which required the defendant to ensure that reasonable care was taken to all persons coming onto the property.
Particulars
(a) Vulnerability
i. The plaintiff was an infant of tender years.
(b) Control
i.The defendant remained at all times the lessor and occupier of the property and was imbued with powers to ensure the terms of the tenancy and the state of the property were maintained.
ii.The defendant had specific control, knowledge and discretion as whether it would allow any animal on its property.
iii.The defendant and the tenant therefore had a shared duty of care as to the dog which the defendant, as an occupier of the property, allowed to be on its property.
(c) Assumption of responsibility
i.By the requirement of Clause 6 of Attachment C to the tenancy agreement, the defendant adopted the responsibility for domestic animals on the property.
ii.The defendant specifically retained for itself the right and responsibility of determining in accordance with the tenancy agreement, the Policy and the Domestic Animals Act 2000, the keeping of the Dogs on its property.
iii,The defendant failed to enforce the terms of the tenancy agreement.
(d) Reliance
i.The infant plaintiff, then aged 6, was simply by reason of being in a living room in suburban Canberra, entitled to be safe and free of the danger of a vicious attack by the Dogs.
ii.He was entitled to rely upon the fact that the defendant would ensure its property were safe.
(e) Gravity of the injury
i.It was at all times within the knowledge of the defendant that attacks by the Dogs on any person would likely result in serious, if not fatal, injuries.
ii.Any unmuzzled and/or unrestrained dog can cause serious injury and more so in the case of children.
(f) Likelihood of the risk
i.The defendant knew that the tenant kept the Dogs on its property without written permission.
ii.These Dogs as set out in the studies are known to be aggressive in their behaviour and nature and cause serious injury.
iii.The defendant was on notice by reason of the complaints as set out above [sic] received over a period of five and half [sic] years.
(g)The burden on the occupier of removing the danger or protecting the person
i.The defendant had to have an appropriate Animals and Pets Policy which was properly managed, controlled, supervised and enforced in terms of its property and in circumstances where at least 60% of Australian households keep pets.
ii.The defendant, as a public authority, had none.
iii.The Policy failed to incorporate a requirement for the defendant to be provided with the registration, breed, age and sex of the dangerous dogs so the dogs could be properly assessed and/or safely managed if the defendant granted written permission to a tenant to keep the Dogs on the defendant’s property.
iv.The defendant had a duty to ensure the dogs were removed from the property either by the tenant or Domestic Animal Services. Had the defendant ensured the Dogs were removed by either, the danger which the dogs presented would have been negated.
v.The defendant took no or no proper steps to ensure the state of the property were safe by removing the Dogs.
The plaintiff’s argument appears to be:
(a)that the defendant, as well as the tenant, was an occupier of the premises in which the dogs were kept;
(b)that the defendant was aware that the dogs were kept in the premises;
(c)therefore, that the defendant is, under s 55(2) of the Domestic Animals Act, jointly liable with the tenant as a keeper of the dogs; and
(d)therefore, that the defendant is liable under s 55(2) to pay compensation to the plaintiff for loss or expense suffered as a result of the attack on the plaintiff.
The plaintiff “explains” the assertion that the defendant is “jointly liable with the tenant as a keeper of the dog” by asserting that because the dog was kept in the premises with the knowledge of the defendant, the defendant has a “co-extensive duty” and a resulting “concurrent liability” under the Domestic Animals Act. This is a clear case of question-begging – the plaintiff is saying that the defendant must be a keeper of the dogs because it is jointly liable with the tenant under the Domestic Animals Act, but the conclusion that the defendant is liable under that Act is the very proposition the plaintiff seeks to establish by showing that the defendant is a keeper of the dog.
In submissions dated 16 July 2015, the plaintiff says:
There is a coextensive duty of the defendant under the Domestic Animals Act or alternatively the defendant is vicariously liable for the strict liability breach of the tenant as keeper of the dangerous dogs who attacked the plaintiff. For the Court to recognise this duty it would have to find a “new” relationship of vicarious reliability [sic] or non-delegable ... personal duty of care as was dissed [sic] in New South Wales v Lefore [sic] (2003) ACA 4 [sic] see paras 101, 102, 106, 123, 127, 128 and 129.
In New South Wales v Lepore [2003] HCA 4; 212 CLR 511 (Lepore), Gaudron J said:
101It has been said that a non-delegable or personal duty of care is ‘‘a duty . . . of a special and ‘more stringent’ kind’’ and that it is a ‘‘duty to ensure that reasonable care is taken’’. In Scott v Davis, Gummow J said that a non-delegable duty ‘‘involves, in effect, the imposition of strict liability upon the defendant who owes that duty’’. To say that, where there is a non-delegable duty of care, there is, in effect, a strict liability is not to say that liability is established simply by proof of injury. As Gummow J pointed out in Scott, there must first be a duty of care on the part of the person against whom liability is asserted. And, obviously, there must also have been a breach of that duty and resulting injury.
102The law of negligence is concerned with a duty to take reasonable care to avoid a foreseeable risk of injury to another. As the law of negligence has developed, however, it has become possible, in the case of some relationships, to identify more precise duties of care. Thus, for example, it is not unusual to speak of an employer’s duty to take reasonable care to provide a safe system of work. And in Introvigne, Murphy J identified the duties of an education authority as duties ‘‘[t]o take all reasonable care to provide suitable and safe premises . . . to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and . . . to see that the system is carried out’’.
...
Vicarious liability generally
106The absence of a satisfactory and comprehensive jurisprudential basis for the imposition of liability on a person for the harmful acts or omissions of others — vicarious liability, as it is called — is a matter which has provoked much comment. It may be that the lack of a satisfactory jurisprudential basis is referable, at least in significant part, to the fact that certain cases have been decided by reference to policy considerations without real acknowledgment of that fact. It may also be that, in some cases, employers have been held vicariously liable on the assumption that they would not otherwise have been liable for the injury or damage suffered. Further, it may be that the failure to identify a jurisprudential basis for the imposition of vicarious liability has resulted in decisions which are not easily reconciled with fundamental legal principle.
...
Material increase in risk
123 Ordinarily, if there is a material increase in a risk associated with an enterprise involving the care of children that is a foreseeable risk and, thus, it is the personal or non-delegable duty of those who run that enterprise to take reasonable care to prevent that risk eventuating. And so far as concerns enterprises engaged in the provision of residential care, it must now be acknowledged, as it was by Lord Millett in Lister, that: ‘‘in the case of boarding schools, prisons, nursing homes, old people’s homes, geriatric wards, and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust.’’
...
Vicarious liability: considerations of policy and principle
127 As a matter of legal policy, there is no advantage and considerable disadvantage in holding a person vicariously liable in circumstances in which he or she is directly liable because of a breach of his or her personal or non-delegable duty, as was the case in Lloyd v Grace, Smith & Co and, also, in Morris v C W Martin & Sons Ltd. That course is likely to lead the persons concerned to think, erroneously, that they have been held liable without fault on their part. Further, it seems at least arguable, in the case of those who are young or especially vulnerable, that they are better protected by identification of the content of the duty of care that is owed to them by those authorities and institutions that have assumed responsibility for their welfare than by the imposition of vicarious liability for the deliberate criminal acts of their employees.
128Further, if vicarious liability is to be imposed so that a person is to be held liable in damages for injury suffered without fault on his or her part, it ought to be imposed only in circumstances where it can be justified by reference to legal principle. To do otherwise is to invite disrespect for the law. As already indicated, to hold an employer liable for the authorised acts of an employee or acts done in the course of his or her employment, is simply to apply the ordinary law of agency. And as also indicated, where the issues concern the doing of an authorised act in an unauthorised way, it will ordinarily be the case that vicarious liability results from the ostensible authority of the person whose acts caused injury to the plaintiff.
129The difficulties that have arisen in relation to vicarious liability concern the absence of any real test for determining whether an act occurred in the course of or within the scope of employment. That difficulty is exacerbated in the case of deliberate criminal acts which, save, perhaps, for some temporal connection, cannot ordinarily be described as acts done in the course of or within the scope of employment
(citations omitted)
The plaintiff is correct to concede that in order to find the defendant liable under s 55 of the Domestic Animals Act, I would need to find some kind of new duty imposed on the defendant by a “new relationship”, or find a “non-delegable duty of care” imposed on the defendant.
The plaintiff does not explain the basis on which the material quoted from Lepore would support a finding that the defendant is vicariously liable for the tenant’s actions in her capacity as the keeper of the dog. Nor is there any basis that I can see for finding that there is a personal, non-delegable duty of care owed by the defendant to visitors to its tenanted premises.
The defendant’s role is to provide “social housing”. Except to the extent that it is liable for the state of its tenanted premises as addressed in s 168 of the Wrongs Act, it does not have a role of providing safe opportunities for children (or people in general, for that matter) to visit the residents of such housing, and it is not apparently responsible for the performance of any such role by the tenant or any of its other tenants.
The defendant has no responsibility in relation to the tenant’s liability under s 55, either vicariously or as an authority that owed a non-delegable duty of care to the plaintiff.
The plaintiff’s argument in reliance on the Domestic Animals Act is expanded in later submissions as follows:
The defendant had contractually agreed with Hines in respect of pets at the premises.
It accepted sole responsibility for making a judgment as to dogs on its premises. It had a statutory role to pursue. (See s6 of the Housing Assistance Act 2007).
Ms Hines was a keeper of the dog at the premises. S55(2) of Domestic Animals Act 2000 provides liability to pay a person compensation for loss or expenses because of attack. S55(6) also provides:
“this section does not affect any right that a person has to recover damages or compensation apart from this section”.
Further s50(1) and s50(2) provides [sic] for offences by the carer and keeper. S50(2) provides:
“The keeper of the dog commits an offence if the dog attacks or harasses a person or animal when it is not with a carer. Maximum penalty: 50 penalty units.”
The offences created by s50 are offences of strict liability (Leichardt Municipal Council v Hunter [2013] NSWCCA 87. The statutory right to compensation against the keeper of the dog Ms Hines pursuant to s55 is one of strict liability.
The keeping of the dogs at the premises was with the permission of the defendant. Otherwise the keeping of the dogs was prohibited on the defendant’s leased premises.
Further s45(1) to (3) provides for dogs on private premises to be restrained “unless the person has the consent of the occupier of the premises”.
The defendant and its tenants had mutual rights and duties as to dogs on the property. Their liabilities were concurrent when the dog was on the property: the defendant having accepted the sole responsibility for permitting the dog and the tenant as the keeper. The plaintiff is able to assert the right to compensation pursuant to s55 of the Domestic Animals Act against the keeper and also against the defendant in negligence.
Both parties had interests and liabilities at stake by the presence of the dogs at the property. They both were exposed to and shared the same risk; a dog attack on the property. Both have responsibilities to protect persons from dog attach [sic] causing serious injury. Both parties [sic] defaults were concurrent and successive causes of the plaintiff’s loss and damage.
This argument has a number of deficiencies:
(a)The defendant had not “contractually agreed” with the tenant in respect of pets under the tenancy agreement (see [172] above); if there was another contract between the defendant and the tenant, it has not been identified.
(b)The defendant had not accepted sole responsibility for anything to do with dogs on its premises.
(c)The fact that offences under the Domestic Animals Act may be offences of strict liability does not imply that the liability to pay compensation is also “strict liability” (although this may independently be the position), but this is anyway irrelevant to the question of who bears to that liability.
(d)It is not correct to say that the keeping of the dogs at the premises was either with the permission of the defendant or prohibited (see [172] above).
(e)The claim that “both parties had interests and liabilities at stake by the presence of the dogs at the property”, and the following submissions, again, beg the question, in asserting that which is sought to be proved as part of the proof.
The plaintiff relies among other things on s 45 of the Domestic Animals Act, which is as follows:
45Dogs on private premises to be restrained
(1)A carer must not be on private premises with a dog that is not restrained by a leash unless the person has the consent of the occupier of the premises.
Maximum penalty: 5 penalty units.
(2)Subsection (1) does not apply if the carer is on premises occupied by the keeper of the dog.
(3)The keeper of a dog must not be on private premises with a dog that is not restrained by a leash unless the keeper has the consent of the occupier of the premises.
Maximum penalty: 5 penalty units.
(4)Subsection (3) does not apply if the keeper is on premises occupied by a carer of the dog.
(5)The keeper of a dog commits an offence if the dog is on private premises and is not with a carer, unless the keeper has the consent of the occupier of the premises.
Maximum penalty: 5 penalty units.
(6)In a prosecution for an offence against subsection (1), (3) or (5), it is evidence that the occupier of premises did not consent if an authorised person gives evidence that, at the time of the offence, the occupier told the authorised person that the occupier did not consent.
(7)In a prosecution for an offence against subsection (1), (3) or (5), it is a defence if the defendant proves that the defendant took reasonable steps to prevent a contravention of the subsection.
The basis on which the defendant can be identified as an occupier of the premises for the purposes of this definition is not explained; certainly this does not seem to flow from the fact that the defendant may be an occupier under the Wrongs Act to the extent that it has repair and maintenance obligations in respect of the premises, or indeed to any other extent.
In the Dictionary to the Domestic Animals Act, “occupier” is defined as including “a person who is, or who is reasonably believed to be, in charge of the premises”. For the purposes of a provision under which a dog on private premises must be restrained by a leash except with the consent of the occupier, the occupier would seem to be a person who is on the premises and, at the time of the dog’s presence, in a position to give or withhold consent to the unleashing of the dog. In particular, the definition appears to contemplate that the carer or keeper of a visiting dog should be able to assess whether a particular person on the premises is capable of giving consent for the purposes of s 45.
In any case, s 45 is irrelevant in the current case because, although ss 45(1) and (3) do provide for dogs on private premises to be restrained unless the occupier consents to them being on the premises and unrestrained, by ss 45(2) and (4) the requirement for the occupier’s consent does not apply if the premises are occupied by the keeper or carer of the dog. Thus, in this case, even if the defendant were relevantly an occupier, its consent would not in my view be required for the keeper of the dog to have her own dogs unrestrained on the leased premises of which she was an occupier.
Neither the defendant’s repair and maintenance obligations in relation to the premises, nor anything that I can find in the Domestic Animals Act, seems to establish that the defendant, whether as the “occupier” under s 168 of the Wrongs Act or as the lessor of the Roe Street premises, was a “keeper” of the dogs kept on the premises, whether jointly with the tenant or otherwise.
There is no suggestion that the defendant was either a registered keeper or an owner of the dogs. The definition of “keeper” does not refer to occupiers of the premises in which the dog is kept, and does not give any other basis for identifying the defendant as a keeper of the dogs.
Conclusions – liability under Domestic Animals Act
In summary, I can see no basis for accepting that at law the defendant was a “keeper” of the dog, and in the absence of any reference by the plaintiff to some relevant legal principle or legislative provision, I can see no basis for accepting that the defendant shared any kind of liability under the Domestic Animals Act with the keeper of the dog.
Accordingly, the claim sought to be made by the plaintiff in amendments to the statement of claim must fail. Since that claim fails simply by reference to the provisions of the Domestic Animals Act (rather than because of any particular deficiency in the evidence), it is appropriate to deal with it by concluding that the proposed amendments to the statement of claim disclose no reasonable cause of action, and therefore refusing leave to plead the new claim by adding paragraphs [19A], [20A], [21A] and [22A] (at [304] above).
Damages
Counsel for the plaintiff advised that the parties had agreed that any damages award made to the plaintiff should be in the amount of $200,000, plus fund management costs to be advised.
Other matters – keeping of dangerous dogs on domestic premises
It is clear from the evidence summarised at [71] above that both Housing ACT and DAS were aware that the tenant’s dogs were a matter of concern, and had made efforts over the years to induce the tenant to control them more effectively.
The real problem for the community seems to be that ACT law permits “dangerous dogs” to be kept on domestic premises, subject to requirements for them to be specially licensed as dangerous dogs, for their yards to be secured, and so on.
There is scope for imposing licence conditions requiring dangerous dogs to be confined to specified premises (s 26), and there are requirements that dangerous dogs be muzzled in public places, and that such dogs not be allowed in public places without someone in charge of them (s 27), but the sanctions for breaches of those requirements are relatively insignificant. For instance, the offence of allowing a dangerous dog to be in a public place without a muzzle, or without a person in charge, carries a maximum penalty for the carer or keeper of the dog of a fine of 10 penalty units (currently $1,500)
As well, the legislation suggests that even where there is an attack or harassment, the dog is only at risk of destruction if the dog’s keeper is at fault in a way that invokes criminal liability, and even in such a case, the dog may be spared destruction if the court is satisfied that there are special circumstances that justify not ordering the destruction of the dog – in which case the court must order that the dog and its keeper complete an approved course in behavioural or socialisation training for the dog (ss 50(5) and 50A(4) and (5)).
The plaintiff had a very frightening experience in the Roe Street premises, and suffered serious injuries which continue to affect him today. It would be entirely appropriate (as provided for by s 55 of the Domestic Animals Act) for him to be compensated for the injuries he has suffered through the fault of others. However the fact that, while she would clearly be liable to him under s 55 of the Domestic Animals Act, the tenant would apparently not be able to satisfy any judgment against her in the plaintiff’s favour does not mean that the defendant is the appropriate source of that compensation.
It may be that the legislature, or the community as a whole, does not have an appetite for imposing limits on the keeping of dangerous dogs sufficient to prevent the kind of attack suffered by the plaintiff. As an alternative approach, however, it may be that the cost of licensing a dangerous dog, like the cost of registering a motor vehicle, should include a contribution to an insurance scheme which could provide compensation to people like the plaintiff who suffer from the actions of dangerous dogs which have been lawfully kept in the ACT.
Orders
The orders are:
1Leave is granted to amend the statement of claim as set out in the draft amended statement of claim dated 15 July 2015, except that leave is not granted to amend the statement of claim to add proposed paragraphs [19A], [20A], [21A] and [22A].
2By 19 May 2017, the plaintiff is to file an amended statement of claim giving effect to the leave granted under order 1.
3Judgment is entered for the defendant, with costs.
| I certify that the preceding three-hundred and thirty [330] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 5 May 2017 |
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