Howard v Lapwood and Ors (Civil Dispute)
[2018] ACAT 123
•7 December 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HOWARD v LAPWOOD & ORS (Civil Dispute) [2018] ACAT 123
XD 1226/2017
Catchwords: CIVIL DISPUTE — dog/s attack of another dog — vet fees — question about who is liable for the actions of the attacking dog/s — liability of owners of dogs — liability of owner of property where attacking dog/s resided — liability of dog re-homing body — contributory negligence — dog owner/s liable
Legislation cited: Civil Law (Wrongs) Act 2002 ss 21, 40, 42, 43, 45, 47, 102
Companion Animals Act 1998 (NSW)
Domestic Animals Act2000 ss 14, 49A, 50, 55
Cases cited:Amaca Pty Ltd v Ellis [2010] HCA 5
Koesmarno v Mutis [2016] ACAT 126
Paul v Registrar Domestic Animals Act 2000 [2018] ACAT 105
Royall v The Queen (1991) 172 CLR 378
List of
Texts/Papers cited: Justice Edelman, “Understanding Causation and Attribution of Responsibility”: Paper presented at the Commercial Conference of the Supreme Court of Victoria, University of Melbourne, 7 September 2015
Tribunal: Senior Member L Beacroft
Date of Orders: 7 December 2018
Date of Reasons for Decision: 7 December 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1226/2017
BETWEEN:
KERRY ANN HOWARD
Applicant
AND:
ANNALESE LAPWOOD
First Respondent
JACKSON RALPH
Second Respondent
THE ALASKAN MALAMUTE RE-HOMING AID AUSTRALIA INC
Third Respondent
KAREN MAIER
Fourth Respondent
TRIBUNAL: Senior Member L Beacroft
DATE:7 December 2018
ORDER
The Tribunal orders that:
1.The name of the third respondent be amended to The Alaskan Malamute Re‑Homing Aid Australia Inc and the name of the fourth respondent be amended to Karen Maier.
2.Ms Lapwood to pay the applicant the sum of $7,605.58 by close of business 19 January 2019.
3.Mr Ralph to pay the applicant the sum of $6,099.46 by close of business 19 January 2019.
4.The applications against The Alaskan Malamute Re-Homing Aid Australia Inc and Karen Maier are dismissed with no cost orders.
NOTE: The Tribunal requests that the Registrar refer this decision to Domestic Animal Services for review and consideration of any issues this decision raises about ensuring investigations can be finalised without a dog being taken to an interstate dog re-homing service.
………………………………..
Senior Member L Beacroft
REASONS FOR DECISION
1.Ms Howard claimed in the proceedings before the ACT Civil and Administrative Tribunal (the Tribunal) that each of the respondents are liable for her loss, and claimed damages for vet fees, interest she has paid on her credit card for the fees, and re-imbursement of her filing fee.
2.The Tribunal orders are as shown above. The reasons for these orders are set out below.
Background
3.The applicant Ms Kerry Howard is the owner of a dog, ‘Orea’, a one year old small Shitsu breed which is her daughter’s service animal. On 2 September 2017 about 6:00pm, two dogs housed at the back-neighbour’s rented property, ‘Babe’ and ‘Ranger’, entered the applicant’s yard. The applicant’s house sitter, D, had to remove Orea from the mouth of Ranger, and with assistance from one of the back‑neighbours, Ms Annalese Lapwood (first respondent), got Orea to a vet and the two dogs back into the back-neighbour’s yard. At that time the back-neighbour’s property was rented to Ms Lapwood and Mr Jackson Ralph (second respondent). Ranger and Babe are each a large Malamute breed, an arctic breed. Due to the incident with the dogs Ms Howard’s dog had veterinary services that cost $14,112.70.
4.At the beginning of the tenancy at the back-neighbour’s rental property on 20 June 2017, Babe was an existing pet and Ranger was in the process of being adopted from The Alaskan Malamute Re-Homing Aid Australia Incorporated (AMRAA, third respondent). AMRAA had removed Ranger from a shelter in NSW in January 2017 and registered him in its name on 15 March 2017.[1] Ms Lapwood took Ranger as part of an adoption trial on 21 March 2017[2] and the NSW Companion Animal Register then shows Ms Lapwood as the owner of Ranger on 21 June 2017. It was not disputed that Mr Ralph was the owner of Babe. Ms Karen Maier (fourth respondent) was the owner of the back-neighbouring property, rented to Ms Lapwood and Mr Ralph.
[1] Transcript of proceedings 15 June 2018 page 74
[2] Transcript of proceedings 15 June 2018 page 75
5.After the incident on 2 September 2017 the applicant notified Domestic Animal Services of the ACT on 12 September 2017, sent a letter of demand to Ms Lapwood and Mr Ralph dated 18 September 2017, raised the issue of the incident with Ms Maier’s agent who raised it with Ms Maier on 20 September 2017, and got the fence between the properties replaced. She lodged an application with the Tribunal on 4 October 2017 and filed an amended application on 7 March 2018. A conference did not settle the dispute, and a hearing was conducted on 15 June 2018.
6.At the hearing Ms Howard and Mr Ralph were self-represented. Ms Lapwood did not appear despite the Tribunal being satisfied that Ms Lapwood knew of the hearing. AMRAA submitted an insurance claim, and AMRAA’s insurer was represented by Ms Josie Dempster of Sparke Helmore Lawyers. Various documents had been exchanged and filed leading up to the hearing including a subpoena of adoption records held by AMRAA for Ranger. Various documents were accepted into evidence as exhibits at the hearing. Ms Howard, Mr Ralph, Mr Ralph’s current partner, Ms Maier and Ms Barbara Trytko the volunteer Public Officer of AMRAA and a certified dog trainer, gave oral evidence at the hearing. The parties were at liberty to file final submissions after the hearing and the applicant and AMRAA did so.
Issue and summary of law
7.The issue was whether any or all of the respondents were liable for Ms Howard’s loss as a result of the incident on 2 September 2017.
8.In the ACT dogs must be registered under the Domestic Animals Act2000.[3] The keeper of a dog is either the registered owner, or if the dog is not registered then the keeper is the owner. A keeper can have the dog with a carer — a carer of a dog is the person who is in charge of the animal at the relevant time. A carer rather than the owner of the dog can be liable for an offence but only if the owner has “taken reasonable measures to ensure that the carer was able to exercise responsible dog management, care and control of the dog.”[4]
[3] Domestic Animals Act2000 section 14
[4] Ibid section 50(4)(a)(c)
9.A complaint can be made to ACT’s Domestic Animal Services if a dog attacks another animal, and this may be investigated. The keeper of the dog commits an offence if the dog attacks another animal. A carer of the dog can also commit an offence if the dog attacks another animal, provided that the owner “asked or told another person to be the carer for the dog” and had “taken reasonable measures to ensure that the carer was able to exercise responsible dog management, care and control of the dog”.[5] The keeper of the dog is liable to pay to the owner of the injured animal compensation for any loss or expense because of the attack.[6] Dogs may be registered elsewhere, for example on the NSW Companion Animals Register under the Companion Animals Act 1998 (NSW). However registration interstate does not remove the responsibility for an owner, who is an ACT resident for 28 days or more, to register in the ACT a dog that they have kept for 28 days or more in the ACT.
[5] Ibid section 49A
[6] Ibid section 55(2)
10.In the ACT actions for negligence are subject to the Civil Law (Wrongs) Act2002 (the Act). Negligence is a “failure to exercise reasonable care and skill”.[7] The standard of care is that of a “reasonable person in the defendant’s [respondent’s] position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which harm arose”.[8] The Act sets out that failing to take “precautions against risk” counters an argument about negligence, unless the risk was “foreseeable”, “not insignificant” and taking precautions was “reasonable”.[9]
[7] Civil Law (Wrongs) Act2002 section 40
[8] Ibid section 42
[9] Ibid section 43
11.The Act sets out the test for causation.[10] In regards to causation, any negligence must be a “necessary condition” of the harm. This test for causation reflects the common law test for causation in Australia which has been well summarised by Justice Edelman writing extra-judicially.[11] In summary, as he explains: “An event will only ever be a cause of an outcome if the event is necessary for the outcome.” That is, causation requires that the outcome would not have occurred “but for the event”.[12] He explains that the “but for test” is complemented by common-sense, as set out in Royall v The Queen (1991) 172 CLR 378 which held that causation is a “question to be determined by [the jury] applying their common sense to the facts as they find them” [Mason CJ at 387]. In the case of Amaca Pty Ltd v Ellis [2010] HCA 5 (Amaca) the Court considered the issue of complex causation and found that it was more probable than not that the claimant’s cancer was caused by smoking rather than exposure to asbestos,[13] having regard to the risk of each — the claimant failed on this basis. In a joint judgement the Court in Amaca stated that in the face of uncertainty about cause, “[t]he courts [ask] whether it is more probable than not that X was a cause of Y”.[14]
[10] Ibid section 45
[11] Justice Edelman, “Understanding Causation and Attribution of Responsibility”: Paper presented at the Commercial Conference of the Supreme Court of Victoria, University of Melbourne, 7 September 2015
[12] Ibid page 1
[13] At [70]
[14] Ibid
12.Contributory negligence of an applicant for negligence can defeat their claim,[15] or it can result in an apportionment of liability to the applicant.[16] Where multiple parties are sued for damage, any one of these can only be held liable for what the Tribunal considers “just and equitable having regard to the extent of the contributory responsibility for damage”.[17]
[15] Civil Law (Wrongs) Act2002 section 47
[16] Ibid section 102
[17] Ibid section 21
13.There is case law relevant to this case, some of which the parties brought to the attention of the Tribunal. This case law was considered by the Tribunal and where particularly relevant it is referred to in the findings set out below.
Summary of the applicant’s contentions
14.The applicant contended that Ms Lapwood, as the registered owner of Ranger, was liable for the loss Ranger had caused. The applicant has the burden of proof. She claims damages in the sum of the veterinary fees being $14,112.70, plus the credit card interest she has paid on that sum being $3,448.91 (20% per day or $7.73 per day, from 18 September 2017 to 7 December 2018), and a re‑imbursement of her filing fee of $150, totalling $17,711.61[18] She raised a concern that Ms Lapwood and Mr Ralph may have conspired to shift all responsibility to Ms Lapwood rather than some rest with Mr Ralph, and that with Ms Lapwood now residing in New Zealand this would result in any order in the applicant’s favour being effectively unenforceable.
[18] Applicant’s application 4 October 2017
15.The applicant’s evidence was not supported by an investigation report from Domestic Animal Services — an investigation had begun in that the applicant’s house-sitter, D, was interviewed. It appears to the Tribunal that when the fence was replaced and Ranger returned to AMRAA in NSW then the investigation was not concluded. The applicant provided evidence from the best witness to the incident, a statement from D who was the house-sitter at her property.
16.The applicant contended that Mr Ralph was also the owner and/or at least a carer of Ranger and therefore was also liable for the loss caused by Ranger. She pointed to the many communications by Ms Lapwood that referred to both her and Mr Ralph adopting and caring for Ranger,[19] in particular Mr Ralph’s attendance at the veterinary clinic when the applicant’s injured dog was taken there and Mr Ralph saying that he had been at the property the morning of the incident.[20] She disputed that Mr Ralph was not residing at the property where Ranger and Babe lived when the incident occurred – she pointed out that the two witnesses that supported Mr Ralph in this assertion are his co-workers, indeed one is his new partner, and on this basis their evidence should be treated with caution. She pointed out that Mr Ralph was a tenant of the property at the time of the incident and knew that Babe had got into the applicant’s property on prior occasions and that there were issues with the fence. She pointed out that Mr Ralph acknowledged that he was the owner of Babe, and that while he contended that Ms Lapwood was caring for Babe at the time of the incident, this critical assertion was not able to be confirmed by Ms Lapwood. The applicant pointed out that the presence of Babe at the scene of the incident could have contributed to Ranger’s attack of her dog.
[19] Transcript of proceedings 15 June 2018 pages 43–44
[20] Ibid page 116
17.Ms Howard contended that AMRAA had been negligent in the manner in which they did the adoption of Ranger, especially given what she claimed was the known propensity of Malamutes to be dangerous with small dogs,[21] and were therefore liable for the loss caused by Ranger. She contended that AMRAA had put Ranger out to adoption with no known history for him other than observing him intermittently over some weeks and observing him only when he was interacting with dogs of a similar breed not smaller dogs.[22] She noted that when Ranger was about to begin the adoption trial period AMRAA was the registered owner of Ranger. At this time AMRAA conducted a home assessment and raised issues about the fence which were not followed up,[23] and then did not follow up to ensure that AMRAA actually knew where Ranger was being housed over the adoption trial period despite AMRAA continuing to be the registered owner.[24] She contended that AMRAA’s behaviour post-incident provides further support for her contention that AMRAA is negligent in the manner it operates — AMRAA took Ranger back after the incident, which she contended has prevented him being impounded in the ACT. She contended that when Ranger was taken back to AMRAA by Ms Lapwood, AMRAA further demonstrated their irresponsibility by advertising him for re-homing as “a gorgeous cuddly boy” with no disclosure of the serious attack on her dog and just a minimal warning as follows: “he can be selective with doggie companions… Like most Arctic breeds he would not be suited to a home with cats or pocket pets”.[25]
[21] Ibid page 46
[22] Ibid page 49
[23] Ibid 15 June 2018 page 47
[24] Ibid 15 June 2018 page 51
[25] Applicant’s amended application, filed 2 March 2018; Transcript of proceedings 15 June 2018 pages 56, 59
18.Ms Howard claimed that Ms Maier as the owner of the back-neighbouring property was aware of the poor state of the fence and should have acted to fix it, but she did not until after the incident. The applicant acknowledged that when she purchased the property in 2015, she was “aware that the fences were dilapidated” but contended that her two small dogs were “not interested in trying to get out of the yard”[26] and didn’t get out.[27] She denied the accuracy of Mr Ralph’s evidence that he had seen her dogs in his yard before the incident. She stated that in her view “there was no need to rush to replace the fence as the repairs that had been rendered upon it appeared to be adequate for the animals … required to be restrained by it”.[28] Although the witness D said in her statement that one of the applicant’s dogs did go through a hole in the fence into the back-property, the applicant said that this was after the incident and D fixed that hole immediately.
[26] Applicant’s final submission 26 June 2018
[27] Transcript of proceedings 15 June 2018 page 41
[28] Applicant’s final submission 26 June 2018
19.She acknowledged that Babe got into her property, even into her house, in mid‑2017 — indeed she filmed Babe getting through the dog door into her house on 19 July 2017 because Babe was a striking looking dog and the applicant was amazed she could do it.[29] She said she knew there were palings missing from the fence at this time.[30] She said that Babe interacted well with humans and there were no issues with the way she interacted with her dog — each time she called Mr Ralph who retrieved Babe, and she said that she raised with Mr Ralph that the fence “should probably be replaced” but he replied that Babe could jump fences anyway.[31]
[29] Transcript of proceedings 15 June 2018 pages 9, 39
[30] Ibid pages 9, 41
[31] Applicant’s final submission 26 June 2018
20.The applicant contended that she tried to contact the owner on two occasions in late 2016 about the fence by leaving letters in the letterbox but got no response.
21.In summary, the applicant contended that the cause of her loss is like “swiss cheese”, she contended that AMRAA had the primary responsibility for her loss, followed by Ms Maier the landowner of the property where the dogs resided, and finally the two tenants Ms Lapwood and Mr Ralph equally shared responsibility for her loss.[32]
[32] Ibid
Summary of the respondents’ contentions
First respondent: Ms Lapwood
22.Ms Lapwood filed no submissions and made no appearance.
Second respondent: Mr Ralph
23.Mr Ralph agreed that he is the owner of Babe. He contended that he was not the owner of Ranger and pointed out that the registration documents confirmed this. He said that he was involved with the adoption of Ranger insofar as he wanted to be sure that Ranger was compatible with Babe. He said that Ms Lapwood wanted another arctic dog because arctic dogs are pack dogs and it would be in Babe’s interests to have a companion. He agreed that he was a co-tenant of the property where the dogs resided. He agreed that Babe had escaped the property on a number of occasions, and stated that he thought he had fully rectified the issues with the fence in that he had extended its height in a corner of the fence, re‑attached palings and reinforced the fence in parts with pinewood.[33] He said that he thought Ms Lapwood had advised the agency of the issues with the fence prior to the incident. He contended that he was in the process of separating from his partner, Ms Lapwood, when the incident occurred, and was not staying overnight at the property with Ms Lapwood from mid-August 2017 onwards.[34] However, he was attending the property, mostly when Ms Lapwood was not present, for example he said that he attended the morning of the day of the incident and got some clothes.[35] Given this, he contended that he had no control in practice over Ranger and that Ms Lapwood had the effective control of Ranger. He said that his dog, Babe, was still living at the property with Ms Lapwood and that Ms Lapwood “was caring for my dog while I wasn’t here because we were mid break-up”.[36] He said that he understood from Ms Lapwood that the dogs had escaped through a hole in the fence, and Ms Lapwood had then fixed this hole. He disagreed that Babe contributed to the incident because he said that Babe was not aggressive.[37]
Third respondent: AMRAA
[33] Transcript of proceedings 15 June 2018 pages 108, 111
[34] Second respondent’s response 6 November 2017
[35] Transcript of proceedings 15 June 2018 page 114
[36] Ibid page 19
[37] Ibid pages 108–109
24.AMRAA described itself as an association that through its “volunteers, assists with the rehoming of Alaskan Malamutes by advertising available dogs for adoption on its website and social media pages”.[38] It contended that it not been negligent in regard to the applicant. It contended that its duty of care was limited and owed to the persons adopting a dog – in this case Ms Lapwood or both Ms Lapwood and Mr Ralph – but not the applicant. AMRAA contended that if it was found to owe a duty to the applicant then it “could be said to owe a duty of care to the community as a whole… [which is] illogical, burdensome and could have significant repercussions for the animal welfare industry”.[39]
[38] Submissions of the third respondent 10 April 2018 [2]
[39]Final submissions of the third respondent 21 June 2018 [4]–[5]
25.AMRAA contended that it had fulfilled its duty to Ms Lapwood, which involved the following:
(a)Having key information on its website for potential adopters.
(b)Ms Trytko, a certified dog trainer doing an “informal behavioural assessment”[40] of Ranger which was “as good as an assessment as you can get”.[41]
(c)On 18 March 2017 doing a site check of the fences of the property that Ms Lapwood provided to AMRAA (a property at Bonner that Ms Lapwood rented, and which she shortly afterwards vacated to move to Narrabundah).
(d)From approximately 27 March to May doing a trial adoption of Ranger with Ms Lapwood.
(e)Sending the necessary adoption papers to Ms Lapwood which then resulted in Ranger being registered to Ms Lapwood on 21 June 2017.
(f)Following up with Ms Lapwood as any issues arose post-adoption to support her and ensuring that she knew that Ranger could be returned to AMRAA.
[40] Submissions of the third respondent 10 April 2018 [7]
[41] Transcript of hearing 15 June 2018 page 80
26.AMRAA said it had obtained Ranger from a pound in NSW and the pound did not have any information to indicate that Ranger was a dangerous dog or not suitable for rehoming, Ranger was in a run with other dogs at AMRAA and “showed no signs of aggression”, further Ranger is not a listed dangerous dog[42] nor is there evidence that Ranger ought to be listed as a dangerous dog.[43] AMRAA stated that it had never been advised by Ms Lapwood that she had moved premises from Bonner to Narrabundah, “nor would [AMRAA] have had any reason to be advised of this fact given it surrendered care and control of Ranger at the time of the trial adoption”.[44] AMRAA pointed out that it was not the carer or keeper of Ranger for the purposes of the Domestic Animals Act2000 at the time of the incident on 2 September 2017.[45] AMRAA contended that it cannot be held to have had a duty to “conduct regular or ongoing risk assessments of the dog, or of the property at which the dog lived, beyond the date of the initial property risk assessment (which was conducted before [AMRAA] permitted [Ms Lapwood] to commence a trial adoption), given it had no right of entry to the property or any right of control over the dog”.[46] In the alternative, AMRAA contended that if the Tribunal finds that AMRAA did owe the applicant a duty of care, that it had fully discharged its duty with the actions taken as briefly summarised in paragraph 25 above and as set out in detail in their submissions.[47] In the alternative AMRAA contended that if the Tribunal finds there is a duty owed to the applicant and that AMRAA breached it, it is not “causative of the incident or the applicant’s loss”.[48]
Fourth respondent: Ms Maier
[42] Submissions of the third respondent 10 April 2018 [16]
[43] Final Submissions of the third respondent 21 June 2018 [9]–[16]
[44] Submissions of the third respondent 10 April 2018 [16]
[45] Submissions of the third respondent 10 April 2018 [16]; Final submissions of the third respondent 21 June 2018 [6]
[46] Final submissions of the third respondent 21 June 2018 [7]
[47] Ibid [8], [17]–[21]
[48] Ibid [22]
27.Ms Maier is the owner of the back-neighbouring property where Ranger and Babe resided, with her tenants. She denied that she is liable for the applicant’s losses. She bought the property in approximately 2004 and was posted overseas in mid‑2015. She appointed various agents to manage the renting out of her property from 2015 to date, and she was not aware that there were problems with the fence she shared with the applicant until they were raised after this incident. She stated that she had successfully kept a dog on her property while residing there, and that a prior tenant had also done so.[49] She contended that the applicant had shared responsibility to repair the fence.[50] She had no knowledge of letters that the applicant claimed she put in her letterbox in 2016 about the state of the fence.[51] Ms Maier stated that as soon as she became aware that the fence needed repair, she cooperated promptly to ensure this occurred.
[49] Ms Maier’s submission, emailed 25 June 2018
[50] Ms Maier’s submission, emailed 25 June 2018; Transcript of proceedings 15 June 2018 page 25
[51] Ms Maier’s response, emailed 2 May 2018
Findings
First respondent: Ms Lapwood
28.As the owner and keeper of the dog Ranger, Ms Lapwood is liable for loss he causes (section 55 (2) Domestic Animals Act2000). Ms Lapwood has been an irresponsible dog owner in that it appears she never registered Ranger under ACT law. Also in her adoption application and in her follow-up with AMRAA she was sloppy, for example she did not mention that she had a cat or that she had moved to another property.
29.While Ms Lapwood gave no evidence and filed no defence, the Tribunal has a responsibility to be fair. The issue that the Tribunal has to decide is how to apportion liability as between Ms Lapwood and any other person responsible for the applicant’s loss.
30.Considering all the facts and law that applies to this case, the Tribunal finds that Ms Lapwood is 50% liable for the damages claimed by the applicant, being 50% of $14,112.70 plus statutory interest calculated from the date of the letter of demand, 18 September 2017, to 7 December 2018 being $474.23 and half of the filing fee being $75, totalling $7,605.58.
Second respondent: Mr Ralph
31.The Tribunal accepts the contentions of the applicant set out in paragraph 16 above. In short, the Tribunal finds that prior to and at the time of the incident Mr Ralph was a carer of Ranger, and an owner/keeper and carer of Babe. Mr Ralph knew that Babe was escaping so the risks of one or both dogs escaping was foreseeable especially by him, he along with Ms Lapwood failed to take reasonable precautions to prevent this and given his knowledge of the dogs (their size, their breed), the risk was not insignificant.
32.While Mr Ralph took some action to prevent escapes he did not do enough, for example, he was not checking for fence issues from mid-August onwards it seems even on Mr Ralph’s evidence, who said that he was not staying overnight there. However he was attending the property, even if he was staying overnight elsewhere on his own evidence, and it is reasonable for the Tribunal to find that he could have still checked for fence issues, indeed he attended on the morning of the incident. He never advised the agent of issues with the fence. Even after the incident he relied on others to ensure that the dogs could not escape again.
33.Even if the Tribunal is wrong about Mr Ralph being the carer of Ranger at the time of incident, it is undisputed that Mr Ralph was the owner of Babe at the time of the incident. The Tribunal finds that he was the keeper and carer of Babe at the time of the incident. The evidence about Mr Ralph not staying at all overnight at the property at the time of the incident is not convincing in the Tribunal’s view. Even if Mr Ralph was spending nights away from the property where the dogs were kept, he was attending the property as he said in his oral evidence, and in any case his absences do not prove that Ms Lapwood took on the role of carer for Babe as well as Ranger. In the absence of any confirmation of this by Ms Lapwood or other corroboration the Tribunal does not accept that Ms Lapwood was asked by Mr Ralph to take on this onerous role. The onus is on Mr Ralph to show that he had “taken reasonable measures to ensure that the carer [Ms Lapwood] was able to exercise responsible dog management, care and control of the dog” and there is no evidence that he took any measures to ensure that this was the case. If Mr Ralph was indeed absent a lot from the property at the time of the incident it was irresponsible of him. In the Tribunal’s view, Mr Ralph cannot use such a circumstance in this case to escape his responsibilities as the owner and carer of Babe.
34.No witness actually saw the full attack of the applicant’s dog but the best witness, D, being the applicant’s house-sitter, said that both Babe and Ranger were present. Other cases about dog attacks have found “pack mentality” is complex,[52] and the Tribunal regards it as simplistic to assume that Babe had no effect or role in the incident. Given the evidence from AMRAA about the arctic breed being a pack dog,[53] then the Tribunal finds it probable that Babe’s presence contributed to Ranger being able to escape into the applicant’s property and also that Babe’s presence probably contributed to Ranger’s aggressive behaviour to the applicant’s dog. The fact that on the evidence Babe was the more physically capable of the two dogs, Ranger according to AMRAA having arthritis[54] and according to Mr Ralph could not jump up to his shoulders,[55] further supports the Tribunal’s view that but for the presence of Babe then the dogs would not have escaped and this attack would not have occurred.
[52] Paul v Registrar Domestic Animals Act 2000 [2018] ACAT 105 [45]
[53] Exhibit A2
[54] Transcript of proceedings 15 June 2018 page 90
[55] Ibid page 107
35.Considering all the facts and law that applies to this case, the Tribunal finds that Mr Ralph is 40% liable for the damages claimed by the applicant, being 40% of $14,112.70 plus statutory interest calculated from the date of the letter of demand, 18 September 2017, to 7 December 2018 being $379.38, and half of the filing fee being $75, totalling $6,099.46.
Third respondent: AMRAA
36.The Tribunal finds that in this case given the facts that AMRAA is not liable for the loss caused by Ranger.
37.The Tribunal accepts the evidence provided by the applicant that in many respects AMRAA has behaved irresponsibly, especially in setting up a trial adoption where AMRAA was the owner yet not ensuring that AMRAA knew where Ranger was actually kept or that fences were adequate given arctic breeds are “escape artists”[56] over the period of the trial adoption, in taking Ranger back before Domestic Animal Services could resolve what the consequences were for the attack, and re-advertising Ranger for adoption without full disclosure of the incident (albeit this advertisement was later removed).[57] The Tribunal finds that AMRAA is inconsistent in the caution it applies to re-homing dogs, and if taking a more consistent cautious approach is “impossible”[58] then AMRAA is facing significant risks of liability.
[56] Ibid page 67
[57] Transcript of proceedings 15 June 2018 page 71
[58] Ibid page 82
38.In this case the Tribunal finds that a duty of care owed to any persons by AMRAA ceased when Ms Lapwood took legal ownership of Ranger on 21 June 2017, some months before the incident. If the incident had occurred during the trial adoption period when AMRAA was the owner of the dog then AMRAA may have had some liability for the harm caused.
Fourth respondent: Ms Maier
39.The Tribunal finds that Ms Maier is not liable for the loss caused by Ranger. In her oral evidence[59] she gave further support to her contentions as set out in paragraph 27 above, and the Tribunal accepts these contentions of Ms Maier. The case of most relevance here is Koesmarno v Mutis [2016] ACAT 126. It can be distinguished since in that case the lessor was advised of fence issues prior to the incident whereas here the Tribunal accepts that Ms Maier was not.
Contributory negligence by the applicant
[59] Ibid page 97
40.Contributory negligence of an applicant for negligence can defeat a claim, or it can result in an apportionment of liability to the applicant. The Tribunal finds that the applicant demonstrated a level of contributory negligence in that she knew that the fence was dilapidated, had missing palings and gaps, from 2015 onwards.[60] She had a responsibility to fix the fence. It might be said that if she is liable in this way then so is Ms Maier. However the Tribunal accepts that Ms Maier and her agent had no actual knowledge of the issues with the fence, whereas the applicant did. Indeed, the applicant knew that Babe was escaping into her property, yet she did not take action as a property owner to fix the fence.
[60] Exhibit A1
41.While the applicant denied that her dog/s ever escaped into the back-neighbouring yard it is not possible for her to categorically say this especially since she said that she was absent overseas at the time of the incident. Mr Ralph said that her dog was seen by him in his yard. If there were missing palings as the applicant said she observed then it is probable that her dog did go into the back-neighbour’s yard on occasion. This finding also supports a conclusion of contributory negligence by the applicant.
42.Considering all the facts and law that applies to this case, the Tribunal finds that the applicant is 10% liable for the damages she suffered on a contributory negligence basis, so reducing the amount awarded to $12,701.43 plus interest and the reimbursement of the filing fee $150. While the applicant claimed 20% interest, she provided no evidence that she had a debt of the full claim on her credit card from the date of payment and that she was not able to pay this off. Therefore the Tribunal awards statutory interest only.
43.Ms Lapwood and Mr Ralph are liable for the revised claim of $12,701.43, plus statutory interest from 18 September, and the re-imbursement of the filing fee of $150 in the amounts as set out above (see paragraphs 30 and 35 above).
………………………………..
Senior Member L Beacroft
HEARING DETAILS
FILE NUMBER:
XD 1226/2017
PARTIES, APPLICANT:
Kerry Ann Howard
PARTIES, RESPONDENTS:
Annalese Lapwood
Jackson Ralph
The Alaskan Malamute Re-Homing Aid Australia Inc
Karen Maier
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, THIRD RESPONDENT
Josie Dempster
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR FIRST RESPONDENT
N/A
SOLICITORS FOR SECOND RESPONDENT
N/A
SOLICITORS FOR THIRD RESPONDENT
Sparke Helmore
SOLICITORS FOR FOURTH RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member L Beacroft
DATES OF HEARING:
15 June 2018
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