Joanna Pappas v Tran Thi-Foanh
[2005] SADC 43
•10 May 2005
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
JOANNA PAPPAS v TRAN THI-FOANH
Judgment of Her Honour Judge Kelly
10 May 2005
TORTS - NEGLIGENCE - PROOF OF NEGLIGENCE
Plaintiff injured by a dog. Dog and Cat Management Act 1936. Meaning of "keeper". Civil liability for damages. (Wrongs Act 1936). Liability in Negligence. Occupier of land sued. Registered owner of dog not sued. Whether defendant rebutted presumption in s 6(3) Dog and Cat Management Act 1995. Whether defendant otherwise liable to plaintiff in negligence.
Held: Defendant not liable to plaintiff for injuries caused by a dog. Dog not owned or kept by her but kept on land which the defendant owned and farmed. Duty of care not breached.
Dog and Cat Management Act 1995; Wrongs Act 1936; Civil Liability Act 1936, referred to.
Irving v Slevin (1982) 30 SASR 66;; Posthuma v Campbell (1984) 37 SASR 321; ; Keeffe v McLean-Carr (1993) 169 lsjs 92;; Parliamentary Debate, House of Assembly 17 November 1994, 1134;; Elliott v Weiss (2001) ACTSC 127;; Royal Society for the Prevention of Cruelty to Animals v Brett Evitts (1993) SASC 3810;; Coleman v Barrat [2004] NSWCA 37; ; Eadie v Groombridge (1992) 16 MVR 263;; Galea v Gillingham (1987) 2 Qd.R 365 at 375; Collins v Carey (2003) Q.C.A. 29; Jones v Dunkel & Anor (1959) 101 CLR 298; Mary Aird & Ors v Grantham & Ors [1998] WASCA 254 (18 September 1998), applied.
JOANNA PAPPAS v TRAN THI-FOANH
[2005] SADC 43Introduction:
On the afternoon of the 26th March 2000 Joanna Pappas (the Plaintiff) and her husband Dimitrios were walking along Namoi Road Renmark when a dog came running from land owned by Tran Thi To-Anh (the Defendant) and knocked over Mrs Pappas. As a result of being knocked over by the dog the plaintiff suffered injuries to her left leg and has claimed damages from Tran Thi To-Anh for the loss and damage she has suffered as a result of the incident.
The quantum of the plaintiff’s damages has been agreed and the only issue for determination before me is whether the defendant is liable to the plaintiff in damages for the injuries caused by that dog on that day.
The Plaintiff’s Claim:
The plaintiff’s primary claim is based on the Dog and Cat Management Act (1995) which expressly provides for civil actions in respect of injuries caused by a dog. The plaintiff’s claim in the alternative is in negligence based on the principles set out in Part 1A of the Wrongs Act 1936 (which was replaced by the Civil Liability Act 1936) which Act was in force at the time of this incident. Before dealing with the legal issues which arise for consideration I turn to the facts.
The Facts:
The plaintiff and her husband were fruit growers living in Barwon Road, Renmark at the time of this incident. She and her husband often went for a walk. The plaintiff usually went everyday and on some of those occasions her husband accompanied her.
The defendant, who is also a fruit grower, lived in a house on the corner of Seventh Street and Namoi Street Renmark. The defendant was the owner of land on both sides of Namoi Street. That land is shown in the plan (marked exhibit P1) as block 1 and block 92.
The defendant lived in a house on block 1 the main entrance to which is from Seventh Street. The Court was shown that property on the view.
The defendant’s son-in-law a man named Van Lam Tran and his wife, the defendant’s daughter, and their children lived in a house on Namoi Street situated on block 92. The Court was also taken to that property on the view. The two houses are separated by Namoi Street and are several hundred metres away from each other.
The plaintiff was in the habit of taking a walk around the block down Barwon Road where she lived, turning left into Seventh Avenue and then again into Namoi Street before proceeding back home to the house at Barwon Road. She went for a walk about three or four times a week. In the previous two or three years prior to the 26th March 2000 she had seen a big dog tied up to a tree near the house and sheds on block 92. The plaintiff was a little confused as to precisely which tree the dog was tethered to. Both trees are shown in photograph number 6 of the photographs marked Exhibit P2. Which particular one of those two trees in that photograph, whether it was the tree closest to Namoi Road or the tree situated a little further back near the shed, I find to be immaterial to the issues I have to determine. I accept the plaintiff’s evidence that it was one of those two trees.
The plaintiff described the dog as a big dog always tied up to the tree when she saw it. It always barked and appeared to be wild on the occasions when she walked down Namoi Road, so much so, that she chose to divert to the other side of Namoi Road in order to give that dog a wide berth when she went on her walks. Apart from seeing it at a neighbour’s house once off the chain, she had never seen the dog off the chain.
On the 26th March 2000 when she was walking with her husband in the late afternoon she did not see the dog as usual tied to the tree.
The first the plaintiff saw of that dog was when it came straight for her from the direction of the house. On this day it was not barking but was silent. It came straight for her and collided with her causing her to fall over and injure her left leg. According to the plaintiff her husband called the dog back and then it disappeared into the vineyards somewhere. She said the dog looked wild and aggressive.
According to the plaintiff the defendant’s husband came from somewhere on the farm and the defendant’s son (I infer that she was referring to the son-in-law) came from the house on block 92.
The plaintiff had never seen anyone feeding, watering, walking the dog or tending to it in any way on the occasions when she had walked by.
The plaintiff’s husband gave evidence that he had seen the dog on three or four occasions when it was loose either down at his place but it was mostly on a leash tied to the tree. He said that when he had seen it, it had barked in a vicious way.
On the 26th March 2000 Mr Pappas said that he did not see the dog but that it came out just like a bullet and went straight for his wife and knocked her over. He didn’t see what happened to the dog because it just took off after knocking over his wife. He said that the fellow who had the dog came down to where he and his wife were and there was another fellow with a horse who he spoke to as well.
The person with the horse was the witness Glen Cameron. He came by obviously after this incident as he saw the plaintiff sitting on a sump drain on Namoi Street alone and in distress. Mr Cameron said that he had seen that dog tethered to the tree on block 92 in Namoi Street for the last two or three years. Whenever he saw the dog it was tethered to the tree. He would take his horses training and pass that way three times a week. On those occasions he said that the dog was a fair bit of a problem as when he went past it was always leaning on the chain trying to get him. He had seen the dog a few times off the leash either down bothering his horses or on a neighbouring property and on those occasions he would shoo it off with a stock whip. On the 26th March 2000 he did not see the dog at all but he only saw the injured plaintiff.
I accept the evidence of the plaintiff and her husband as to how the dog behaved on earlier occasions and as to what happened on 26 March 2000.
The Defendant:
The defendant told the Court that she lived on the property at block 1 Seventh Street. She had a number of dogs of her own and those dogs were secured behind a fence at the house on block 1.
The defendant identified the dog shown in the photograph which was part of Exhibit D1. She said that she had given that dog as a puppy to her grand children as a pet.
At the time it must have been very young because she was still feeding it by hand. On the occasions thereafter when she visited her daughter and son-in-law the dog was very friendly.
At the time of the incident her son-in-law and daughter and the children had been living in the house at block 92. From time to time she rented that house however, the arrangement with regard to her daughter and son-in-law was that they were free to live on the property and they looked after the house but did not pay any rent.
The defendant first became aware that there had been some trouble with the dog later on the evening of the 26th March 2000 when her daughter told her.
The defendant claimed not to know what had happened to the dog after the council removed it. The defendant said that she had never been involved with the watering, feeding, walking or general care of that dog since she gave it to her son-in-law and daughter as a puppy.
It was put to the defendant in cross examination that the dog was kept as a guard dog to guard the machinery and equipment of the defendants which was stored in the sheds adjacent to the house on block 92.
The proximity of those sheds to the house and their general lay out can be seen to some extent in the photographs marked Exhibit P2, in particular in the photographs numbered 3 and 4. The defendant denied that the dog was kept for that purpose and pointed out that there were a number of different entrances to these sheds on block 92. She said if she was going to keep a dog as a guard dog she would have been inclined to put that dog much closer to the entrances.
The defendant did not deny that she was aware of the presence of the dog on block 92 but asserted that since she had given that dog away to the son-in-law and the daughter she had nothing further to do with the dog. On all of the occasions when she had visited her daughter and son-in-law she said that the dog was very friendly.
The credit of the defendant was attacked on a number of bases. It was suggested that she was lying about the extent of her inability to understand and speak English and it was also suggested that she was lying about the real purpose for which the dog was kept on the property. In fact most of the defendant’s cross examination was directed towards these two topics.
It is convenient now to deal with the criticisms which were made of the defendant’s evidence. The defendant was closely cross examined by counsel for the plaintiff both as to the history of the dog and her claimed inability to speak or read much English.
Contrary to the submissions which counsel for the plaintiff made, I do not find it inherently unbelievable that a Vietnamese woman living and working in Australia even for 20 years would still only have a rudimentary grasp of English either in the written or spoken word.
In the first place it was clear enough from the defendant’s presentation in Court that she could not communicate in English and even, with the benefit of a Vietnamese interpreter, communication between counsel and the witness and at times the bench was extremely difficult.
The defendant claimed to rely heavily on her four daughters, who apparently can speak English, both in the conduct of her business and in her general dealings with the community. There was no evidence either on the plaintiff’s or the defendant’s case which contradicted the defendant’s assertion that she was only able to communicate in English pleasantries such as “hello” and that her knowledge of English words was rudimentary. She did agree she could count from 1 to 10 in English, that she knew what the English word for dog was, and what the English word for tractor was. This is hardly surprising given the history of this litigation and her ownership of two tractors on the property.
However not even the plaintiff and her husband claimed that the defendant or her husband understood more than “hello” and similar pleasantries in their exchanges with the defendant over the years.
When questioned about the conversation with the defendant and himself Mr Dimitrios Pappas said (t/s 76, 8 - 16)
Q “Apart from the man with the horse, did you see any other men in the area.
AI’ve seen the husband, he was coming down with the tractor. I told him but he couldn’t understand because they can’t speak English.
Q Whose husband
A The lady’s husband.
Q The defendant’s husband
A That’s right.”
(t/s 76, 29 - 34 inclusive)
Q “Have you ever spoken to the defendant
A Since when?
Q At any time
AYes, we’re next door neighbours. I always say hello, good morning and everything like that. Nothing wrong with them or anything.”
The plaintiff, when questioned about any conversation she may have had with the defendant, said she had seen her many times over the years but at no stage claimed to have had any conversation with the defendant in English.
The defendant told the Court that she relied heavily on her daughters in most of her business dealings, that she sold a great deal of her produce to a Vietnamese market in Adelaide and had a Vietnamese accountant.
The defendant’s evidence that her son-in-law Van Lam Tran was the owner of the dog and responsible for its day to day care and control after she handed it to him as a puppy was supported by the evidence of the council records (Exhibit D1).
The council records show that the black and white dog (seen in the photograph in Exhibit D1) was first registered in the name of Van Lam Tran in 1995. Mr Mullins said that the computer records of the council showed that the dog had been registered continuously in the name of Van Lam Tran since its first registration in 1995.
The records also show that a person called Tran T.T.A (the defendant) was the registered owner as at 26 March 2000 of five dogs, none of which are relevant to these proceedings.
Also tendered as part of Exhibit D1 is a complaint form in the name of Jim Pappas in relation to the incident of the 26th March 2000. A copy of a record of interview with the alleged owner/person responsible, was completed and signed by Van Lam Tran on the 19th April 2000. That document also forms part of Exhibit D1.
It is relevant to note at this stage that in that form was a question and answer in the following terms:-
A.“I realise my dog is aggressive and I did not want this to happen again so I surrendered it to Council.
Q Have anyone complained about the dog before?
A People walking past and a child on a bike”.
Strictly speaking this document in so far as it purports to record admissions by Van Lam Tran is hearsay. However there is no evidence before me to suggest that any knowledge on the part of the dog’s registered owner about the dog’s propensity should be imputed to the defendant.
The only other question and answer of relevance in that interview was
Q7 Are you the owner or person responsible for the control of a
male bull terrier dog named Ty registration number 9900057
identified by photo?
To which the answer was “Yes’.”
There is no dispute that the dog referred to in D1 is the dog which knocked over the plaintiff on 26 March 2000.
There is one further document of relevance in the council records and it is a document prepared under the Dog and Cat Management Act (1995) being an authorisation signed by Van Lam Tran for the council to remove the dog from his care.
The Council records show that the Council in all of its dealings in relation to the dog only ever dealt with Van Lam Tran.
The defendant at no stage claimed ownership or that she had anything to do with the day to day care and control of the dog.
The plaintiff’s counsel argued that the defendant was untruthful when she asserted that she had nothing to do with the dog. It was put to her explicitly that she kept the dog on the property at block 92 in the vicinity of the packing sheds for the purpose of having the dog guard her property in the shed.
The defendant’s evidence was that the only purpose for which the dog guarded was in relation to the ducks and chooks kept by the daughter and son-in-law in a chook cage near to the tree where the dog was usually tethered. Although it was put to the defendant that she was lying about this as well there would appear to be no dispute that there was a chook cage in the proximity of the tree where the dog was tethered. The plaintiff in her evidence to the Court described such a cage.
I accept the defendant’s evidence about the construction of and entry points to the packing sheds where her equipment and machinery was stored. There are three other entrances to that shed none of which are proximate in any way to the location of the tree where the dog was tethered. Indeed it was obvious upon the view that a person could enter and exit that property for the purpose of accessing the sheds without ever being seen by a dog tethered in that position by the tree or coming into a position which was even proximate to the tree.
The defendant’s difficulties with the English language were apparent throughout the proceedings in Court, not only with the selection of words but also their pronunciation. This difficulty was particularly marked with regard to the evidence around the defendant’s own name which I note was misspelt in the pleadings and I find that that misspelling was probably caused by a lack of understanding on the part of both the witness Mr Cooper and others as to the actual spelling as opposed to the phonetic pronunciation of her surname. This is highly relevant to my assessment of the defendant’s evidence as it was quite obvious to me that there were real and substantial difficulties with communication with this defendant, notwithstanding the assistance of an interpreter in Court.
The Evidence of Mr Cooper:
This fact is also relevant when considering the evidence of Mr Cooper who served her with the summons in relation to this action and maintained that he had a conversation with her in the terms set out below (t/s 58, 2-8)
Q “What is your name?”
A “Tran Thi Foanh”
Q“Are you the Tran Thi Foanh that is named as the defendant in those documents that I have just served to you?”
A“Yes this is about my dog when it knocked a lady over and hurt her”
The evidence of Mr Cooper was important to the plaintiff’s case as the conversation which Mr Cooper claimed to have had in those terms with the defendant was relied on by the plaintiff as evidence that the defendant had made an admission of ownership of the dog or at the very least had made an admission consistent with her responsibility for the care and control of that dog.
It is necessary then to examine carefully Mr Cooper’s evidence on that topic.
At the outset Mr Cooper told the Court that he was a process server employed by the Sheriffs Department and his job in essence was to serve proceedings on persons as directed. Mr Cooper told the Court that when speaking with the defendant he found it very very hard to understand her but, in his opinion, they did get through to each other. When questioned closely about the conversation set out above which he had recorded a couple of days after serving the defendant in an affidavit of service and which he relied on to give evidence in these proceedings Mr Cooper agreed that he would have asked more than those simple two questions set out in the affidavit.
His evidence was that although he did find it very very difficult to understand her she did appear to read the document and he had no reason at that stage to think that she could not read English. When questioned as to the basis of this belief he agreed that he could have asked her to repeat herself because he did not understand and at the date when he gave evidence in the Court he was still not sure of the correct pronunciation of her name. It is a small irony that Mr Cooper’s misunderstanding of the pronunciation of the defendant’s name appears to be reflected in the heading of these proceedings which does not accurately spell the defendant’s name.
When questioned by counsel for the defendant Mr Cooper agreed that his only focus that day was to get the person he served to identify herself as the party on the summons. He thought that he had achieved that and the comment that she made which he recorded in the affidavit in the terms set out above confirmed in his mind that she had not only identified herself as the party but had acknowledged that it was about her dog which had caused a lady an injury.
The defendant’s evidence about her dealings with Mr Cooper was somewhat at odds with Mr Cooper’s evidence. The defendant said that nothing was said about a dog at all but that Mr Cooper showed her the papers with the last name being hers. However she denied that anything was said about a dog at all.
I accept the evidence of Mr Cooper that he served the defendant at the Naomi Street property. I do not doubt that Mr Cooper had a conversation with the defendant in an endeavour to identify whether she was the person named in the summons and during that conversation the topic of the dog may well have come up. However, in the light of what I saw and heard during this trial I do not accept that the conversation that Mr Cooper had with the defendant was in precisely the terms recorded in that affidavit of service. To be fair to Mr Cooper I do not believe on a reading of his evidence as a whole that Mr Cooper himself claimed that conversation represented an accurate account of the whole exchange between himself and the defendant.
In any event it can be seen from the defendant’s difficulties even in this Court with the aid of an interpreter and the number of misunderstandings which still occurred between counsel and the defendant (and I refer to her own counsel as well as cross examining counsel) how the defendant and Mr Cooper may have been at cross purposes, with neither accurately understanding the other.
Even if the defendant did speak about the dog and I am not satisfied on the balance of probabilities that she did I could not be satisfied that any reference to the dog or a dog constituted any admission in the terms claimed by Mr Cooper.
In reaching that conclusion I also take into account the candid admission of Mr Cooper that his only purpose in speaking with the defendant in what he agreed was a very short conversation was to establish that she was the person named in the summons.
Whilst the difficulties in communication were considerable even with the aid of an interpreter, I have not been persuaded that the defendant’s evidence was untruthful On the contrary, taking into account the obvious difficulty in communicating I found the defendant to be straight forward in her answers. She candidly acknowledged that she had been in trouble with the Council 10 to 12 years before over a dog which bit someone.
Her responses to the suggestion that the dog was a guard dog were logical and supported by the lay out of the sheds (Exhibit P2). Any lack of clarity or confusion in her evidence was almost solely as a result of communication difficulties caused by the necessity of using an interpreter.
I find that at the relevant time the dog was in the care and control of Van Lam Tran and his family. I am not satisfied on the basis of the evidence before me that the dog was used by the defendant as a guard dog for her. The dog may well have been used as a guard dog for Van Lam Tran and his family but there is no evidence one way or another on that topic and I find the mere fact of keeping a dog tethered to a tree on a rural property does not necessarily point to that dog being a guard dog. The fact that the dog was usually tethered to the tree by Van Lam Tran might point to an inference that Van Lam Tran knew the dog could be a nuisance and was aggressive but there is no evidence that this was a fact communicated to or known to the defendant.
On the contrary, the evidence of the defendant points to her having handed over the dog as a puppy and having only seen it on occasions when she went to get her property from the shed or to do work on the farm or visit her family. I accept the defendant’s evidence that on these occasions the dog was friendly. She raised the dog as a puppy why wouldn’t it be?
The rule in Jones v Dunkel & Anor (1959) 101 CLR 298 was relied on by counsel for the plaintiff to argue that the defendant’s failure to call Van Lam Tran enables the Court to draw an inference from her failure to do so, that his evidence would not have supported her case.
The difficulty that arises with that submission on the facts of this case is that I do not know why Van Lam Tran was not called to give evidence. Apart from one question which was put to the defendant during cross examination as to the whereabouts of Van Lam Tran at the moment, nothing further was asked by anyone about Van Lam Tran’s current circumstances or particular whereabouts other than that he was living in Adelaide.
What I do know is that there are four daughters of the defendant, one of whom is or was married to Van Lam Tran at the time. One daughter lives in Bordertown and it is unclear on the evidence where the other three live although I infer that at least two of them live in Adelaide. There is no evidence one way or another as to whether Van Lam Tran is even living with the defendant’s daughter, or whether he was available to be called as a witness.
On the state of the evidence therefore I do not consider it appropriate in this case that I should draw any inference adverse to the defendant on account of her failure to call her son-in-law to support her account of the dog’s history.
I find that the dog Ty was at all relevant times in the care and control of Van Lam Tran. He was the registered owner and I find that he was in fact the owner of that dog. It is therefore not surprising that the council chose to deal with him for the purpose of interviewing him about the dog attack and for the purpose of making decisions about what would happen to the dog later and seeking his authorisation ultimately to remove the dog from his care.
The Law:
The plaintiff’s primary case was based upon the Dog and Cat Management Act (1995) which expressly provides in Part 6 of the Act for civil actions in respect of injuries caused by a dog.
To understand the current legislation it is pertinent to refer to earlier authority dealing with earlier versions of dog control legislation in South Australia. In Irving v Slevin (1982) 30 SASR 66 and Posthuma v Campbell (1984) 37 SASR 321, Zelling J traced the history of Dog Control legislation in South Australia. The purpose of the legislation was to take away the common law necessity for proof of ‘scienter’.
In Keeffe v McLean-Carr (1993) 169 LSJS 92, Olsson J observed that with respect to s 52 of the predecessor the Dog Control Act (1979), Parliament had amended the Act to broaden the basis of civil liability by substituting the words:-
“a person responsible for the control of the dog is liable in damages for any injury or loss resulting from the actions of the dog”.
In Part 6 of the present Act Parliament introduced the concept of “the keeper of a dog” and made it clear that for the purposes of the Act it was not necessary in a claim for damages for a plaintiff to establish negligence, nor to prove the dog’s vicious, dangerous or mischievous propensity. It further provided for a defence of contributory negligence, thereby overcoming one of the consequences of the decision in Keefe v McLean-Carr, supra
The current Act provides strict liability in relation to damage caused by a dog subject to the qualifications set out in s 66(3) of the Act. None of the qualifications contained in that section apply to the facts of this case.
Section 65 states:-
“In civil proceedings relating to injury, damage, loss or nuisance caused by a dog, questions of ownership or responsibility for the control of the dog will be determined as if the proceedings were criminal proceedings under the Act”
The defendant submitted that the section should be construed as imposing upon the plaintiff a burden of proving her case beyond reasonable doubt. In favour of that submission is that Parliament has provided in s 67 the power to make orders in civil actions of the nature of those made in criminal proceedings including, for example, orders for the destruction of a dog as provided for in s 47.
Orders such as those contemplated by s 47 one might reasonably conclude would only be made if proof beyond reasonable doubt of the facts necessary to support such an application had been established.
I have reached the conclusion that a proper construction of s 65 means that the presumptions which the Act applies to criminal offences such as those in s 5 and s 6 of the Act equally apply to civil actions. The legislation is remedial and should be construed beneficially. I am fortified in reaching this conclusion by the comments in the second reading speech in Hansard with particular reference to clause 65, South Australia, Parliamentary Debates, House of Assembly, 17 November 1994, 1134 (Honourable D.C. Wotton, Minister for the Environment and Natural Resources).
I am of the view that s 65 does not impose a standard of proof beyond reasonable doubt in a civil case. Nevertheless the facts of this case in so far as they give rise to a civil claim on the plaintiff’s part have not been established against this defendant applying the lesser onus of proof, on the balance of probabilities.
Section 66 of the current Act defines “the keeper” as including “the owner of the dog” and “a person into whose possession the dog has been delivered”. It is clear that Parliament has broadened the concept of an ‘owner’ and therefore a ‘keeper’ beyond that person or those persons registered as owner.
The issue in this case is whether the defendant is the keeper or the owner of the dog within the meaning of the Act.
I pause here to mention that, on the plaintiff’s case, the defendant made an admission to the witness Cooper in effect to being the owner of the dog. For the reasons which I have already given I do not accept that the defendant made any admission to being the owner of the dog to the witness Cooper or to any other person for that matter.
The owner of a dog is presumed in s 5(1) of the Act to include the registered owner of the dog unless that presumption is rebutted. Further, in s 5(2), irrespective of registration, a dog habitually in the apparent ownership of a person will be presumed to be owned for the purpose of the Act by that person unless again that presumption is rebutted.
Finally s 6(3) provides that an occupier of premises in which a dog was kept or permitted to live at the time of the offence will be presumed to have had possession or control of that dog unless it is proved that another person over the age of 18 had possession or control of the dog at that time. It is clear that a person responsible for the control of a dog or in possession of a dog generally has the same responsibilities under the Act as the owner of the dog.
An occupier of premises is defined to mean a person who has, or is entitled to, possession or control of the premises.
One of the factual issues for determination here is whether the dog was being used to guard the defendant’s property and whether she attended that property where the dog resided on a regular basis and what implications flow from findings of fact in relation to those two matters with regards to her responsibility as occupier of block 92.
In Posthuma v Campbell, supra, while both defendants admitted that they were owners and occupiers of the relevant premises one of the defendants admitted on the pleadings that the dog was his and under his control while the other denied that fact. Unfortunately it is unclear from that judgment whether mere ownership and occupation of the premises was sufficient to establish control for the purposes of the previous Act. It may be that the grand-mother defendant in that case failed to rebut the statutory presumption under the current Act that she as occupier had possession and that possession to her exclusion, had not been passed to her husband.
In Mary Aird & Ors v Grantham & Ors [1998] WASCA 254 (18 September 1998) again both defendants admitted that they were owners and occupiers of the relevant premises however one of the defendants admitted that the dog was hers and the other defendant denied that fact.
Under the relevant Western Australian legislation at the time, the Dog Act 1976, it was provided that the owner of any dog or a person deemed to be the owner may be liable in damages for injury done by that dog. “Owner” in relation to a dog is defined in that Act to mean the person by whom the dog is ordinarily kept, or a person who is deemed to be the owner of the dog. A person is deemed to be the owner of the dog where a person is shown in the register maintained by a Council under the Act as being the last person recorded by the Council as the registered owner, whether or not the registration in his name continues in force, unless he proves that he is not the owner of the dog.
The uncontested evidence in that case was that the two defendants had been living together for approximately 10 years. The dog had been owned by the female defendant’s daughter and had been left with the male and female defendant after she went overseas. The male defendant was the registered owner of the dog according to the Council records at all times and the male defendant admitted during the course of the hearing that the dog was regarded as the family dog, that is the dog of the residence.
The female defendant gave evidence that the dog was owned by her and not by the male defendant even though the registration of that dog was in his name.
On appeal the Full Court of Western Australian Supreme Court upheld the trial judge’s determination that the male defendant had displaced the presumption of ownership under the Act and gave judgment against the female defendant, dismissing the claim against the male defendant. In particular the Court held that the fact that the male defendant had admitted that the dog was regarded as the family dog, that is the dog of the residence, had no evidentiary value in establishing ownership for the purpose of the Act on the part of the male defendant.
It is clear from the current Act in South Australia that there is a defence in s 6(3) for the occupier to prove that another person over the age of 16 years had possession or control of the dog at the time of the alleged offence.
On the construction which I have adopted of s 65 of the Act if the plaintiff does not succeed in bringing the defendant within the concept of a “keeper” under the Act then it is unlikely that she can succeed in her claim under the Act.
Even if the plaintiff relies on the alternative claim in negligence pursuant to Part 1A of the Wrongs Act the question again is whether in the circumstances the defendant as occupier has given possession and control to her son-in-law.
Dealing first with the issues which arise for consideration on the plaintiff’s primary claim, in my view the fundamental question to be addressed is whether the defendant is a “keeper” for the purposes of s 66 of the Act. If the defendant is a “keeper” then, subject to any relevant qualifications in s 66(3) of the Act, she is strictly liable to the plaintiff for the injury caused by the dog. In the event that she is not a “keeper” for the purposes of the Act the question remains whether upon the facts which have been established the defendant owed a duty of care to the plaintiff in relation to the keeping, management and control of the dog.
I have reached the conclusion that for the purpose of determining the defendant’s liability under the Act that the defendant is not a “keeper” of the dog.
I accept the evidence of the defendant that apart from giving the dog as a puppy to her son-in-law some time prior to its registration in 1995 she has had nothing further to do with the day to day management care and control of that dog. Moreover from the documents which have been tendered in evidence before me and marked (Exhibit D1), I find that the defendant’s son-in-law Van Lam Tran was the registered owner of the dog from 1995 onwards up to and including the date of the injury to the plaintiff on the 26th March 2000. I find that the defendant’s actions are inconsistent with any assumption by her of ownership, possession or control of the dog.
An issue arose as to whether the dog may have been used as a guard dog for the defendant’s property. For the reasons which I have given I reject as a matter of fact that the evidence establishes that the dog was kept as a guard dog for the defendant’s property.
The only basis upon which the defendant could be said to be in possession or in control of that dog arises from the mere fact that she is the owner and occupier of all of the land which is registered in her name including block 92.
In terms of any claim under the Dog and Cat Management Act , supra I find that if the defendant as occupier could be said to have any ultimate control of the dog that insofar as she is required to do so by s 6(3) of the Act then that presumption has been rebutted by the evidence from the defendant supported as it was by the council records.
Claim in Negligence
An alternative plea by the plaintiff is the claim based in negligence pursuant to Part 1A of the Wrongs Act (1936) which was current at the time of the accident on the 26th March 2000 but which has been reproduced substantially in full in Part 3 of the Civil Liability Act (1936).
Has the plaintiff established that the defendant owed a duty of care to the plaintiff in relation to the keeping, management and control of that dog by virtue of the defendant’s ownership and occupation of the land?
Unlike the Dog and Cat Management Act supra, a “keeper” is not defined in the Civil Liability Act supra. It seems clear that civil liability under the Wrongs Act for injury caused by an animal rests not only upon the legal owner but also upon any person who kept the dog in his or her possession or who had control of that dog. It then goes back to the same question:-
Has the defendant as occupier given possession and control of that dog to her son-in-law or is she to be regarded at the very least as a person in joint possession and control of that dog?
Section 18 of the Wrongs Act, supra, provides that liability for damage caused by animals generally will be determined in accordance with principles of negligence. It is not necessary, pursuant to sub-section 3, for a plaintiff to establish that any person had prior knowledge of a vicious, dangerous or mischievous propensity in the animal. However, s 18(2) of the Act provides that in determining the standard of care to be exercised in relation to the keeping, management and control of an animal, the Court shall take into account:-
(a)the nature and disposition of the animal (which shall be determined according to the facts of the particular case and not according to any legal categorisation); and
(b) any other relevant matters.
Further, sub-section 6 provides that in determining whether a reasonable standard of care was exercised in a particular case the Court shall take into account measures taken for the custody and control of the animal and to warn against any vicious, dangerous and mischievous propensity that it might exhibit.
While s 18(9) excludes other principles upon which liability might be determined, s 18(10) preserves the course of action against a keeper under the Dog and Cat Management Act.
In Elliott v Weiss (2001) ACTSC 127 the question arose upon whom lies the duty of care with respect to the keeping of a dog in circumstances where the “keeper” is not defined. In that case at paragraph 16, Miles C.J. concluded that:-
“the answer seems to be a person who is so closely and directly affected that he or she has (or, perhaps, should have) taken upon himself or herself the responsibility of caring for and exercising control over the dog, feeding, watering and otherwise caring for it, that he or she may expect to receive in return an appropriate measure of loyalty and affection. “
In light of the evidence the question is whether I can be satisfied on the balance of probabilities whether the defendant owed any duty of care for the dog, which was at all relevant times in the possession of her adult son-in-law.
In Royal Society for the Prevention of Cruelty to Animals v Brett Evitts (1993) SASC 3810, Cox J, construed the words “custody and control” for the purpose of a penal statute to include a person who “for practical purposes is in charge of an animal” although not physically proximate. Can it be said that the defendant was for practical purposes in charge of the animal? The plaintiff argued that it was being employed as a guard dog for her sheds. For the reasons which I have given I reject the submission that the evidence establishes that the dog was employed for the defendant’s purposes to guard her sheds.
Even if, contrary to my view, the defendant owed a duty of care merely by being the registered proprietor of the property or even as occupier of the land in the sense that I have earlier defined, the scope of the duty of care is restricted having regard to s 18(2) of the Civil Liability Act.
The evidence establishes that as far as the defendant knew the dog was quite tame. She gave it to her son-in-law to be enjoyed by her grand children. It is significant in this regard that apart from the evidence of the witnesses who say the dog was always barking and jumping about on the lead in an aggressive fashion when it was tethered to the tree, there is no evidence that this particular dog ever did bite anyone.
There is evidence from both Mr Cameron and Mr Pappas that the dog escaped from time to time and was chased off. Indeed on the day in question the dog ran straight for the plaintiff and then ran away into the vines never to be seen again. There is no suggestion that the dog bit the plaintiff.
I do not suggest that the actions of the dog are not sufficient to cause a relevant injury, indeed an indirect injury is sufficient. However, the actions of the dog even on that day point to the nature of the dog. There has been no evidence before me to suggest that the dog is inherently vicious or that it belongs to a breed that is defined to be inherently vicious. Moreover there is no evidence whatsoever to suggest that the defendant had any knowledge from any person or that any complaint about that dog was ever directed to her.
The defendant who did not reside on that property where the dog was kept said that on the occasions when it was not chained she had always seen it being friendly with her grand-children. That evidence is relevant to the assessment of the issues for consideration under s18(2) of the Act (Coleman v Barrat [2004] NSWCA 27 and Eadie v Groombridge (1992) 16 MVR 263.).
It is difficult to see what more the defendant could do as occupier and registered owner of that land in the circumstances where she had never resided on the property whilst the son-in-law and daughter with the dog were there, nor did she have any effective control of that dog.
The test is whether the defendant ought to have foreseen the risk that in the absence of taking measures to control the dog, an injury of the type may occur. I repeat negligence cannot be established merely by showing that the defendant had failed to guard against the possibility that a tame animal will do something contrary to its normal nature. Nor can the mere fact that the dog escaped from restraint from that property in itself establish negligence. See Galea v Gillingham (1987) 2 Qd.R 365 at 375 and Collins v Carey [2003] Q.C.A. 29 nor is hindsight the test of negligence.
Conclusion:
It follows from these reasons that I have not been persuaded that the defendant owed a duty of care to the plaintiff on the facts of this case. If I am wrong and the defendant did owe a duty of care merely by being the registered proprietor and the occupier of the land in the sense I have defined then I have not been persuaded that she has breached that duty of care on the facts as I find them to be.
For these reasons the plaintiff’s claim against the defendant is dismissed. I shall hear the parties as to any order for costs which should be made.
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