McCahon v Gold Coast City Council - [2014] QCAT 538

CITATION:

McCahon v Gold Coast City Council [2014] QCAT 538

PARTIES:	Darren John McCahon (Applicant)
v
Gold Coast City Council (Respondent)

APPLICATION NUMBER:

GAR204-14

MATTER TYPE:

General administrative review matters

HEARING DATE:

30 October 2014

HEARD AT:

Brisbane

DECISION OF:

Member McDonald

DELIVERED ON:

31 October 2014

DELIVERED AT:

Southport

ORDERS MADE:

The decision of the Gold Coast City Council is confirmed.

CATCHWORDS:

Dangerous dog – serious injury,

Animal Management ( Cats and Dogs) Act 2008 s 89

APPEARANCES:

APPLICANT:

Darren McCahon

RESPONDENT:

Anton Cappie

REASONS FOR DECISION

The Applicant, Mr McCahon sought review of the decision of the Gold Coast City Council of 15 May 2014 to make a Dangerous Dog Declaration in relation to his Rhodesian Ridgeback Cross named “Busa”. The declaration arose from an incident which occurred outside the Applicant’s home on 12 February 2014, where Busa was said to have bitten an elderly man, Mr Smith, while he was walking past with his small dog.
Council led evidence that Busa had attacked Mr Smith, causing a serious injury to the elderly man. They claimed Busa had rushed at the man and his dog on that date and he needed significant medical attention as a result. They considered the dog needed to be muzzled in public at all times.
In evidence, Mr Smith informed the Tribunal that he had been walking along the road outside Mr McCahon’s house when two dogs charged upon him. He claimed he was fearful for the life of his own small dog, believing the dogs aimed to kill her. He described being frightened at the time, for himself and his dog. He said he looked down and saw his arm in one of the dog’s mouth. He was not certain which dog caused the injury, but considered it was the older bigger dog. He described his injury as having the sinew torn from his right wrist. The bone was exposed. He said as a result of the injury from the attack, he had surgery, and spent six days in hospital. He said it took considerable time for his injuries to recover. He lost the use of his fingers for some time, and required physiotherapy to learn to use them again.
Nathan Tait was a witness to the incident. He stated that he had not seen the dog attack Mr Smith, but arrived in his car while the larger dog, remained poised to attack Mr Smith. He saw Mr Smith very shaken up, and covered in blood. He said he saw lots of blood over Mr Smith and his dog. He stated that he observed the larger dog poised with its ears and tail up, looking directly at Mr Smith. He said it looked ready to pounce on Mr Smith. He understood that the dog had bitten Mr Smith before he arrived and was poised to continue. He said the second dog retreated, and seemed more of a follower than the stockier dog.
Mick Hayes, the Gold Coast City Council Investigating Officer stated that it had been difficult to find out exactly what had happened. He spoke with Mr Smith while he was at the hospital after he had received medical treatment. He observed Mr Smith with the injury bandaged and therefore did not see the wound. He relied upon the medical staff’s statements to him that Mr Smith sustained deep lacerations to his lower arm. He was aware that the required surgery and ongoing treatment for the injury.
Mr Hayes said that Barbara McCahon had identified Busa as the dog who had attacked. His report dated is 12 February 2014, (although clearly that is a typographical error as it refers to subsequent dates in the body of the report.) This report notes that Mr Smith claimed the older dog, greying around the mouth was responsible for the attack.
He indicated that she however, stated that she did not see what had happened. Mr Hayes shared his opinion as Animal Management Inspector that behaviour reports were generally unreliable as there are many contingencies and dogs may behave differently in different situations and there was no way to predict.
Mr McCahon argued that the incident in which Mr Smith sustained injury occurred in a short time span, and did not constitute an attack in his understanding of the word. He acknowledged that Mr Smith sustained an injury but argued that his frailty increased the severity of his wound. He argued it was not completely clear that Busa had been the offending dog, noting Mr Smith’s uncertainty, and the other witnesses did not see the dog attack. He claimed Busa does not have an aggressive nature and submitted report from Dog Behaviour Management Practitioner, Mitch Watson, and video footage of the dog in multiple situations where aggression could be possible. Specifically Busa was exposed to small dogs barking at her, socialising with other small dogs in an off leash area. The dog was observed to not be aggressive in each of the scenarios presented.
Mr Watson’s evidence to the Tribunal was that he was an experienced dog handler with experience as a dog handler with the Queensland Police, and former inspector with the RSPCA. He said the dog was not particularly aggressive, and demonstrated no overt aggression in several different environments. He noted he was frustrated by the muzzle. He stated that the dog did bark as would be expected when he approached the door of the house, but he did not consider the dog would bite, and would feel safe to walk into the yard. He stated he had been aware of an alleged incident where the dog had bitten.
Mrs McCahon, the applicant’s mother was present at the incident on 12 February 2014. She said she did not see the bite, and did not notice Mr Smith had been injured. The incident occurred some 6 to 7 metres from where she stood. She said the incident occurred within a thirty second timeframe. She yelled for the dogs to come back and they returned to her. She said she doubted that Busa was the offending dog because she had called her back and she complied immediately.
While there is some basis for uncertainty it seems the balance of probability, based on the statements of Mr Smith and Mr Tait and statements made to Mr Hayes during the investigation at the time that Busa was likely to be the dog which attacked Mr Smith.
Council exercised their powers under section 89 of the Animal Management (Cats and Dogs Act) 2008, declaring Busa. In reviewing this decision, the Tribunal must determine whether Busa is a dangerous dog within the meaning of the Act. A declaration may be made for a dog only if the dog—
(a) has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
(b) may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.
…
(3) A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog, except that the attack was not serious.
In light of the evidence, it is apparent that Busa seriously attacked Mr Smith, and caused him to have fear for his safety and that of his own dog. The attack was serious and resulted in significant physical injury to Mr Smith. Mr McCahon’s contention that Mr Smiths’ physical frailty exacerbated this into a serious injury cannot be sustained. In light of the eggshell skull rule, we must take the victim as we find him.
The Tribunal notes that there is evidence to suggest that Busa has never been involved in a similar incident and appears to be generally not an aggressive dog. However, the legal test for whether a dog is declared dangerous is where it has seriously attacked or caused fear as noted above.
The Tribunal finds that Busa was responsible for a serious attack on 12 February 2014. The decision of Gold Coast City Council to declare Busa a dangerous dog is confirmed.