Morrison v Sarkis

[2014] HCATrans 58

[2014] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S184 of 2013

B e t w e e n -

JAMES MORRISON

Applicant

and

TONEY SARKIS

Respondent

Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MARCH 2014, AT 1.05 PM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR A.L. MCSPEDDEN, for the applicant.  (instructed by Marsdens Law Group)

MR R.A. CAVANAGH, SC:   If the Court pleases, I appear with MR A.J.J. RENSHAW, for the respondent.  (instructed by Sparke Helmore)

CRENNAN J:   Yes, Mr Toomey.

MR TOOMEY:   Your Honours, from the 1820s until 1977, the law in New South Wales was that liability for injury caused by your dog to a stranger, not on your land, attracted absolute liability.  In 1977, the New South Wales Parliament, following a report from the Law Reform Commission which said that that was unfair in a number of not very well specified regards, passed an amendment to the Dog Act, which had been passed in 1966 and which retained the precise words which created strict liability which had been used since the 1890s in the Dog and Goat Act. In 1977, the absolute liability section of the 1966 Act was removed and instead there was passed a new section 20 of the Dog (Amendment) Act 1977 which is reproduced at page 3 of our argument in the application book, your Honours – at page 37.

CRENNAN J:   It is on page 19 as well, not that that matters.

MR TOOMEY:   It is, your Honour.  It is, not surprisingly, sprinkled throughout the document.

CRENNAN J:   Yes, yes.

MR TOOMEY:  

Subject to subsection (2), the owner of a dog shall be liable in damages in respect of –

(a)bodily injury to a person caused by the dog wounding that person;

and

(b)damage to the clothing of a person caused by the dog, in the course of attacking that person.

Now, can I point out an important fact to your Honours which is that wounding and attacking had never formed part of any of the preceding legislation in the nearly 150 years that such legislation had existed in New South Wales.  So they were new words, new concepts.  The addition of “in the course of attacking person” had the effect of creating this set of words for consideration:

bodily injury to a person caused by the dog wounding that person . . . in the course of attacking that person.

The use of that composite phrase and, indeed, the use of the words as they were actually used by Parliament, rather than my clumsy combination of them, was that “wounding” was used in 1977 in a way which recognised that “wounding” was not to be read to equate with attacking or wounding in the course of aggressive conduct because the legislature said you are liable for wounding if it is in the course of attacking.

CRENNAN J: That has given rise to the point of construction in relation to section 25(1)(a), to be found at page 16.

MR TOOMEY:   Yes, your Honour.

CRENNAN J:   That “wounding” or “attacking” are used disjunctively, as we understand the argument.

MR TOOMEY:   Just so, your Honour.  But the Court of Appeal has said two things.  At page 21 of the application book, Justice Basten, who gave the judgment for the Court of Appeal, had this to say – I am sorry, before I go to that, I really ought to take your Honours to the amendment that we are now dealing with which is what is to be found in the new Act.  It is reproduced in our materials book at page 96.  This is actually the Bill, your Honours.

CRENNAN J:   What stage has it reached, Mr Toomey?

MR TOOMEY:   As introduced, your Honour.

CRENNAN J:   Yes, thank you.

MR TOOMEY:   This is the – I think the first print appears at the top of the page. Section 25 – I am sorry, your Honours, I reminded by my junior it is 23.

CRENNAN J:   Yes.

MR TOOMEY:   But it changes, of course, to 25 in the Bill as passed.  But 23, as introduced:

The owner of a dog is liable in damages in respect of:

(a)bodily injury to a person caused by the dog wounding that person –

That is that clause that is under consideration.  That was it.  There was no reference to attacking and no qualification on the word “wounding”.  During the second reading speech in the House, on page 21 of the application book, your Honours will find the explanation for the change in the Bill between its first and second readings.  That change, of course, was to add the words “in the course of attacking that person” - I am sorry, “or attacking”, just the words “or attacking” as appears from the top of page 36 of the application book:

The owner of a dog is liable in damages in respect of:

(a)bodily injury to a person caused by the dog wounding or attacking that person –

As I just pointed out to your Honours, when the Bill was introduced it did not contain the words “or attacking”.  It simply said that a person was liable for bodily injury caused by a dog “wounding” that person.  The explanation for the addition of the words “or attacking” is to be found at the bottom of page 20 and the top of 21 of the application book.  Mr Duncan Gay, a member of the Legislative Council said ‑ ‑ ‑

CRENNAN J:   I am sorry, where are we looking now? 

MR TOOMEY:   Page 20 of the application book, your Honour.  This is the explanation of the amendment. 

CRENNAN J:   Yes, I see, thank you.

MR TOOMEY:   Your Honour:

A problem (if not the cause) was identified in the course of debate when the Opposition moved an amendment which would insert the words “or attacking” in paragraph (a) after “wounding”.  In introducing the proposed amendment (which was accepted by the government) the Hon D G Gay noted a suggestion that ‘“wounding’ does not go far enough as it implies a puncture or perforation of the skin” -

which is true, that is, in the criminal law and one assumes if it were defined in the civil law it could well have the analogous meaning.  At the top of page 21, Mr Gay’s reasons for seeking the amendment are set out.

“There could be a situation where a dog grabs someone by the clothing, gives the person a good shaking up, without actually biting the person.  The person could fall and hurt his back and, although not wounded he may have been pretty badly attacked.  The Opposition amendment adds the word ‘attack’ so that if bodily injury is caused by attacking or wounding the owner is liable for damages.”

That is the cause – that is the reason for the addition of “or attacking”.  In our respectful submission, to read that and then to read the Act as passed, it is plain that “wounding” and “attacking” are two separate concepts.  “Wounding” did not satisfy Mr Gay, who is a country member of the Legislative Council, because he said you can get people grabbing someone by the clothing and giving them a good shaking up but is not wounded.

CRENNAN J:   Well, I think, Mr Toomey, that that is all interesting and I think Justice Basten acknowledged that there were no easy solutions when one looked at the legislative history.

MR TOOMEY:   No, your Honour.

CRENNAN J:   I think, looking at page 16 of the application book, looking now at section 25, the argument put against you, as I understand it, is essentially a contextual one – well, at least, that is one big aspect to the argument – and it is that on the reading which you erred, or the construction for which you are contending would mean that subsection (1) would be excluded in relation to the situations covered in subsection (2).

MR TOOMEY:   Your Honour, there are two difficulties - the one which your Honour has indicated, but the other difficulty is that if the reading of the Act contended for by the respondent is correct, then the word “wounding” has no work to do.  The word “wounding” is, as Justice Basten said, otiose because he found, in paragraph 36 of his judgment, that “wounding” – I should take your Honours to it – at paragraph 36 on page 28:

Conclusion 

The expression in s 25(1)(a) of the Companion Animals Act “caused by the dog wounding or attacking that person” should be understood as limited to conduct involving an element of aggression or other deliberate conduct directed towards that person by the dog.

Quite apart from the difficulties raised by how you know what is the intent of the dog or the deliberate conduct of the dog, perhaps calling for a new category of dog psychologist or dog whisperer – quite apart from that, it has the effect that His Honour noted in paragraph 33 on the page before:

One consequence of this approach is to render the words “wounding or” in paragraph (a) otiose.

If the intent of Mr Gay was to add, to cover the position of someone being shaken up in an attack and not wounded then, in our respectful submission, it has simply neutered the Act.

KEANE J:   Well, except that the history which you have shown us, in terms of the introduction of the new language, does show that the addition of the words “or attacking” was an afterthought – a belt and braces‑type of exercise – which does, I think, take a bit of the force from the point about the otiose – the problem of redundancy, I think. 

MR TOOMEY:   Except, your Honour, that the Court of Appeal recognised that the reading of the Act which they were adopting did render the word “wounding” otiose.

KEANE J:   Is not the problem with your argument that you began by saying that once there was strict liability ‑ ‑ ‑

MR TOOMEY:   Yes.

KEANE J:   Once there was Rylands v Fletcher as well.

MR TOOMEY:   For quite a long time.

KEANE J: For quite a long time and perhaps we were better for it, but there has not been much doubt that the trend of the jurisprudence has been against strict liability. To accept the broad view that you are urging - section 25(1) - is to turn the clock back, is it not, into notions of strict liability, bearing in mind that the existence of a right of action of negligence – I mean, in this case, the negligence claim failed. But we have a right of action in negligence. It is generally regarded as being reasonably ample.

MR TOOMEY:   Yes.

KEANE J:   To accept your argument really is to expand an area of strict liability which is against the current, is it not?

MR TOOMEY:   Your Honour, with respect, it may be but the arguments which support it are these.  The Bill came in with simply the word “wounding” – bodily injury caused by a dog wounding.  There was no reference to attack, reference to deliberate conduct or any other such thing.  Had the Bill passed into law as it was then there could not have been this argument.  But Justice Basten took the view that it was implausible that since the amendment had been made in 1977 to remove strict liability, that it could be intended by the legislature in 1998 that strict liability was to be partly restored.  In our respectful submission, in the light of the history of how it happened, that simply would not stand. 

The logical justification, in our respectful submission, is this.  The use of the word “wounding” to cover a species of injury without deliberate attack by the dog is to cover serious cases.  In other words, if the dog rubs against you and causes an abrasion to your skin, you have no cause of action.  But, if it causes a wound which is a serious injury, then you do.

CRENNAN J:   What about the example of - was it truly the legislative intention that a wound caused by knocking a sleeping dog was to be the subject of strict liability?

MR TOOMEY:   We would not say it would be, your Honour.  We would say that a sleeping dog did not cause the injury.  If a dog is sleeping on the road and you walk into it and fall over, it is a bit hard to say that the dog caused the wound.  But in this case, of course, the dog ran out on the road, caused the applicant to be thrown 25 metres from his bike and very seriously injured.  In our respectful submission, the use of the word “wounding” is a description of the damage – not a description of the conduct.  But their Honours never considered that.  We put it but it was never considered.  I think that is our argument, really. 

CRENNAN J:   Thank you.

MR TOOMEY:   I am sorry.  Except, your Honours, I should tell your Honours that there is one case, only one case before this one, where the section had been considered by the Court of Appeal.  It is in our materials, your Honours, at pages 16 to 29.  It is a case of Coleman v Barrat.

CRENNAN J:   Yes.

MR TOOMEY:   At paragraphs 36 and 37 of that judgment, Justice Gzell for the court set out subsection (1) and he said:

With respect to personal injuries, the present section visits liability upon a dog owner for an attack or a wounding.  The dual elements of wounding in the course of an attack are no longer required.

That was agreed in by the now President, Justice Beazley and Justice Sheller.  With respect, your Honours, it is the function of the Court to determine what is the meaning of the words that were used and the words that were used are that “the owner of a dog shall be liable” where bodily injury to a person – I am sorry, that is the forerunner – where the dog causes “wounding or attacking” – two separate concepts introduced deliberately into the Act meaning, in our respectful submission, plainly, that there are two grounds of liability. 

CRENNAN J:   Am I right that Coleman’s Case involved an attacking dog?

MR TOOMEY:   It did.  But a question was separately considered, your Honour, and it was held that, without the attack, the owner of the dog would have liable in any event.  So we have the disjunction between Coleman v Barrat and this case and we have also, we say, the plain meaning of the words “wounding” or “attacking”.  It is very hard, in our respectful submission, to say that by using those words – and deliberately using those words because they were changed to add “or attacking” – that the Parliament did not mean that there was liability on the owner if there was wounding without an attack or if there was an attack and, in the case of the attack, without wounding.  May it please, your Honours.

CRENNAN J:   Thank you, Mr Toomey.  Yes, Mr Cavanagh.

MR CAVANAGH:   Thank you, your Honours.  We say that the ‑ ‑ ‑

CRENNAN J:   Mr Toomey is relying on plain meaning and grammar.

MR CAVANAGH:   Yes, your Honour.  Sorry, you have taken my book, Mr Toomey.

MR TOOMEY:   Have I?

MR CAVANAGH:   Thank you.  It has been around a while.

KEANE J:   That is right, very Sydney Bar.

MR CAVANAGH:   Yes, your Honours.

MR TOOMEY:   Very unkind, your Honour, very unkind.

MR CAVANAGH: Your Honours, we say that the approach this Court would adopt to the interpretation of section 25(1) is not the literal meaning. It is the approach which was adopted in cases such as Project Blue Sky and is, in fact, relied upon by my learned friends in Certain Underwriters, that is, not in every case is the legal meaning the same as the literal meaning, if I put it that way. 

So when your Honour Justice Crennan says that Mr Toomey is relying on the plain or literal meaning, we say that the approach which should be adopted to this legislation which is, in fact, the approach adopted by Justice Basten in the court below is consideration of the context of the words, the consequences of the literal meaning and the purpose of the statute so that if all those factors are considered it may be that when ordinarily a disjunctive approach might commend itself, in this case, the disjunctive approach does not commend itself.

We say that really for a number of reasons, which I will summarise as follows.  Firstly, the disjunctive approach, that is that all that is necessary is wounding in the sense of injury that would lead to absurd results.  It is quite contrary to the approach of the legislature since 1977 and my learned friend has referred your Honours to the change in the Dog Act from 1966 to 1977.

What the Parliament intended by that change in 1977 is to avoid the very consequence that our learned friends say should now be adopted or they decided to revert to in 1998 when they introduced the CompanionAnimals Act.  The approach of our learned friends would lead to the same effect or results as the Dog Act when introduced in 1966 but which was specifically amended in 1977. 

Also, whilst my learned friend says the main point is we say that it makes the word “wounding” redundant – that is addition of the words “or attacking” makes the word “wounding” redundant, the same might be said about our learned friends’ argument in the sense that what our learned friends are really saying is that section 25(1) should be interpreted in such a way as to read 25(1)(a) “The owner of a dog is liable in damages in respect of (a) bodily injury to a dog caused by a bodily injury”. That is, we say, the effect of my learned – and then the section can be stopped there because they say “or attacking” is disjunctive so that, in this case, it should be read “The owner of a dog is liable in damages in respect of bodily injury to a person caused by the dog suffering injury”. We say it does not make sense.

KEANE J:   Or just caused by a dog.

MR CAVANAGH:   Yes.

KEANE J:   Caused by that dog.

MR CAVANAGH:   It becomes all unnecessary.

KEANE J:   That is the point, is it not, that it is not just the involvement of a dog in an event that leads to injury.  It is the dog is actually the wounding agent.

MR CAVANAGH:   Yes.

KEANE J:   So that when you talk about – well, when Mr Toomey talks about the value of a literal approach, if you take a strictly literal approach to it, it does require the dog be the wounding agent.

MR CAVANAGH:   Yes, your Honour.

KEANE J:   Rather than being involved in an event.

MR CAVANAGH:   Yes, and while the example raised by your Honour Justice Crennan about tripping over a sleeping dog may be answered by the question of causation, having regard to section 5D of the Civil Liability Act, there are many examples that would not be so answered. When your Honours read section 25(2) – section 25(2) obviously purports to be a limitation on the application of section 25(1) and both sections, 25(2)(a) and (b) commence with the words, “an attack”. So it must be read, on our learned friend’s argument that section 25(2)(a) and (b) could not apply to merely a wound, or wounding, if I put it that way.

The best examples are - sorry I withdraw that - because section 25(2)(a) specifically is intended to avoid from the strict liability regime a situation where a dog occurs on an owner’s backyard, my learned friend’s argument, if there is a young child playing with a puppy in the backyard, running around, and the puppy playfully jumps on the child or the child trips over the dog, that would fall within section 25(1)(a) in that the owner of the dog is liable in damages in respect of bodily injury to a person caused by the person being injured.

There are many examples and we say that the approach contended by our learned friends would open up a whole new territory of strict liability and, in particular, would open up the territory of strict liability for dog injuries – if I put it that way – in private homes, in backyards because section 25(2) is limited only by use of the word “attack” and not “wounding” and we say that is a very powerful reason why the court below and, in particular, Justice Basten’s analysis is correct and is not shown to be in error.

KEANE J:   Particularly, particularly where the legislative history shows that adding the words “or attacking” was an afterthought intended to add belt to the braces.

MR CAVANAGH:   Yes.  We submit that it is not clear from my learned friend’s reading of what was said by the Honourable Member, Duncan Gay.  It is not clear from the summary at pages 20 and 21 of the application book that that necessarily justifies the submission that he made.  If I put it that way, there is a different approach that might be made.  So it is not so ‑ ‑ ‑

KEANE J:   It is certainly a different view of it.

MR CAVANAGH:   Yes – not so powerful submission but it should be considered to be, what I will phrase, all important.  The other point we wish to make is that Justice Basten emphasised that the approach contended by the applicants requires acceptance of the proposition that the legislature intended to expand the scope of liability without any explanation, that is, there is nothing in any second reading speech quoted or anything like that, no suggestion made that that was the specific intention.  There was not a speech by a member saying what we want to do is make sure that all people are compensated for dog injuries no matter how they are caused, for example.  That is an important point.

CRENNAN J:   Justice Keane made the point it would involve backtracking in relation to the 1977 amendments.

MR CAVANAGH:   Yes, directly contrary to that, but it also involves this.  This Companion Animals Act was introduced in 1998 in a climate at a time when all legislation involving compensation for personal injuries was being wound back, if I put it that way.

MR TOOMEY:   Can my learned friend be sworn, your Honours?

MR CAVANAGH:   Sorry?

MR TOOMEY:   Could you be sworn?

MR CAVANAGH:   When all legislation was being ‑ ‑ ‑

CRENNAN J:   There are probably are more directly relevant submissions to be made, are there not, Mr Cavanagh?

MR CAVANAGH:   Yes, your Honour.  I was really taking up Justice Keane’s point, though, that it is ‑ ‑ ‑

CRENNAN J:   It emerges out of the 1977 amendment, I would have thought.

MR CAVANAGH:   Yes, yes, thank you, your Honour.  So, we say – we will not repeat what is in our written submissions.  We say that no error has

been shown which should justify leave by this Court.  Further, that this is State‑based legislation.  It does not impact on any other legislation.  Whilst our learned friends have referred to the Northern Territory and South Australian legislation, in fact, at least one of those Acts says there is a liability imposed based on torts.  So it is an entirely different section, entirely different provision.  They are our submissions, if the Court pleases.

CRENNAN J:   Anything in reply, Mr Toomey?

MR TOOMEY:   Yes, your Honours.  Your Honours, we say that the work that “wounding” has to do is to describe the injury, not to describe the mechanism of injury.  “Or attacking” clearly describes the mechanism of injury because bodily injury is caused by attacking.  You cannot, in our respectful submission, use the word “wounding” which is defined in a human sense as causing injury by means of a weapon.  That is the primary meaning.  You cannot transplant that to a dog.

What we say is the reason for the dichotomy between “wounding” and “attacking” is that, reading the Act in the way we have, if there is no fault it is in respect of wounding because of the seriousness of the injury.  If it is in “attacking” then one would assume that there is a back‑of‑the‑mind thought, well, the owner ought to know and he could have insured.  In fact, every household policy in the country covers your dog.  So it is hardly a huge step to say that if that dog wounds someone – not just trivial injury but a wound – that there should be redress.

In respect of the questions and submissions by my learned friend about the fact that this was a departure from the 1977 amendment, this is a new Act.  It is a new Act, 21 years later.  There is absolutely nothing before your Honours, nor was there anything before the Court of Appeal to suggest that this new Act was introduced for the purpose of continuing what was in the old Act.  That is the argument that is put against us, that the legislature said this in 1977, they must be taken to have been saying the same thing in 1998, although, in fact, we say, the very words used, and the circumstances in which they came to be used indicate that there are two separate concepts being considered.  May it please, your Honours.

CRENNAN J:   Thank you.  Justice Keane will give the Court’s ruling.

KEANE J:   The applicant was the plaintiff in an action for damages for personal injuries suffered while he was driving a motor cycle on a country road.  A dog owned by the respondent ran out of the property adjoining the roadway and collided with the front wheel of the motor cycle causing the applicant to fall from his bike.

At trial the applicant’s claim based on the negligence of the respondent failed, but his claim based on section 25(1) of the Companion Animals Act 1998 (NSW) succeeded. Section 25 of that Act provided, relevantly, that the owner of a dog is liable in damages in respect of bodily injury to a person caused by the dog wounding or attacking that person. The Court of Appeal of New South Wales unanimously upheld an appeal by the defendant. The applicant contends that section 25 applies because the dog caused him to be wounded, but section 25 contemplates a wounding by the dog, not by the concatenation of other events which happened to involve the dog but in which the dog does not actually wound the person.

The availability of a remedy in negligence in an appropriate case means that there is little reason to stretch the language of section 25 to cover a case in which the dog does not actually wound the plaintiff by itself inflicting the wound of which the plaintiff complains.

The decision of the Court of Appeal is not attended by sufficient doubt to warrant the grant of special leave to appeal.  Special leave to appeal should be refused with costs.

AT 1.42 PM THE MATTER WAS CONCLUDED