Simpson v Bannerman - [1932] HCA 43

BANNERMAN

ON APPEAL FROM THE SUPREME COURT OF Animals-Injury by dog-Liability of owner-Dog loose on premises enclosed by fence

Injury to person on public highway whilst resting hand on fence-Dog and Goat Act 1898 (N.S.W.) (No. 44 of 1898), sec. 19.* Aug. 3. 18.

Whilst passing along a public street in search of some timber that had gone astray, the appellant stood and looked over the close wooden fence separating the respondent's premises from the street, and, in doing so, being unaware of any danger, he placed his hand on top of the fence. The respondent's dog, which was running loose within the premises, sprang up and seized the appel- lant's hand, inflicting injuries.

Held, by the whole Court, that, as the respondent's premises were situate in a locality to which the Dog and Goat Act 1898 (N.S.W.) applied, the appellant was entitled under sec. 19 of that Act to recover damages from the respondent for the injuries sustained by him.

Held, further, by Starke J., that, the trial Judge having found that the respondent knew of the dog's mischievous propensity, the respondent was liable at common law for the injuries sustained by the appellant.

Decision of the Supreme Court of New South Wales (Full Court): Simpson V. Bannerman. (1931) 32 S.R. (N.S.W.) 126, reversed. * The Dog and Goat Act 1898 (N.S.W.)

damages to show a previous mus provides, by sec. 19, that " 'The owner

chievous propensity in such dog, or the of every dog shall be liable in damages

owner's knowledge of such previous for injury done to any person, property,

propensity, or that the injury was or animal by his dog, and it shall not be

attributable to neglect on the part of necessary for the party seeking such

47 CLR 379

APPEAL from the Supreme Court of New South Wales.

The plaintiff, Henry Simpson, brought an action in the District Court for damages against John Gordon Bannerman, alleging, in alternative counts, (1) that the defendant wrongfully kept a dog of BANNERMAN. a fierce and mischievous nature and whilst SO kept the dog attacked and bit the plaintiff as a result of which he suffered pain and dam- ages, and (2) that the defendant SO negligently and carelessly con- ducted himself in and about the care and management of a dog in the premises of the defendant that the dog attacked and bit the plaintiff with the consequences mentioned above. The grounds of defence taken at the hearing before his Honor Judge Edwards were a denial of wrongfully keeping a dog of a fierce and mischievous nature a denial that the dog bit the plaintiff, any injury suffered by the plaintiff as alleged in the first count being alleged to have been brought about by his own act and a denial of negligence in keeping the dog. The facts as found by the District Court Judge were substantially as follows The plaintiff, who was a builder and contractor, had ordered some timber…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Simpson v Bannerman

Details

AGLC: Simpson v Bannerman [1932] HCA 43
Case: [1932] HCA 43
Decision Date: 18 August 1932

CaseChat Overview and Summary

The appellant, Simpson, appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose from injuries sustained by Simpson when he was bitten by Bannerman's dog. Simpson had been walking along a public street and, while looking over Bannerman's fence for some misplaced timber, placed his hand on top of the fence. Bannerman's dog, which was loose on the premises, sprang up and bit Simpson's hand.

The legal issues before the High Court included whether Bannerman was liable for Simpson's injuries under common law principles, particularly concerning the keeping of a dangerous animal with knowledge of its propensities, and whether the *Dog and Goat Act 1898* (N.S.W.) imposed liability on Bannerman. The Supreme Court had previously overturned a District Court judgment in favour of Simpson, finding that Simpson was a trespasser and that there was insufficient evidence of *scienter* (knowledge of the dog's mischievous propensity) or unreasonable use of dangerous means by Bannerman.

The High Court, by majority, allowed the appeal, restoring the District Court's judgment. The Court found it unnecessary to consider the common law liability as it determined that section 19 of the *Dog and Goat Act 1898* (N.S.W.) applied. This section imposes liability on the owner of a dog for injury done to any person, property, or animal by their dog, without requiring proof of the dog's mischievous propensity or the owner's knowledge thereof. The Court interpreted this provision as creating an absolute liability, holding that the owner must secure their dog at their peril, and that the circumstances of the appellant merely placing his hand on the fence did not absolve the owner of this statutory responsibility. Starke J., in a separate judgment, also found the appellant entitled to recover, supporting the decision on both common law grounds, given the owner's knowledge of the dog's savage propensity and the duty to secure it against persons using the highway, and under section 19 of the Act.

The appeal was allowed, the order of the Supreme Court was discharged, and the verdict of the District Court was restored.

Orders