STEEN v HASTIE & ANOR (Civil Dispute)
[2020] ACAT 1
•13 January 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
STEEN v HASTIE & ANOR (Civil Dispute) [2020] ACAT 1
XD 622/2019
Catchwords: CIVIL DISPUTE – dog fight – occurred on respondent dog’s property – applicant’s dog trespassing – no liability
Legislation cited: Companion Animals Act 1998 (NSW) s 12A, 25
Domestic Animals Act 2000 ss 44, 45, 55
Domestic Animal Act 1994 (Vic)
Cases cited: Howard v Lapwood [2018] ACAT 123
Johnson v Buchanan [2012] VSC 195
Simon v Condran [2013] NSWCA 388
Tribunal: Senior Member A Anforth
Date of Orders: 13 January 2020
Date of Reasons for Decision: 13 January 2020
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 622/2019
BETWEEN:
TIANA STEEN
Applicant
AND:
STEWART HASTIE
First Respondent
SAMANTHA MADDERN
Second Respondent
TRIBUNAL: Senior Member A Anforth
DATE: 13 January 2020
ORDER
The Tribunal orders that:
1. The applicant’s claim is dismissed.
2. The applicant is to pay the respondents the sum of $267.30 on or before 30 January 2020.
3. The applicant is to return Benji’s collar to the respondents immediately.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
1. The applicant is the owner of a German shepherd dog (Kaiser) and the respondents are the owners of a pit bull terrier (Benji). On the morning of 21 December 2018 Kaiser and Benji had a fight in which both were injured. The applicant says she was walking Kaiser on the public street on a lead when Benji escaped his yard and attacked Kaiser on the street. According to the applicant, the fight migrated from the public street someway down the driveway of Benji’s home. The neighbour, Ms Eastman, witnessed the part of the fight that occurred on the driveway.
2. Rangers from ACT Licensing and Compliance were called immediately after the incident by the neighbour, Ms Eastman. The rangers took photos and prepared a report. Benji was taken into custody and later released on a Control Order made under the Domestic Animals Act 2000 that included restraining Benji within his yard and Benji attending good behaviour classes.
3. The applicant claims the costs of veterinary fees for Kaiser and the respondents crossclaim for the veterinary fees for Benji and his collar which is still in the applicant’s possession.
4. The applicant was bitten on the finger by one of the dogs when trying to separate them. The personal injury to the applicant does not form part of this claim.
5. There is no dispute that Benji escaped from his back yard and that the fight occurred. The issue is where the fight occurred. According to the applicant it occurred on the public street. According to the respondents it occurred on the driveway within Benji’s front yard where the applicant and Kaiser were present without permission.
The legislation
6. Section 44(1) of the Domestic Animals Act2000 (the Act) provides:
44(1) A person commits an offence if—
(a) the person is the keeper or carer of a dog; and
(b) the person is with the dog in a public place; and
(c) the dog is not restrained by a leash.
7. Section 45(3) of the Act provides:
(5) A keeper of a dog commits an offence if—
(a) the dog is on private premises; and
(b) the dog is not with a carer; and
(c) the keeper does not have the consent of the occupier of the premises.
(6) An offence against this section is a strict liability offence.
8. Section 55 of the Act provides:
(1) This section applies if—
(a) a dog attacks or harasses a person and the person suffers personal injury or property damage because of the attack or harassment; or
(b) a dog attacks or harasses an animal and the animal dies or is injured because of the attack or harassment.
(2) The keeper of the dog is liable to pay to the person, or the owner of the animal, compensation for any loss or expense because of the attack or harassment.
(3) Compensation may be recovered—
(a) whether or not a prosecution for an offence against this Act has been brought against the keeper of the dog in relation to the attack or harassment; and
(b) if a prosecution for an offence against this Act has been brought against the keeper—even if the keeper has been acquitted of the offence.
(4) In a proceeding for compensation under this section for loss or expense by a person (the plaintiff) for personal injury or property damage, it is a defence for the defendant to prove that—
(a) the attack or harassment happened to the plaintiff while the plaintiff was, without reasonable excuse, on premises occupied by the defendant; or
(b) the plaintiff failed to take reasonable care for his or her own safety; or
(c) the plaintiff provoked the dog.
(5) In a proceeding for compensation under this section for the death or injury of an animal, it is a defence for the defendant to prove that the attack or harassment happened to the animal while it was on premises occupied by the defendant or that the animal had provoked the dog.
(6) This section does not affect any right that a person has to recover damages or compensation apart from this section.
9. Section 55 can be broken into two parts, the first dealing with injury to a person (section 55(1)(a) and subsection 4) and the second dealing with injuries to another dog (section 55(1)(b) and subsection 5). Section 55 creates a form of strict liability on the owner of a dog in the sense that proof of common law negligence on the part of the owner is not required. The section contains its own limited defences (section 55(4) in relation to injuries to persons and 55(5) in relation to injuries to other dogs).
The claim for the personal injury to the applicant
10. The applicant has not pressed this part of her claim, but for completeness the law on the issue is addressed. Section 55(3) provides that it is a defence to the claim for personal injuries to the person (the applicant) occurred whilst the person (applicant) was on the respondent’s land without reasonable excuse. This defence is not the same as the defence that arises in relation to trespassers in the statutes of other jurisdiction in that a person may have a reasonable excuse for going upon someone’s land that may still constitute a trespass at law.
11. The rigidity of the ‘trespass’ test is illustrated in Johnson v Buchanan [2012] VSC 195 where Bell J conserved an appeal against a criminal conviction of an owner whose dog bit the neighbour’s hand. The neighbour had done no more than rest his arm on the common fence with his hand slightly over the fence. Bell J had to determine whether this intrusion into the dog owner’s airspace was a trespass for the purposes of the Domestic Animal Act 1994 (Vic). Her Honour held that this intrusion was a trespass which then then enlivened those defences in the Domestic Animal Act 1994 that related to attacks during trespasses. Trespasses within the meaning of this legislation included trespasses within the meaning of both the criminal and civil law.
12. In the course of the judgment Bell J said that the Domestic Animals Act1994 was not intended to qualify a person’s common law right to guard his own property with a dog and noted the common law authority to the effect:
78 In general, a trespasser cannot complain when they are bitten by a properly bounded guard dog. That principle was stated by Tindal CJ in Sarch in these terms:
If a man puts a dog in a garden walled all round, and a wrong-doer goes into that garden and is bitten, he cannot complain in a Court of justice of that which was brought upon him by his own act ... we must see first whether the plaintiff had a justifiable and reasonable cause for being on the spot ...
79 The principle has been frequently applied. In Marlor v Ball the plaintiffs foolishly went into a secure stall where they were injured by zebras. AL Smith LJ held ‘the plaintiff did something which he had no business to do ... meddling’. The farmer in Lowery v Walker was held to be under no duty to protect habitual trespassers from his potentially dangerous but well-fenced horses. On the general principle that a person could not recover where the injury was due to their own fault, the farm employee in Rands v McNeil lost because he had gone into the well-secured box of a bull which he knew to be dangerous. Jenkins LJ made reference to the established qualification for liability for animals, including ‘trespass by the injured party, where this was what brought him into contact with the dangerous animal’. The principle was accepted and applied in this court by Adam J in Trethowan.
13. In Simon v Condran [2013] NSWCA 388 the dog owners lived next to each other. Their common boundaries were not fully fenced so that their dogs could access each other yards. The appellant usually had her dog ‘Jake’ in a confined ‘dog run’ but on the day in question had let him off the run. Jake escaped into the respondent’s yard and engaged in a fight with the respondent’s dog ‘Mack’. The appellant ran onto the respondent’s land to break up and fight during which endeavour she was bit on the hand.
14. Section 25 of the Companion Animals Act 1998 (NSW) is in similar terms as section 55 of the Act save that it contains the trespass form of the defence:
(2) This section does not apply in respect of:
(a) an attack by a dog occurring on any property or vehicle of which the owner of the dog is an occupier or on which the dog is ordinarily kept, but only if the person attacked was not lawfully on the property or vehicle ...
15. The Court of Appeal noted that the defence of necessity can apply to make lawful what would otherwise be a trespass onto another person’s land, but that defence had limits:
It was common ground that the common law recognised a defence of necessity to conduct which otherwise would amount to trespass to land: Proudman v Allen [1954] SASR 336, Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 and Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985. In Rigby, Taylor J held that a “defence of necessity is available in the absence of negligence on the part of the defendant creating or contributing to the necessity” (at 995).
16. The Court of Appeal held that the respondent had breached her statutory duty to restrain and confine her dog (section 12A Companion Animals Act 1998 (NSW)) and this was the immediate cause of need for the trespass. This breach on the appellant’s part was sufficient to defeat any reliance on ‘necessity’ as a basis of legal authority to go upon the respondent’s land.
Claim for injury to Kaiser
17. Section 55(5) of the Act provides that it is a defence to the claim if the attack on premises occupied by the defendant (respondent) or that the animal (Kaiser) had provoked the dog (Benji).
General common law claims
18. The statutory liability contained in the Act does not abrogate the parties’ rights to sue at common law. In Howard v Lapwood [2018] ACAT 123 the tribunal discussed the basis of such a claim under Civil Law (Wrongs) Act2002. No claim was agitated on a common law basis in present matter.
The proceedings and evidence
19. On 21 May 2019 the applicant lodged her claim in the sum of $3,000. The claim referred to the injuries to Kaiser and to herself. The claim annexed:
(a) veterinary bills in the sums of $869.50, $619.15, and $83.05;
(b) a photograph of a letter from Transport Canberra and City Services to the applicant in relation to the incident;
(c) photographs of the side gate of the respondents’ home from which Benji escaped, showing considerable damage;
(d) photographs of Kaiser’s damaged ear; and
(e) photographs of the applicant’s damaged finger.
20. On 14 June 2019 the respondents filed a response which denied the claim made and asserted a defence of trespass and provocation on the part of the applicant. It counterclaimed for $400 for veterinary bills, repairs to the fence, lost income, the fine imposed by the ACT Government and a return of Benji’s collar said to have been retained by the applicant. It also claimed the filing fee of $74.
21. The response annexed:
(a) veterinary bills for Benji for $193.30;
(b) the cost of materials to fix the side fence in the sum of $52.37;
(c) statements by Courtney Rayner dated 22 December 2018 and 7 January 2019;
(d) a statement from Hayley Eastman dated 21 December 2018;
(e) an undated statement by Stewart Hastie to ACT Licensing and Compliance; and
(f) a Control Order relating to Benji dated 24 January 2019.
22. In the statement of 22 December 2018 Ms Rayner provided a character reference for Benji. She also said that she had personally seen a ‘few times’ a woman with a dog, come upon the respondent’s land and take her dog to the gate to meet Benji. In her statement of 7 January 2019 Ms Rayner said that she raised the issue with Mr Hastie on one occasion and he said he was aware of her doing this.
23. The undated statement from Mr Hastie provided a character reference for Benji and said:
(a) all the blood stains were on his drive and none on the public footpath;
(b) the applicant has a habit of allowing her dog to provoke Benji;
(c) the applicant’s dog is seldom on a leash;
(d) the applicant was trespassing at the time of the attack; and
(e) the damage to the side fence must have occurred over a period of time during which Benji was being provoked.
24. The statement from Ms Eastman dated 21 December 2018 described what she saw on the day of the fight. She said:
(a) she heard screaming and went out to see what it was about;
(b) the applicant was on the respondents’ driveway with Kaiser who had on a short lead; the dogs were locked onto each other;
(c) she heard the applicant respond to being bitten but could not see which dog did it;
(d) eventually Ms Eastman separated the dog and took Benji into her yard; and
(e) she rang the City Rangers and the ACT Ambulance Service.
25. Ms Eastman said that she ‘frequently’ sees the applicant walking her dog past her home. On ‘numerous’ occasions Kaiser has escaped the leash by some means and run up to Ms Eastman’s front window and barked at her dog who was inside. On other occasions Kaiser has been in her front yard barking at her dog through the front window.
26. On 24 July 2019 the applicant filed an amended application claiming $1,776 plus the Tribunal filing fee. The claim was limited to veterinary bills and medicines for Kaiser and did not include any claim about herself. The applicant annexed:
(a) a statement by herself concerning the attack;
(b) veterinary bills for Kaiser;
(c) photographs of the blood stains on the driveway;
(d) photographs of Kaiser’s ear;
(e) aerial photographs of the house and street; and
(f) the results of an FOI search with Licensing and Compliance that contained the redacted reports from the City Rangers, the Control Order and various photographs.
27. The report from Licensing and Compliance contains several references to previous complaints by people about the behaviour of the applicant and Kaiser. The content of those complaints has been redacted.
28. On 14 August 2019 the respondent filed:
(a) a statement that largely repeated the point previous made; and
(b) further character references for Benji.
29. The matter was listed for hearing on 28 August 2019. The parties appeared in person and each gave evidence. Ms Eastman gave evidence by telephone.
30. The applicant advised that the claim only pertained to Kaiser’s costs and not her personal injuries. She said that she was proposing to commence other proceedings for the personal injury in another forum. The Tribunal spent time telling the applicant of the risk she ran in splitting the case in this manner and of the potential application of Anshun estoppel. She was asked whether she had taken legal advice on the matter and was offered an adjournment to do so. The applicant said she wished to proceed.
31. A substantial part of the time was spent with the parties asserting and denying that the applicant had a habit of walking Kaiser past Benji’s house each day which was not denied; sometimes allowing Kaiser off the lead, or allowing Kaiser to run free with this lead, and Kaiser provoking Benji (and Ms Eastman’s dog next door).
32. The Tribunal explained that the alleged past habit of the applicant did not of itself mean that on the day of the present incident that the attack occurred on Benji’s land as opposed to the public street. The applicant’s case was that she and Kaiser were on the public street with Kaiser on a leash when Benji attacked. If that is the case, then Benji falls foul of the strict liability and is in the wrong, under section 55 of the Act.
33. The key issue is where the attack occurred. If the attack occurred on Benji’s land, then section 55 does not apply and the applicant’s case based on section 55 of the Act fails. If the attack occurred on Benji’s land, then either the applicant had taken Kaiser onto that land on his leash, or the applicant had dropped the leash and allowed Kaiser to run onto Benji’s land. In the first case the applicant would be guilty of a trespass. In the second case the applicant would be in breach of sections 44 and 45 of the the Act.
34. The evidence relevant to where the attack occurred is:
(a) What the applicant says and the inherent plausibility of that evidence.
(b) What Ms Eastman says and the inherent plausibility of that evidence.
(c) Where the blood stains were.
(d) The photographic evidence of the house and street.
35. The applicant did not deny that she regularly walks Kaiser past Benji’s house. The applicant said on one occasion that she stopped and put a note in the respondents’ mailbox warning them that Benji’s gate did not look very secure. Given the location of the gate relative to the street, it is difficult to conceive of how the applicant would have determined this fact. It also suggests a degree of inspection by the applicant that would be difficult from the public street. It suggests that the applicant has been on the respondents’ land near the gate.
36. The applicant described Kaiser’s leash as being short. She said that Kaiser was on the leash when they were walking on the public street. Ms Eastman says that Kaiser still had his leash on during the fight but did not say that the leash was being held by the applicant. Ms Eastman says that the applicant was doing different things at different times including finding a garden rock and hitting Benji on the head with it. This is not consistent with her holding the leash at the same time.
37. Ms Eastman said that when she came out in response to the applicant’s scream the dogs were on the respondents’ driveway adjacent a car and not far from the garage door. The photographs taken by the City Rangers, the applicant and the respondents, together with the evidence of Ms Eastman, put the blood stains on the driveway about 10 metres from the alignment with the public nature strip.
38. The Tribunal finds as a fact that the fight, in part, occurred at this location.
39. The issue then becomes whether the fight started on the public street and migrated to this location on the driveway. The applicant says it did. She said, “somehow I was pulled towards the driveway.” This is possible but is vague and it supposes that Kaiser had this strength. Ms Eastman said that the dogs were not migrating anywhere, they were fighting on the same spot where the blood was. There was no blood on the public footpath or on the driveway nearer to the public street. The applicant accused Ms Eastman of washing the blood off with the hose. Ms Eastman denied this. There is no evidence to support this allegation.
40. The Tribunal has had regard to the evidence of the applicant but found her to be an unreliable witness. She was prone to making sweeping allegations and finding conspiracies. The Tribunal did not accept the applicant’s allegation against Ms Eastman arising from their previous encounters or of washing off the blood, or her assertions that various people were telling lies.
41. The Tribunal is persuaded that the fight occurred where the blood stains were and that the fight did not migrate from the public street, contrary to the evidence of the applicant.
42. The Tribunal finds that the more likely scenario is:
(a) The applicant and Kaiser regularly walk past Benji’s house (not denied);
(b) Benji and Kaiser were aware of each other and interacted. It is difficult to understand why the applicant, on her own evidence, would have stopped and put the note in the respondents’ mailbox on a prior occasion, if this were not so.
(c) On the day in question, Kaiser was on the short leash but either:
(i) the applicant let go of the leash and Kaiser ran off onto Benji’s land; or
(ii) the applicant took Kaiser onto Benji’s driveway.
43. On either scenario the applicant is in breach of her duties under the Act and possibly of trespass.
44. As a consequence of this finding the applicant’s case is dismissed, and the respondents are entitled to the costs reasonably incurred which includes the veterinary fees for Benji in the sum of $193.30 and the Tribunal fee of $74.00. The claim for the gate repairs is not allowed. There is no basis established for this claim nor evidence of the condition of gate prior to the day in question. The claim for time off work is not allowed. In this tribunal parties must bear their own costs.
45. There was no common law agitated by the applicant, but if there had been the finding at paragraph 43 and the case law referred to above is sufficient to have disposed of that application.
………………………………..
Senior Member A Anforth
HEARING DETAILS
FILE NUMBER:
XD 622/2019
PARTIES, APPLICANT:
Tina Steen
PARTIES, RESPONDENT:
Stewart Hastie & Samantha Maddern
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member A Anforth
DATES OF HEARING:
28 August 2019
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