Zappia v Allsop

[1994] HCATrans 72

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S51 of 1994

B e t w e e n -

PAOLO ZAPPIA

Applicant

and

TERRENCE JAMES ALLSOP

Respondent

Application for special leave
  to appeal

MASON CJ
DEANE J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 OCTOBER 1994, AT 12.44 PM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:   May it please the Court, I appear with MR J.R. YOUNG for the applicant.  (instructed by Benjamin & Khoury)

MR G.K. DOWNES, QC:   May it please the Court, I appear with my learned friend, MR A.L. McSPEDDEN, for the respondent.  (instructed by Mervyn J. Cathers & Co)

MASON CJ:   Yes, Mr Gross.

MR GROSS:   Your Honours, could I hand up some multiple copies of the relevant legislation, plus the decision of Eadie v Groombridge that is referred to in the submissions; also the relevant extracts from the Law Reform Commission report concerning liability for animals that were referred to in each of the judgments in the court below.

Your Honours, the particular legislation, section 20 of the Dog Act 1977, involves a replacement of the provision which previously was relevant and which haD been in existence for a long time in New South Wales, which is summarised at page 39 line 12 and following of the application book.  The original provision was one whereby -

The owner of every dog shall be liable in damages for injury done.....by his dog.

The 1977 amendments in introducing section 20 imposed a much more refined requirement as to compensability, and Your Honours will see that there is liability imposed where there is ‑

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

in the course of attacking that person.

We ask Your Honours to note that apart from the increase in verbiage there are important elements and linking of elements involved in the new provision which, we submit, the Court of Appeal judgment did not respect.

TOOHEY J:   Could I ask you, Mr Gross, is the use of the term, “wounding” derived from any comparable legislation elsewhere in Australia?

MR GROSS:   Your Honours, we have extracted out fairly fruitlessly so far as we are concerned the other legislation except Queensland, and could I hand up four copies of that.  I am sorry we do not have Queensland because we could not find that statute, but Your Honours will see that the normal type of legislation one finds is that there is a liability for damage done by the dog, or caused by the actions of the dog.  But, in effect, if a dog does it or causes it, ie, the injury or property damage, there is that strict liability on the part of the owner.  So we recognise there is a problem.  We are dealing with a New South Wales difficulty rather than one which attends legislation of other States.

However, Your Honours, we would submit that this provision, section 20, represents an attempt to confine the strict liability of the owner to reasonable bounds, and bearing in mind the prevalence of dogs and the wide range of situations and causal nexus which could be involved where someone suffers some form of injury or property damage, it is necessary to attend to the requirements. 

TOOHEY J:   It is not property damage, is it, other than clothing, or is there something I have missed?

MR GROSS:   Your Honours, section 20 is only concerned with clothing, but the point I am putting is ‑ ‑ ‑

TOOHEY J:   But is there another provision relating to property damage other than clothing?

MR GROSS:   It appears only to be the clothing, Your Honour, in section 20 and I do not recall a general property damage provision, gardens, plants and the like, or cars.

TOOHEY J:   I was not really thinking so much of gardens and plants.  I was thinking of somebody riding a bicycle or a motor cycle who swerves to avoid the dog.

MR GROSS:   If it is property damage to a vehicle of whatever form or conveyance, you rely on the laws of negligence which are preserved by the legislation.  So the refinement in respect of injury has a number of specific features.  There is the concept of attack.  In talking about dog wounding ‑ Your Honours will see in 20(1)(a), “the dog wounding” ‑ that is a reference not to the final outcome because the final outcome is the “bodily injury” which has been caused in that way, but refers rather to the process of causing injury.  If that part of the provision were not to play a role, one could simply say, “bodily injury caused by the dog attacking that person”.  We would also point out that there is a contemporaneity requirement and not just a causation requirement.

TOOHEY J:   Does the second reading speech throw light upon the change of language?

MR GROSS:   No, Your Honour, it does not.  It does not shed any light which is capable of assisting in this case.  I think all parties would concede that if one looked at that kind of secondary material.

So, Your Honours, “in the course of attacking that person” involves a particular time sequence which is relevant for the inquiry.  One of the problems of the Court of Appeal’s analysis is that indirect causation is seen as being sufficient and, of course, that involves a problem which we find often in workers compensation legislation or litigation ignoring the stipulated ingredient, that is, one based on contemporaneity and looking for some sort of causal nexus‑type criterion in the evidence.

What we have to have is the dog wounding that person in the course of attacking that person.  Here the sequence was collision between dog and bike ‑ true the plaintiff is on the bike and riding the bike.  The bike is either knocked away from him or, alternatively, he gets out of control but, in any event, as a postponed consequence, after the collision the plaintiff is dislodged from the bike and suffers a head injury.  Your Honours, we would be putting in any event that once the dog has hit the bike its attack has run its course, so that what one has is a subsequent injury after the completion of attack even if you assume it is an attack, and we dispute that, and with the person suffering an injury as an indirect consequence, but nevertheless, that falls outside the statute.  Once again, if one is going to put in the expression, “in the course of attacking that person”, it is meant to perform some role which qualifies the normal causation ingredients one finds in legislation of this sort whether it be direct, or as some of the courts have said, indirect.

TOOHEY J:   So on your argument, Mr Gross, and I am not saying it is right or wrong, but on your argument a person who is attacked by a dog and seeks to run away, falls and injures himself, runs into something, that does not come within section 20?

MR GROSS:   That is so, and Your Honours will see from the other legislation ‑ ‑ ‑

DEANE J:   That is not so, is it?  He can recover for his clothes, but on your argument he cannot recover for his injuries.

MR GROSS:   I cannot remember whether the dog got the clothes while he was attacking or not in the example proposed.

TOOHEY J:   At the moment it is not this particular case.  We are just trying to illustrate the scope of your argument.

MR GROSS:   Your Honours, extended consequences in time or by reference to other events in response to an attack have been addressed in some other legislation.  For instance, the ACT ordinance talks about injury ‑ 

by reason of the behaviour of a dog a person reasonably fears that a dog is about to attack.

One can have a range of situations we can imagine.  But what the legislation is concerned with, in our submission, is what a dog does directly to the person, and the word “wound” is intended to imply something narrower than injury.  Let us assume that “wound” does not have to involve breaking of the skin, and “wound” can be an external wound or an internal wound.

In the end one wonders why “wounding” is there if you already have “bodily injury”, bearing in mind that if it is intended to protect persons they are to be protected against all the physical consequences that might be suffered provided the criterion is satisfied; and, Your Honours, because presumably people can do all sorts of things when a dog approaches or is feared to attack, the legislature narrows the matter down to what is a well recognised situation, namely, dog making direct contact with person and inflicting a wound of some description.  That would fit in with having “attacking” there to begin with because there may be much ambiguity in the events or the circumstantial evidence as to whether there was an attack, but the direct contact is a way of solving that particular related problem as to whether there has been an attack.

Your Honours, the Court of Appeal’s decision gives no role to the word “wounding” or “dog wounding” as a criterion of liability, and once again we would come back to “in the course of”.  Here we have an injury after the collision, after the dog has hit the bike, not the person and because he loses control of the bike or comes off it.

TOOHEY J:   Mr Gross, can I ask you this:  what cause of action did the respondent rely upon?  Apparently it was not confined to liability under the Dog Act because looking at page 1 of the reserve judgment at about line 24 it said ‑ 

He -

being the respondent -

alleged that the Defendant is liable in terms of s 20(1).....Alternatively, the Defendant was guilty of a breach of duty of care.

MR GROSS:   Yes, at pages 11 and 12 the trial judge dismissed the plaintiff’s alternative case of negligence.

TOOHEY J:   Was that aspect of the matter pursued any further?

MR GROSS:   It was pursued, I think, by a cross‑appeal, and it was not necessary to deal with the cross‑appeal as I recall it because of the strict liability finding being upheld by the Court of Appeal.

TOOHEY J:   If you make good your argument what are the implications for the litigation?

MR GROSS:   The plaintiff has notified that it wishes to bring a cross‑appeal on the negligence findings if we get special leave on the Dog Act point, and one can see that if the court looked at the matter the court ought not look at part of the matter or one party’s complaints only concerning ‑ ‑ ‑

TOOHEY J:   When you speak of a cross‑appeal, it is not a cross‑appeal in relation to the decision of the Court of Appeal because that court did not look at the matter, or did not have to look at the matter.

MR GROSS:   It is a notice of contention point, that the plaintiff ought succeed on that alternative ground and that there was error in rejecting that particular part of the case.

TOOHEY J:   Could I just take it a little further. So if special leave to appeal were granted,.....argued the appeal was successful, there would still be a question of a cause of action and negligence to be determined below?

MR GROSS:   It would depend upon the terms in which the matter is dealt with by the Court, but we would assume that any alleged errors on the part of the trial judge in relation to the negligence finding are capable of being dealt with by this Court if the Court otherwise granted special leave.  It did not depend on credibility findings, but rather depended on analysis as to opportunities to prevent the dog from launching some sort of attack.  So the case is a pure analysis one, and Your Honours will see at pages 11 and 12 the reasoning whereby the negligence aspect was rejected.

Can I just take Your Honours to Eadie v Groombridge which was quoted by the trial judge and which was followed by the Court of Appeal in all its aspects.  Justice Meagher propounded some principles there.  Your Honours, I think, have the photocopy.  Your Honours will see this was a German shepherd case ‑ ours was a woolly sheep dog ‑ but in the facts there at page 263 :

The dog ran parallel with the motorcycle for some short distance and then turned right into the plaintiff, who tried to avoid it by turning further right but who collided with it, killing it and injuring himself.

Your Honours, His Honour propounded a fairly novel theory in relation to whether the dog had attacked in the first place, and perhaps since we complain about that I should take Your Honours to that passage also.  At page 264 line 34 :

This is sufficient, in my opinion, to conclude that the appeal must fail.  However, for completeness sake, I would add that I also agree with the trial judge on the question arising under s 20(1) of the Dog Act.  There was an “attack”; the plaintiff’s evidence that the dog “came at me” which was accepted by his Honour, proves that. 

Then His Honour goes on to deal with the wounding and strict liability questions.  At the top of page 265 Justice Meagher :

I can discern no reason why wounding which is an indirect result of an attack by a dog should fall outside the section.

The other passage is at the bottom of page 264, Justice Meagher’s judgment, which has already been quoted by Justice Clarke in the Court of Appeal.

Just on the question of attack, could I take Your Honours to what Justice Sheller said about attack at page 265 line 15 :

The liability of the owner under s 20(1) depends upon findings that bodily injury was caused to a person by the dog wounding that person and that this occurred in the course of the dog’s attacking that person.  I am inclined to think that “attacking” is an act of hostility or aggression. 

Could I then pass over to 266, second line -

The purpose of the new s 20 was to  make it clear that the conduct of a dog which was relevant for the imposition of liability without fault was that of the dog attacking a person.  I am not, at this time, persuaded that a dog coming onto a road and injuring a person by failing, to adopt the language of Moffit JA in Martignoni v Harris, “in pursuing its desire as a living creature to move from one place to another, to pay sufficient attention to the presence of other users of the highway” or running beside a motorcycle and then turning onto or at the person riding the motorcycle or even “coming at” such person “attacks” that person.

Your Honours, an attack was found in the present case, in fact, on virtually the same verbal evidence that the dog “came at” the plaintiff.

But in looking at the question of whether there was an attack, Justice Meagher’s reasoning appears to have had some residual influence, and the evidence that it was an attack involved the dog following its habit of coming out of the gateway at the plaintiff, barking and growling.  I think there is also evidence of it simultaneously panting and baring its teeth, and that part of the evidence was not accepted by His Honour.

DEANE J:   But if you do not get leave on your wounding point, you are surely not thinking you are going to get leave as to what a dog has to do to attack someone.

MR GROSS:   We accept that.  However, we would submit that the question of how one proves an attack is a relevant matter, bearing in mind that Judge McLachlan basically found himself unable to infer one way or another what was the dog’s intent at the relevant time.  The contributory negligence point we have summarised at the bottom of page 7 of our written submissions.  It was found by the Court of Appeal that there should not have been a one-third reduction for contributory negligence because Justice Clarke said that the dog having this habit, although the plaintiff did not report the problem to the owner, the council or the police, and although the plaintiff did not take an alternative route, nevertheless it was the citizen’s right to use the road, and therefore no contributory negligence could be found.  That, in our submission, is found at pages 12 and 13 of the judgment, and to assert the right of a citizen, because he is a citizen on the road, negates the obligation to take reasonable care in the circumstances is to elevate the position of the plaintiff in that situation beyond what legal authority permits.

There are also questions concerning “ordinarily kept” ‑ ‑ ‑

MASON CJ:   We are surely not going to grant special leave on that.

MR GROSS:   Your Honours, we would submit that once one removes those ingredients which were relied upon and which, we submit, wrongly, in the end one has an inference from repetitive action by a dog, and where you have a stray dog on a rural property with open fences that merely shows where the dog’s natural habitat was for meal purposes or wandering purposes at that time of night.  In our submission, the inferences are just not available of the kind that is proposed, but we appreciate that much turns on the evidence.  But these are recurring patterns of evidence proving such matters, and in our submission the indicators relied on by the court are themselves inherently fallible.

TOOHEY J:   Mr Gross, is there nothing that throws light upon the language of this section by way of its background?  It is right out of kilter with other legislative provisions.  If you look at section 20(2), you would not want to be a postman or the Avon lady in New South Wales, would you, because if you step onto premises and you are bitten by the dog, subsection (1) appears not to apply.

MR GROSS:   Might I have leave to answer Your Honour’s question in view of the time?

TOOHEY J:   Yes.

MR GROSS:   There were community concerns that landowners were unduly punished by this type of provision because it prevented them from having adequate security within their own homes, and that there should be a special consideration given to their own vulnerability, both in law and ‑ ‑ ‑

TOOHEY J:   I can see that and that is why I wondered if there was anything in the debates which would throw some light upon the intention.

MR GROSS:   No, Your Honour.  One suspects it may have been a political compromise or it was meant to serve some other agenda, but, Your Honours, the answer is the Law Reform Commission Report, which we have attached to the relevant sections, basically says it is perceived that dogs are a problem.  It is perceived also that the existing provision exposes too many people to unpredictable liability.  It is necessary that it be narrowed by reference to some fixed criteria and that is what they have done, but they do not explain why they have recommended those criteria rather than some other criteria.  If the Court pleases.

MASON CJ:   Thank you, Mr Gross. Mr Downes, we need not trouble you on any aspect of this case except the meaning of the words “caused by the dog wounding that person” in section 20(1)(a).

MR DOWNES:   Your Honour, the flaw, we say one finds in the respondent’s case is to confuse causation and construction.  There is no question here that there was a wounding.  That was never an issue in the case as appears from page 10 and page 30.  The question was whether the wound was caused by the dog.  That is as much, we would respectfully submit, a question of causation as it is a matter of construction, particularly construction of the word “wounding” in the Act.

We pause to note, as we did in our written submissions that, in our respectful submission, one misstates the English grammatical sense of the section.  When one uses the phrase “dog wounding” as the President of the Court of Appeal did, the two words appear one after the other, but appear, we would respectfully submit, separately in the sense that the relevant reading of the section is ‑

bodily injury to a person caused by the dog wounding that person.

Your Honours, three cases that have been determined in the past give some assistance, we would respectfully submit.  The first is Martignoni v Harris that we referred to in 1971.  That was the case of a dog running across the road and being hit by a vehicle, and the New South Wales Court of Appeal unanimously held in those circumstances that there was under the old Act an injury done by the dog.

DEANE J:   You read 20(1)(a) almost as if there were commas around “caused by the dog”.

MR DOWNES:   I think the answer to Your Honour’s question is yes, although that, we would respectfully submit, is the natural reading without the need to put the commas in.  One does not read it as if there were a phrase “dog wounding”, which is a theme that appears through the President’s judgment.

The second case, if I can briefly refer to it, is Twentieth Century Blinds v Howes.  That was a case in which a repairman for a blind company went around the back of the house of the owners of the property.  A dog on a chain then attacked the person without ever having any physical contact with the person.  In those circumstances where the dog on the chain had never, so to speak, made physical contact, but the subject of the dog’s attention had fallen over in an attempt to escape and hurt himself, it was there held that there was an injury done by the dog.

TOOHEY J:   Mr Downes, your answer to Justice Deane makes me wonder what the words “wounding that person” serve.  Why would the paragraph not stop with “bodily injury to a person caused by the dog”?

MR DOWNES:   Perhaps there are two answers, Your Honour.  One may be that one reads too much into the legislative mind in suggesting that there was necessary deliberation or attention given to this issue.  But the second answer is this:  that in the legislators’ wisdom there has to be a wounding.  Whatever a wounding is in a particular case will be a matter for determination.  There is no issue that there was a wounding in this case, but there has to be a wounding, and if it is possible to have a bodily injury which is not associated with a wounding, that may provide the answer. 

But the question is one of causation:  was that a wounding caused by the dog?  We would respectfully submit that just as in, for example, Twentieth Century Blinds v Howse, and for that matter Martignoni v Harris, there was an injury done by the dog when in the one case a vehicle was run into, and in another case an escaping workman fell over.  We would respectfully submit that in the present case one has a wounding caused by the dog when there is an attack on a bicycle, the bicycle is struck, the rider falls over and is wounded.

One gets some clue, if I might say so, Your Honour, as to the background of the matter from the report of the Law Reform Commission, the relevant extract of which appears in the President’s judgment at page 41 in the middle of the page:

“It would be unjust, in our opinion, to impose the statutory liability for every harmful consequence of a dog attacking a person or attacking, worrying or chasing an animal.  A consequence of a dog chasing a cat across a street, for example, may be that there is a major motor vehicle accident.  It hardly would be reasonable that, in such a case ‑

et cetera.  Interestingly enough that is describing in a sense the fact situation in Martignoni v Harris, although surprisingly enough the Law Reform Commission does not address those two relatively recent cases in the Court of Appeal in any way in terms of analysis in the course of coming to the conclusions to which they came in this report.

That, Your Honours, if I may be permitted to say to, is what, in our respectful submission, is the rationale behind this legislation, that is, that there was a drawback unquestionably by the legislature from the earlier law.  It is found in this line, if I can put it that way: that where one has an accidental injury, not one done as a result of an attack, that is outside the legislation.  That is exactly the way that the majority in the Court of Appeal approached the matter, and the critical conclusion of Mr Justice Clarke in which Mr Justice Handley agreed, is found, I think, at page 31.  The whole of the page is relevant, but the critical sentence is at about line 24:

The point of limitation which, in my opinion, the legislature imposed was that the wounding must occur in the course of an attack by the dog on the injured person.

What one needs is an attack.  When one, in our respectful submission, comes to the wounding, the question of whether there is a relevant wounding is simply a matter of causation, and just as it was held in Twentieth Century Blinds v Howse that a wounding sustained in, so to speak, an escape was an injury done by the dog in exactly the same way, we would respectfully submit that a wound sustained in the course of an escape, to use the illustration of Your Honour Mr Justice Toohey, is a case of also a wounding caused by the dog within the new legislation.

In our written outline we have sought to point out in a way which I think was at the background to questions asked by Your Honour Justice Deane and Justice Toohey the logical problems that one has if one adopts the approach contended for by the applicants.  It is on page 3 in Part III, paragraph 1 of our argument, and we draw a number of illustrations which, we would submit, as one progresses through them trying to find where the line is to be drawn, finds that the applicant’s case really falls on some stony ground.

First, we say, a dog attacks a cyclist, bites his leg, breaks the skin, causes him to fall to the ground where he wounds his head.  Unquestionably, on any view, the first part of the injury is within the Act, but is the wound to the head?  One is almost compelled as a matter of logic to say it must be, and the moment one does that, one has made a move within the Act away from the construction contended for by my friend.

Then, what if a dog attacks a cyclist, hits his leg, without biting it or breaking the skin, causes him to fall to the ground, resulting in a would to the head.  We would respectfully submit it is an unlikely proposition that that is not again within the legislation, and one can move away - we have got a further illustration in C and even another one over the page.  But I do not think I need to take Your Honours through them any further.

TOOHEY J: Mr Downes, just so that I understand the argument, on your approach to section 20(1)(a), does the word “wounding” mean “”which wounds? In other words, if it read, “bodily injury to a person caused by the dog which wounds that person”, is that the effect of the construction that you invite us to place on that paragraph?

MR DOWNES:   Caused by the dog inflicting a wound on that person, Your Honour, would be a paraphrase, if I can put it that way, that we would accept.  And immediately that raises, if I might say so, what I called the causation versus construction issue.  The question is not so much: what does the word “wounding” mean?  The question is: has a necessary process of causation occurred?  And, it is a rather unusual argument, if I might be permitted to say so, which was rejected in Martignoni v Harris and in Twentieth Century Blinds v Howes.  It is a rather unusual construction that says one can only have a dog wounding somebody if the dog actually gets its teeth around you, or claws you, or in some other way does something which gives rise to a wound.

Your Honours, it is our respectful submission that the really significant word in the section, the one which is the word which arises out of the Law Reform Commission’s report, is the word “attacking”, and there plainly was an attack here and Your Honours do not want to hear me on that, but there are findings of the attack and so we would respectfully submit that once one has found an attack and found that in the course of the attack, and as a consequence of the attack, there is a wounding, then to seek to draw the line by inquiring whether the wounding was caused by teeth or nail is asking too much.

The fact that nothing can be drawn from the fact that you do not have, obviously enough, the word “wounding” in 21(b), although that is referred to below, the simple answer to that is, of course, one cannot wound clothes.  So that, we would respectfully submit, is of no assistance, and the question is whether there is an attack causing a wound.

Your Honours, we in our written submissions have suggested that there are three grounds why special leave should not be granted.  The first is that the judgment below was plainly correct.  The second is that this is not a matter of sufficient general importance, in any event, and in that regard we pray in aid the fact that this is legislation found only in New South Wales; that the legislature, if it thought necessary to do so, could readily amend the legislation.

My learned friends have put on some evidence as to the number of dogs in New South Wales.  We would respectfully submit that more pertinent evidence, if relevant at all, would relate to the number of actions under the Act, and there is no reason to think, on one’s ordinary experience, that there is substantial legislation under the Act.

We have also suggested, finally, Your Honours, by reference to some passages in the judgment, that this really is not a suitable vehicle to raise the issues because, however one approaches it, one does find oneself in narrow questions of drawing the line, and the judgment of the trial judge is not particularly clear on where he found the facts to lie.  At one points, for example, His Honour the trial judge, at page 11 and about line 11, found that there was, I am reading:

bodily injury to the Plaintiff was caused by the dog wounding the Plaintiff.

So, on one formula of His Honour’s findings, as a finding of fact he has made a finding which is determinative of the case.  At a number of other points that we have collected in our written submissions in, I think, paragraph 1 on page 2, he finds the attack causing injury.  So, our third ground, Your Honours, is that it is our respectful submission that the findings of the trial judge do not adequately raise the issue. 

Your Honours, I think the only other matter that I wish to refer to is a matter to which my learned friend referred, and that is the question of our claim for negligence, and I think my learned friend correctly analysed what happened, although the learned President mentioned that there was no appeal on negligence.  That is just, with respect, and I think accepted, not to be correct.

So that, as we would see it, it is a notice of contention point, which we would wish to raise if special leave were granted.  I cannot, I must say, agree with my learned friend’s characterisation of it as a simple matter depending simply on found facts. 

Your Honours have seen the judgment of the judge at first instance, and we would respectfully think that if Your Honours were to find the Court in a position of dealing with the negligence claim that there would be a degree of analysis of evidence and findings.

Those are our submissions.

MASON CJ:   Thank you, Mr Downes.  Yes, Mr Gross.

MR GROSS:   Your Honours, we agree that there are many situations which can occur with differing combinations of facts, and my learned friend proposes situations A, B and C.  Unfortunately, those are distinctions that dogs do not recognise in advance before they attack.  So, necessarily the distinctions which are drawn will seem arbitrary when you compare a range of possible fact situations, but also it is recognised, both by the Law Reform Commissioner and by the legislature, that some narrowing was necessary because the old words, “injury done by the dog” simply left too much strict liability applicable to too wide a class of persons, regardless of their efforts.

Your Honours, the plaintiff’s argument in accepting the suggestion that commas should be inserted, carries no weight, in our submission, because that involves still leaving the words “wounding that person” with no work to do.  And one also wonders to what extent one would find in any legislation an injury which is defined as a criterion of any form of liability or entitlement, which spells out also what would be natural consequences.

Now, Your Honours, the expression “wounding that person” and the expression “in the course of attacking that person” involves combining two elements of wounding and attack which have fairly common messages in terms of what conduct of a dog is being looked at and, in our submission, it is appropriate that you match the two together as a criterion of liability, because there will always be an open question as to whether the dog was attacking, as distinct from doing something else, and there will often also be a question as to whether or not the dog caused the injury, particularly if it was indirectly caused and, for example, there was a straining injury rather than some injury which clearly showed the marks of the dog having

launched itself in a personal attack.  And, we would submit that the legislature has addressed that problem by providing a narrow route to recovery ‑ bearing in mind, of course, this happened in 1977 when the legislature simultaneously made the pathway much easier for plaintiffs suing on a negligence principle, because they removed the scienter requirements in negligence cases.

So that, Your Honours, the dog owners and the presumed victims each gained by the process.  Your Honours, the fact that other legislatures do not have the same sort of provisions is neither here not there, because this legislature ‑ ‑ ‑

MASON CJ:   You have reached your time limit, Mr Gross.  The Court will take a short adjournment in order to consider the course it will follow.

AT 1.28 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.32 PM:

MASON CJ: The principal question sought to be argued in the proposed appeal is as to the meaning of the words in section 20(1)(a) of the Dog Act 1966 (NSW) “caused by the dog wounding that person”. It is a question of construction of a State statute and, in our view, it was reasonably open to the Court of Appeal to interpret the provision in the way it did. In other respects the case does not warrant the grant of special leave. The application is therefore refused.

MR DOWNES:   We ask for costs.

MASON CJ:   You do not oppose that, Mr Gross?  The application is refused with costs.  The Court will now adjourn sine die.

AT 1.33 PM THE MATTER WAS ADJOURNED SINE DIE