Anand v Auckland Council

[2013] NZHC 445

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-407 [2013] NZHC 445

BETWEEN  SHIKAH ANAND Appellant

ANDAUCKLAND COUNCIL Respondent

Hearing:         4 March 2013

Counsel:         M D Whitlock for Appellant

V Tamatea for Respondent

Judgment:      8 March 2013

JUDGMENT OF KATZ J

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 4.30 p.m. on 8 March 2013.

Solicitors:           Auckland Council, Auckland –  [email protected]

Whitlock & Co, Mairangi Bay –  [email protected]

ANAND V AUCKLAND COUNCIL HC AK CRI-2012-404-407 [8 March 2013]

Introduction

[1]      The appellant, Shikah Anand, pleaded guilty under s 57 of the Dog Control Act 1996 to owning a dog that attacked a person.  On 23 October 2012 District Court Judge J P Gittos fined Ms Anand $500 together with Court costs of $132.89.  He also ordered the destruction of the dog.  Ms Anand appeals against the destruction order. Auckland Council opposes the appeal and submits that the destruction order should stand.

Factual background

[2]      Ms Anand owns a pitbull terrier named “Chico.”   The dog lived with Ms Anand on the top floor of a two storey dwelling.  Mrs Bowman lived in the flat on the bottom storey.   The top storey opened out onto a large deck which had an external staircase which led down into the yard.   The dog spent most of its time either inside the upstairs flat or on the deck.  The property was not fully fenced and there were no gates.

[3]      The Judge was provided with a statement from Mrs Bowman in which she stated that due to Chico’s “playful” nature Ms Anand had made it a “house rule” that Mrs Bowman would let her know whenever she had a visitor.  This was so that Ms Anand could ensure Chico remained upstairs.

[4]      Unfortunately  the  “house  rule”  did  not  accommodate  the  situation  of unexpected visitors.  On the morning of 1 June 2012 Mrs Bowman’s daughter came to visit, together with Mrs Bowman’s two year old granddaughter.  The child was playing outside the door of the flat.  The dog apparently ran down the stairs from the top flat, grabbed the child by the head and dragged her.  The child’s mother rushed out of the house and pulled her daughter away from the dog.  The dog attacked again while the mother was holding her child.  The mother was bitten on her right thumb while trying to fend the dog off.

[5]      Ms Anand’s partner then rushed down the stairs from the top flat and pulled the dog away.  The mother’s thumb later required two stitches, while the child was treated for a puncture wound to her head which had to be glued together.   The daughter also had scrape marks on her back from where the dog dragged her.  The dog was unregistered at the time of the incident.

[6]      Following the attack extra fencing was erected around the property and a secure area created for the dog.   More recently Ms Anand has moved home and, counsel informed me, she now lives in a stand-alone home on a fully fenced section.

District Court decision

[7]      Section 57(2) of the Dog Control Act 1996 (“the Act”) provides that the Court must make an order for the destruction of a dog which has attacked a person unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

[8]      Counsel for Ms Anand submitted that the circumstances in which the child and the dog happened to come together in the yard area could be categorised as exceptional since it happened quickly and before Mrs Bowman or her daughter had the opportunity to tell the dog owner that she was on the property.   However the Judge did not feel particularly reassured, stating at [8]:

… if the dog is the sort of animal that is likely to attack somebody the minute they come onto the property and a house rule has to be put in place to make sure it does not happen I have little reassurance as to the prospects for this dog peacefully co-existing with other people.

[9]      The Judge found the nature of the attack to be particularly concerning, in that the dog immediately took the opportunity to attack the little girl when she went into the outside area.  The Judge did not consider that there was a reasonable prospect that the dog would not attack anyone again. He stated at [12]:

I accept there is no history of attacks with this dog, none that you are able to disclose, but the protective measures that you put in place, both before and after the attack, seem to me to be indicative of a concern about the prospect of the dog attacking somebody and that concern has been borne out by what

has happened and seems to me to be likely to happen again if the opportunity presents.

[10]     Accordingly,  the  Judge  did  not  find  that  any  exceptional  circumstances existed and ordered the destruction of the dog.

Law

[11]     Section 57 of the Act relevantly provides:

57       Dogs attacking persons or animals

(1)       A person may, for the purpose of stopping an attack, seize or destroy a dog if—

(a)      the person is attacked by the dog; or

(b)      the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.

(2)       The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding $3,000 in addition to any liability that he or she may incur for any damage caused by the attack.

(3)       If, in any proceedings under subsection (2), the Court is satisfied that the dog has committed an attack described in subsection (1) and that the dog has not been destroyed, the Court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

…

[12]     It is now commonly accepted that the decision in Halliday v New Plymouth District Council[1]  is the leading authority on the interpretation of the destruction test under s 57(3).[2]     That case identifies a two stage test to determine that destruction should not be ordered:

[1] Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005.

[2] Nicol v Whakatane District Council [2012] NZHC 727, Power v Police HC Auckland CRI-

(a)       The dog owner must establish the circumstances of the offence were exceptional; and

(b)The dog owner must establish that the circumstances do not warrant destruction of the dog.

[13]     At [48] of Halliday, Heath J suggested a list of non-exhaustive factors that might be relevant to determining whether the circumstances of the offence are exceptional (stage one of the inquiry):

(a)       The nature of the attack (including the fact that injury resulted); (b)   The appellant’s history as an owner of the dog;

(c)       Whether the dog had behaved in this way in the past;

(d)      The steps taken by the appellant to prevent such an attack occurring;

and

(e)       The  reasons  why  the  steps  taken  did  not  prevent  such  an  attack occurring on the occasion in question.

[14]     A further important principle from Halliday is that events which post-date the offence (such as the subsequent erection of fencing) ought not to be taken into account in first stage.   That is because the circumstances of the offence cannot include any circumstance that has not yet occurred.[3]

[3] At [43].

[15]     Obviously not all of the Halliday factors will carry equal weight in any consideration of the circumstances of the offence.   In addition there may well be other  factors  of  significance.    The  nature  of  the  attack  will  obviously  be  a particularly weighty consideration in any case.   On the other hand more limited weight can probably be given to the fact that a dog does not have a previous history of attacks. As Dobson J stated in Jorion v Kapiti Coast District Council:[4]

[4] Jorion v Kapiti Coast District Council HC Palmerston North CRI-2010-454-22, 4 August 2010 at [13]-[14].

[the  dog’s]  apparently  benign  nature,  her  role  as  a  family  pet  and

confirmation of her friendly interaction with children cannot count for a lot.

…    Nor  is  the  absence  of  any  history  of  attacks  by  the  dog  likely  to

constitute an exceptional circumstance.  The Act does not contemplate dogs being given a second chance.

Were the circumstances of the offence exceptional?

[16]     As Heath J noted in Halliday, the term “exceptional” creates a very difficult test for a dog owner to surmount.  It requires the circumstances to be unique, special or substantially unusual, though not necessarily extreme.

[17]    In assessing whether the circumstances are exceptional in this case, the following factors are relevant:

(a)      The incident involved an attack on a young child who was visiting her grandmother at her own home.   There is no suggestion of any provocation.  The child was both bitten in the head area and dragged. Her injuries required medical attention.   When  the  child’s mother intervened to try and save her daughter she was also attacked, sustaining injuries to her thumb which also required medical attention, including stitches.  The incident must have been extremely frightening for both mother and child.

(b)There is no evidence that Ms Anand is not a good dog owner.  The imposition of the “house rule” supports the view that she is responsible.

(c)      There was no evidence of the dog having previously attacked anyone (although I note it was only aged two at the relevant time).  I suspect that cases where there is a known history of attacks are relatively rare, however, given that the Act does not contemplate “second chances.”

(d)The imposition of the “house rule” was one useful measure for minimising (but not eliminating) the risk of attack, although counsel for Ms Anand was at pains to point out that the house rule was not motivated  by any knowledge  or  belief  that  Chico  was  potentially dangerous.  Rather, it was said that the house rule was due to Chico’s

“playful” nature and the fact that Ms Anand knew that some people are uncomfortable around dogs.  The Judge viewed this explanation for the “house rule” with some scepticism.  In my view the inference was properly open to him that the house rule was, at least to some degree, to minimise the risk of aggressive behaviour towards visitors. Many dogs are “playful” by nature.   It would be unusual for neighbouring tenants to reach an agreement that a dog owner would always be advised of intended visitors simply because a “playful” dog lived there.

(e)      The reason why the house rule did not prevent an attack on this occasion was that it was not possible to warn the upstairs tenants of the impending arrival of visitors, because they were unexpected.  This demonstrates that, on its own, the house rule would never have been sufficient to prevent possible attacks.  The possibility of unexpected visitors can never be eliminated.

[18]     The majority of these factors were considered in one way or another by the Judge.  I do note however that although the Judge correctly set out the two-stage test, his approach to applying the test to the facts in reality conflated the two stages. However, if anything, this approach was potentially to the advantage of Ms Anand. It resulted in the Judge taking into account factors such as the subsequent fencing erected, which on a strict analysis would be only relevant if and when the “exceptional circumstances” stage of the test had been established.

[19]     Like the Judge, I cannot find anything about the circumstances of the offence which brings it into the “exceptional” category.  Counsel for Ms Anand cited Tekotia v Manukau City Council[5]  as being parallel because of the similar use of a “house rule”.  However, the facts of that case are much less serious than this one.  This case involved  an  attack  on  a two-year  old  child,  and  an  adult,  both  whom  required medical treatment.   Tekotia involved an attack on another dog.   Regardless of the similarity of having a “house rule” breached which led to the incident, the nature of

the attacks are qualitatively different, and in this case, much graver.

[5] Tekotia v Manukau City Council HC Auckland CRI-2010-404-234, 24 August 2010.

[20]     While the “house rule” was broken, the circumstances in which it occurred were not particularly exceptional.   Unexpected visitors at a property are not uncommon.   It is unrealistic to expect a neighbouring tenant to always know in advance when visitors may arrive.  In addition it is impossible to predict the arrival of salespeople, tradesmen, Council workers, meter readers or others onto a property. I am unable to find anything “exceptional” about the circumstances of this offence. The circumstances are not unique, special or substantially unusual.

[21]     Given I have found that exceptional circumstances do not exist it is not necessary to consider the second stage of the inquiry, which would require Ms Anand to establish that the circumstances do not warrant destruction of the dog.   Factors such as the fencing subsequently erected would have been relevant at this stage of the inquiry, if the “exceptional circumstances” threshold had been crossed. Unfortunately it has not.

Result

[22]     The appeal is dismissed.

Katz J

2010-4040-351, 19 July 2011, Allen v Manukau City Council HC Auckland CRI-2010-404-351,
19 July 2011.