Walker v Nelson City Council
[2017] NZHC 750
•13 April 2017
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2017-442-005 [2017] NZHC 750
BETWEEN JENNY LYN WALKER
Appellant
AND
NELSON CITY COUNCIL Respondent
Hearing: 11 April 2017 Counsel:
J L Walker in person and supported by S J Zindel
A C Besier for respondentJudgment:
13 April 2017
RESERVED JUDGMENT OF WILLIAMS J
Introduction
[1] On 24 March 2017, following a defended hearing, Judge Davidson convicted Ms Walker on a charge of owning a dog that has attacked a person, pursuant to s 57(2) of the Dog Control Act 1996.1 On the same day, he sentenced Ms Walker to a $550 fine and ordered her to pay $500 emotional harm reparation to Ms Lowish, the victim of the attack. The Judge finally made an order that the dog be destroyed pursuant to s 57(3).2
[2] Ms Walker appeals against conviction and against the destruction order. [3] The appeal raises three issues:
(a) whether the common law defence of total absence of fault was
properly made out;
1 Nelson City Council v Walker [2017] NZDC 7142.
2 Nelson City Council v Walker [2017] NZDC 6372.
WALKER v NELSON CITY COUNCIL [2017] NZHC 750 [13 April 2017]
(b)whether there is still jurisdiction to order destruction of the dog in the event that Ms Walker is successful in her conviction appeal; and
(c) irrespective of (a) and (b), whether the circumstances of the offence
were “exceptional” such that a destruction order was not warranted.
Facts
[4] Ms Walker owns a three year-old Siberian Husky called ZiaZia. The dog had a history of biting. In October 2016, Ms Walker went to Japan for two weeks and left ZiaZia with her flatmate, Penny Lowish. She left with Ms Lowish detailed instructions as to ZiaZia’s feeding protocol. It involved ensuring ZiaZia was fed outside the flat and requiring her to sit while the food was placed on the ground before being allowed to come to the food to eat. ZiaZia had been left in the care of Ms Lowish for two to three days previously without incident. However, ZiaZia had bitten her on another occasion when Ms Lowish tried to remove ZiaZia’s leash.
[5] Ms Lowish successfully looked after and fed ZiaZia for five days without incident. However, on 12 October, she carried the food bowl with her right hand out of the kitchen, through the lounge to some ranch sliders that opened to the outside deck where she intended to feed the dog. When she opened the ranch sliders it was wet outside so she decided to feed ZiaZia inside. ZiaZia’s water bowl was on the floor inside, adjacent to the ranch sliders. Ms Lowish held the food bowl up above her head while reaching down with her left hand to pick up the dog’s water bowl. It is common ground that this was inconsistent with the agreed feeding protocol. ZiaZia bit her on the hands and wrists. Ms Lowish put ZiaZia outside and called an ambulance. She was taken to hospital where some of the wounds were stitched. She had soreness and swelling for some time and was unable to drive for about a week.
Conviction decision
[6] Ms Walker was convicted pursuant to s 57(2) of the Dog Control Act 1996, of owning a dog that attacked a person.
[7] Judge Davidson found that Ms Lowish knew to be cautious around ZiaZia, having been bitten once before. The Judge found that she reluctantly agreed to care for ZiaZia when Ms Walker went away. The Judge found that both Ms Lowish and Ms Walker were apprehensive about the care arrangement. Ms Walker considered kennelling the dog but was concerned about cost and of limited means. She was also concerned at ZiaZia’s anxiety at being in a kennel as against the more familiar environment of her home.
[8] ZiaZia was known to have bitten people on at least nine previous occasions. On five of these, Ms Walker was the victim. ZiaZia had also bitten Ms Walker’s uncle, Ms Lowish, a stranger and a dog trainer who Ms Walker had asked to assist in resolving ZiaZia’s aggression. The bite to the dog trainer, Ms Pickering, occurred when ZiaZia had appeared calm and relaxed. As a result, Ms Pickering recommended either intensive behaviour work or euthanasia.
[9] The Judge said it was clear that Ms Walker deeply loves her dog, but that she had lost sight of ZiaZia’s dangerous nature. The Judge found that Ms Walker rationalised every prior biting incident, blaming herself and others, for disturbing, annoying or antagonising ZiaZia in some way.
[10] Ms Walker accepted that the essential ingredients of the offence in s 57(2) of the Dog Control Act had been proven. The only issue was whether she had established, on the balance of probabilities, the common law defence of total absence of fault. The Judge found that Ms Walker had not established total absence of fault because she knew of the dog’s extensive biting history and the recommendations of Ms Pickering, the canine behaviorist; she was concerned about ZiaZia’s anxiety while she was overseas; and was aware of Ms Lowish’s previous problematic interactions with ZiaZia.
Sentence decision
[11] When he turned to the question of sentence, Judge Davidson emphasised Ms Walker’s knowledge of the dog’s biting history. He noted that the dog had a mixed history in respect of Ms Lowish – she had bitten Ms Lowish and displayed aggression towards her, but at other times had been settled and comfortable in her
presence. He also noted Ms Walker’s limited financial circumstances. He adopted a starting point of a $700 fine which he reduced to $550 to recognise that Ms Walker had no prior convictions.
[12] He then ordered emotional harm reparation in favour of Ms Lowish. She suffered significant injuries, resulting in hospitalisation, medical intervention, swelling and soreness and an inability to drive for some time. Recognising Ms Walker’s financial circumstances, he set this at $500.
[13] The Judge then turned to the issue of destruction of the dog, noting the following points in relation to s 57(3):
(a) a destruction order must be made unless there are exceptional circumstances;
(b)the assessment of exceptional circumstances can take into account not only the actual attack but also the dog’s history and likelihood of future attack;
(c) “exceptional” denotes a relatively high standard; and
(d)if the circumstances are exceptional, they must also be such that destruction is not warranted.
[14] The Judge found that there was nothing exceptional about either the circumstances of the attack or Ms Walker’s ownership of ZiaZia. The dog had a proven, demonstrated history of biting, which became entrenched and reinforced over time. Ms Walker had little appreciation of the danger ZiaZia posed. She had an explanation for each attack, placing a degree of blame on the people interacting with ZiaZia.
[15] The Judge stressed that he had not overlooked the evidence of Ms Walker’s attempts at training ZiaZia, particularly in the months prior to this incident. He said he did not overlook Ms Walker’s friends’ evidence of ZiaZia’s calm disposition,
including around children. But this was not enough to overcome her biting history. Accordingly, he ordered that ZiaZia be destroyed.
Conviction appeal: total absence of fault defence
Appellant’s submissions
[16] Ms Walker appeared for herself on appeal but she also had the able assistance of her learned junior, Mr Zindel who offered her advice on occasion and took the opportunity to make a few points of his own in reply.
[17] Ms Walker’s case came down to two themes on the facts. The first was that ZiaZia had been making progress during the six month period leading up to the incident in question. Ms Walker said she was engaging with ZiaZia over her behaviour, discipline and addressing her anti-social traits. Ms Walker said that Ms Lowish acknowledged this progress when she gave evidence.
[18] The second point was that Ms Walker had taken every conceivable precaution in relation to ZiaZia’s behaviour before she left for Japan. Ms Walker emphasised the fact that she considered keeping ZiaZia in the familiar environment of her home was likely to have a calming influence. She carefully briefed Ms Lowish on appropriate behaviour around ZiaZia including, crucially, appropriate feeding protocols. She advised that Ms Lowish had lived with ZiaZia for 14 months and had, from her perspective, interacted confidently and appropriately with the dog. Ms Walker submitted that there were no signs that suggested ZiaZia would engage in further biting, and the Judge was quite wrong to conclude that Ms Lowish was reluctant about taking over ZiaZia’s care. On the contrary, Ms Walker submitted, the evidence was, and Ms Walker knew it to be the case, that Ms Lowish was perfectly confident and relaxed about the proposal.
[19] Ms Walker added further that this was not the first time that Ms Lowish had cared for ZiaZia. A test run of two to three days earlier in the year had been successful, so there was no reason to believe problems would arise. Ms Walker asked metaphorically what more could have been done to ensure that this arrangement was safe.
[20] Ms Walker submitted that the feeding protocol was straightforward and fairly common. The routine was to get ZiaZia to sit, to put the food down at a distance of at least one and a half metres, and step back and say “okay”. She said she also reminded Ms Lowish to keep her hands away from ZiaZia’s face. ZiaZia had been doing well prior to the incident, which Ms Lowish herself had commented on. Ms Lowish knew that it was still important to follow routines, however, and chose to accept responsibility while Ms Walker was away. Ms Walker said she did not consider other options because she did not think she had to. The comment that she chose not to put ZiaZia in a kennel because of the cost was, she says, not true.
Analysis
[21] Owning a dog that attacks is a strict liability offence. The owner need not intend an attack. Nor need she be reckless or negligent in that regard. But the owner has a defence at common law if she can show total absence of fault. It is necessary only to refer to the most recent and succinct restatement of the law in this area by Brown J in Fairbrother v Porirua City Council:3
What is to be shown is total absence of fault. In Dog Control Act cases the defence may be engaged where, for example, the owner is not present (through no fault of his or her own) during the attack or an intervening event out of control of the owner occurs (such as the cutting of the dog’s lead by a stranger).
[22] As Brown J notes, relying here on the comments of Brewer J in King v South Waikato District Council (No 3),4 it is important not to confuse strict liability with negligence by importing into the absence of fault defence, notions of reasonableness. Total absence of fault is a threshold that is a good deal higher than behaviour which is reasonable in the circumstances. The bar is set so high because strict liability offences are designed to privilege the protection of public welfare over other
interests involved.
[23] Total absence of fault requires a consideration of all circumstances. I take this to mean that, considering all the circumstances, the law requires there to be
literally no practical step the appellant could have taken to avert the attack.
3 Fairbrother v Porirua City Council [2015] NZHC 1452 at [44].
4 King v South Waikato District Council (No 3) [2013] NZHC 596, [2013] NZAR 451 at [20].
[24] The decision of Heath J in King v South Waikato District Council (No 1) provides a good example of this. In that case, the dog was already in the Council pound when it attacked another dog. Heath J suggested it was “difficult to see how any owner could be held at fault when the Council has (compulsorily) removed control of the dog from the owner and had taken (exclusive) responsibility for its
care and control”.5
[25] That said, total absence of fault does not mean that the owner must remove any possibility of any kind of attack no matter how remote that possibility might be, before being able to access that defence. A standard set that high would remove entirely the culpability inherent in the notion of “fault” from the equation. The test is not total absence of causation, but total absence of culpability.
[26] The concept thus speaks to the difference between canine behaviour that is at least able to be predicted and controlled for, or guarded against, and that which comes entirely from out of left field as it were. As Brown J implies in Fairbrother, context and circumstance is everything in making such assessments.
[27] In my view, Judge Davidson was correct to conclude that this high threshold had not been met. In ZiaZia’s case she had a long history of biting. She bit both strangers and intimates. She had been diagnosed by an expert prior to the attack giving rise to the current charges. The assessment by Ms Pickering, a dog trainer and behaviour consultant, provides a striking description of a dog which is deeply loved yet with complex and severe behavioural difficulties. The consultant considered that those difficulties were beyond her own (i.e. the consultant’s) capacity to treat. This assessment was completed a year before ZiaZia bit Ms Lowish for the
second time. Her recommendations for managing ZiaZia were as follows:
1) Do NOT breed with ZiaZia. 2)
Do not contemplate re-homing ZiaZia.
3)
ZiaZia should be muzzled when visitors are at home.
Jenny
[Walker] has tried using a muzzle with ZiaZia, and now she growls
if Jenny approaches towards her with it, so for now I would suggest
5 King v South Waikato District Council (No 1) [2012] NZHC 2264, [2012] NZAR 837, at [29].
that she be left outside until you have worked through a behaviour change programme with her.
4) ZiaZia should be muzzled in public.
5) No more tag games with ZiaZia.
6)If you are aware of situations that provoke a growl from ZiaZia (as noted above in the report) avoid putting her in that situation to growl
– ie, no hugs, tummy rubs, etc.
7) Avoid giving good treats to ZiaZia from your hand.
8)Please ensure that you do follow through with at least one of the options I have suggested below for ZiaZia ASAP before you receive further bites. A dog with a bite history such as ZiaZia’s is very dangerous and she is a danger to the public if not muzzled unfortunately.
There are three options you could look to with ZiaZia:
1) Contact Sue Walsh, a dog behaviour consultant with Dog Almighty.
2) If you want to go higher than a dog behaviour consultant like Sue or
I, I suggest you contact the vet behaviour team at Massey University.
3) Euthanasia. This may appear as harsh as I know Jenny loves ZiaZia.
For any behaviour change plan to be successful there needs to be
100% owner compliance with the plan. I believe that from the information gathered in our interview, the reality is that this may well be a very involved, lengthy and costly process to successfully do this with ZiaZia.
[28] I reiterate that this consultant was bitten by ZiaZia on both hands during her assessment.
[29] I accept that Ms Lowish knew and was very familiar with ZiaZia, and that this might have enhanced Ms Walker’s confidence over leaving the dog with the proposed during her absence. I accept also that there were discussions between the two over appropriate care of ZiaZia including especially in relation to feeding. Indeed, the fact that those conversations were necessary at all, reflected the reality that everyone knew ZiaZia had significant issues making her a management challenge.
[30] I accept too Ms Walker’s submission that, contrary to the Judge’s finding of fact in this respect, Mr Lowish had not communicated her lack of confidence about managing ZiaZia to Ms Walker. The fact however is that Ms Lowish was
understandably and predictably afraid of ZiaZia. The dog had already bitten her once. Ms Lowish stated frankly she could not execute ZiaZia’s feeding protocol because she could not control ZiaZia. She could not walk or muzzle her. ZiaZia was clearly the dominant partner in that pairing. So even if I accept that Ms Walker did not know of Ms Lowish’s shortcomings in this respect, that does not create a total absence of fault.
[31] On the objective factual evidence, and in the opinion of experts (not just Ms Pickering but the council’s dog control officer, Mr Lawrence as well), ZiaZia is a dangerous dog. That necessarily imposed extra responsibilities on Ms Walker. She had to be absolutely sure that Ms Lowish had overcome whatever history there was between her and ZiaZia. Ms Walker did not go that extra mile. Responsibility cannot therefore be sheeted home to Ms Lowish because she lacked the skills to control ZiaZia’s aggression.
[32] Even Ms Pickering lacked the skill and insight necessary to manage ZiaZia in that regard. ZiaZia, Ms Pickering said, was both aggressive and unpredictably so. This context placed a very high responsibility on Ms Walker. In truth, the only option consistent with total absence of fault was kennelling. That is for ZiaZia to be contained in an appropriate environment and managed by professionals. That is not with the benefit of 20/20 hindsight. What happened in this case could have been predicted on the basis of the Pickering assessment and ZiaZia’s history of biting. The greater the risk (and knowledge of it) the greater the responsibility.
[33] The conviction appeal is dismissed.
Can destruction be ordered without a conviction?
[34] There is no need then to address the second of the three issues, that is whether destruction can be ordered in the absence of a conviction. I would note however that the terms of s 57(3) (set out below) seem to require both an attack and an offence. The background to the inclusion in the subsection of “offence” is set out
briefly in Halliday v New Plymouth District Council6 and there is no need to repeat
6 Halliday v New Plymouth District Council HC New Plymouth CRI 2005-443-11, 14 July 2005 at [41] to [44].
that material here. I am aware of the difference of opinion between Miller J in Turner v South Taranaki District Council7 and Heath J in King (No 1) on this question, but if I had been required to decide the issue I would have concluded the provision proceeds on the basis that an offence has been committed and therefore a conviction is required.
Destruction order: exceptional circumstances
[35] Section 57(3) provides:
(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.
Appellant’s submissions
[36] Ms Walker essentially repeated her previous arguments under this heading. She said that Ms Lowish’s failure to follow the agreed protocol constitutes exceptional circumstances. She added that she now has a strategy for ensuring safety and ZiaZia’s rehabilitation.
Analysis
[37] An order must be made unless:
(a) the circumstances of the offence were exceptional; and
(b) the circumstances do not warrant destruction of the dog. [38] Relevant factors to the first question are:8
(a) the nature of the attack (including whether injury resulted);
(b) the appellant’s history as owner of the dog;
7 Turner v South Taranaki District Council (2013) NZHC 1603, (2013) NZAR 1046.
8 McClintock v Taupo District Council [2017] NZHC 58, at [8].
(c) where the dog had behaved this way in the past;
(d) the steps taken 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.
[39] I have also found the decision of Miller J in Turner of particular assistance in this case. Three of the points he makes bear reiteration here. First, the Court must make an order unless the circumstances of the “offence” were exceptional. The use of that term allows the Court to take into account circumstances not only of the attack itself, but also of the owner and the dog.9 This will include the dog’s history and any features that go to likelihood of further attacks. Second, “exceptional” sets a high standard.10 Circumstances need not be extreme, but they must be unique, special or substantially unusual. The circumstances can include the nature and severity of the attack, the owner’s and the dog’s respective histories, and the precautions that the owner had taken against attack and why those precautions failed. Finally, the Judge noted that the exceptionality must be relevant. That is, it must go to the issue of destruction.11 Here, the dominant consideration is the likelihood of a repeat attack or of on-going anti-social behaviour.
[40] There is no doubt that Ms Walker wants desperately for ZiaZia to be rehabilitated and properly socialised. Nor is there any doubt that she has taken great steps to achieve this, but without success. A number of ZiaZia’s attacks have been relatively serious and there is no real indication that this has ended. There is a great deal of aspiration in that regard, overwhelming hope for redemption, but no real road map. As Ms Pickering indicated, rehabilitation for ZiaZia is likely to be a long, expensive and perhaps unfruitful path. Ms Pickering’s view was that ZiaZia is unlikely to change. Indeed she suggested that her biting behaviour was likely to get
stronger.
9 Turner, above n 7, at [23], relying on Halliday, above n 6, at [42].
10 At [24].
11 At [25].
[41] I am satisfied that Judge Davidson was right to consider that ZiaZia represents a significant risk to those around her. There was nothing Ms Lowish did that was out of the ordinary (even if she did not comply with the agreed protocols) in the manner of her feeding ZiaZia. As Ms Pickering noted, it is significant that Ms Lowish was not a stranger. She was well-known to ZiaZia. This suggested that ZiaZia’s aggression is entrenched behaviour and, Ms Pickering suggested, very likely to recur either with people she knows or strangers. There will be many occasions when people come into contact with ZiaZia one way or another who either forget about appropriate behaviour around a highly sensitive dog or simply know nothing about these requirements to start with. She is simply too great a risk.
[42] I agree with the Judge that ZiaZia must be destroyed. [43] The appeal is dismissed.
Williams J
Solicitors:
Zindels, Nelson for appellant
Tasman Law, Richmond for respondent
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