EADIE v GROOMBRIDGE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and SHELLER JJA 1 July 1992, 11 August 1992 [1992] NSWCA 61 DOG ACT. FACTS: Respondent sues appellant for injuries in road accident. Respondent travels by motorcycle and is attacked by appellant's dog who has escaped from appellant's yard. Respondent tries to avoid dog, but kills it and injures himself. Trial judge finds for respondent on common law count of negligence and statutory count based on s20 of Dog Act. Appeal on liability. HELD: 1) (per curiam) In the case of this particular dog, and the recognised need to fence it in, the owner was negligent because he did not adopt some precaution to ensure that the gate, once opened, did not remain open. 2) (per Meagher and Handley JA, Sheller JA not deciding) There was an attack and a wounding within s20 of the Dog Act 1966. s20 Dog Act. 1966 s9 Dog Amendment Act 1975 s19 Dog and Goat Act 1898 Moriarity v Brooks (1834) 6 Car and P 684 (172 ER 1419) R v Devire (1982) A Crim R 45 Harden v Ridges (1983) 2 NSWLR 584 Twentieth Century Blinds Pty Ltd v Howes [1974] | NSWLR 244 R v Halliday (1889) 61 Lt 701 R v Lewin (1970) Crim LR 647 R v Martin (1881) 8 QBD 54 Behrens v Bertram Mills Circus Ltd (1957) 2 QB 1 Simpson v Bannerman (1932) 47 CLR 378 Martignoni v Harris (1971) 2 NSWLR 102 Meagher JA Mr WJ Groombridge, the plaintiff (who is the respondent before us) sued Mr Eadie, the defendant and present appellant, for injuries he sustained in a road accident which occurred in the afternoon of 26 November 1985 at Rundle Street, Busby. Mr Groombridge was coming home from work on his motorcycle at a speed of about 50 kilometres per hour when a German Shepherd dog "came at" him from the footpath on his left. It belonged to Mr Eadie, who owned a nearby house. 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. The injuries he suffered were considerable. The learned judge, Conomos DCJ, before whom the matter came, found the defendant negligent and awarded a verdict in favour of the plaintiff against the defendant in the sum of $173,970.83. No appeal has been brought against the quantum of the verdict but this appeal has been brought against his Honour's finding that the defendant was liable. There were two counts: one common law count in negligence, and one statutory count based on s20 of the Dog Act 1966. His Honour found for the plaintiff on both counts. 2 UNREPORTED JUDGMENTS The act of negligence found by his Honour was that the wire gate on the side of his house had been left open by about one metre. That wire gate was about five feet high and could be closed by means of a bolt lock. It appears from the evidence that the defendant was sick, and confined to his bed, and that when the defendant's wife and children left the house early in the morning they had closed the gate, which only leaves the possibility that some unauthorised person had slipped the bolt and opened the gate afterwards. The dog, which (as one would expect) was normally confined in the back yard, had previously managed either to jump or to climb over the back fence, which was also about five feet in height. Mr Eadie knew this; indeed, he had added an extra two feet to the back fence to ensure that such an event could not be repeated. Curiously enough, he never sought to increase the height of the gate, although he knew the dog could surmount a five foot obstacle. As far as the negligence count is concerned, the appellant Mr Eadie has not suggested there was no duty of care, but he does submit there was no breach. In my view, this submission should be rejected, as it was by his Honour. It was conceded that the dog could do serious damage if it were permitted to roam at large; that this fact was known to Mr Eadie; and that it was both reasonable and necessary to construct a high fence around his house to ensure that the dog did not escape. In this context it would obviously be negligent, for example, to construct a fence of the required height but knowingly leave a hole in it through which the dog might escape. By parity of reasoning it seems to me to be negligent to have a gate which, having been opened, can remain open. Some sort of device, of which one knows there are many (e.g. spring hinges) in existence, was required. It is irrelevant to debate, as we did on the hearing of this appeal, the correctness of his Honour's finding that a padlock was necessary. It is sufficient to conclude that in the case of this particular dog, and the recognised need to fence it in, the owner was negligent if he did not adopt some precaution to ensure that the gate once opened did not remain open. 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 s20(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. There was a "wounding" within the section. The Plaintiff's skin was broken. This is sufficient to constitute wounding for the purpose of the criminal law. See Moriarty v Brooks (1834) 6 Car and P 684 (172 ER 1419), R v Devine (1982) A. Crim R 45. Such an injury also satisfies the requirements of s20. Compare Harden v Ridges (1983) 2 NSWLR 586 and see Twentieth Century Blinds Pty Ltd v Howes [1974] 1 NSWLR 244. One can be "wounded" by a dog even if the beast does not lacerate one's flesh. It is well established that an accused whose conduct has indirectly caused the wounding of another may be convicted for that wounding. In R v Halliday (1889) 61 LT 701 at 702 Lord Coleridge CJ said: "Tf a man creates in another's mind an immediate sense of danger which causes such a person to try to escape, and in doing so he injures himself, the person who creates such a state of mind is responsible for the injuries which result" See also R v Lewin (1970) Crim LR 647 and R v Martin (1881) 8 QBD 54. I can discern no reason why wounding which is an indirect result of an attack by a dog should fall outside the section. The appeal must be dismissed with costs. Handley JA I agree with Meagher JA. URJ EADIE v GROOMBRIDGE (Sheller JA) 3 Sheller JA I have had the benefit of reading the judgment of Meagher JA and agree that the appeal must fail because the injury to the respondent was caused by the appellant's negligence. I agree with the reasons advanced by Meagher JA for this conclusion. It is accordingly unnecessary for us to decide whether Conomos DCJ was correct in also finding against the appellant on the count under s20 of the Dog Act 1966. The interpretation of this section and the application of it to the facts of this case present to my mind considerable difficulty. The liability of the owner under s20 (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. S20B distinguishes "attacking" from "worrying" and "chasing". S20 (2) (b) excludes from the application of subs(1) "an attack by a dog which is in immediate response to, and is wholly induced by, intentional cruelty to, or intentional provocation of, the dog by a person other than the owner of the dog, his servants or his agents." In para40 of the Law Reform Commission Report 8 of 29 June 1970, Civil Liability for Animals, discussing this exclusion, attacking is treated as equivalent to an act of aggression. If the occasion is that a person in the street holds out a juicy bone to a dog and the dog in the course of a natural but enthusiastic acceptance of the offer wounds the offeror, it is not, in my opinion, "attacking" the offeror. No more is a dog attacking a person if it knocks over a person in the course of chasing a cat or, while running across the road, causes injury to a person driving a motor vehicle. The amendments made in 1977 to the Dog Act which incorporated the section with which we are here concerned were designed, inter alia, to lessen the statutory liability of dog owners in such circumstances. While it may not be practicable to introduce conceptions of mens rea and malevolence in the case of animals (see per Devlin J in Behrens v Bertram Mills Circus Ltd (1957) 2 QB 1 at 18) I do not think s20 is intended to extend the liability of owners for the injurious acts of their dogs beyond that of the owners of amiable tigers or elephants as docile as cows. In 1830 legislation was introduced in the context of the infestation of Sydney, Parramatta, Liverpool and Windsor by a great number of dogs, which imposed liability on the owner if the owner's dog should attack any person. S9 of the Dog Act Amendment Act of 1875 made the owner of every dog liable in damages for injury done to any person property or animal by the owner's dog, it not being necessary for the party seeking such damages to show a previous mischievous propensity in the dog or the owner's knowledge of such previous propensity or that the injury was attributable to neglect on the part of the owner. The legislation remained substantially in this form in s19 of the Dog and Goat Act 1898 and s20 of the Dog Act 1966 prior to the 1977 amendment. The potential breadth of this liability both in terms of the activity or inactivity of the dog and the property damaged is illustrated by such cases as Simpson v Bannerman (1932) 47 CLR 378 and Martignoni v Harris; (1971) 2 NSWLR 102. The purpose of the new s20 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 at 108, "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 4 UNREPORTED JUDGMENTS beside a motor cycle and then turning onto or at the person riding the motor cycle or even "coming at" such person "attacks" that person. As I have said I think the section presents difficulties of application which in my view it is unnecessary for us to decide in this case and accordingly I refrain from doing so. It is sufficient to dispose of the appeal that the respondent's injuries were caused by the appellant's negligence. Appeal dismissed with costs. Counsel for the Appellant: J MACONACHIE QC/A FOORD Instructed by: SHAW MCDONALD Counsel for the Respondent: DA WHEELAHAN QC/H HALLIGAN Instructed by: MATHEWS DOOLEY and GIBSON