ZAPPIA v ALLSOP [1994] NSWCA 355

ZAPPIA v ALLSOP

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBYP, CLARKE and HANDLEY JJA 17 February 1994, 17 March 1994 [1994] NSWCA 355

ANIMALS — dog — liability of owner of — liability under Dog Act 1966, s20 — no fault liability — ambit of — course of legislation — necessity to establish that defendant was "owner" of dog — necessity to prove that the plaintiff suffered bodily injury caused by the dog wounding the person in the course of attacking the person — held: (1) (by the Court): The primary judge (McLachlan DCJ) correctly found on the evidence that the appellant was the "owner" of the dog within the extended meaning of "owner" under s4 of the Dog Act 1966; (2) (by the Court): The primary judge correctly found that the respondent was injured in the course of the dog attacking his person; (3) (Kirby P dissenting): The primary judge correctly found that the bodily injury to the respondent was caused by "the dog wounding that person" notwithstanding the fact that the wounds were suffered as an indirect result of the collision between the dog and the respondent's motor cycle and involved no direct contact between the respondent's person and the dog; (4) (Clarke JA, Handley JA concurring; Kirby P also agreeing): The primary judge erred in finding contributory negligence on the part of the respondent in riding on a public street when he knew, from prior experience, that the dog was liable to attack him.

STATUTES — construction — ambiguity — reference to legislative history — reference to law reform report.

LEGAL HISTORY — animals — history of liability for — course of legislation in New South Wales — provisions of liability — wide ambit of no fault liability — law reform report suggests restriction of liability.

WORDS and PHRASES — "attack" — "wounding".

Simpson v Bannerman (1932) 47 CLR 378 considered. Dog Nuisance Act 1835.