Reported Decision : (2000) 30 MVR 403 New South Wales Court of Appeal CITATION : ALEKSOSKI & ANOR v STATE RAIL AUTHORITY OF NSW [2000] NSWCA 19 FILE NUMBER(S) : CA 40466/98 HEARING DATE(S) : 16 February 2000 JUDGMENT DATE : 16 February 2000 PARTIES : MARGARET ELAINE ALEKSOSKI & ANOR v STATE RAIL AUTHORITY OF NEW SOUTH WALES JUDGMENT OF : Mason P at 1; Priestley JA at 26; Fitzgerald JA at 30 LOWER COURT JURISDICTION : District Court LOWER COURT DC 8015/98 FILE NUMBER(S) : LOWER COURT Phelan J JUDICIAL OFFICER : COUNSEL : Appellants: H Marshall Respondent: R E Montgomery SOLICITORS : Appellants: Marsdens Respondent: Dibbs Crowther & Osborne CATCHWORDS : Negligence - motor accident - motorcyclist knocked over by dog - reasonable foreseeability - vicarious liability - s8(1) Dog Act 1966 - onus of proof of negligence - scienter - ND DECISION : Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40466/98 MASON P PRIESTLEY JA FITZGERALD JA Wednesday 16 February 2000 Margaret Elaine ALEKSOSKI & Anor v STATE RAIL AUTHORITY OF NEW SOUTH WALES JUDGMENT 1 MASON P: The appellants owned a Rottweiler dog and kept it at a jointly owned property at Unanderra. That property was not their home. It adjoined a recently opened public road, Waverley Drive, which ran through a largely undeveloped industrial estate. The road was kerbed and guttered. 2 Mr Irons (the worker) was employed by the respondent. At 6.30am on 12 November 1993, he was riding his motorcycle along Waverley Drive in the vicinity of the appellants' land. He was an experienced bike rider. He was injured quite seriously when the dog ran out and collided with him on the road, as he was travelling at about sixty kilometres per hour. The conclusion that the dog ran out, which was drawn by the trial judge, was challenged in the appeal, but it was, in my view, an inference clearly open to his Honour, from the worker's own description of the accident. 3 Because Mr Irons was on a journey to work, the respondent incurred a liability to pay workers' compensation. These proceedings were brought in the District Court to recover the compensation payments (see Workers' Compensation Act, 1987, s151Z(1)(d)). 4 The respondent recovered a verdict in the sum of $126,130 which was based upon a finding that the appellants had been guilty of negligence towards the worker. This finding is challenged, as is the conclusion of the trial judge that there was no contributory negligence on Mr Irons' part. 5 The dog was about four to five months old at the time of the accident. It was intended in due course to become a guard dog. It was at the time still a frisky puppy of medium size and incomplete training. Mrs Aleksoski described it as "usually" obedient. 6 At night it was kept in a tin shed on the property. In the day time, it was chained up. According to a statement given by Mr Aleksoski to the police, the dog got out when he went to take his fork-lift out of the shed, although he did not realise at the time that it had escaped. The property was unfenced, and the dog was able to run out onto the roadway, into the path of the worker. 7 Mrs Aleksoski's evidence was that it was unusual for traffic to be on the road at 6.30am. However, Mr Irons had given evidence that he had traversed along this road at the same time on other occasions. 8 The question of the dog's propensity to escape and cause mischief on the road was explored at trial, although it does not appear to have been a major issue, at least to the extent that it has become in this appeal. Mrs Aleksoski said that the dog was never allowed out unattended by an adult or a child (AB 20). She also gave the following evidence (AB 22): Q. And, when you brought the dog down to Waverley Drive, you knew that a chain was necessary otherwise the dog could end up on the street? A. Yes, that's right. Q. And you also knew, didn't you, that if it ended up on the street it could be a hazard for users of the roadway? A. Well no one used the road, only my husband, because it was a blocked road. Q. Madam, you knew if it was out on the street it was a danger to itself, it might get injured, is that right? A. That's right. Q. And if you knew it was a danger to itself and it might get injured, you knew it was a risk that it would come into collision with vehicles using the street? A. Yes. 9 Mr Aleksoski gave no evidence at the trial, and his absence was unexplained. 10 There has been some criticism of the terseness of the trial judge's reasoning on the question of negligence, although this is not a ground of appeal in the Notice of Appeal. As I have indicated, this, at least in part, is explained by the manner in which the issues were addressed at trial. The major thrust of the defence case appears to have been that Waverley Drive was not open as a public road at the relevant time. Indeed, it had been put to Mr Irons, in effect, that he was using the relevant portion of road, which was then (it was suggested) a private, closed roadway, as a drag strip. This aspect of the defence was rejected. His Honour accepted the worker as a witness of truth, and found that he was using the relevant part of Waverley Drive as a public road, and as an appropriate means of getting to and from work. Other evidence supported the finding that Waverley Drive was open to traffic as a public road in the section where the accident occurred. 11 It was submitted before us that the worker's injury was not foreseeable, and that the trial judge's reasons were inadequate in addressing this issue. I would reject both of those submissions. The facts as I broadly recounted them were set out by his Honour. The learned judge said that it was clear to him that both defendants foresaw the risk of allowing such a young dog to run onto the road. In my view, this finding was open, having regard to the inference capable of being drawn from the appellants' usual practice in relation to restraining the dog, and the evidence of Mrs Aleksoski to which I have made reference. 12 What is reasonably foreseeable in a court of law involves more than inquiry into the subjective views and appreciations of a particular defendant. In any event, this particular dog's propensity to run onto the road was clearly established. Given its medium size, its breed, and the fact that it was still a puppy that had not absorbed a training regime, it strikes me as fairly self-evident that its actions could lead to a traffic accident, and that this possibility was reasonably foreseeable in the sense that it was neither far fetched nor fanciful. What was foreseeable was that there was a risk that the dog might cause an accident, if it got onto the road. 13 The finding that the appellants had breached their duty of care to the worker was also challenged. It was submitted that the trial judge ought to have found that the dog's escape was accidental, and did not involve any want of due care on the part of the appellants. At both trial and on appeal, there was no submission suggesting that any distinction should be drawn between the two appellants, who were, as I have indicated, joint owners of the dog, and of the property from which it escaped. The trial was conducted on the basis that each appellant was, in effect, vicariously liable for any act of negligence attributable to the other. I am content to deal with the matter on this basis without pausing to consider its correctness. 14 Evidence was led at the trial that the appellant, Mr Aleksoski, had pleaded guilty to a charge brought under s8(1) of the Dog Act, 1966. That subsection provides that the owner of a dog shall, if the dog is in or on a public place, and is not under the effective control of some competent person by means of an adequate chain, cord or leash, be guilty of an offence, and liable to a penalty. Later subsections qualify the primary provision in various ways that are not presently relevant. 15 No evidence was led to explain the plea of guilty. His Honour considered that the plea was relevant to establish negligence, and he referred to Zappia v Allsop (NSWCA, unreported, 17 March 1994). I have reservations about the correctness of this proposition in its application to s8(1), either generally, or in relation to the facts of the particular case. It seems to me that the section is fairly specific as to the type of lack of control that is the gravamen of the charge, and that it is easy to conceive of a number of circumstances where the owner of a dog could be guilty of the offence, without negligence. 16 Nevertheless, I consider that the trial judge was entitled to find that negligence was established, and that addressing the matter in an appeal by way of re-hearing, I would reach the same conclusion. 17 It does, however, need to be observed that in a case such as the present, the respondent bears the onus of proof of negligence. The mere fact of the collision on the public road with the appellants' dog did not, without more, establish negligence (see Gregory's (Properties) Pty Limited v Muir (1993) 17 MVR 86 at 88-9). The decision of Wood J in Carroll v Rees (1985) Aust Torts Reports 80-732 is an illustration of the proposition that a dog owner's liability in negligence, with respect to the control of an animal, is not strict, but depends upon proof of negligence. The mere fact that a dog escapes from restraint, or indeed from a property, does not establish negligence. 18 In my view, the trial judge committed no error of law in this regard. I think that the real issues are whether there was some evidence of negligence, and whether the trial judge erred in finding negligence based upon that evidence; alternatively, whether we should find negligence based upon that evidence. If there is evidence, then the failure of Mr Aleksoski to enter the witness box was obviously significant, because it would appear that he and he alone, was present at the property at Waverley Drive at the time when the dog escaped. 19 In my view, there was evidence of a casual but unfortunately costly act of casual negligence on the part of that appellant. His statement to the police, when read with the evidence of the known propensity of the dog, showed that there was something more than a mere accidental escape. There was some want of due care which remains unexplained, when what happened in the morning in question is compared with the precautions usually taken with this particular dog. As I have indicated, those precautions were taken for reasons other than mere excessive caution, but had regard to the known characteristics of this puppy. 20 This case really turns upon its own facts, and raises no question of principle thus far. It was however, submitted by the appellant that there must be proof of actual knowledge of some vicious or dangerous propensity in an animal like a dog, before liability at common law can be established. In other words, it was submitted that the requirement of scienter which is an element of establishing common law liability, with respect to certain types of animals, remains an essential ingredient of any claim in negligence for damages caused by those types of animal. 21 Not only does this submission not appear to reflect the way the case was fought at trial, it is in my view, fundamentally wrong. The submission is contrary to the law as stated in authorities such as Fleming, The Law of Torts, 9th ed pp406-7, and North, The Modern Law of Animals, 1972, pp176-180. See also Carroll, Gregory's Properties, Eadie v Groombridge (1992)16 MVR 263, and The Animals Act 1977 s7. 22 The scienter rule is associated with an ancient cause of action which has elements of strict liability. The cause of action in negligence stands outside such ancient principles. An animal owner may be liable in negligence if he or she knows, or ought to know, of a dangerous propensity of the animal, and if other necessary elements of the cause of action are established. 23 The appellants relied upon the unreported Judgment of this Court in Romano v Spagnol 17 October 1994. That was an ex tempore decision refusing leave to appeal, in which the reasons are given by Kirby P, with whom Meagher JA and Cole JA agreed. Any decision about the dangerous propensity of dogs by a Court in which Meagher JA is a member is entitled to the highest respect. However, I do not read the Judgment as stating that there is no common law right to sue in the absence of scienter. Rather Kirby P appears to have been addressing the argument before him, which was an argument in a case based solely upon a cause of action other than the cause of action in negligence. I cannot read the reasons given in that decision as cutting across the principle that there is an independent cause of action in negligence available to a person injured by an animal such as a dog. 24 The final matter that needs to be addressed is the appellants' challenge to the conclusion on contributory negligence. The trial judge held that Mr Irons was travelling at no more than sixty kilometres per hour, the permissible speed in the area, and that he was not in a hurry. The fact that he only glimpsed the dog before the collision was relied upon as evidence that there was some lack of due care on his part, which contributed to the accident and the injuries. In my view, his Honour was entitled to find that this fact did not mean that there was a failure to keep a proper look-out. There had been no previous encounters of the worker with this dog, and the worker's evidence, which was accepted, does suggest that the dog just came straight out at the motorbike. 25 In my view, the appeal should be dismissed with costs. 26 PRIESTLEY JA: I agree generally with what has been said by the President, and with his summary of the facts from which the appeal arises. 27 One matter on which I wish to express an opinion is the submission by counsel for the appellants that the trial judge relied solely upon the conviction of the male appellant, under s8 of the Dog Act for his conclusion that the respondent had established negligence. As I read the trial judge's reasons, he was going no further than saying that the conviction, and that itself must be a short-hand term for what was involved in the plea of guilty leading to the conviction, was something which he took into account in considering whether he should find negligence. 28 The commission of an offence under s8 as it stood in September 1993, might or might not supply some evidence of negligence where the presence of an unleashed dog on a public street was connected with injury to a person. I express no concluded view on the question of whether the plea of guilty in the present case was some evidence of negligence. It is unnecessary to decide that in the present case, because in my opinion, there was other evidence before the trial judge on which he could reasonably find the appellants were negligent. However, provisionally I am inclined to think that in the circumstances of the case, the first appellant's plea of guilty provided some marginal evidence to be taken into account in deciding whether negligence should be held to have been established. Such a view, even if it were right, would depend entirely upon the particular facts of the present case. 29 Apart from any possible variance between myself and the President arising from what I have just said, I otherwise fully agree with his reasons for concluding that the appeal should be dismissed. 30 FITZGERALD JA: I am in substantial agreement with the judgments of the other members of the Court. 31 I do not consider that a dog owner who permits an unconstrained dog to leave the owner's property thereby necessarily breaches his or her duty of care to road users. The degree of risk of injury and other material circumstances must always be considered. 32 I agree with Woods J's comments in Carrol v Rees 1985 Australian Torts Reports 80-732 p69,255 that some restraint and common sense is required in this area, lest unreasonable requirements out of accord with the habits and expectations of the community be imposed. 33 On this occasion, there was sufficient evidence, including evidence of public road use, and at least indirectly, evidence of the need to restrain the dog at the material time, to justify, although not require, the trial judge's conclusion that the appellants were negligent. 34 That said, the appellants failed to persuade me that there was any appealable error by the trial judge. In particular, evidence of the conviction of the male appellant under s8 or I think more accurately, evidence of the plea of guilty on which that conviction was based, was admissible in my opinion, as at least confirmatory proof that the dog was at the relevant time in or on a public place and not under the effective control of some competent person, which were material facts to the outcome of this matter. 35 I agree that the appeal should be dismissed with costs. 36 MASON P: Appeal dismissed with costs. ************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.