//
[2021] VCC 1397
General information, not legal advice.
County Court of Victoria
2021-10-11
Mr P
Original judgment source is linked above.
1 In 2020 the suburb of Yarraville was named by Timeout Magazine as the fifth coolest neighbourhood in the world. One of the attractions of Yarraville was noted to be the numerous walking trails and parks for such a small, inner-western Melbourne suburb.
2 The McIvor off-leash dog park ("the dog park") is one such park located in Yarraville. The dog park borders Francis Street to the North and the larger McIvor Reserve to the South. It is an 'L' shaped park. To the East it wraps around the Yarraville/Footscray Bowls Club. It is a fully fenced park, with several access gates and other facilities such as water taps. The Northern section is approximately 57 meters wide. The Southern section is approximately 117.5 meters wide. The Western boundary is approximately 124 meters long[1].
3 The plaintiff, Janice Jolly, is a resident of Yarraville and lives near the dog park. On 27 February 2018, she started her day as she often did by walking her dog "Indi". She was then 68 years of age. She was familiar with the dog park and regularly took Indi there for a run around. On this morning she entered the dog park with Indi.
4 The defendant, Loani Kondos, was also a resident of Yarraville. On 27 February 2018, much like the plaintiff, she began her day by taking her dogs, "Lily" and "Fate" for a walk before she headed off to work. She entered the dog park with her dogs. The plaintiff and Indi were already in the dog park. Shortly thereafter an incident occurred when Lily ran into the plaintiff, causing her to fall and suffer a fracture of the ankle ("the incident").
5 The plaintiff brings this proceeding for damages for the injuries suffered in the incident.
6 The plaintiff brings her claim on two legal bases. Firstly, she relies on the principles of "scienter". She claims that Lily had vicious propensities and/or mischievous tendencies, such that the defendant is strictly liable for the injuries that the plaintiff sustained. Specifically, by her Amended Statement of Claim, the plaintiff says that pursuant to the principles of "scienter", the defendant is strictly liable for "injury or damage to human beings" caused by Lily.
7 Secondly, the plaintiff claims further, or in the alternative, that the defendant was negligent by failing to exercise control over Lily to ensure that Lily did not attack the plaintiff or cause injury. She says that the negligence of the defendant is a cause of her injury, loss and damage.
8 The defendant raises a factual dispute as to the circumstances of the incident. The defendant says that the principles of "scienter" do not apply on the facts. She denies that before the incident Lily displayed vicious propensities and/or mischievous tendencies. She says Lily did not have a propensity to cause the type of harm that in fact was occasioned to the plaintiff in the incident. Next, in respect to negligence, she says she did exercise reasonable care and control over Lily at the dog park. The incident and injury was not reasonably foreseeable and she was not negligent.
9 The issues that arise to be determined in this proceeding are:
(b) Is the defendant liable in negligence in addition, or in the alternative, to any liability pursuant to the principles of "scienter"?;
(c) Assuming the principles of "scienter" apply, and/or the defendant was negligent, what is the quantum of general and special damages suffered by the plaintiff as a result of the injuries she suffered in the incident.
10 It is convenient at the outset to deal with the first two issues identified, namely the issues in respect to "liability" and to analyse the relevant evidence regarding those issues. The determination of those issues firstly requires findings of fact as to the alleged mischievous tendencies of Lily and her propensity to cause harm of the type occasioned to the plaintiff. It next requires findings of fact as to how the incident occurred. The relevant legal principles must then be analysed and applied.
11 The plaintiff gave evidence that she had owned about six dogs over a period of about eighteen years. She had owned rescue dogs, including Indi. She had owned Indi for about one year at the time of the incident. Indi was a Great Dane crossed with a Wolfhound. Indi's behaviour was good.
12 She took Indi to the dog park on a daily basis for walks. It was not far from her house. As at the incident, the plaintiff was working as a disability services officer. She was divorced and lived alone, although her son, Dan Jolly, lived nearby.
13 Before the incident, she had met the defendant in the vicinity of the dog park on two or three occasions. On one occasion she went into the dog park and did not stay very long "because Lilly[2] was just a little bit aggressive, just a little bit aggressive with the tail up".[3] After that occasion, the plaintiff would walk along the outside of the park, but if she walked along "Lilly would charge over at the fence and be growling, the tail would be up, she wouldn't be - not a friendly approach, so I would not go in the park, I'd keep walking and we'd just continue up around the oval".[4]
14 On the day of the incident, she left home at approximately 6.30am and arrived at the dog park about 6.45am. There was nobody else there, so she entered the dog park with Indi. About five minutes or so later, the defendant came into the dog park with her dogs. When the defendant entered the dog park the plaintiff was "approximately five metres away from the gate".[5] She then engaged in general chitchat with the defendant.
15 The plaintiff had prepared a diagram depicting generally the layout of the dog park.[6] The diagram identified where she was and where Indi was at the time of the incident. She said her dog was going to the toilet near the western fence of the dog park and that "I was waiting for her to finish to go and pick up after her".[7] The diagram also identified the position of the defendant. It was most likely that she was talking to the defendant just prior to the incident.
16 The plaintiff was asked to describe how the incident occurred:
Q: "All right. And then can you just describe for His Honour the way that the incident happened?‑‑‑
A: Yes. Sorry, just give me a minute. I was in mid ‑ mid stance. I was walking away and all of a sudden I felt Lilly run into the back of my leg. I knew it was Lilly because I knew where the other dogs were. She ran into the back of my ‑ like, the calf area of my leg and it felt just so hard, I thought it was a truck. And as she ran into me, I heard my whole ankle just crack and is he force that she hit me with knocked me backwards ‑ not forwards, put me off balance and I fell backwards.
Q: Right. Just pause there. As best you're able to say, just prior to that incident occurring, where was the defendant looking, in which direction?‑‑‑
A: She was walking the same direction as myself."[8]
17 Before the incident she had been in the park with the defendant for five minutes at the most.[9] She said:
A: Yes. Well, Indi had gone off to do her business. And that's when I lost sight ‑ I saw Loani with ‑ herself and her dog, lost sight of Lilly, she'd probably run off to do something, and I wasn't concerned about her, I was watching my dog.
Q: Right. And just ‑ at about the time you were hit by Lilly, just help me out, whereabouts was your dog, over near that ‑ is that ‑ ‑ ‑?‑‑‑
A: She was over near ‑ yeah, she was going to the toilet. I had to ‑ yeah."[10]
18 Before the incident, the plaintiff was heading through the dog park to give Indi a long walk. She started to leave the dog park "because of Lilly, I didn't feel comfortable, so we just headed towards - as we're talking, I just headed across to the gate on the other side".[11]
19 Immediately after the incident, she was in excruciating pain and hysterical on the ground, with no idea who was around, but she could see the defendant on the phone. She then rang her son, who lived nearby, as she needed help. She described her condition in the aftermath of the incident, leading to hospitalisation for a fracture of the left ankle. When she was discharged from hospital a few days later, having undergone surgery, she was on crutches and suffered a fall, unfortunately suffering a fracture to the left wrist, which required further hospitalisation, surgery and a substantial period of rehabilitation. She described her ongoing consequences and restrictions.
20 Pausing here, there is no dispute that an incident occurred at the dog park. There is no dispute that Lily collided with the plaintiff. There is no dispute that the plaintiff suffered a fracture to the left ankle, or that she suffered a related fracture of the left wrist while convalescing and using crutches. There was cross-examination of the plaintiff (and other witnesses) regarding comorbid or unrelated medical conditions, but as indicated by counsel for the defendant at the commencement, the issues were more to do with liability.
21 Returning to the liability evidence, the plaintiff was then cross-examined.
22 She was asked about the occasions before the incident when she had seen Lily. She said there were occasions when Lily "was a little bit aggressive".[12] On other occasions, "Lilly would run over to the fence, charge at the fence and have a bit of a growly bark".[13] It was based on her observations of Lily with her tail up and growling that she considered Lily to have demonstrated aggressive behaviour.
23 Shortly before the incident she was in the dog park with the defendant and the dogs. The bull terrier was on the other side of the defendant and near her. Her own dog (Indi) had "come into the park to have her usual drink and then go to the toilet".[14]
24 She was asked whether her own dog sometimes might not respond to being called. She said that on the odd occasion that happened. From her experience of dogs, it was normal behaviour for a dog to not immediately respond and that not all dogs responded immediately to every command. On some occasions Indi would get excited and run around with the other dogs and she agreed that was what dogs do.
25 Prior to the incident she had intended to leave the dog park with her dog because of her previous interactions with Lily and of Lily being a little bit aggressive.
26 It was put that her memory of the incident was wrong, and that she had been in the dog park with Indi when she saw the defendant outside the dog park, walking in a southerly direction, and waved at her. She said "I'm not rejecting it. But to take my memory back to that, I - I just may have turned around and waved and then kept walking".[15]
27 It was put that in fact she waved to the defendant and struck up a conversation, suggesting the defendant should bring her dogs into the park so the dogs could play. She said "No, I would not have said that".[16]
28 In respect to events leading up to the incident, it was put as follows:
Q: "Well, what I suggest, Ms Jolly, is what couldn't have happened is that you make it about less than 10 metres over a five minute period from when Ms Kondos enters into that park. I suggest that's not possible?‑‑‑
A: Well, I wasn't rushing off. I was letting the dog wander and have a sniff. If you know dogs, you don't rush off when you feel there's something going to be ‑ if there's going to be any sort of confrontation, you have to remain calm and take your time and just avoid the situation as quickly and slowly as you can.
Q: You're not suggesting for a minute you just stood still for about three or four minutes now, are you saying ‑ ‑ ‑?‑‑‑
Q: No. And, in fact, what you're suggesting happened didn't happen at all; you're just wrong about that, you're making it up, I suggest?‑‑‑
Q: And, in fact, what happened was that Indi and Lilly started running around the park, as dogs at an off lead dog park ordinarily do; what do you say to that?‑‑‑
Q: And so while you and Ms Kondos are walking around the park talking to each other, Lilly and Indi are engaged in play that you would see on any day in any dog park throughout Victoria, I'd suggest?‑‑‑
Q: And, in fact, what happened in the moments prior to the incident is that your dog Indi and Lilly were running through the park with Indi in front ‑ running in front and Lilly running behind; what do you say to that, no?‑‑‑
29 Next, the plaintiff was asked about the position of her dog and Lily before the incident. She said "I had no sight of where Lilly was. She was - Indi was in front of me. I had full view. I had no idea where Lilly was. She was obviously somewhere behind me."[18] She said again that Indi was off in the bushes. She was not standing right behind Indi and was instead taking slow steps, waiting for her dog to finish. She was taking steps towards the vicinity of the gate across to pick up after Indi. But, eventually, she said "Look, I really can't recollect what I was doing. I was standing there waiting for her to finish going to the toilet to go and pick up and that didn't occur",[19] and that "Loani and I were having a conversation and as we were talking, just doing a slow walk parallel to each other ... just a general exchange of conversation when you meet somebody first up in the park".[20]
30 Counsel then put what was said to be the defendant's version of events, as follows:
Q: "Now, in terms of the incident, what I want to suggest to you is this, that after walking around the park with Ms Kondos, talking about various things including the types of patients that you'd been looking after in your work and what you get up to in your work, that Ms Kondos was walking a couple of metres to your right and a little bit behind you ‑ maybe about a metre or two behind ‑ this is just before the incident; what do you say to that?‑‑‑
A: I don't think she was two metres behind me. She was more parallel.
Q: Right. So you wouldn't necessarily disagree that she's a couple of metres to your right and maybe just a little bit behind?‑‑‑
Q: Right. And what happened was that your dog Indi ran from behind both of you and crossed in front of you; do you remember that?‑‑‑
Q: And she crossed in front of you pretty close, maybe only a foot away from in front of you?‑‑‑
Q: Right. And you were walking in a forward direction at the time looking where you were walking, obviously?‑‑‑
Q: And you, after she crossed in front of you, you kept walking forward, I suggest that's what happened; what do you say to that?‑‑‑
Q: And then Lilly, who was running behind, running behind the same line, as you crossed the path that Indi had just run in front of you, as you crossed that path Lilly ran into the back of you; that's how the accident happened, isn't it?‑‑‑
A: No, the accident happened ‑ Lilly came up from behind. I had no idea where she was. I don't remember her running around the park playing with Indi. It was ‑ it was early in the morning. I needed to get her walked and back home again to prepare for work.
Q: Yes, but your memory is not very good in terms of this morning, is it, to be fair, Ms Jolly, and what I've just put to you actually might have happened; you'd accept that, wouldn't you?‑‑‑
A: What, the running around the park and walking around several times with ‑ no, I don't.
Q: All right. Now, obviously immediately after the incident, Ms Jolly, the ambulance was called and the dogs were put on leads and you were taken to hospital; correct?‑‑‑
A: I only remember somebody coming to collect Indi and put her on the lead and tie her up.
Q: Okay. Now, if I suggested to you that was actually Ms Kondos who did that, what do you say, no, no, absolutely not, it can't have been, it was this other person?‑‑‑
A: Loani was ‑ Loani was on the phone practically straight away trying to get the ambulance.
Q: And you were on the ground for a long time ‑ ‑ ‑?‑‑‑
Q: And you say Ms Kondos was on the phone that whole time, was she?‑‑‑
A: She was on the phone ‑ I was too traumatised to even notice what was getting on around me, apart from a gentleman coming over and asking if he could help which - that's when I asked him to catch Indi, put her on a lead and just secure her."[21]
31 Next, the plaintiff was asked about an exchange of Facebook messages between herself, her son and the defendant. Her response to a message from the defendant that read "no more chasing Indi for Lily", was "it's just one of those unfortunate moments".[22] That exchange, it was said, demonstrated the truth of the defendant's version of events. The plaintiff disagreed with that suggestion.[23] She accepted that her response in the messages might sound contradictory, but she was trying to give the defendant some empathy.
32 It was suggested that at no stage was she concerned about Lily while in the dog park. Contrary to her evidence in chief,[24] she disagreed with that suggestion and said "Oh, I was concerned. I didn't know where she was so at that time I was trying to collect Indi and just move along slowly out of the park."[25]
33 In respect to the incident, the plaintiff accepted that it was not a full-on attack, but described it as full-on hit from behind.
34 Returning to the circumstances of the incident, counsel put to the plaintiff as follows:
Q: "Well, in fact ‑ you walked into ‑ well, yes, maybe I will put it this way. (To witness) If I suggest to you that you walked into the path of Lilly's ‑ into the path of Lilly as she was running from behind you; what do you have to say to that?‑‑‑
A: I don't see that there would have been ‑ like, Indi was already right across going to the toilet and I hadn't moved from the direction that I was heading ‑ I hadn't moved either side to the left or the right. I was going straight ahead.
Q: ‑ ‑ ‑ you say you can't have ‑ you can't have walked across in front of the path that Lilly was running?‑‑‑
A: I didn't ‑ I didn't deviate off the path that I was taking to the other gate.
Q: But, in fairness to you, Ms Jolly, you really don't know what line Lilly was running because you didn't see her at all, did you?‑‑‑
Q: We can agree there. Now, you said before that you wouldn't describe that as a dog attack but then I think you were not so unequivocal about that, so if we just explore that ‑ that comment. You don't ‑ you now don't say that you ‑ that that involved a dog attack, that Lilly attacked you; that's what you say ‑ what you say now?‑‑‑
A: I wouldn't ‑ no, I'd like to use a different phrase than 'attack'.
A: That she was charged from ‑ into me from behind, like it's ‑ ‑ ‑
A: It is a dog attack in a way but it's not a savage one.
Q: And the dog ‑ and as a result of that dog attack, your response immediately following is to send that message that we just saw to Ms Kondos; correct?‑‑‑
Q: No, the one you sent to Ms Kondos saying ‑ talking about no play dates soon ‑ words to that effect?‑‑‑
35 The plaintiff did not attempt to make a report of the incident to the relevant local authority until October 2018. Her explanation for the delay was that she reported it at that time because by then she had so much change in her life.
36 Returning once more to the circumstances of the incident, the plaintiff was cross-examined as follows:
Q: "I might just start off with that because I want to make clear to you, Ms Jolly, that Ms Kondos is going to give evidence in this case that your dog and her dog Lilly with playing chasey in the park off lead; do you understand that?‑‑‑
Q: And do you agree or do you disagree with that evidence ‑ sorry, with that ‑ what I'm putting to you?‑‑‑
Q: And she's going to be giving evidence in this case that your dogs had, in fact, been playing chasey around the park for several minutes before the incident; do you agree with that?‑‑‑
Q: And their behaviour ‑ both your dog and her dog was the exact sort of behaviour that you see dogs displaying in an off lead dog park; do you understand that?‑‑‑
Q: Right. And Ms Kondos is going to give evidence that at no point did you call ‑ seek to call your dog to stop playing and do you agree or disagree with that?‑‑‑
A: Oh, I disagree because I don't think they were playing.
Q: And Ms Kondos, similarly, didn't call the dogs to stop playing; do you agree or disagree?‑‑‑
Q: Yes. And the reason why she'll say ‑ she gives that evidence is because the dogs were just behaving normally as dogs do in dogs parks. So you agree that's what was happening, the dogs were just playing like normal dogs in an off lead dog park?‑‑‑
Q: And in the moments before the incident what happened was that your dog ran from behind you from your right and crossing in front of you and then running off to your left; do you understand that ‑ from behind you from your right and across in front of you and off to the left?‑‑‑
A: No, I don't understand how that had could have been. She ran across on my right. She ran across me ‑ across from my right side.
Q: That's what's being put to you, Ms Jolly, that the defendant's going to give evidence ‑ ‑ ‑?‑‑‑
Q: ‑ ‑ ‑ that your dog came from the right side and ran across you towards the left?
A: I don't understand how that could have happened.
Q: Ran from your right, behind you, and then across in front of you and off to the left?‑‑‑
A: And then turned back to the left, she might have gone between Loani and I ‑ Loani.
Q: She might have? Are you saying that ‑ is it possible that that's what your dog did in the moments before the incident?‑‑‑
A: That's what I'm asking you, is that what you're saying, if she's come from my right?
Q: I'm putting to you that's what happened, that your dog, Indi, ran from behind you and to your right and then across in front of you?‑‑‑
Q: Do you accept that that's - it's possible that's what happened and you just don't remember?‑‑‑
A: Oh, it's possible that ‑ it's possible that happened.
Q: And that you continued to walk forward in a normal manner?‑‑‑
Q: And across ‑ across the path that Indi had just run and that Lilly, the staffy, following Indi's path, collided with you - that's what Ms Kondos' evidence is going to be. Do you accept that ‑ do you accept that that's what happened, Ms Jolly?‑‑‑
A: I don't understand how you mean that Indi ran across in front of me from my right and then went back across to the trees.
Q: No, no, what's being put to you is she's run across in front of you, effectively running from the west to the east in a bit of a diagonal direction though immediately before you were hit by Lilly - that's what's being put to you?‑‑‑
Q: That your dog ran across you, in effect, going broadly east ‑ sorry, west to east?‑‑‑
Q: So the question then is whether you remember that, you don't remember it, you agree or you disagree?‑‑‑
A: I remember her running across to go ‑ I thought to go to the toilet, not realising that Lilly was running behind. Does that sound ‑ ‑ ‑"[27]
37 The plaintiff was cross-examined broadly about her familiarity with Staffordshire dogs such as Lily and again about her motivation for reporting of the incident in October 2018.
38 Next, the plaintiff was cross-examined regarding her general health and unrelated medical conditions. She was challenged as to her description of herself as fit and well before the incident. The cross-examination demonstrated that she had suffered some workplace injury and stress in the past. She had from time to time required treatment including medication to manage pain in her back and hips. She was also cross-examined about an unrelated right wrist condition for which she had required specialist referral and surgery in mid-2020.
39 Pausing here, my assessment of the plaintiff in the witness box was of a decent, hardworking person who did her best to answer questions put to her. Having said that, some aspects of her evidence were successfully challenged in cross-examination. Her medical situation is more extensive than she conveyed during evidence-in-chief. Further, and more importantly, aspects of her evidence regarding the incident were contradictory and confusing. At times she seemed unsure as to how the incident had occurred. To some extent, it would not be surprising that the plaintiff's memory might be less than complete in circumstances where she obviously suffered a nasty ankle injury and, in her words, was "hysterical" in pain while she was forced to wait some 40 minutes for an ambulance to attend and provide her with pain relief. I did not form a negative view of her in the sense of going so far to say that her credit was impugned, but I do have concerns about the reliability of her evidence regarding the incident.
40 Alan McIntyre gave oral evidence. However, his evidence-in-chief was contained in his witness statement dated 3 September 2021.[28] He is a former park ranger, experienced with dogs. He was familiar with the dog park and had previous interactions with Lily. He gave evidence of an incident on 27 February 2018, involving his ex-partner's dog, "Henry", a Border Collie Cross cattle dog, and Lily. His evidence was that Lily was harassing Henry. Henry had been chasing a ball and Lily was fixated on him. He said that Lily would not listen and was still harassing Henry before the two dogs got into a scuffle. He was able to grab Lily's collar. The defendant apologised to him and said that Lily does not listen sometimes, especially out with other dogs around. She also tried to say that Henry was cranky, but he explained Henry was not the problem. He said he told the defendant that Lily lacked recall. The defendant said she had tried different things and Lily listened at home but not at the park.
41 Mr McIntyre said further that he recalled another occasion when Lily had not been under control at the dog park. On one or two occasions, he saw that Lily had to be taken out because she was over-excited or was getting in other dogs' faces.
42 Mr McIntyre said that he had formed the view that Lily was not being controlled by the defendant at the dog park on the occasions when he saw Lily at the dog park.
43 In cross-examination, Mr McIntyre confirmed that he had seen the defendant with her dogs at the dog park on a number of occasions prior to the incident. He was cross-examined about the incident with Henry. He accepted that Henry was a dog who was very fixated on balls. He accepted that when throwing a ball to his dog, sometimes that attracted the attention of other dogs who liked balls. He agreed that was not an issue unless the other dog harassed his dog. He agreed that you might end up throwing a ball and a couple of other dogs might end up coming along and running and chasing the ball. He agreed that the incident between Henry and Lily was one occasion when he had been throwing a ball to Henry. It was put to him that the dog involved in the scuffle with Henry was not Lily, but the defendant's other dog "Fate". He said "no, that's not true".[29]
44 Sharon Jones is a resident of Yarraville and met the plaintiff through walking her dogs. She has owned dogs for 30 years and in the past attended at the dog park, but she stopped going there because "there was too many people there, just a couple of uncontrollable dogs and I had two large breed dogs myself, so I just stopped walking there".[30] She identified Lily as one of those uncontrollable dogs she was referring to.
45 Ms Jones knows the defendant from the dog park. She identified Lily as a Brindle Staffy and said she had come across Lily maybe 20 or more times at the dog park.
46 Ms Jones was asked how she would describe the defendant's control over Lily at the dog park. She said "if it was playing ball something, yeah like not effective control. She didn't have very good recall on the dog but yes, it was very, like boisterous dog".[31]
47 Next, Ms Jones next gave evidence of an incident involving Lily that occurred on 3 December 2015. She said:
A: "That was with me where like - she's a very friendly dog but she did jump up and like bruised my legs ‑ scratched my legs and on another occasion, my arm.
Q: Right. And on those two occasions did you take ‑ or following those two occasions did you take photographs?‑‑‑
A: Yes I did. I actually sent them to a friend who knew of her as well just to say you know, 'look, this dog's jumped on me again'.
Q: Right. And can the witness be shown please the photographs that have been forwarded to the court?‑‑‑
Q: Okay. And if it can be scrolled down, thank you Madam Associate. What are we looking at here?‑‑‑
A: Yeah, that's my arm ‑ my underneath my arm, yep.
A: And the one above. And that was on the following day, yeah, that was on the side of my arm.
Q: And they're the injuries that you were talking about from the dog?‑‑‑
A: Yes, just from her jumping. I think ‑ I can't recall it was that long ago but I think I was picking up a ball or something where she jumped on my arm."[32]
48 Ms Jones was asked whether she had seen Lily injure anyone else at the dog park. She said:
A: "No, there was a young woman who came with a dog who had shorts on and Lilly ran up to say hello and scratched her almost from the top of her leg to the bottom and I can remember she had like - like almost red welts within a couple of minutes but she left straight away, the woman, she left the park with her dog."[33]
49 Ms Jones was asked whether she could recall any other incidents in respect to Lily. She said:
A: "Um no, look, not really. There was one time where this happened ‑ look, I can't even remember, it was quite a few years ago but it was probably one of the last times I saw where I hadn't seen her for a while and she wanted to come into the dog park and I actually said, 'Look, I'll leave'. And, you know, I just sort of said, 'Look, I'll leave if you want to come in'. And she said, 'Oh, no, that's okay, I'll keep going', but I just didn't want the four dogs running around together, that's all.
Q: When you say 'she', I'm assume you are talking about Ms Kondos and you weren't talking to the dog or somebody else?‑‑‑
A: No, no, yeah, yeah. I said to Loani, I just said, 'Oh, look, I'll leave if you want to come in' and she said, 'Oh, no, no, I'll keep going.'
A: I just didn't want the four dogs running around yep, together.
A: Just because look, I was just more worried, you know, you have got four very strong dogs, you know, running around. I just didn't want an incident happening like, you know, what happened to Jan so I've been very careful not to go to dog parks anymore. I don't go to any, actually, not off lead ones anyway."[34]
50 In cross-examination, Ms Jones agreed that she got to know the defendant from her time walking her dogs, being from approximately mid-2015. Over a 30‑year period, she herself had owned six Rottweilers. She had gotten to know Lily very well and agreed that she was a friendly dog. Lily would come up to her at the dog park and was "very friendly".[35]
51 When asked what Lily would do when she recognised her at the dog park, Ms Jones accepted that one of the things that Lily might do is put her paws up, which in fact was what occurred in December 2015. Ms Jones said "I think I was grabbing the ball and she's come up you know, to say hello".[36]
52 Ms Jones agreed that her dogs and Lily got on well at the dog park and would run around and do what dogs do in an off-lead park. One of her dogs may have been a little amorous at one stage with Lily, but she could not remember such an exact incident. The incident with the young lady was another occasion of Lily putting her paws up in greeting.
53 Dan Jolly is the son of the plaintiff. He is now 46 years of age and runs his own gardening business. At the time of the incident, he lived close to his mother in Yarraville. He described his mother as a socially active lady and gave examples of activities in which she engaged and in which they engaged together, such as mountain biking.
54 Mr Jolly has owned dogs of his own, and from time to time, he took his dogs to the dog park. He said he knew how to train a dog and his dogs would "come back immediately as they are called".[37]
55 Mr Jolly said that he knew of the defendant before the incident, but probably did not know her name. He sort of knew her by face and by being a local person. He knew that she owned dogs and he knew the breed of one but not the other. One was a Staffordshire Bull Terrier. He had owned two Staffordshire Bull Terriers of his own and was "very familiar with the breed".[38]
56 Regarding his memory of seeing Lily before the incident, Mr Jolly said he had seen Lily a couple of times. He could not describe the defendant's other dog in a great deal of detail, but it looked like some sort of cross breed.
57 Mr Jolly was asked on how many occasions he had seen Lily before the incident. He said "probably only twice - twice, I won't say probably, only twice that I can recall 100% so, yes, twice".[39] He couldn't recall the precise dates that he had seen Lily and estimated that it was in the three months prior to the incident. The first time he saw Lily was a time when he was inside the dog park.
58 He was asked about the two occasions when he had seen Lily before the incident:
A: Approaching - I'm trying to describe this best ‑ approaching, on the western side of the footpath, there's a dirt car park there and a gate.
A: Oh, the Staffy was sort of pulling her towards the gate, a fair bit of gusto, and the other dog was, like, trying to get to the park, anxious or eagerly ‑ yeah, 'gusto' is probably the right word. The other dog was sort of a bit more chilled out or relaxed, just sort of trodding along, not as, not as keen as what the Staffy was.
Q: Was the dog on the lead or off the lead then?‑‑‑
A: It was on the lead but I wouldn't say under control. It was just on ‑ it was on a lead, yes.
Q: What do you mean when you say, you wouldn't say it was under control?‑‑‑
A: Well, the dog was pulling on the lead quite ‑ quite hard to get in towards the gate, towards the fence of the park ‑ like quite hard. Because normally you wouldn't just let your dog drag you into the park but ‑ ‑ ‑
Q: Okay. And how far do you think you were from where the dog was?‑‑‑
A: Approximately ‑ I would say 20 to 30 metres, approximately.
A: I wasn't too far into the entrance, I was sort of staying by the water tap and there's a seat there. And then there's ‑ ‑ ‑
Q: Sorry. And did you see the dog come into the park?‑‑‑
A: I saw it coming towards the park and that's ‑ my dog was quite senior at the time, unfortunately he's not with us anymore, but I decided at that point that the dog ‑ the park was getting very active and I thought the addition of this one, it looked very keen to get in, it wasn't ‑ it wasn't the right environment for my dog to be in at the time, so I casually made my way to the other gate, which was closer to where I lived.
Q: What do you mean by 'not the right environment'?‑‑‑
A: I just didn't like ‑ I have worked with dogs for a long time and I didn't like the body language or the control and my dog ‑ of the dog coming in and there was a few other dogs there running around but not ‑ yeah, I just ‑ I didn't like the body language of the dog coming and the control. So I simply ‑ I didn't panic, I just sort of thought 'Oh, this is a bit uncomfortable' and my dog was old, of course, so I just wandered off ‑ I didn't leave immediately, I wandered off to the further gate which is near the football fields on the eastern side of the park and made my own out there and that's about it.
Q: And the second occasion you recall seeing the dog before this incident?‑‑‑
A: Yes, that was at the other gate closer to my house, so I don't know whether she walked a different way that day or ‑ but it was a very, very similar scenario, where it just looked like a robust Staffy that I've ‑ that pulling on its lead trying to get to the gate and this time I was, I was prepared to just about leave anyway so I simply waited till she ‑ we ‑ she sort of came in as I left and that's about the only interaction I've had with the lady that owns Lilly, Loani.
A: It might have been a hi and bye but not a detailed conversation, as far as I can remember."[40]
59 On the morning of the incident, Mr Jolly recalled receiving a phone call and going to the dog park. He described where his mother was located on the ground at the dog park, but he could not recall seeing the defendant. His focus had been on looking after his mother. He travelled with the ambulance, when it eventually arrived, to take his mother to hospital.
60 Mr Jolly was then asked about posting on Facebook a description about the incident. He was asked about the care that he had provided to his mother since the incident, his observations of her and of her physical condition.
61 Mr Jolly was then cross-examined but the cross-examination was directed to unrelated medical conditions from which his mother suffered and the assistance he provided to her before the incident and regardless of the incident.
62 The final liability witness was the defendant, Ms Loani Kondos. Her evidence was that she had grown up with dogs and continued to be around dogs into her adulthood. She described her experience of socialising dogs and how she came to be the owner of Lily, having taken Lily from the pound when living in Queanbeyan in the Australian Capital Territory in July 2014. After taking Lily from the pound, she arranged for her to be neutered and described that as "responsible dog ownership".[41]
63 While living in Canberra, she would take Lily to a dog park. She gave evidence of what was shown in photographs, namely of Lily at the dog park in Canberra. Lily was taken to that park every weekend. Over that period there were no incidents of Lily attacking other people. There were no incidents of Lily attacking other dogs. There were no incidents of Lily showing aggression towards any people.
64 In late 2014, she moved to live in Malvern. Lily came with her. For about six or seven months she lived in Malvern and continued to take Lily to dog parks. One of the reasons she did that was to let her dog burn off energy and to socialise her. There were no incidents that she was aware of involving Lily during the time she was living in Malvern and specifically no incidents of Lily attacking any person or other dog. There was one incident when Lily was attacked by another dog at a park.
65 She then moved to live in Yarraville, approximately 500 metres from the dog park. Lily was otherwise exposed to other people when they came to visit and other people with dogs coming to visit. In addition, Lily went to a dog minding facility (described as Doggy Daycare) and was exposed to other dogs. Lily first went to Dogs HQ on Hoddle Street, but after moving to Yarraville, Lily went to Urban Paws in Yarraville.
66 She described her routine of walking Lily around Yarraville. After moving to Yarraville, she bought Fate from the Victorian Bull Terrier Rescue and Fate would accompany her and Lily for walks. The dogs would be taken to local parks such as the dog park or to Cruickshank Park. Fate also went to Doggy Daycare. This was from the middle of 2015.
67 Her dogs were frequently sent to Doggy Daycare at Urban Paws, where the dogs were kept in pens but would be taken out for walks. She was asked where the dogs went to on those walks:
Q: "And these pack walks do you know where they would go to?‑‑‑
A: Yeah, they used to McIvor Reserve. They would go to - there's another unofficial dog park on, I think it's Douglas Parade near the refinery on the water at Newport, doggie ‑ the Altona dog beach.
Q: Okay. And would you also receive photos and videos of what they got up to on these walks?‑‑‑
A: Yeah, sometimes, yeah. So recently they've been on pack walks going once a week although that ended with COVID lockdown, dog walking is not allowed, and, yeah, I'd get photos of them out playing.
Q: And when they were out playing how was ‑ if we just focus on Lilly, how do they let Lilly play when out on these pack walks?‑‑‑
A: They just take off the lead and let her play with the other dogs."[42]
68 The defendant gave evidence of what was depicted in photographs showing Lily at Doggy Daycare. In addition, a video was shown of Lily and Fate with another dog running on the beach in late 2015 at a time when she and her husband were overseas and the owner of Urban Paws ("Roger") was looking after both dogs.[43]
69 She described how she would take Lily and Fate to the dog park a few times a week, commencing from approximately mid-2015:
Q: "And when you would go to that park with both Lilly and Fate, who would you ordinarily ‑ were there people that you would see there or would it just be you and the dogs?‑‑‑
A: No, there was people that we'd saw pretty frequently. We obviously saw Sharon Jones pretty frequently. And there was another guy and I can't ‑ I think he was called Nick. I know that he a little girl called Liliana and a dog called Hubble. He would often be there of a morning but it was early in the morning so it's busier generally in the afternoons.
Q: And when you would take the dogs into that off lead dog section was there a practice that you would follow before taking them into there?‑‑‑
A: Yeah. So they had to sit before I would open the gate.
Q: Why would you do that? Why would you make them sit before you opened the gate?‑‑‑
A: Because I wanted them to, one, be a bit calmer but, two, I wanted them to know that I'm the boss and they need to do what I'm asking of them before they go in.
Q: Okay. And when they do go in, could you just describe for the court, firstly, how Lilly ‑ was there ‑ how would she go about playing in that off lead dog park, what would she do?‑‑‑
A: Um, well, her favourite playing is chasey so if there was, like, a Greyhound or a Whippet or a gun dog, that's her favourite, she just loves chasing them. She's not really interested in the ball and she likes ‑ she still likes, you know, dog wrestle, she likes that. She just likes playing.
Q: And compare that to Fate, how would Fate go about playing, in the same way or different?‑‑‑
A: No, ball obsessed, stick obsessed and he would very often get a ball, a stick, or witch's hat and hide in the bushes because he was so excited to have his stick.
Q: And there's been reference to a term called 'recall' which I understand to be just commanding dogs to come back to you?‑‑‑
Q: If ever there were reason in a dog park to call Lilly back ‑ ‑ ‑?‑‑‑
Q: ‑ ‑ ‑ what sort of response would you ordinarily get from her?‑‑‑
A: She's not - she'll come often first time up but she was not trained to military or police dog level, I didn't train her to have bullet‑proof recall.
A: No. He ‑ if he had ‑ I say that he has two brain cells. He has one that keeps all of his vital organs going and other brain cell is for his single thought which is stick or ball. So he would hide in the bushes and I would have to ‑ he knows 'sit' so I would say 'sit' and he would sit and then I could get him on lead."[44]
70 Regarding the incident involving Mr McIntyre's dog, Henry, and her dog, she recalled such an incident, but said that incident occurred "with Fate",[45] which she then described as follows:
A: "Yes. So we were sort of standing near the, the big rocks in McIvor Reserve and Alan has throwing a ball for Henry - that's his dog - he's ball obsessed, Fate is also ball obsessed, and they were chasing after it multiple times and Henry was much faster than Fate and Fate just sort of got fed up, so Fate was on the left of Henry and he sort of leapt up on Henry's, like, back and gave him a nip on the neck. Like, it was just a nip, it was just, like, irritation, it wasn't like, you know, he's going him and he dropped down and I said, 'Sorry' and he said, 'Oh, don't worry about it, Henry' ‑ something along the lines of 'Henry pisses all the other dogs off because he ignores them'.
Q: Right. And what ‑ and then ‑ and so you said, just said you grabbed Fate and you said, 'Sorry'?‑‑‑
A: I didn't even need to grab Fate because he just nipped and jumped down and just stood there waiting for the ball.
Q: He's given evidence that he told you that you know he's a ranger, a council ranger, and words to the effect that you need to show control over your dog which he says was Lilly; now, what do you say about that conversation?‑‑‑
71 Next, she was asked questions regarding the evidence of Ms Jones. She had never seen photographs depicting bruising to Ms Jones before coming to Court, and Ms Jones had never complained to her about any incident involving Lily causing her any injury of any kind. She had seen Ms Jones at the park on a regular basis, including after December 2015. Regarding those interactions with Ms Jones:
Q: "And in terms of the interactions that occurred between, firstly, Lilly and Sharon Jones, how were those interactions?‑‑‑
A: They were good. I mean, Lilly just loved Sharon so she'd sort of, you know, go up to her, skip around her feet and then pop her paws up on her to say hello.
Q: And what about towards her dogs who would also be at the park?‑‑‑
A: No, it was good. Axel, her dog, who's a 50 kilo Rottweiler who was entire, so not de‑sexed, and he used to just get a bit amorous with Lilly on occasions and that was, you know, Lilly didn't respond.
Q: Right. And when you say she didn't respond ‑ ‑ ‑?‑‑‑
Q: And Ms Jones also gave some evidence yesterday about an incident involving a lady in her 20s with a dog where Lilly caught a nail on her leg; did you hear that evidence?‑‑‑
Q: Had you ‑ did you ever observe any incident like that?‑‑‑
Q: ‑ ‑ ‑ at the time you went to the dog park with Lilly?‑‑‑
A: I don't recall it. I would have been embarrassed and I would hope that I would remember it but I have no recollection of that whatsoever.
A: Because I train my dogs to be loving, beautiful pets, I don't want them to be hurting other people."[47]
72 Next, she was asked whether she knew the plaintiff. She had met her at the dog park, but did not know her all that well and they had met two or three times at the dog park. She said "I just knew that she had - that she was friendly and that she had a friendly, lovely dog."[48]
73 The defendant was taken to the morning of the incident. By that stage, she was separated and the mother of a baby girl. On that morning, her mother had come over to mind her baby so she could go to work. After mum had come over she then took the dogs out for a walk. She described that walk up to the dog park and meeting the plaintiff as follows:
A: I was walking up past, so down Ballard Street and then I'd sort of go into Robert Street and then cross across ‑ I was going to go past the park and around the oval and then probably through the streets a bit around Wembley.
Q: And insofar as that intended walk occurred, how far did you get in that walk?‑‑‑
Q: Okay. And then what, what happened at that point in time?‑‑‑
A: And we both sort of, so I'm coming up that path on the west side near the Bradmill site and we sort of, you know, waved and Jan's beckoned me in and I didn't ‑ I didn't really want to go in.
A: Because my nerves were so shredded going through divorce as a single mum and pulling, dealing with Fate and having to pull him out of the bushes if he gets a stick - he's just ‑ yeah.
Q: All right. And so you were walking past and Jan waves and you wave?‑‑‑
Q: Other than Jan and her dog, Indi, was there anybody else in the fenced‑off dog park at that time in the morning?‑‑‑
Q: And so you walk over and what happens at the gate?‑‑‑
A: Um, so Indi's come obviously, she's excited to - there's other dogs, my dogs are excited to see another dog so I got them to sit and then I open the gate and let them in.
Q: Okay. And then what do the dogs ‑ your dogs, what do they do once they were in that fenced‑off dog park section?‑‑‑
A: Lilly and Indi took off playing, Fate got himself a stick and hid in the bushes.
Q: Okay. And then yourself and Jan, what did you do, the two of you?‑‑‑
A: So we started walking around the perimeter of the park. So it's a sort of L shape and ‑ I mean, we weren't right next to the fence line but we were sort of following the L shape and walking around it, which was different, I thought, because normally I ‑ the dog owners tend to stand still and be watching the dogs more. So we were walking up, we sort of walked ‑ what is that ‑ east. We went in an anticlockwise direction around the L, if that makes sense, and we were just chatting and the dogs were playing chasey.
Q: And what did you and Jan talk about? What were you chatting about?‑‑‑
A: I remember us talking about her work. I remember specifically because she'd said she was in the disability sector and I then I was telling her a story about I'd been at Yarraville Station waiting to go into work and on the opposite platform was a kid with Down Syndrome who was just singing at the top of his lungs, and I remember it because it was quite beautiful and it reminded me of ‑ there used to be an ad for Yooralla and there's a guy in a wheelchair and he's like ‑ I think he was Downs and he was ‑ had headphones on and he's singing absolutely tunelessly and it says, 'Just another Radiohead fan', and she to her how it reminded me of that and then she said to me, 'I love' something along the lines of, 'I love the Downs. I just love the Downs.'
Q: And so you're walking around with Jan chatting about work and things like that, just describe what again the dogs are doing over that period of time?‑‑‑
A: It was sort of ‑ they were just playing chasey so they were just sort of looping around us, if you like. When I mean ‑ when I say 'looping around' I don't mean they were right next to us, they were sort of, you know, as we walked, they're chasey kind of ‑ followed ‑ you can't see my arms, a bit pointless me waving it on the screen. Yeah, they were sort of just playing chasey around the park."[49]
74 She had been in the dog park about ten minutes before the incident. By reference to a satellite photograph of the dog park[50] she described the path she had intended to take and the gate that she had entered to gain access to the dog park. She disagreed with the gate that the plaintiff said she had used to enter the park. She described how her dog, Fate, had got a stick and headed off into the bushes adjacent to the bowls club. She and the plaintiff then walked anti-clockwise around the dog park for about 10 minutes. She was asked whether she saw the incident and said "yeah".[51] She described what she was doing immediately before the incident and then the happening of the incident as follows:
Q: "The period immediately before that incident what were you doing?‑‑‑
A: So we were walking sort of, um, Jan's a bit ahead on my left and I was a bit, you know, further behind, maybe one and a, half two metres, and the dogs were whipping around us.
A: And Jan said 'I hate it with the dogs run like this.'
A: But she didn't call her dog I saw no reason to call mine because they were having fun ‑ they weren't bothering me. And then ‑ ‑ ‑
Q: Then in terms of what you saw next, what happened?‑‑‑
A: Then yeah so ‑ I can't really show it on screen here but I'm like ‑ Indi came behind us, like behind me and she went in front of Jan, so we're walking forwards she's gone in front of Jan and off to the left.
Q: And what distance in front of Jan would you say Indi passed her?‑‑‑
A: In my mind it seemed like a couple of inches, like just ‑ was close.
Q: And Indi having done that, what was Jan ‑ did you observe any reaction from Jan?‑‑‑
A: And then Lilly was chasing behind Indi and just went smash into the back of Jan's leg. I can still see Lilly's head all like crunched up and Jan went backwards and was screaming in agony and it was awful."[52]
75 In respect to the control that she was exercising over Lily, and whether she had called Lily to heel or had tried to stop her from running around in the period before the incident, she did not because she "saw no need".[53] She did not call Lily to stop running around. The plaintiff did not call Indi to stop running around. She was asked whether Lily had tried to attack or shown any aggression towards the plaintiff during her time at the dog park and she said "no".[54]
76 The defendant was then asked about the aftermath of the incident, the ambulance attendance and the Facebook exchange with the plaintiff and Dan Jolly. She had not been back to the dog park since the incident because it was equally horrific and traumatic for her. She continues to send Lily to Doggy Daycare.
77 The defendant was then cross-examined, firstly about the need to control her dogs at all times. It was put to her that good recall was required to get them back when you need them to come back and she agreed with that. It was put that she needed to make sure she did not allow her dogs to worry or threaten any person or animal and she agreed with that. It was put to her that she had tried her best with her dogs in the years before the incident to get them to obey those rules and she also agreed with that. It was then put to her that she had found it quite difficult and she disagreed and said "No, not really, no."[55] It was suggested that she would have Fate off in the bushes constantly and she said "Sometimes, yes."[56] It was put that was shredding her nerves and she agreed.
78 It was then put to the defendant that she had a very boisterous dog, a dog that liked to wrestle, which was Lily. Her answer was "They like to play chasey."[57]
79 She was cross-examined generally about Lily as follows:
Q: "And Lilly loved being around other dogs, a very social dog?‑‑‑
Q: And from time to time you'd struggle to keep control of her?‑‑‑
Q: And one of those times was on 27 February 2018?‑‑‑
A: Ms Jolly was injured, things were not out of control."[58]
80 The defendant was taken to her answer to interrogatory 13 and it was put to her that her answer "simply isn't true".[59] She disagreed and said that Lily has not hurt anyone.
81 The defendant was asked about the evidence from Ms Jones and whether she could recall at some point Lily jumping up onto Ms Jones. Her response was "As I said earlier Lilly loved Sharon, so Lilly jumping up on Sharon to say hello was not unusual."[60]
82 Next, she was questioned about Ms Jones' evidence of the young woman being scratched by Lily, and whether that evidence reminded her of such an incident. She said it did not. She was questioned specifically about her recall of an occasion when Ms Jones said to her that if she was coming into the dog park then she (Ms Jones) would leave. She did not recall such a time.
83 Next, the defendant was asked questions about Lily growling at people. She was questioned whether at times Lily would be growling at people. She said "No".[61]
84 She was then taken to a Facebook message and asked about Lily being more than a little rough with other dogs. She disagreed with that proposition but said Lily could be a little bit strong for small dogs.
85 She was then asked whether at times Lily's behaviour was appalling. She said "No".[62] However, she did accept there was one time when she did describe Lily's behaviour in that way, after an incident when Lily growled at a person. Her evidence about that was:
Q: "And was that an occasion where Lilly growled at a person?‑‑‑
A: What occurred was it was pitch black in the morning, winter, I was walking down Ballard Street and Michelle was walking the other way I hadn't seen her. She stepped out from ‑ it was and Australian ‑ I think it was a paper bark because the leaves were still on it. I didn't see her. I saw her. I got a fright and so ‑ and I sort of veered out to the side, because I got such a fright and as I was saying, 'Oh my God, Michelle, I didn't see you', Lilly did like a little grumble, growl in her chest She didn't bear her teeth, she didn't snarl, she reacted to my fear.
Q: And that was the appalling behaviour you referred to?‑‑‑
Q: And so you wouldn't say that that was a proper growl, it was a ‑ you would say it's a mini growl?‑‑‑
Q: I put it to you that it's much more than a mini snarl it was a real growl?‑‑‑
Q: And that Lilly commonly growled towards others ‑ ‑ ‑ ?‑‑‑
86 Next, when questioned about the incident involving Mr McIntyre's dog, Henry, it was put that she was wrong by saying that Mr McIntyre had the wrong dog. She did not agree with that. She was asked about loving her dog and wanting to protect her and it was suggested,[64] that she was simply lying about "this evidence" to protect Lily, to which she responded "Lilly's welfare isn't affected by this proceeding so I don't really understand."[65]
87 It was put that Mr McIntyre's version of events was correct, and that he had told her Lily lacked recall, that if she could not get Lily to stop and something happened, then she could find herself in trouble. She said that conversation did not occur, but she did recall a conversation with Mr McIntyre relating to dog food and said "If he lectured me about my dogs, it would be burned into my memory."[66]
88 Next in cross-examination, the plaintiff was taken to the incident. It was pointed out that on her version, Indi had run past the plaintiff, within a couple of inches of her, but she did not observe any reaction by the plaintiff, which she said was correct. She was looking at the plaintiff at the time that Indi ran past her and she found it surprising that the plaintiff just kept walking. It was suggested that she had described an implausible version of events. Indi had been off in the bushes and the plaintiff was watching Indi when Lily had suddenly run into the plaintiff, striking her. In respect to that version, she said "That did not occur."[67]
89 The defendant was cross-examined about whether she would describe the incident as a bump. She said no, that Lily in fact crashed into the plaintiff. When asked why she had described it as a bump in her answers to interrogatories she said that she could not say. Again it was put to her that she had played down the incident to try and protect her dog and she repeated her earlier answer that there was no reason to protect Lily "as her welfare isn't impacted".[68]
90 The defendant accepted that, on her version, when she saw Indi go past the plaintiff, she was looking at the plaintiff and not at her dog. She described her location as more to the right of the plaintiff, maybe a couple of paces behind her. She repeated that Fate was over in the bushes to her left, next to the Bowls Club. When Indi ran past the plaintiff she (the defendant) was engaged in conversation with the plaintiff, looking more towards her.[69]
91 That completes a summary of the evidence of the defendant.
92 The defendant was challenged in cross-examination as to the truthfulness of some of her answers to interrogatories, some of her oral evidence and that her motivation for lying was to protect her dog. I formed a favourable view of the defendant as a witness. I consider that she made appropriate concessions. True it is that her evidence at times differed from the recollection of other witnesses, for example her recollection of the incident between Mr McIntyre's dog, Henry, and her dog, which she maintained was Fate and not Lily. I did not, however, form a view that the defendant was lying during her evidence, or seeking to protect Lily. Broadly, she gave a clear, rational and consistent version of events leading up to the incident and especially of the incident itself. Broadly, I consider that I can rely on her evidence. In any event, in final submissions the plaintiff did not press the suggestion that the defendant had lied, or sought to protect her dog, when giving evidence.
93 That also completes the summary of the relevant evidence of the witnesses who gave evidence in respect to the "liability" dispute in this proceeding.
The issues - Lily's past behaviour and the defendant's knowledge
94 The issues to be resolved for both the plaintiff's claim in scienter and in negligence are, based on the evidence, what was Lily's behaviour before the incident and what was the plaintiff's knowledge of such behaviour. Then, flowing from that, issues arise as to the events on the morning of the incident, namely whether Lily should have been in the dog park and whether the plaintiff exercised adequate control of Lily.
95 I note at the outset that the evidence of the plaintiff regarding Lily, the events leading up to the incident, and of the incident itself, is relatively limited. This is to be contrasted with the detailed evidence given by the defendant, bearing in mind some of the key factual disputes in this proceeding, such as Lily's past behaviour and the defendant's knowledge of Lily's past behaviour.
96 In final submission, specifically regarding the claim in negligence, but regarding the factual differences in the evidence, the plaintiff's counsel submitted that "when boiled down, the difference between the plaintiff's and the defendant's version of events are not relevant as to whether the defendant breached s48 of the Wrongs Act. In the event the Court accepted that, given the evidence of Lily's behaviour and the defendant's conduct before the date of the incident, a reasonable person would not have had Lily in the dog park, it is submitted that the plaintiff would succeed".[70]
97 It is convenient to start by looking at the evidence at its highest for the plaintiff regarding Lily and her behaviour/propensity, without resolving the limited factual disputes that exist on the evidence, such as whether it was Lily or Fate who was involved in the scuffle with Henry. Hopefully the reasons for approaching the evidence this way will become clear.
98 Accordingly, for the purpose of the analysis to follow, I adopt the following as factual findings regarding the behaviour of Lily before the incident.
(b) Lily would at times jump up on people when greeting them;
(d) On one occasion, Lily jumped on Ms Jones when greeting Ms Jones, causing bruising. On another occasion Lily jumped on Ms Jones, causing bruising to the arm;
(e) On one occasion, Lily greeted a young woman at the dog park. The young woman was wearing shorts and when Lily ran up to "say hello" [sic] a scratch was caused to the leg of the young woman;
(f) There was an incident when Lily got into a scuffle with Mr McIntyre's dog, Henry, involving Mr McIntyre throwing and Henry retrieving a ball;
(g) On occasions, Lily needed to be taken out of the dog park because she was overexcited;
(h) Lily had been observed by Dan Jolly to pull with gusto while on a lead near the dog park;
(i) Lily had on occasion had her tail up, which conveyed (at least to the plaintiff) the impression of being a little bit aggressive;
(j) On another occasion Lily charged over to the fence of the dog park towards the plaintiff, with her tail up;
(k) On one occasion, while on a walk in the dark in the early morning, when startled, Lily had growled at a person.
99 Pausing here, there is no evidence of any major incident involving Lily, with any other dog or person. In my opinion, the defendant presented as a responsible dog owner and Lily was appropriately raised, socialised and trained to be around other dogs, as evidenced by her substantial attendance at Doggy Daycare. On the evidence, her behaviour towards people and dogs in general, is consistent with Ms Jones' observation of Lily as being a very friendly dog.
100 Pausing again, it is also relevant, in my opinion, that at the time the plaintiff was injured, the plaintiff and the defendant were in an off-lead dog park, with their dogs, engaging in the very activity that such a park is designed for, namely allowing dogs to exercise off lead. Whilst there is no expert evidence in this case, I have no doubt that the whole theory behind an off-lead dog park is to provide an environment where dogs can run around and exercise without the risk that they will escape or harass other citizens who might not own dogs and who, instead, might simply be trying to enjoy a quiet walk through the park. I also have no doubt that when dogs are running around off lead in an off-lead dog park they are likely to wrestle, scuffle, bark and play with, and at, other dogs, and possibly even people. After all, a domestic dog is still a wild animal at heart. Even the best-trained dog is likely at times to be over-excited, playful, or resistant to doing what its owner wants it to do, which the plaintiff accepted during her evidence. There is nothing to support a finding that on the morning of the incident Lily was doing anything other than what dogs are likely to do in an off-lead dog park.
101 The evidence and factual finding regarding Lilly's behaviour prior to the incident - taken at it's highest for the plaintiff's case - does not support a finding that Lily had a vicious nature or propensity. On the ordinary sense of the word vicious, there is simply no way that Lily could be described as vicious. Ultimately, as I understood the plaintiff's case, it was said that Lily's past behaviour was mischievous but not that she was vicious. In any event, I reject a submission that Lily was vicious, as the evidence does not support such a conclusion.
102 The question, then, is whether the evidence of Lily's past behaviour, taken at its highest, is sufficient for the plaintiff to establish a claim either in scienter or in negligence.
103 A person who keeps a dog which is known by that person, or presumed in law, to be dangerous may be strictly liable for damage caused by the animal. This is referred to as a scienter action,[71] because liability depends on the person's actual or presumed knowledge of the dog's dangerous propensities. Animals are divided into two classes for the purposes of scienter liability, namely dangerous by nature (ferae naturae) and harmless by nature (mansuetae naturae). A domestic dog such as Lily falls into the category of harmless by nature.
104 In the case of a dog such as Lily, liability for injury attaches without proof either of intention or negligence, but only for injury caused by the animal's known vicious or dangerous propensity. In Draper v Hodder[72] the principle was explained as follows:
"A person keeping an animal "mansuetae naturae," which he knows has a propensity to do a particular kind of mischief, is under an absolute duty to prevent it from doing that kind of mischief, and is, therefore, liable without proof of negligence for any damage caused by the animal's acting in accordance with that known propensity. But to render the defendant liable, proof must be directed to his knowledge regarding the propensity of the individual animal whose activities have given rise to the institution of legal proceedings."
105 The plaintiff bears the burden of showing that there is evidence that the defendant had knowledge of Lily's propensity before the incident, or facts from which some knowledge can be inferred.
106 The plaintiff submitted that only "slight" evidence of a "mischievous disposition" of a dog is required to prove scienter.[73] In support of that proposition, the plaintiff relied upon Romano v Spagnol[74] and the judgment of Kirby P. However, the facts of that case are much different to the facts of the proceeding before me. In particular, in that case dogs were restrained on a property by a chain, and were found by police soon after an attack attached to the chain. As Kirby P noted, the trial judge's reference to "the mere size of the chains" was from where the inference had been drawn that the dogs were "hardly the pet variety". It was in that context that his Honour stated:
"in cases of this kind it is usually accepted that slight evidence is sufficient to sustain knowledge, the matter of the actual propensity of the particular animals usually being peculiarly within the owner's knowledge".[75]
107 Clearly, in Romano v Spagnol the size of the chains that the dogs were attached to was a matter of considerable significance to the factual dispute in that case. What is sufficient in each case to establish knowledge depends on the facts of the individual case.[76]
108 The amended statement of claim and particulars relied on a number of matters said to establish knowledge of Lily's vicious propensities and/or mischievous tendencies. It was particularised that Lily had a vicious propensity and/or mischievous tendency to harass and be aggressive towards persons and dogs, attack other dogs and engage in playful or boisterous conduct with harmful results. It was further said that Lily had a vicious propensity and/or mischievous tendency to engage in harmful conduct that injured others and/or playful or boisterous conduct with harmful results by injuring others.
109 The amended statement of claim does not specifically allege that the defendant knew of Lily's vicious propensities and/or mischievous tendencies. Of course, even if "slight" knowledge is sufficient, some actual knowledge is a necessary precursor to establishing liability pursuant to a claim in scienter.
110 Based on the submissions made on her behalf, the plaintiff alleges that the knowledge of Lily's past behaviour arose from the evidence of Mr McIntyre, the fact that Lily would charge at, harass, and be aggressive towards other dogs and persons, the fact that Lily had jumped up and scratched the young lady, and that on multiple occasions Lily had jumped onto and caused bruising to Ms Jones.
111 There is no evidentiary basis to conclude that the defendant was aware of Lily jumping onto the young girl or onto Ms Jones. On this point I accept the defendant's evidence. Therefore, knowledge is not established in respect to that behaviour by Lily. It unclear whether the defendant was aware of the occasions when Lily had been a bit growly, with her tail up, or when she rushed at the fence of the dog park. At its highest, the evidence is that the defendant was aware that Lily became involved in the scuffle with Henry.
112 Further, in cross examination it was not put to the plaintiff that she had taken Lily out of the dog park at times because Lily was overexcited. The evidence of that is vague at best and insufficient to establish even "slight" knowledge against the defendant.
113 Therefore, assuming for the purpose of this analysis that the defendant was aware of Lily's scuffle with Henry, of her pulling on the lead with gusto, of her appearing a little bit aggressive with her tail up and of her charging at the dog park fence on an occasion, I do not accept that evidence to establish that the defendant had knowledge of Lily's propensity to engage in vicious and/or mischievous behaviour. Firstly, as already discussed, in the ordinary sense of the word "vicious", there is nothing in that behaviour that could be said to be vicious. Secondly, I do not find that behaviour to be mischievous, in the sense of being behaviour demonstrating an intention to cause harm or trouble.
114 But, even if contrary to my conclusion Lily's behaviour prior to the incident could be classified as mischievous, and the defendant was aware of that behaviour, there is no evidentiary basis to draw a conclusion that the defendant had knowledge that such behaviour could occasion harm of the type that occurred to the plaintiff.
115 By the amended statement of claim, the plaintiff asserts that the defendant will be liable for "any injury or damage to human beings" caused by Lily's vicious propensities and/or mischievous tendencies. In my view, the plaintiff's claim in scienter as framed is so wide as to be meaningless. Strict liability is only engaged where the defendant has knowledge that the dog had a propensity to cause the type of harm that was actually suffered by the plaintiff. In the present case it must be remembered that the plaintiff was injured when Lily collided with her. There is simply no evidentiary basis to conclude that Lily had ever shown behavioural traits likely to cause such harm. She had never attacked, bumped into, or collided with any person while being "mischievous".
116 In closing submissions, the defendant said that the propensity evidence adduced in this proceeding by the plaintiff is not evidence of a propensity to cause damage of the kind which has given rise to these proceedings. I agree. The evidence falls far short of establishing that the defendant had knowledge of Lily's prior behaviour and propensity to cause the type of harm actually suffered by the plaintiff.
117 In the circumstances, I am not satisfied that the plaintiff has proven that the defendant had the requisite knowledge to make out a case in scienter. Accordingly, the scienter action must fail.
118 In the alternative to the claim of scienter, the plaintiff, by her Amended Statement of Claim, alleges that the defendant owed to her a duty at common law under the tort of negligence to exercise control over Lily to ensure it did not attack her and cause injury. She says that the defendant breached the duty of care to her and such breach was causative of the incident and her injuries. Particulars of Negligence and Breach are set out as follows:
j) Knowing that the dog did not listen to the Defendant's instructions on multiple occasions before the incident, failing to take control of the dog before the incident and at the time of the incident.
k) Knowing that the dog did not listen to the Defendant's instructions on multiple occasions before the incident, having the dog go to an off the lead dog park;
l) Knowing that the dog had been aggressive before the incident, including at the dog park, failing to take control of the dog before the incident and at the time of the incident."
119 As is clear from the particulars, the plaintiff's claim is based around alleged failings by the defendant in the control of Lily and also by taking her into the dog park. Indeed, as mentioned earlier, at the heart of the plaintiff's claim in negligence, as set out in final submission, is the assertion that Lily's previous behaviour had been so bad that a reasonable person exercising proper control over Lily would not have taken Lily into the dog park on the morning of the incident. I am unable to accept that submission based on the evidence as I have already set out and discussed.
120 A striking feature of the plaintiff's oral evidence was her lack of clear detail about what happened on the morning of the incident, especially after the defendant entered the park with Lily and Fate. On the plaintiff's version, she was in the park for some five minutes. She had a short conversation with the defendant, while making a decision to leave the park, but seemingly not based on any specific behaviour exhibited by Lily that morning. She gave contradictory evidence about being concerned about Lily on that morning. But, regardless, in her evidence she did not suggest that she had any concern about the defendant failing to exercise adequate control over Lily immediately before the incident.
121 The lack of clear detail in plaintiff's evidence of the incident is to be contrasted with the defendant's version. I accept the defendant's evidence as to how the incident occurred and the events of that morning. She gave a consistent, clear and coherent version as to how the incident occurred. On this critical issue she gave the more reliable evidence.
122 Accordingly, I find that the plaintiff and the defendant were in the dog park together with their dogs for approximately ten minutes. They were engaged in friendly conversation. The dogs were off doing what dogs do. Fate was off with a stick and the other dogs were playing. The defendant's control of Lily was not raised as an issue by the plaintiff. It was no different to the control that the plaintiff had over Indi while the dogs were playing together. Until the happening of the incident, it was an unremarkable morning with two people enjoying time together with their dogs in an off-lead dog park in the fifth coolest suburb in the world. In the setting of an off-lead dog park, and in the setting of Lily ordinarily being a well-behaved dog, the defendant, in my view, was exercising reasonable care and control over Lily.
123 The short point is that the plaintiff was simply in the wrong place at the wrong time when an unfortunate accident occurred when Lily ran into her. There is simply no evidentiary basis to find that the incident occurred because of any past behaviour that would preclude Lily from being taken into an off-leash dog park. Indeed, the evidence is to the contrary.
124 A more sophisticated analysis is unnecessary. There is no real dispute as to the applicable legal principles. The law of negligence does not mean that there is any guarantee that injury will not occur, just as it is not a standard of indifference. In the present case, the defendant was required to exercise reasonable care in the control and management of her dog while attending at an off-lead dog park. In my view, she did not breach the duty she owed to the plaintiff. There is no evidence at all which would support a finding that Lily's behaviour before the incident was such that she was not an appropriate dog to be in an off-lead dog park. Equally, there is no evidence that she was previously aggressive in the sense of threatening towards humans, or that the defendant could not control her. There is no evidence that she had a propensity to collide with people. Sadly, a pleasant morning in the dog park was interrupted by two dogs playing chasey. While playing, the plaintiff's own dog ran close to her, with Lily in hot pursuit, such that Lily accidently collided with the plaintiff. It cannot be said to have been deliberate.
125 There is no doubt that the plaintiff is a decent person and deserving of sympathy. The lay witnesses all spoke highly of her. There is no doubt that she suffered a very significant ankle injury and equally a significant wrist injury while recuperating. But sympathy for the plaintiff is not enough to justify an award of damages. This is an example of an unfortunate accident and a classic example of being in the wrong place at the wrong time.
126 Therefore, I find that the plaintiff has failed to establish liability pursuant to scienter or liability pursuant to general negligence principles.
127 This proceeding was substantially a contest based on the facts. As already mentioned, the evidence at its highest for the plaintiff simply does not elevate it to a situation whereby liability can be attached pursuant to scienter or pursuant to general negligence principles. It is for that reason that I have not engaged in the task of analysing each conflict in the evidence to see which I prefer. But, to be clear, in respect to the events of the morning of the incident and of the actual incident, there are only two eye-witnesses and I prefer the evidence of the defendant. She gave a clear, coherent and sensible description of events that morning and of the incident. That is to be contrasted with the evidence of the plaintiff who at times seemed confused, uncertain and gave contradictory evidence. I do not suggest the plaintiff was dishonest, but she was unreliable. As mentioned, her unreliability may in fact be a product of the very nasty injury and significant pain she was in after the event. Regardless, on the critical issue as to how the incident occurred, I prefer the defendant's version of events.
128 Based on the conclusions I have come to regarding scienter and negligence, it is unnecessary to consider issues to do with the assessment of damages. Broadly I accept the injuries from the incident have had a major impact on the plaintiff, with significant ongoing pain and restriction, requiring care and assistance from family and friends. By the same token, she has a range of unrelated medical conditions which do impact on an assessment of damages. In any event, it is unnecessary for me to conduct a full analysis for the reasons given, as she has failed to establish a legal basis for me to award her damages for the injuries suffered in the incident.
130 I shall hear from the parties as to the question of costs.
[1] Exhibit D14, Google Maps photograph of park with measurements
[2] The name of the defendant's dog was incorrectly spelt as Lilly in the transcript. To avoid confusion and to protect the integrity of the transcript, the spelling in the transcript has not been corrected.
[3] Transcript ("T") 45, Lines ("L") 1-3
[64] In my view inappropriately and without the cross-examiner establishing a proper basis to suggest she was lying
[70] Plaintiff's written closing submissions, paragraph 53
[71] The term scienter derives from a Latin term to mean that the act complained of had been done knowingly or willingly
[72] [1972] 2 QB 556 at 569
[73] Plaintiff's closing submissions at paragraph [74]
[75] See also Cruttendon v Brenock [1949] VicLawRp 33; [1949] VLR 366 (VSC) 368
[76] For the discussion regarding Scienter, I respectfully agree with the approach taken by Philippides J in Collins v Carey & Anor. [2002] QSC 398 at [23]- [32]
Jolly
Kondos [2021] VCC 1397