(a) an injury requiring medical or veterinary attention in the nature of -

(iii) a partial or total loss of sensation or function in a part of the body; or

1. The respondent relies on the dog having caused serious injury (a laceration) to a person by biting or attacking a person. 'Laceration' is in turn defined in sub-s 3(1) as meaning:

(b) multiple punctures caused by more than one bite from a dog;

1. The Council relies on paragraph (a) of this definition in that the dog was said to have bitten a person causing the tearing of body tissue. As the dog only took one bite, paragraph (b) is not relevant.
2. Under sub-s 34(2), the Council must not make a declaration under s 34(1)(a) if the incident occurred because of various circumstances. None of these are relevant here.
3. The discretion to declare a dog dangerous in sub-s 34(1) has been described as an 'open' one: see Feakes v Cardinia Shire Council (General) [2010] VCAT 1436 (Feakes), a decision of then Deputy President Macnamara, to which Mr Sherwell referred. In that case, Macnamara DP observed at para [7]:

...apart from granting the discretion in certain particular circumstances, the Act gives no specific guidance as to the considerations which should guide the Council in considering whether to declare or not to declare or the Tribunal on review....High authority tells us that even open discretions have to be exercised by reference to matters that seem appropriately related to the subject matter of the discretion and cannot be exercised on whim or for matters that are entirely irrelevant.

1. The respondent did not call any witnesses, relying on the Statement of Agreed Facts and the materials produced in a folder, including various witness statements. Mr Sherwell referred to the statements in the materials from the boy Anthony and his father George Rizakis. These statements support the above summary of facts.
2. Additionally, in his statement, Anthony Rizakis says that when shortly after the incident he said to Mrs Jones and Ms Kaye Jones that their dog had just bitten him, 'they replied "No, you just fell."' Mr Sherwell referred to this statement as important in his submission and Ms Jones did not deny having said it. Consistently with this, as Mr Sherwell noted, in her record of interview with Council (p5) she said that when Anthony had told her the dog had bitten him, she said 'oh you know you have fallen off your skateboard are you okay.'
3. He also referred to the statement of Leading Senior Constable Neil Bassett of Victoria Police dated 3 April 2011. SC Bassett had received a phone call on the day of the incident from Ms Kaye Jones complaining that she had been abused by Anthony's father, Mr Rizakis, who came to their home after the incident. SC Bassett said in his statement:

JONES then tried to assure me that their dog had not bitten the boy and that he had simply fallen off his skateboard. I found her story to be unusual due to the lengths she went to, to assure me that her dog was innocent. JONES stated that her mother's dog had been at their front fence at the time but had not approached the boy. She further stated that the boy just appeared to have a scratch on his ankle and not a dog bite. JONES then went on to state something about being a child psychologist and working in schools and that she knew that children made up stories. While having this conversation, I was concerned that if their dog had in fact bitten a child, that JONES seemed more worried about the dog than the child.

1. SC Bassett was not called to give evidence at the hearing. However, Ms Jones did not deny in cross-examination that she had said to SC Bassett that the boy had simply fallen off his skateboard and that she had told SC Bassett that he just appeared to have a scratch on his ankle and not a dog bite.
2. Ms Jones took issue with the extent to which she was trying to assure SC Bassett that the dog was innocent. However, she did not argue with the statements that she made to him denying the bite and attempting to minimise the nature of the incident.
3. Ms Jones said that SC Bassett's statement was misleading because it implied she had contacted the police to 'wangle my way out of the incident' when instead she had rung them when Mr Rizakis had come down and approached she and her mother about his son being bitten. She called the police when Mr Rizakis was still at her mother's premises, to complain that he 'started abusing my mother and wouldn't leave, was using inappropriate and threatening language and we asked him to leave and he would not'. I accept that that was the purpose of Ms Jones calling the police, but in her conversation with SC Bassett, she nevertheless made statements denying the bite and minimising the nature of the incident. She accepted this at the hearing.
4. In her interview with Council officers on 28 March 2011, Ms Jones said that she had not seen the dog go near the boy, she assumed he had fallen down and she could not say (despite being shown the medical report), that the dog bit the boy (page 8 interview).
5. Ms Jones said at the hearing that the attack was not entirely unprovoked, because Anthony had been travelling at speed towards she and her mother. She said she had suggested to Anthony to stop because she and her mother were cutting shrubbery. There was debris over the footpath and he could not skate across it anyway. She said that if he had kept up that speed he would have collided with her mother as her mother was not fast enough to move out of the way.
6. Mr Sherwell cross-examined Ms Jones about the fact that in her transcript of interview with the Council she had not mentioned any concern that the boy would collide with her mother. For instance, at page 3 of the transcript she talks about the boy coming towards them and her concern that they had 'stuff everywhere' on the footpath, but does not specifically mention a concern of colliding with her mother. However when this omission was put to her in cross-examination, she stated that she thought it was 'a given', and that the logical conclusion was that people on the footpath might be knocked over.
7. The applicant's lawyer Mr Brett Melke prepared a written submission dated 15 July 2011. This submission was given to the Council to consider in deciding whether to declare Zeeke a dangerous dog. Ms Kaye Jones referred to it at the hearing.
8. In this submission, Mr Melke stated that his clients had behaved very responsibly after the attack. They participated in four interviews with Council and the applicant offered to plead guilty to all charges arising from the attack very early in the prosecution process.
9. In response to this, Mr Sherwell acknowledged that the applicant did administer care to the boy at the time of the incident. However, he asserted that it could not be said that she had fully co-operated because there was some denial in relation to whether the boy had simply just fallen off his skateboard or been bitten by a dog. The applicant's lawyer described this as 'some form of confusion such that they had originally thought the victim had simply fallen off his rip stick'.
10. However, it is clear that at least on the part of Ms Kaye Jones, who is seeking to take responsibility for the dog given that her mother is unwell, there was reluctance to openly accept responsibility for the dog having bitten the boy. This much is clear from the statement of SC Bassett (which she accepted as accurate in relation to the relevant statements) and her interview with Council.
11. Ms Jones took some issue with a DNA test conducted by the respondent detecting 'low level canine DNA' on Anthony's sock. This test was conducted for the purposes of the criminal proceedings arising out of the incident. However, because the Jones' agreed in the Agreed Statement of Facts that Zeeke did bite Anthony, Ms Jones' difficulties with the test are not relevant to that issue. Mr Sherwell confirmed that it had been necessary to arrange the test because it was initially denied that Zeeke had bitten Anthony.

1. Ms Jones and her brother made various points at the hearing, including referring to arguments in the written submission from Mr Melke.

1. The applicant's material included various testimonials about Zeeke. Ms Kaye Jones referred to these in her submissions. They included statements from various friends, a veterinary practitioner and a dog trainer, to the effect that Zeeke showed no signs of aggression and in support of him not being declared dangerous.

1. Ms Jones pointed out that there had been no other incidents in relation to Zeeke - none before and none since being returned from the Council pound to her mother.

1. Mr Melke argued in his submission that Mrs Joyce and Ms Kaye Jones have always been responsible pet owners, registering and micro-chipping the dog, having the dog desexed and that they have been willing for the dog to undergo and appropriate training course to assist with its behaviour. The respondent did not dispute these matters.

1. Ms Jones produced various photographs of improvements to her mother's property since the incident, securing the rear and front yards with better fencing. A new gate had been installed at the front of the property and some mesh wiring above the wall at the front to ensure that the dog would not get out as it had when the incident occurred. Mr Russell Jones said the dog was mostly kept inside the house or in the rear yard. He explained that when the dog was in the rear yard it was surrounded by an 8 foot wall and two secured gates.
2. The Jones' explained that the height of the letterbox had been raised. They produced photographs showing that all back fences had been extended in height to 2.6m high and the side fence had been extended in height. They have a security screen door on the front door of the house. The north side gate has had a bar attached to prevent opening from the exterior and lattice has been attached to increase its height to 2.6m. The south side gate has been installed as a new gate that cannot be opened from the exterior and (with lattice) it is 2.6m high. Both gates only have a gap beneath them of 5cm at the highest point for the north side gate and less than 5cm for the south side gate.
3. Ms Jones said that that so far they had spent over $11,000 on fencing and other improvements to secure the property and prevent Zeeke getting out.

1. Mr Melke referred to the applicant being elderly and in poor health and needing the dog for companionship, comfort and security. Mr Sherwell responded that this is actually a two edged sword in that if the applicant is unwell she may no longer be able to look after the dog. He said this is relevant to offering undertakings as to restraint of the dog. In this case, Ms Kaye Jones has offered to give the undertakings and take full responsibility for the dog on behalf of her mother.

1. Mr Melke argued in his submission that as the incident occurred 'only one or two feet from the inside of' Mrs Jones' property, circumstances akin to the statutory defence in s 29(9)(b) applied. That provision makes it a defence to an offence under the Act that a person was trespassing on premises on which the dog was kept. This is not relevant, as I am not considering any of the offences in s 29. Sub-s 34(2)(b) does provide that a declaration cannot be made under sub-s 34(1)(a) if the person injured was trespassing on the premises on which the dog was kept. However, even though Anthony may have come close to the boundary of the property, there is no evidence that he crossed it.

1. The Jones' stated that if the declaration is affirmed, Zeeke would have to be put down. This is because the requirements under the Act for keeping him as a dangerous dog would become too onerous. They had already spent a significant amount of money fencing off the property and there was nothing left for further improvements such as keeping the dog in a cage.

1. According to Mr Melke, the lower the level of injury, the less reason there is for Council to declare the dog dangerous and there must be other aggravating factors for the dog to be so declared.
2. This point comes from the written submission of Mr Melke. He asserted that the victim has not suffered any permanent injury and the medical report of the emergency department refers to the injury as a 2cm superficial laceration. He referred to the case of Smith v Boroondara City Council (2001) VCAT 2242 under the previous legislation and stated:

...it would appear from the case of Smith v Boroondara City Council ... that under the previous legislation, a superficial wound, such as this one, would not have been considered a serious injury - that case involved a far more serious injury, but the Tribunal indicated that a superficial injury would not be considered as serious. Under the current legislation unfortunately any laceration at all, be it as minor as a paper cut is technically a serious injury - and that is why Council must exercise its discretion property in these matters and so as avoid a proliferation of dangerous dogs, which was not the intent of the legislation.

1. Mr Sherwell responded to this by saying (as his submission recognises), that the Act has changed since that case and the definition of 'serious injury' now includes a laceration. He submitted that whilst this laceration is not the most serious dog attack, it is still a serious injury within the definition, invoking the discretion. It has to be in this case more than a paper cut, it has to be a 'tearing of the skin'.
2. Ms Jones agreed that the two puncture marks were caused by the dog's one bite and that in between those marks was a 'central laceration'. She argued at the hearing that that laceration was caused by the boy falling and not by the dog bite as such. She therefore submitted that the laceration was incidental and not caused by the dog bite, such that the dog had not caused the laceration (the tearing of body tissue).
3. However I accept Mr Sherwell's submission that even if the laceration was directly caused by the boy falling over, the fall was caused by the dog coming at him and biting him such that the overall cause of the laceration was the dog biting or attacking the boy, within sub-section 34(1).

1. Ms Jones says that in addition, they offered to take Zeeke to dog training. She argued that these measures (the improvements to fencing the property and the offer to train) would be as good as a dangerous dog declaration in protecting the public.
2. Ms Jones offered to produce an undertaking to take Zeeke to training, to take full responsibility for him and agree to keep him in a particular manner with the penalty that if she should not do so the dog may be declared dangerous, re-seized or destroyed by Council. She would take responsibility for the continued maintenance of the property and to have the dog always secured on a leash or muzzled when being walked or outside the property. Mr Melke stated in his submission that his client was prepared to keep the dog in her house and rear garden, only allowing it in the front garden or off the premises when controlled by a leash and muzzle.
3. Whilst Ms Jones indicated she would be prepared to take full responsibility for the dog and to give the undertakings on behalf of her mother, she indicated that she would not wish to keep the dog in a cage as that would be 'very debilitating' for her mother.
4. In his submission, Mr Melke referred to his clients' willingness to enter into a domestic animal management agreement incorporating security measures and a treatment program together with other requirements for the dog.

1. Mr Melke stated in his written submission that in Feakes' case, undertakings were accepted and the same should be done here. Ms Jones adopted that argument at the hearing. Mr Melke sought to distinguish the case of Gason v Yarra Ranges Shire Council [2010] VCAT 1120 'in which the applicant failed to set aside the Council's declaration'. He says that the unsuccessful applicant in that case 'had a history of having been directed by Council to rectify a failure to register a dog and a history of people complaining about the dog'.
2. Mr Sherwell submitted that an undertaking was not appropriate in this case and that Feakes is distinguishable. He also referred to the decision of Senior Member Davis in Bugter v Moorabool Shire Council (General) [2011] VCAT 1833, in support of the proposition that the Tribunal should not readily accept undertakings in substitution for a s 34 declaration.
3. In Feakes' case, the declaration that the dog was a dangerous one was set aside upon the applicant providing various undertakings as to restraining the dog and other matters. However, the facts of that case are quite different from those here. In Feakes, the dog caused the death of a cat and there was no injury to a human person. Macnamara DP noted that the case for declaring a dog as dangerous would be 'much the stronger in the case of multiple incidents rather than a single incident' and also 'much the stronger in the case of death or serious injury to a human person rather than an animal...': para 8.
4. Macnamara DP also referred to the characteristic 'typically inherent in all dogs, that is hostility to cats': para 11. In that case because of the particular circumstances, the declaration was set aside on condition that the applicant gave various undertakings restraining the dog, these undertakings being given pursuant to the Tribunal's power in s130 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

1. Mr Melke referred to a 'domestic animal management agreement' but the Act does not provide for such an agreement. Section 84Y of the Act provides that Council may enter into a written agreement with a person or body under which that person or body may be able (relevantly) to retain custody of any seized dog. It is not relevant for present purposes. As Mr Sherwell said, it is 'not a mechanism for the Council to enter into an agreement with the dog owner to do things'. There was no other mechanism referred to in the Act by the Jones' or by Mr Melke in his written submission, to support entering an agreement with Council. In any event, it is clear that the Council does not wish to enter any kind of agreement in relation to the dog.
2. The definition of 'serious injury' in the Act captures injuries that might not be regarded as very serious in the ordinary sense, yet Parliament has deemed them to be treated as such for the purposes of the Act. This is consistent with one of the Act's purposes as protecting the community from feral and nuisance dogs and cats: s 1(a).
3. The dog caused 'serious injury', within the Act's broad definition of that term. This is so although the injury is at the lesser end of the scale. Anthony is now fine and has suffered no long term consequences. In contrast to Feakes' case, this is not just a case of a dog biting another animal. A young boy was injured. The bite was significant because he had to attend the Monash Medical Centre and receive treatment. It so happened that he suffered the unlucky complication of not responding to the first set of antibiotics.
4. On the other hand, there was only one bite. The dog also has no prior or later history of attacking people or other animals. This is not a case of more than one incident (cf the decision of Senior Member Smithers in Olga Schegaleva v Bayside City Council (General) [2012] VCAT 392, affirming Council's declaration of a dog as dangerous). I also note the various testimonials provided by persons in support of the dog.
5. There are therefore competing factors.
6. I agree with Mr Sherwell that it is concerning that that there was an initial denial by the applicant of the fact that the dog had bitten the boy. It was subsequently 'conceded about the dog bite but not about the laceration'. This much is clear from Ms Jones' submission at the hearing (which of course she was entitled to make) that the laceration was not caused by the dog bite in the strict sense, so that there was no 'serious injury' as defined in the Act.
7. However, as Mr Sherwell said, 'in the beginning, the whole thing was denied'. In this regard he refers to the statement of SC Bassett as very important because it records Ms Kaye Jones' initial reaction to the incident through statements she made to him the same day. Although Mrs Jones entered the diversion programme in relation to the criminal charges, it was necessary for the Council to arrange a DNA test before the dog bite was accepted as a fact in the criminal proceeding. In Mr Sherwell's submission, undertakings should not be accepted where the applicant (through her daughter) had started with a denial, then a partial denial and trying to downplay the dog's role.
8. Mr Sherwell submitted that it was not a sufficient answer for Ms Kaye Jones to say that she would give undertakings about Zeeke, as she was not the owner of the dog. Her mother is. This is true, although Mr Sherwell also relies on Ms Kaye Jones' initial reaction and statements to SC Bassett as highly relevant in relation to this application by her mother as the dog's owner. This somewhat reduces the weight of this point about the undertaking.
9. The failure by the Jones' to initially accept the fact of Zeeke having bitten Anthony, is significant. It certainly would have been more reassuring had there been evidence of open acknowledgement at the first opportunity of that fact, instead of the denying and minimising statements made at the time, to SC Bassett and to the Council. This is so although I do note that the Jones' were cooperative in participating in Council interviews and ultimately in relation to the criminal process.
10. Unfortunately, Ms Kaye Jones' evidence and approach at the hearing did not strongly negate the impact of her earlier reactions. In circumstances where the fact of the bite was no longer denied, there was less focus than might be expected on regret for the incident and the hurt caused to Anthony.
11. Onerous obligations flow from declaring a dog to be dangerous. Where the dog is kept on the owner's residential premises, the owner must ensure that if the dog is inside the dwelling on the premises, it is confined in such a manner that it cannot escape and that a person cannot enter the dwelling unless admitted by an occupier of the premises who is over 17 years of age. There must be a prescribed enclosure on the premises outside the dwelling, in which the dog must be kept when not inside the dwelling: see generally s.38. Warning signs must be kept at the entrances to the property: s 39. The dog has to wear a prescribed collar at all times: s 40. When outside the premises the dog must be muzzled to prevent causing injury by biting, and effectively controlled by a person with a chain, cord or leash: s 41.
12. The requirements for the enclosure, sign and collar are very particular. They are set out in the Domestic Animals Regulations 2005 (Vic). It will be expensive to build the enclosure, which (amongst other things) needs a concrete floor and must have walls, a roof and a gate comprised of specific materials.
13. As noted, the Jones' would be willing to comply with the muzzle and leash restrictions by way of undertaking. However, they do not wish to comply with the requirement to keep Zeeke in a prescribed enclosure when he is not inside the house. In light of the significant amount of money spent so far in securing the property, they say their mother cannot afford to build the prescribed enclosure. They also say that it would be 'debilitating' for her to keep Zeeke in an enclosure. Rather than be required to do so, if the declaration is affirmed they say they will put him down.
14. The requirements are very onerous. I accept that Mrs Jones has spent a lot of money since the incident in securing the property. This could be seen to reflect a willingness to prevent a similar incident from occurring in the future. However, even if I accept that an undertaking is a viable alternative to a declaration in some cases (which I do not need to decide here), I am left with the concern that in this case the applicant and in particular her daughter (who will be assisting her in managing the dog) did not openly acknowledge from the beginning that the dog bit Anthony. My concerns about the Jones' reaction to the incident are directly relevant to the ongoing management of the dog and the discretion under sub-s 34(1).

1. There has been a failure to take full responsibility from the start. Attempts to deny or minimise the fact of the bite were not strongly negated at the hearing such that even if an undertaking were a viable alternative to a declaration, it cannot be accepted with confidence in this case. In circumstances where there is an open discretion under sub-s 34(1), I have taken these factors and the important fact of 'serious injury' to Anthony into account, balancing them against the other factors noted above in support of the Jones' case. I have decided to affirm the declaration.