Sarkis v Morrison

Court of Appeal (NSW)|2013-08-26|Before: Basten JA, Macfarlan JA, Ward JA

R Cavanagh SC/A Renshaw (Appellant) B Toomey QC/A McSpedden (Respondent) Solicitors:

Sparke Helmore (Appellant) Marsdens Law Group (Respondent) File Number(s): CA 2013/7508 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-12-12 00:00:00 Before: Truss DCJ File Number(s): DC 2011/294465

Judgment 1BASTEN JA: On 15 September 2008, Mr James Morrison ("the plaintiff") was riding a motorcycle on a country road near Picton, west of Sydney, when a dog owned by Mr Sarkis ("the appellant") ran out of a driveway and collided with the front wheel of the motorcycle. The plaintiff suffered significant injuries and amnesia, resulting from his fall. However, the events were witnessed by a driver coming in the opposite direction and are not relevantly in dispute. The dog ran out onto the road, but did not attack the plaintiff; nor did the plaintiff have any opportunity to avoid the collision. 2The plaintiff brought proceedings for damages for personal injury in the District Court; his claim against the appellant rested on two bases. A claim in negligence was dismissed by the trial judge (Truss DCJ) on the basis that there was no lack of reasonable care on the part of the appellant in allowing the dog to run onto the road. There is no challenge to that conclusion. 3The other basis on which the plaintiff asserted liability relied upon s 25 of the Companion Animals Act 1998 (NSW). On the basis of authority in this Court, the trial judge found that the appellant was strictly liable in circumstances where the dog had wounded the plaintiff, although the wounding did not result from any act of aggression on the part of the dog. 4The appellant appeals from the finding of liability based on s 25. Damages were agreed: there is no other issue in dispute. For the reasons which follow, the appeal should be upheld and the judgment below set aside.

Statutory scheme 5Part 3, Division 2 of the Companion Animals Act is headed "Liability for injury or death caused by a dog". It contains four sections, but the only one which is directly in issue in the present case is s 25 which, in 2008, was in the following terms: 25 Liability for injury to person or damage to personal property (1) The owner of a dog is liable in damages in respect of: (a) bodily injury to a person caused by the dog wounding or attacking that person, and (b) damage to the personal property of a person (including clothing) caused by the dog in the course of attacking that person. (2) This section does not apply in respect of: (a) an attack by a dog occurring on any property or vehicle of which the owner of the dog is an occupier or on which the dog is ordinarily kept, but only if the person attacked was not lawfully on the property or vehicle and the dog was not a dangerous dog or restricted dog at the time of the attack, or (b) an attack by a dog that is in immediate response to, and is wholly induced by, intentional provocation of the dog by a person other than the owner of the dog or the owner's employees or agents. (3) .... (4) This section does not affect the liability apart from this section of any person for damage caused by a dog. 6There are a number of aspects of this provision which are perplexing. Some are explained, at least in part, by its legislative history; some have been the subject of consideration by this Court, both in the present form of the section and in earlier legislative emanations. It is convenient first to identify the features by reference to the language of s 25 in its current form. 7The critical feature for present purposes is the use of the word "wounding" in subs (1)(a). It was common ground in the present case that the term "wound", when used with respect to bodily injury, involved a breaking of the skin, such as a bite, tear or laceration. The plaintiff's case was founded on the proposition that the phrase "wounding or attacking" was disjunctive and it was sufficient for him to establish that the dog caused him to be wounded. The appellant, on the other hand, contended that what was sought to be characterised was not the consequence of the dog's act, but the action itself. Thus, liability did not attach to all forms of bodily injury "caused by the dog", but only to the circumstances in which the dog wounded or attacked the injured person. The appellant accepted that a wound is a form of bodily injury, but argued that it is neither a necessary nor sufficient condition for liability. 8Much was sought to be made of anomalies flowing from the adoption of one or other construction. Thus, the appellant contended that if a person could recover damages for any wound caused by a dog it would be sufficient if the plaintiff tripped over a sleeping dog and suffered some form of laceration as a result. Further, there would be absolute liability for all parties who might suffer cuts (and other injuries) in the course of a motor vehicle accident caused by a dog chasing a cat across the road. On the other hand, the plaintiff contended that if liability only arose where the dog had attacked the plaintiff, nice questions would be raised as to the motive of the dog, which would be critical in the absence of a wound. The plaintiff accepted that the transitive form of the gerund, "wounding", may have implied active conduct on the part of the dog, but not necessarily conduct directed towards the plaintiff. Thus, liability should accrue where the dog attacked another person or animal and the plaintiff was wounded in attempting to save the victim, although the plaintiff was not attacked. Liability would also follow if a rider were injured by a dog chasing a cat across the road. 9There are two aspects of the section which support the more limited reading of paragraph (a) adopted by the appellant. First, paragraph (b), dealing with damage to personal property including clothing, requires that the damage be caused by the dog "in the course of attacking that person". If the concept of "wounding" were thought to have an entirely separate operation involving no aggression on the part of the dog, it might be thought curious that if the consequence were bodily injury, liability would accrue, but not in respect of damage to property. Secondly, and in similar vein, there are exclusions in subs (2), each of which is identified by reference to "an attack by a dog". Thus, the owner will not be liable for an attack on a trespasser, unless the dog was a dangerous or a restricted dog: subs (2)(a). It would be curious if the owner were nevertheless liable to a trespasser on the owner's land where the trespasser was wounded, but the dog did not attack. The apparent intention of each limb of subs (2), when engaged, is to exclude the whole operation of subs (1), not merely a part. On that view "wounding" is a form of "attack".

Legislative history 10Throughout the 20th Century, up until 1977, the owner of a dog in New South Wales was liable in damages "for injury done to any person, property or animal by his dog", without the need to show any previous vicious or mischievous propensity in the dog or neglect on the part of the owner: see, eg, Dog and Goat Act 1898 (NSW), s 19 and Dog Act 1966 (NSW), s 20. This language had a broad scope. In Martignoni v Harris [1971] 2 NSWLR 102 this Court upheld a finding of liability in favour of the owner of a car which was damaged when a dog ran across the road and collided with it. Moffitt JA described the conduct of the dog as involving "no more than the failure of the animal, in pursuing its desire as a living creature to move from one place to another, to pay sufficient attention to the presence of other users of the highway": p 108C. (He noted that "[t]his deficiency in the days of fast moving traffic is one which animals share with human beings in varying degrees according to their respective ages, experience, training, intelligence, agility and distractions.") He concluded that the words "injury done ... by his dog" "suggests some active participation by the dog, but not limited to an attack, in bringing about the injury": at 110-111. 11The breadth of this provision was limited by the Dog (Amendment) Act 1977 (NSW), which replaced the old s 20 and inserted a new provision with the following operative terms: (1) Subject to subsection (2), the owner of a dog shall be liable in damages in respect of - (a) bodily injury to a person caused by the dog wounding that person; and (b) damage to the clothing of a person caused by the dog, in the course of attacking that person. (2) Subsection (1) does not apply in the case of - (a) an attack by a dog occurring on any land, vehicle or premises - (i) of which the owner of the dog is an occupier; or (ii) on which the dog is ordinarily kept; or (b) an attack by a dog which is in immediate response to, and is wholly inducted by, intentional cruelty to or intentional provocation of the dog by a person other than the owner of the dog, his servants or his agents. 12The 1977 amendment Act also introduced a new s 20B which rendered the owner of a dog liable in damages in respect of injury to another animal "caused by the dog attacking, worrying or chasing it". 13The next step in the legislative history was the introduction of the Companion Animals Bill into the State Parliament. The second print of the Bill contained the predecessor of the present s 25 as cl 20, which was in the following terms: 20 Liability for injury to a person or damage to clothing (1) The owner of a dog is liable in damages in respect of: (a) bodily injury to a person caused by the dog wounding that person, and (b) damage to the clothing of a person caused by the dog in the course of attacking that person. (2) This section does not apply in respect of: (a) an attack by a dog occurring on any property or vehicle of which the owner of the dog is an occupier or on which the dog is ordinarily kept, but only if the person attacked was not lawfully on the property or vehicle and the dog was not a dangerous dog at the time of the attack, or (b) an attack by a dog that is in immediate response to, and is wholly induced by, intentional provocation of the dog by a person other than the owner of the dog or the owner's employees or agents. (3) This section does not apply in respect of a police dog. (4) This section does not affect the liability apart from this section of any person for damage caused by a dog. 14The only significant change between the 1966 section (as amended in 1977) and the provision in the new Bill was the failure to treat the final phrase "in the course of attacking that person" as qualifying both paragraphs (a) and (b), but instead running it into paragraph (b). Whether the change was deliberate or accidental and, if deliberate, its rationale, were unclear and unexplained. A problem (if not the cause) was identified in the course of debate when the Opposition moved an amendment which would insert the words "or attacking" in paragraph (a) after "wounding". In introducing the proposed amendment (which was accepted by the Government) the Hon D G Gay noted a suggestion that "'wounding' does not go far enough as it implies a puncture or perforation of the skin". He continued: "There could be a situation where a dog grabs someone by the clothing, gives the person a good shaking up, without actually biting the person. The person could fall and hurt his back and, although not wounded he may have been pretty badly attacked. The Opposition amendment adds the word 'attack' so that if bodily injury is caused by attacking or wounding the owner is liable for damages." 15Whether the full extent of the change to the previous situation was appreciated is unclear. Where the precondition had been wounding in the course of attacking, the Bill had removed "in the course of attacking" and left a precondition involving "wounding", however that might occur. The amendment did not restore the two elements which had previously existed, but made wounding and attacking alternative bases of liability. 16In 2006, paragraph (b) was expanded from damage to "clothing of a person" to the present form, referring to personal property including clothing. The effect of that was to restore the range of liability for property as accepted in the 1966 Act, which had been restricted to clothing by the 1977 amendment. Nothing turns on this aspect of the history for present purposes. 17Thus, while the legislative history may reveal the source of the uncertainties which now arise, it does little to assist in resolving them.

Earlier authority 18There are three cases, decided in the 1990s, and thus after the 1977 Amendment Act, but before the enactment of the Companion Animals Act. Although each must be read bearing in mind the different form of the legislation with which it was concerned, each has a common feature of some significance, namely that it deals with the concept of "wounding". 19The first, Eadie v Groombridge (1992) 16 MVR 263, involved a dog and a motorcycle. The dog came out of a house, "ran parallel with the motorcycle for some short distance and then turned right into the plaintiff, who tried to avoid it by turning further right but who collided with it, killing it and injuring himself": p 263 (Meagher JA). The liability of the dog's owner, Mr Eadie, did not turn solely upon s 20 of the Dog Act: the trial judge also found that Mr Eadie was aware that the dog (a German Shepherd) could escape from the backyard and, if it did, could do serious damage. The claim in negligence was upheld by the trial judge and an appeal against that finding was rejected: at 264 (32) (Handley and Sheller JJA agreeing). However, Meagher JA "for completeness sake" added that he would also have dismissed the appeal from the finding made under the Dog Act. He concluded at 264 (42): "One can be 'wounded' by a dog even if the beast does not lacerate one's flesh. It is well established that an accused whose conduct has indirectly caused the wounding of another may be convicted for that wounding. In R v Halliday (1889) 61 LT 701 at 702 Lord Coleridge CJ said: 'If a man creates in another's mind an immediate sense of danger which causes such a person to try to escape, and in doing so he injures himself, the person who creates such a state of mind is responsible for the injuries which result.' See also R v Lewin [1970] Crim LR 647 and R v Martin (1881) 8 QBD 54. I can discern no reason why wounding which is an indirect result of an attack by a dog should fall outside the section." 20Handley JA agreed with Meagher JA, but Sheller JA refrained from reaching a conclusion with respect to s 20 of the Dog Act. Sheller JA, noting that the injury must be caused by the dog wounding the person in the course of attacking that person, was "inclined to think that 'attacking' is an act of hostility or aggression": at 265 (18). After referring to the Law Reform Commission Report of June 1970, Civil Liability for Animals, which treated attacking as equivalent to an act of aggression, Sheller JA continued: "If the occasion is that a person in the street holds out a juicy bone to a dog and the dog in the course of a natural but enthusiastic acceptance of the offer wounds the offeror, it is not, in my opinion, 'attacking' the offeror. No more is a dog attacking a person if it knocks over a person in the course of chasing a cat or, while running across the road, causes injury to a person driving a motor vehicle. The amendments made in 1977 to the Dog Act which incorporated the section with which we are here concerned were designed, inter alia, to lessen the statutory liability of dog owners in such circumstances." 21Eadie has no direct application in the present case. To accept that the statutory reference to "wounding that person" extends to an injury caused by the person being attacked taking evasive action does not mean that the same language would cover an injury which did not follow from an attack. The attack was part of the statutory context under the old provision. 22There is little room for expanding the concept of causation referred to by Meagher JA, in reliance on R v Halliday. In the criminal jurisdiction, Halliday has been followed in this country, for example in R v Salisbury [1976] VR 452 by the Full Court of the Supreme Court of Victoria (Young CJ, Nelson and Harris JJ). However, there is a distinction between "causing" a particular kind of harm and "inflicting" that harm: see R v Mandair [1995] 1 AC 208 at 226 and 229 (Lord Mustill). Further, the point was assumed rather than determined in Halliday. The scope of the term "caused" should be considered in the particular statutory concept, rather than by reference to meanings adopted in other areas of the law. 23The facts in the second case, Zappia v Allsop [1994] NSWCA 355, were similar to those in Eadie. The result was the same, Clarke JA (with whom Handley JA agreed) upholding liability under the Dog Act. Thus Clarke JA stated: "The point of limitation which, in my opinion, the legislature imposed was that the wounding must occur in the course of an attack by the dog on the injured person. ... Where, however, a dog attacked a person and wounded him or her, causing bodily injury thereby it was appropriate that liability should attach. The line was drawn between incidents which occur during the course of an attack on the injured person and circumstances where there was no attack. ... It is true that the same notion could have been expressed more simply by limiting liability to occasions when bodily injury was caused to a person by a dog in the course of that dog attacking that person. Notwithstanding I do not accept that the particular wording used in the section introduces the rather artificial limitation of liability to occasions of direct wounding by a dog. No reason in principle appears why an owner should be liable if his or her dog directly wounds a person but not liable if the person evades a direct wound and thereby sustains another, and more serious, injury. For these reasons I respectfully agree with the cited statement of Meagher JA and there is no need to consider whether it was dictum or part of the ratio of Eadie." 24Kirby P, in dissent in Zappia, considered that the section required that the injury be caused by "the dog wounding that person", language which was inconsistent with the person suffering a wound in the course of the attack. He rejected the reasoning of Meagher JA in Eadie as not necessary for the decision in that case. 25The third case was the decision of Davies AJ in Crump v Sharah [1999] NSWSC 884. The case involved two dogs barking at a horse, causing it to buck and throw the plaintiff to the ground. Davies AJ analysed the circumstances as not dissimilar to those of the motorcycle riders, stating: "[24] Notwithstanding that the words 'wounding' and 'attacking' could be read as requiring a wound directly inflicted by a dog, the section has been given a wide meaning so as to include injury suffered by a person as a result of an act of aggression by the dog. Injuries resulting from pure accidents are not comprehended by the section. I accept the view stated by Sheller JA in Eadie ... at 265 that '"attacking" is an act of hostility or aggression'. ... [25] The same approach was taken in Zappia .... [26] In the present case, I see no relevant distinction between the riding of a horse and the riding of a motor cycle or bicycle. There may be a distinction of fact in that, in Eadie v Groombridge and in Zappia v Allsop, each dog came into contact with the cycle. However, in my opinion, an actual contact is not necessary to establish an attack. It is sufficient that the two dogs, Bess and Sam, particularly Sam, joined in barking at the horse and that Sam at least had nipped at its hocks. The plaintiff was thrown off when the dog, who had been called back by [the owner] and had commenced to return, changed its mind and went again for the horse's rear legs."

Authority - 1998 Act 26There is one authority in this Court dealing with the Companion Animals Act, namely Coleman v Barrat [2004] NSWCA 27. The facts were similar to Crump v Sharah. However, as in Eadie, liability was upheld both in negligence and under the statutory regime. 27The principal judgment of the Court was given by Gzell J, with whom Sheller JA and Beazley JA agreed. The issues were addressed in six short paragraphs. First it was noted that the evidence did not suggest that the dog posed a real threat to horse or rider: at [35]. Although it was not critical for the reasoning, Gzell J rejected that characterisation, expressing the view that "the actions of the dog constituted an attack": at [40]. 28At [36], he set out the terms of s 20 following the 1977 amendment to the Dog Act, noting that the "dual elements of wounding in the course of an attack are no longer required": [37]. At [38], Gzell J noted a submission that in considering the liability of the owner of a dog for injury to another animal, s 27 of the Act dealt separately with "attacking or chasing" another animal. The gravamen of the reasoning was at [39], expressed as follows: "In my view the trial judge was correct in concluding that the dog indirectly caused a wounding of Ms Barrat. She sustained the fractures to her wrist, elbow and possibly her shoulderblade as a result of being unseated from the horse due to the aggression of the dog. That finding was sufficient to enliven liability under the Companion Animals Act 1998 and it is, strictly, unnecessary to consider the dichotomy between attacking and chasing." 29At no point in Coleman were the terms of s 25 set out or analysed, except to note that the dual elements of wounding in the course of an attack were no longer required, However, careful attention was given to the three decisions under the Dog Act, suggesting that those decisions were treated as governing the construction of s 25. Further, although not treated as critical to the reasoning, Gzell J accepted that the conduct of the dog involved an attack, which is clearly an act of aggression. Thus, Coleman was not concerned with the scope of paragraph (a) in circumstances where there was no aggressive conduct on the part of the dog. The present case appears to be the first under the Companion Animals Act which has to consider whether the fact that the plaintiff was wounded as a result of active conduct of the dog, not directed at the plaintiff or indeed at any person or thing, is sufficient to give rise to strict liability on the part of the owner.

Application of section 30In this respect, though not in all respects, the submissions of the plaintiff invited the conclusion that, without comment or discussion, the legislature had sought to expand the owner's liability, in any case of wounding, to that which had existed before the 1977 amendments. That is not only implausible, but does not accord with the language used in s 25. The word "wounding" is a gerund derived from the verb "to wound" which, when used in its transitive form and in relation to bodily injury, means "to inflict a wound on (a person, the body, etc) by means of a weapon; to injure intentionally in such a way as to cut or tear the flesh": Oxford English Dictionary Online. In s 25, an injury to a person "caused by the dog wounding ... that person" involves a transitive form of the gerund. Further, "wounding" is a form of "attacking" and, from its position in the sentence, takes its meaning from its context. It is not used in the sense of a consequence, that is a wound being part of a bodily injury, but in the sense of an injury being caused by the dog conducting itself in a particular manner. 31According to the reasoning in the earlier cases, it may be sufficient that the dog does not touch the person but (a) causes injury to the person by colliding with the bicycle or motorcycle being ridden by the person, or (b) by causing the horse on which the person is riding to buck and throw the rider, or (c) by causing the person to take evasive action which in turn results in an injury. However, whether any of these effects falls within the term "wounding" will be irrelevant if some act of aggression is required because they will be part of the injuries caused by "attacking" the person. 32In this sense, wounding is a form of attacking. That would allow the whole of the section to be internally consistent, so that the same conduct of a dog will create liability in respect of damage to person or property and the exceptions in subs (2), defined by reference to "an attack by a dog" will cover all of the conduct which would otherwise fall within subs (1), to the extent that the independent preconditions in each exception are satisfied. 33One consequence of this approach is to render the words "wounding or" in paragraph (a) otiose. In other words, if wounding does not cover conduct in which there is no form of attack by the dog, wounding will have no separate effect. That may be so, but the form of the provision is explained by the amendment accepted in the course of the Parliamentary debate. Thus, the purpose of inserting the words "or attacking" was to expand the scope of liability of the owner beyond that which would be achieved by use of the term "wounding" alone. It does not appear that the intention was to add a requirement for an aggressive act where none existed. No doubt it is true that the same effect could have been achieved by removing the word "wounding" and replacing it with "attacking". However, as explained by Clarke JA in Zappia, it is not difficult to suggest clearer and more succinct forms of drafting. 34There is another sense in which the use of the apparently repetitive language is to be explained. Liability for injury to another animal depends on the injury being "caused by the dog attacking or chasing it": s 27(1). Although Gzell J in Coleman was satisfied that there was a distinction between "attacking" and "chasing" it could hardly be said that they were independent, in the sense of being mutually exclusive. No doubt such phrases are not strictly described as an hendiadys, because of the use of "or", rather than the conjunctive "and". On the other hand, it is not uncommon to use very similar ideas in disjunctive form. Thus, in Victims Compensation Fund Corporation v Brown [2003] HCA 54; 77 ALJR 1797, at [34] Heydon J adopted the expression "a composite or portmanteau phrase" as an alternative to "hendiadys". The law is littered with examples of two expressions being used when one would do. 35No doubt it is entirely appropriate, in most cases, to look for difference in meaning when the conjunctive "or" is used; however, where there is a clear explanation for that construction being used without different meanings being intended, the search may properly be abandoned.

Conclusion 36The expression in s 25(1)(a) of the Companion Animals Act "caused by the dog wounding or attacking that person" should be understood as limited to conduct involving an element of aggression or other deliberate conduct directed towards that person by the dog. As accepted by Moffitt JA in Martignoni (see at [10] above), inaction on the part of the dog will not suffice. Whether "wounding" requires that a distinction should be drawn between over enthusiasm and aggression, as suggested by Sheller JA in addressing "attacking" in Eadie (see at [20] above), need not be decided. However, the section does require that there be conduct directed at the plaintiff. Where a dog causes bodily injury without any aggressive or other deliberate intent on its part, there will be no liability in the owner under s 25. 37It being common ground that the unfortunate dog involved in the present accident (it died in the collision with the motorcycle) had no aggressive or other intent but ran blindly across the road, being at large without fault on the part of its owner, the owner (the present appellant) will not be liable for the serious injuries suffered by the plaintiff. Accordingly, the following orders should be made: (1) Allow the appeal and set aside the judgment and orders made in the District Court. (2) Enter judgment for the defendant in the District Court, with costs. (3) Order that the respondent pay the appellant's costs in this Court. (4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of his costs of the appeal. 38MACFARLAN JA: I agree with Basten JA. 39WARD JA: I agree with Basten JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2013

Suitors' Fund Act 1951(NSW)

Dog and Goat Act 1898(NSW)

Dog (Amendment) Act 1977(NSW)

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