ZAPPIA v ALLSOP

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

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

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

Kirby P This appeal and cross appeal concern a judgment entered in favour of Mr Terrence James Allsop (the respondent) against Mr Paolo Zappia (the appellant) following injuries sustained by the respondent after an encounter with a dog on a public street.

The facts of the case are stated in the reasons of Clarke JA. Upon all but one of his Honour's conclusions, I am in entire agreement. Thus, I agree that:

1. No error was shown in the conclusion of the primary judge (McLachlan DCJ) that it had been shown that the appellant was the "owner" of the dog in question within the special definition of "owner" contained in s4 of the Dog Act 1966 (the Act);

2. The respondent suffered "bodily injury" to his person "caused by the dog";

3. The injury was caused by the dog "in the course of attacking" the respondent. The evidence clearly showed that the dog charged at the respondent on his bicycle, growling and barking at him. In my view, this was an "attack" for the purposes of s20 of the Act; and

4. The finding of contributory negligence based upon the respondent's suggested failure to avoid the public street where (from past experience) he knew that the dog was prone to run at him when passing on his bicycle, is not sustainable.

But for the different view which I reach on the matter of "wounding", I would therefore join in the orders which Clarke JA has proposed for disposing of the appeal and cross appeal. However, the point of difference is an important one. It affects my view as to the outcome of the proceedings.

The meaning of "dog wounding" in the Dog Act 1966 The critical statutory words appear in s20(1) of the Act. They are as follows:

"20(1) Subject to subs(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.

(3) This section does not affect the liability apart from this section of any person for damage caused by a dog."

Subs(2) is not relevant, being concerned only with an attack by a dog on the owner's property or as a result of an international provocation. Neither of these disqualifications applied to the present facts.

It will be seen that the task before the Court (as it was before the primary judge) is, relevantly, to give meaning to the word "wounding" by the dog in the context in which that phrase appears in s20(1)(a) of the Act. Normally, wounding involves an injury to a person by which that person's skin is broken. See R v Newman [1948] VLR 61 (VSC), 64; R v M'Loughlin (1838) 8 C and P 635, 638; JJC (a minor) v Eisenhower [1983] 3 All ER 230 (CA), 233. In the context of the criminal law of offences against the person, it usually means the intentional injury to a victim "in such a way as to cut or tear the flesh".

It is, however, important to give the word "wounding" a meaning appropriate to the context in which it appears. This involves not the criminal law but the civil law; not the deliberate conduct of a human agent but the activity of a "dog" described in such generality; and the assignment of liability where the legislature has deemed it appropriate to fix the owner with civil responsibility although that owner is:

(a) not necessarily personally responsible for the conduct of the dog; and

(b) not responsible otherwise than by the operation of the statute.

The meaning of s20 of the Act is, as Sheller JA observed in Eadie v Groombridge (1992) 16 MVR 263 (NSWCA), not without "considerable difficulty".

See ibid, 265. In order to unravel the difficulties, it is appropriate to:

1. Have regard to the legislative background to the enactment of s20 of the Act;

2. Consider the report of the New South Wales Law Reform Commission upon which the text of the section is based; and

3. Then return to the language of the section to give it meaning in its context and for the apparent purpose for which it was enacted.

The history of the dog legislation in New South Wales Dogs existed on the Australian continent before the arrival of the European settlers. However, the settlers (and presumably some military and convicts) brought dogs with them on the long journey from Europe. They were used as guardians of persons and property and as pets. Not long after the establishment of the colony the proliferation of dogs presented a significant social problem. So much was acknowledged in the recital to the preamble of very early colonial legislation, viz Act 11 George IV No 8. It stated:

"...[t]he Streets of the Towns of Sydney Parramatta Liverpool and Windsor are infested by the great number of dogs which are allowed to go loose at all hours of the day and night to the danger of passengers..."

As a result, s12 of that Act rendered the owner of a dog liable to fine if the dog "shall attack any person" in a public street. The imposition of the fine was stated to be "over and above the amount of any damage which such dog may occasion". The commencement of a regime of no fault liability by statute was thus initiated. This involved a modification of the inherited English common law which had, until then, presented a "pot pourri of special rules of medieval origin". From the fourteenth century, an action lay for redress in respect of damage caused by a savage or dangerous animal. It was known as the "scienter action".

Its basis was the knowledge, actual or presumed, of the keeper of the animal that the animal had a savage disposition and was liable to attack and wound mankind. So the cause of action was conventionally pleaded. Animals were divided into two classes, namely wild (ferae naturae) and tame (mansuetae naturae). Domestic dogs were classified for this purpose as tame. To render the owner liable for damage done by a dog, it had to be proved that the animal had previously shown, so that its keeper could be aware, a disposition dangerous to mankind. It was to modify that rather strict rule (sometimes said to explain the folk wisdom that a dog was entitled to one bite) that legislative reform was enacted by the New South Wales legislature.

The first reform in Act 11 George IV No 8 was temporary. However, that Act was revised and continued with additions and amendments by Act 6 William IV No 4. This Act was known as the Dog Nuisance Act 1835. S8 of that Act extended the power to fine a dog owner "over and above the amount of the damage caused" to cases where "in any street... [the dog] rush at or attack any person or horse or bullock...".

In England, by the Dogs Act 1865, a large field of no fault liability was established:

"The owner of every dog shall be liable in damages for injury done to any cattle or sheep by his dog; and it shall not be necessary for the party seeking such damages to show a previous mischievous propensity on such dog, or the owner's knowledge of such previous propensity, or that the injury was attributable to neglect on the part of such owner..."

The foregoing section became the source of s9 of the Dog Act Amendment (No 2) Act 1875 of New South Wales. The liability without fault for injury done by dogs was not limited, as it had been in England, to injury to cattle or sheep. It extended to persons.

In due course, s9 of the 1875 Act became s19 of the Dog and Goat Act 1898. It read:

"19. The owner of every dog shall be liable in damages for injury done to any person, property or animal by his dog, and it shall not be necessary for the party seeking such damages to show a previous mischievous propensity in such dog, or the owner's knowledge of such previous propensity, or that the injury was attributable to neglect on the part of such owner."

In earlier, less complicated, times there was much litigation about this section. It even came under the scrutiny of the High Court of Australia in Simpson v Bannerman (1932) 47 CLR 378. The owner of a dog running loose in its owner's premises was held liable, under the section, for injuries done to a passer by who, unaware of the danger, placed his hand on the top of a fence of the premises and was bitten by the dog. Gavan Duffy CJ, Dixon, Evatt and McTiernan JJ, at 383 observed:

"The opening words of this provision express a liability without conditional or qualification. It may be said that the very generality of its terms provokes attempts at restriction by implication. No doubt it is improbable that the Legislature meant that in circumstances sufficient to justify or excuse the intentional infliction of harm by the owner should afford no answer to his statutory liability for injury done by his dog. Perhaps an even greater limitation than this is required upon the meaning of the provision. But, however this may be, we are quite unable to adopt an interpretation of the section which excludes liability to a person who does no more than thoughtlessly place part of his body within the close where the dog roams."

When the Dog Act 1966 was enacted, s20 of the Act in its original form followed s19 of the Dog and Goat Act 1898. This was the condition of the law of the State when the New South Wales Law Reform Commission was, in 1967, requested to review the law "relating to damage caused by or to animals''. In its work, the Commission drew upon the earlier work of the Chief Justice's Law Reform Committee.

The report of the Commission Civil Liability for Animals (LRC 8), 1970 recommended that s20 of the Dog Act 1966:

".. [ble reframed so as to make it clear that the conduct of a dog which is relevant for the imposition of liability without fault is that of the dog attacking a person or attacking, worrying or chasing an animal." (para38 at 24).

The Commission was concerned to fix an outer limit for the liability of an owner of dogs in such a way that it would:

".. not [be] unreasonable to impose liability for damages upon the owner of the dog, even though he has not been in any way at fault for the damage which the dog has caused..." (para39 at 24).

This consideration led the Commission to the following view:

"Tt would be unjust, in our opinion, to impose the statutory liability for every harmful consequence of a dog attacking a person or attacking, worrying or chasing an animal. A consequence of a dog chasing a cat across a street, for example, may be that there is a major motor vehicle accident. It hardly would be reasonable that, in such a case, the owner of the dog, where no want of care on his part contributed to the occurrence, should be liable either for the damage to the motor vehicle or for any bodily injury sustained in the accident. We recommend that in the case of a dog attacking a person the statutory liability to be limited to liability in damages in respect of any bodily injury to and damage to clothing of that person caused by the dog wounding him in the course of the attack... We consider that our recommendations place the limits of the statutory

liability as widely as can be done with assurance that the bounds of reasonableness are not exceeded." (para39 at 25). (emphasis added)

In so observing, it is clear (and the citation of the case puts it beyond doubt) that the Commission was seeking to respond to the need for limitations upon the no fault liability, as suggested by the observations of the High Court in Simpson v Bannerman. It is therefore plain enough, both from the course of the legislation and from resort to the law reform report, to elucidate the ambiguities of the statutory text, that a reduction of the ambit of liability of dog owners was intended. It was not enough that it should be shown that the defendant was the owner of the dog which had caused damage to the plaintiff. Two other ingredients were required to fix the limits of liability. These were that the dog should have attacked the person and, in the course of doing so, wounded that person.

These pre conditions suggest a high degree of immediacy in the connection between the attack of the dog on the person and the act of wounding by the dog. So much is not really in dispute. What is in question is whether, to bring liability home to the "owner", it is necessary for the plaintiff to show in this context not only that he was attacked by the dog but that, in the course of that attack, a direct wounding occurred which was actually caused by contact between the dog and the person. In my view, this is what is required:

1. It is what the Act provides in its terms. The "wounding" referred to is a wounding by the dog. It is not a wounding which is caused by the dog. Had that been the drafter's intention, the phrase would have read:

"Bodily injury, being a wound, caused by the dog. "

Instead, the drafter, following the text of the Law Reform Commission's report, made it plain that the wounding must be a "dog wounding";

2. If the view preferred by the majority is accepted, and it is enough that the wounding is caused indirectly, as here, by a fall to the ground (or collision with another vehicle or object, person or animal) it might have been expected that the words "wounding that person" would have been omitted from the Act. It would have been enough that the plaintiff should show that he or she suffered bodily injury "caused by" the dog. The proximation between the words "dog" and "wounding" make it plain that it must be the dog which effects the wounding, not some other object or event; and

3. This construction fits more comfortably with the problem which the Law Reform Commission posed for itself and which it sought to answer in the formulation which now finds its reflection in s20 of the Act. This was to cut back the no fault liability of dog owners, which the High Court in Simpson had suggested might be too wide. And to do so by reference to the necessity of an attack in the course of which the dog had wounded the person.

But does the authority of this Court in Eadie v Groombridge stand in the way of this conclusion? I think not. It is true that in that case, Meagher JA (ibid, 264, 265) said:

"There was a 'wounding" within the section. The plaintiffs skin was broken. This is sufficient to constitute wounding for the purpose of the criminal law... Such an injury also satisfies the requirements of s20... One can be 'wounded' by a dog even if the beast has not lacerated 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. I can discern no reason why wounding which is an indirect result of an attack by a dog should fall outside the section."

Handley JA agreed with Meagher JA without separate reasons. Sheller JA, on the other hand, confined his conclusions to the plaintiff's entitlement, in that case, to recover on the ground of the dog owner's negligence at common law.

It is plain from an examination of the case that the ratio decidendi of it is the liability of the owner in negligence. Meagher JA in Eadie said as much in stating that this conclusion on that point was "sufficient... to conclude that the appeal must fail". His added words concerning s20 were therefore offered "for completeness". They are not necessary to the orders made by the Court. Sheller JA (who was the only Judge who referred to the history of the Dog Act 1966) described the contention that liability was established under s20 of that Act as one presenting "considerable difficulty". He felt it unnecessary to decide the point. I am therefore not bound to the opinion which Meagher JA expressed. Respectfully, I disagree with it.

1. the history of the legislation against the background of the common law;

2. the criticisms of its excessive ambit in the High Court;

3. the perceived need for reform which led to the inquiry of the Law Reform Commission; and

4. the reports of that Commission all suggest the deliberate reigning-in of the liability of dog owners to persons injured by their dogs. To fix that liability it is necessary to show, relevantly, a wounding by the dog in the course of an attack on the person. The error of importing criminal law notions involving indirect liability for a wounding by a human agent is, in my respectful view, clear. It is illicit to transpose from another legal context, notions not apt to the construction of this particular statute. Not only are the notions inapt to the language of s20 of the Act which talks of "dog wounding". They are inappropriate to the statutory history and to the law reform report.

It is wrong in principle to apply notions of criminal responsibility of individuals for the indirect consequences of human intentional activity to the civil liability of owners for the conduct of their dogs, which may be unpredictable and such as to leave the owner completely without fault. If the legislature had intended to impose such a liability, it would, I think, have left the old s20 of the Dog Act 1966 alone. Having deliberately restricted the ambit of owner liability to dog caused wounding in the course of an attack, I do not believe that this Court should effectively write out of the statute the necessity which Parliament deliberated imported to prove a "dog wounding". Appearing as that phrase does in the context of an "attack" by a dog, I believe that it imports direct contact between the dog and the injured person. I consider that that is what the Law Reform Commission intended. It is what Parliament, by its words, enacted.

The result of this analysis is that it is my opinion that McLachlan DCJ erred in finding that the appellant was liable to the respondent under the statute. As his Honour dismissed the claim against the appellant framed in the tort of negligence, and as there was no cross appeal on that decision, it necessarily follows that the basis of the respondent's recovery against the appellant is destroyed. The orders which follow - and which I would propose - are:

2. Set aside the judgment entered by his Honour Judge McLachlan in favour of the respondent against the appellant;

3. In lieu thereof, order that the plaintiffs action be dismissed with costs;

4. Order the respondent to pay the appellant's costs of the appeal but have, in respect thereof, a certificate under the Suitors' Fund Act 1951; and
5. Order that the cross appeal be dismissed with costs.

Clarke JA About 8.35 pm on 8 October 1985 the respondent, Mr Terrence Allsop, and his son Clint were riding their training racing bicycles in a northerly direction along Clarke Street, Riverstone. They approached a rise in the roadway approximately 150 metres before its intersection with Riverstone Road when a large white woolly dog ran out of the driveway of Lot 24 Clarke Street, which is on the Eastern side of the road, barking and growling. The dog ran at the two bicycles and ultimately crashed into the rear wheel of the respondent's bicycle causing him to be thrown to the ground and knocked unconscious. The dog then ran back into the driveway. An ambulance was called and the respondent and his son were taken to Blacktown Hospital. The respondent was treated for concussion and minor abrasions to his arms and head.

The respondent sued Mr Zappia, the appellant, who was the owner of the property at Lot 24 Clarke Street for damages in respect of his injuries. He relied on two causes of action. First, he said that the appellant was liable pursuant to s20 of the Dog Act 1966 and, secondly, he relied on negligence. The appellant denied liability and the trial eventually came on before McLachlan DCJ in October 1992 when it was adjourned to February, and later April, 1993. On 15 April of that year his Honour found in favour of the respondent and entered judgment in his favour in an amount of $87,911.60.

In his judgment his Honour found for the respondent on the cause of action raised under the Dog Act, found for the appellant on the negligence count and, pursuant to s20C of the Dog Act, found that the respondent had been guilty of contributory negligence and reduced his damages by thirty three and a third per cent.

The appellant appealed against the liability finding and, by a supplementary notice of appeal, the quantum of the damages. For his part the respondent cross appealed against the finding on contributory negligence and a number of areas of the assessment of damages. At the commencement of the hearing of the appeal both parties abandoned the challenges to the assessment of damages and the hearing was restricted to a consideration of the arguments on liability.

The appellant's first submission was that his Honour erred in concluding that the appellant was the owner of the white dog. 'Owner' is defined in s4 of the Dog Act, relevantly, as follows:

"'Owner', in relation to a dog, means (...), the person by whom the dog is ordinarily kept and includes:

(a) where the dog (...) is, at any particular time, ordinarily kept on any land or in any premises, the person who is the occupier of that land or those premises at that time;..."

It was accepted that the appellant was the occupier of Lot 24 but his counsel argued that the facts proved in evidence did not establish that the dog was ordinarily kept on that land. In rejecting a similar argument by the appellant his Honour said:

"There is too much against the defendant on a factual basis. Even if I accept the arguments of the defendant that the admission to the police and the plea of guilty can be explained there is still the evidence of the plaintiff and his son (suspect in the case of the son) of the dog coming out of the gateway on numerous occasions prior to the accident. There is the evidence of permitting the

dog to feed and not reporting it to the local council and then there is the evidence that after the accident the defendant was advised to keep the dog for reference. The last is a little difficult to understand."

This conclusion, which appeared after a lengthy consideration of the facts, needs some further explanation.

The respondent had said in his evidence that he lived about one and a half kilometres from the scene of the accident and that he used to ride along that street two to three times per week prior to the accident, either with or without his son. He said he was invariably chased by the dog which came out of the appellant's property. The dog was difficult to see because of the foliage and he said "it barked when it saw you and you then had less than ten seconds to get past the gate". Sometimes, he said, he would catch a glimpse of the dog on the side of the house. The respondent said that this happened for about three to four months prior to the accident and during this period he must have been pursued by the dog, which ran from the appellant's property, about thirty times. He added, as his Honour observed, "we used to try to sneak past the property so that the dog wouldn't hear us or see us".

This evidence was obviously accepted by his Honour and was the first matter upon which he relied. Without more it is powerful evidence that the dog was ordinarily kept at the appellant's premises and may in itself have been sufficient to establish the necessary ownership. However, his Honour also relied on additional material. The first of this was the evidence "of permitting the dog to feed". His Honour was there referring, I apprehend, to evidence given by the appellant during his cross examination that prior to the accident he had seen the dog eating food on his land. This evidence was of a somewhat equivocal nature and needed to be considered in the light of the appellant's denial that the dog had been kept on the premises prior to the accident. What the appellant sought to emphasise was that, while the dog may have come onto his property scavenging from time to time, it was chased away at all times prior to the accident.

However, on the day following the accident he and his family decided to keep it on the land and from then on it was ordinarily kept there. This evidence was rather extraordinary and difficult to accept. In explanation the appellant said he kept the dog because he had been advised by a neighbour to keep it there for reference. I have carefully read this evidence and, like his Honour, I find it difficult to understand.

Finally his Honour relied on the fact that the appellant had not reported the fact that the dog was roaming about in the neighbourhood and scavenging to the local council. I myself would not place much weight on this evidence and I do not understand his Honour to have done so. The combination of the respondent's evidence as to the events prior to the accident and the appellant's admission that the dog was kept on the premises from the day after the accident raise in my mind an irresistible inference that the dog was ordinarily kept there both prior to and after the accident. I would, therefore, agree with his Honour's conclusions.

I should not leave this issue without referring to two other matters. The appellant was charged with being the owner of a dog which attacked a person and being the owner of an unregistered dog. On 30 April 1986 he pleaded guilty to both charges and his barrister said at the hearing, inter alia, that he had proposed to call a person who knew the dog well and who would say that the dog had come to the appellant's premises about six months ago but that it was a docile dog. The reference to 'six months ago' is a trifle ambiguous bearing in mind that the hearing at the Local Court took place about six months after the incident but the

point is that the appellant pleaded guilty and his barrister did not suggest that he had not been keeping the animal at the relevant time. The appellant sought to explain the plea of guilty by saying that he really didn't have the time or money to fight the case. This may or may not have been so but the plea does, in my view, stand as evidence that supports his Honour's conclusion particularly insofar as it is consistent with the respondent's evidence as to his experience during the three months prior to the incident.

The second matter to which I wish to refer is that, according to the transcript taken at the time of the plea of guilty, the appellant told investigating police officers on 22 December 1985 that he did own the dog "but it was not really ours, it came to our place about six months ago and the family feed it and look after it'. The appellant denied this evidence but admitted that he had said that the dog had come to his place about six weeks previously which would have been about the beginning of November 1985. His Honour made no finding on this apparent conflict of evidence and it is not open to this court to do so now. Because, however, of the conflict and the explanation for the plea of guilty his Honour put those two factors to one side in reaching his conclusion In all these circumstances, I conclude that not only was it open to his Honour to reach his conclusion on the issue of ownership but he was correct in that conclusion.

The appellant's counsel next submitted that the respondent had failed to establish the elements of the cause of action created by s20 of the Dog Act. Subs(1) of that section reads:

"Subject to subs(2) (which is not presently relevant) 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;

The first submission which was made was that there was no evidence of a wounding in that there was no evidence that the respondent's skin had been broken in the incident. When it was pointed out to counsel that his Honour had stated that that was not an issue in the case and that it was too late to raise it in this court the submission was abandoned.

It was then submitted that the element of wounding requires direct contact between the dog and the person. It was not enough, according to counsel, to establish that the respondent had sustained bodily injury as a consequence of falling from his bicycle immediately following the collision between the dog and his bicycle. The element of wounding in the section could only be satisfied if the dog physically and directly attacked and injured the respondent. The submission is, as counsel conceded, inconsistent with the statement by Meagher JA (with which Handley JA agreed) in Eadie v Groombridge (1992) 16 MVR 263 at 264 that:

"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."

The concept that one can be indirectly wounded by another is well established at least in the criminal law. But the appellant's counsel submits, correctly in my view, that the question in this case is one of statutory construction. While, therefore, he accepted the concept of an indirect wounding in the criminal law he

submitted that the reference to both "bodily injury" and "wounding" in the sub section made it plain that it was not enough that the dog caused the person bodily injury but that it must do so by a wounding. For this reason he submitted that there must be direct contact between the dog and person. In support of the submission he pointed out that the statute fixed a liability on a person who was not negligent and that the legislature had been concerned to ensure that a line was drawn beyond which such a person could not be held liable for the actions of his or her dog and in this case that line involved excluding injuries indirectly caused by a dog from the area of liability.

It is clear, as counsel submitted, that the 1977 amendment to s20 of the Dog Act, which followed the publication of the New South Wales Law Reform Commission Report No 8 on 29 June 1970, was effected to narrow the liability previously created by that section. It had, prior to the amendment, been expressed in terms which imposed liability very widely. The section simply said that:

"The owner of a dog shall be liable in damages for injury done to any person...". The mischief, if such it was, that the Act sought to address was the imposition of liability in situations which the legislature considered unfairly penalised dog owners. For instance, there should be no liability if a dog indirectly wounded a person while chasing a cat or where a person suffered injury from falling in consequence of tripping over a sleeping dog. 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. In the examples I have given there was no attack and there would therefore be no liability under the section. 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 occurred during the course of an attack on the injured person and circumstances where there was no attack.

It follows that, in order to establish liability, it is necessary for a plaintiff to establish, first, that he or she suffered bodily injury and, secondly, that the injury was caused by a dog wounding him or her in the course of an attack upon him or her. 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. I would add that this conclusion is supported by CL34 to CL37 of the Law Reform Commission Report to which reference can be made in order to ascertain the mischief which the amendment sought to correct. I would accordingly reject the submission.

It was then submitted that the fact that the dog charged at the respondent growling and barking did not establish an attack. This submission has, in my opinion, no substance and neither has the following one, which was that the bodily injury was not caused in the course of the attack. The evidence is clear that the respondent fell to the ground as a result of the collision and there is nothing in the evidence which supports the appellant's submission.

For these reasons the various challenges to his Honour's finding on liability fail and the verdict in favour of the respondent should stand.

The respondent challenged the finding on contributory negligence. In the statement of defence the appellant gave two particulars of contributory negligence. First, there had been a failure to use safety and protective equipment provided and, secondly, there had been a failure by the respondent to take any reasonable care for his own safety. It is doubtful whether the second particular is a proper particular in view of the width of expression, but that is presently of no moment. The respondent said that he was wearing a safety helmet at the time of the incident and in the light of that evidence the first particular failed. His Honour, however, found the respondent guilty of contributory negligence in continuing to use Clarke Street when he knew of the dog's propensity to rush out at him.

I simply cannot accept that a member of the public could be found to be guilty of contributory negligence simply by using a public road in the circumstances of this case. The respondent had every right to use the road and it could hardly be said that he was guilty of contributory negligence if he declined to be frightened away from it, yet that seems to me to be what his Honour held. The appellant's counsel sought to bolster his Honour's conclusion by reference to evidence that the respondent had not complained to the police or the local council about the dog, nor had he written to or telephoned the appellant. No doubt these are steps which he could have taken but the fact that he continued to use the road, which was his right and entitlement, without doing those things is not capable, in my opinion, of constituting contributory negligence. Accordingly, I would set aside his Honour's finding on that issue.

(3) Judgment of McLachlan DCJ set aside and in lieu thereof direct the entry of judgment for the respondent in the sum of $131,867.40, such judgment to date from 15 April 1993;

(4) The appellant is to pay the respondent's costs of the trial and of the appeal and the cross appeal and is to have a certificate under the Suitors Fund Act in respect of the costs of the cross appeal.

3. Judgment of McLachlan DCJ set aside and in lieu thereof direct the entry of judgment for the respondent in the sum of $131,867.40, such judgment to date from 15 April 1993; and

4. The appellant is to pay the respondent's costs of the trial and of the appeal and the cross appeal and is to have a certificate under the Suitors' Fund Act 1951 in respect of the costs of the cross appeal.

Counsel for the Appellant: JR Young Instructed by: Benjamin and Khoury Counsel for the Respondent: AL McSpedden