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Chapter 6 - Torts and Damage

05 Oct 2017 - 16:45 | Version 2 |

This Chapter presents a range of cases concerning civil wrongs involving animals. In some cases such as Behrens v Bertram Mills Circus Ltd and Aleksoski & v State Rail Authority of NSW, the animals were held to be the cause of personal injury to humans. In other cases such as Beaumont v Cahir an animal was injured and his or her owner sought compensation.

Where an animal is injured or killed, an important issue stems from the question of compensation. Although animals are often considered to be a part of the family, Australian courts struggle to award damages on the basis of anything other than characterisation of animals as property. Accordingly, while loss of the commercial value of an animal may be claimed, deprivation of the companionship provided by the animal is not recoverable.

In the United States a different line of thought is emerging. As the decision in Ferguson v Birchmount Boarding Kennels Ltd illustrates, an owner may be awarded special damages for pain and suffering for the loss of their animal. Damages are still based on the human's loss of an item of property; however, the damages extend beyond the objective commercial value of the animal.

Some of these cases use the term "scienter", which refers to an action based on the fact that a defendant has existing knowledge of a set of circumstances and did not use that knowledge to preclude an injury to the plaintiff. In the context of animal law, scienter would relate to the defendant's prior knowledge of the aggressive nature of their animal, and their accompanying failure to guard the plaintiff against injury by the animal. This action has been progressively abolished in many jurisdictions.

6.1 Robinson v Wagner (1911) 30 NZLR 367

Prepared by Ashleigh Best

Court

Supreme Court of New Zealand

Facts

Section 16 of the Dog Registration Act 1908(NZ) ('the Act') permitted a person who found an unregistered dog on their premises to "destroy" the dog. The defendant found the plaintiff's unregistered dog on his property and castrated him or her. As a result of the procedure, the dog became lethargic, impeding his ability to work. Consequently, the value of the dog decreased from PS10 to PS3. The plaintiff brought an action in damages against the defendant, claiming that as the defendant did not actually destroy the dog, he had failed to adhere to the remedy provided under the Act. Accordingly, the defendant should be liable for the economic loss sustained by the plaintiff as a result of the castration.

Issues
  • Whether the permission to destroy an unregistered dog granted by the Act extended exclusively to killing the dog, or also allowed other damage, such as castration, to be inflicted upon the dog
Decision and Reasons for the Decision

Stout CJ found that, by castrating the dog, the defendant had destroyed the dog for the purposes of the Act. As the defendant's conduct in the circumstances was permitted by the Act, the plaintiff was unable to recover damages for the economic loss sustained.

Stout CJ referred to the decision in Thompson v Burling (1890) 8 NZLR 378, in which the Court found that a comparable Act excused a party who, in similar circumstances, had been charged with maliciously injuring a dog. Applying this case, the Court held that the Act permitted the analogous conduct of the defendant, which also fell short of killing the dog.

Stout CJ also identified that, although "the defendant could have killed the dog, [h]e did not kill the dog, but merely wounded it". The defendant caused the plaintiff less economic loss than the Act permitted; the plaintiff accordingly suffered no damage for which he could take action against the defendant.

In interpreting the Act, Stout CJ affirmed that "the word 'destroy' does not only mean 'kill', [i]t may mean 'ruin'." As other sections of the Act specifically used the word "kill" where it was intended, Stout CJ concluded that "destroy" had been deliberately used and bore a meaning distinct from "kill".

Significance of the Case

This case reflects the law's classification of animals as property. Injuries sustained by animals attract remedies commensurate with economic loss suffered by the animal's custodian, rather than the severity of the harm to the animal. In this instance, the reasoning of the Court was based on the animal's assigned monetary value, informed by the animal's capabilities. In addition, the case indicates that destruction of an animal is not limited to killing the animal, but may include ruining or impairing the animal in some way.

6.2 Leeman v Montagu [1936] 2 All ER

Prepared by Barnaby Austin

Court

High Court of Justice of England and Wales (Kings Bench Division)

Facts

Leeman, the plaintiff, bought a house in a semi-rural, though mostly residential area. The property was adjacent to Black Lake Farm, owned by Montagu, the defendant. Montagu was a poultry breeder. At night, Leeman and his wife were disturbed from noise emanating from Montagu's property, which was made by 750 cockerels housed in a nearby orchard.

In accordance with a request from Leeman, Montagu moved the cockerels from the orchard to limit the noise. However, some months later, Montagu returned 200 cockerels to the orchard resulting in unacceptable noise levels. Leeman sought an injunction to restrain Montagu from operating as a poultry breeder on the property.

Issues
  • Whether the noise made by the cockerels constituted a nuisance
  • Whether the action by Montagu best minimised this nuisance
Decision and Reasons for the Decision

Nuisance

The Court held that the noise did constitute a nuisance. The area was semi-rural, but mainly residential. Had the area been a strictly rural one, the noise may not have constituted a nuisance. The Court ordered an injunction, which restrained the defendant from continuing to operate his business as a poultry breeder on the property. The Court's decision to grant the injunction was made so as to limit the damage caused by the nuisance to the plaintiff's quiet enjoyment of his land.

Remedying the nuisance

The injunction was suspended for one month in order to allow the defendant an opportunity to reduce the nuisance. The Court held that the defendant would not breach the injunction by using the area up to the orchard for breeding cockerels using normal breeding pens, populated in the normal way.

Significance of the Case

The case exemplifies the threshold of disruption which must be met in order for noise generated during the normal operation of a poultry farm to amount to nuisance. It defines what constitutes a reasonable nuisance, specifically with respect to nuisance stemming from keeping animals.

6.3 Behrens v Bertram Mills Circus Ltd. [1957] 2 QB 1

Prepared by Betty Yeung

Court

Queen's Bench Division of the High Court of England and Wales

Facts

The Behrens were midgets on exhibition in a booth adjoining a circus in London run by Bertram Mills Circus Ltd. They occupied the booth in accordance with a licence granted by the Circus. On 2 January 1954, the Behrens' manager, Mr Whitehead, brought a Pomeranian dog named Simba to the booth, although this was prohibited by the Circus' rules. Simba became loose while the elephants were passing by the Behrens' booth, and started barking and snapping at the elephants. Bullu, one of the elephants, became frightened and chased after Simba, in the process knocking down the booth, and injuring Mr and Mrs Behrens who subsequently filed a suit against Bertram Mills Circus Ltd for damages. The Behrens had not released Simba.

Due to the Circus' conduct, the female plaintiff suffered physical injury causing her to remain incapacitated until June 1954, while Mr Behrens suffered shock. After her recovery, Mrs Behrens was left with residual incapacity, including not being able to play her musical instrument as before. Both plaintiffs claimed for loss of earnings during Mrs Behrens' recovery, as Mr Behrens was unable to go on tour and exhibition on his own.

The Behrens sought damages, relying upon three causes of action. First, they claimed that the conduct amounted to trespass; however, this claim was abandoned. Second, the Behrens claimed that the Circus breached its absolute duty as a keeper of a "dangerous animal" to confine or control the animal (scienter action). Third, they submitted that the circus was liable for negligence.

Issues

  • Whether the Circus breached its absolute duty to the Behrens as a keeper of a dangerous animal (this was the scienter action)
  • In the alternative, whether the Circus was liable for negligence
Decision and Reason for Decision

Scienter action

The Court articulated the rule underpinning a scienter action: "A person who keeps an animal with knowledge (scienter retinuit) of [his or her] tendency to do harm is strictly liable for damage [the animal] does if [the animal] escapes; [the person] is under an absolute duty to confine or control [the animal] so that [the animal] shall not do injury to others." All animals who are not by nature harmless or who have not been domesticated (ferae naturae) are presumed to have such a tendency to do harm. Domestic animals (mansuetae naturae) are presumed to be harmless until they have demonstrated vicious tendencies.

Although Bullu, the elephant in question, was domesticated, the Court determined the animal's category by reference to his or her species, rather than actual circumstances. As the Court observed, "harmfulness of the offending animal to be judged not by reference to its particular training and habits, but by reference to the general habits of the species to which [the animal] belongs."

The Court concluded on this issue by answering the five contentions raised by the Circus in defence of the scienter action.

In respect of the argument that elephants were not ferae naturae, as required for the rule to apply, the Court followed the decision in Filburn v People's Palace and Aquarium Co Ltd (1890) 25 QBD 258. This decision held that all elephants were considered to be dangerous, regardless of their nationality - in this case, Burmese.

The Circus submitted that the scienter doctrine imposes liability upon an owner only for acts which are vicious and savage, and that the conduct of Bullu did not have this character. However, the Court held that the Circus was "liable for any injury done while the elephant was out of control". On these facts, it was found that there was such a failure to maintain control over the elephant.

The Circus then argued that the injuries were a consequence of the fault of the Behrens. However, the Court rejected this argument as there was nothing to suggest that the Behrens permitted Simba to be present at the booth. Another person, Whitehead, had permitted this and he was not the Brehens' employee; nor had the Brehens any ability to control Whitehead's conduct. Even assuming that the Behrens knew of Simba's presence, this would be insufficient to establish fault on the Behrens' part as Simba's presence could not be deemed an "obvious danger".

Moreover, in dispensing with the plea of volenti non fit injuria (voluntary assumption of risk) made by the Circus, the Court held that it could not be established that the passing of elephants created an obvious risk.

Finally, the Circus claimed as a defence to liability that the wrongful act was one of a third party, namely Whitehead and his dog. However, the Court identified that Baker v Snell [1908] 2 KB 352, which held that the intervening act of a third party was no defence, was binding authority. As such, the Circus could not rely on this defence.

Taking into account loss of earnings and injury, Mrs Behrens was awarded 2930 pounds and Mr Behrens, 480 pounds.

Negligence

The Behrens claimed that the Circus had been negligent as an alternative submission, which could be relied upon if the Court rejected the action based on scienter.

The Court dismissed the claim that the elephants were not properly controlled when walking past the booth. It also found that any posts and fence which it was claimed should have been erected would have been useless as the public could not be fenced off from the booths.

While the Court was not satisfied that on the evidence the defendants took all reasonable measures to ensure that small animals were not brought into the fair, it was clear that Whitehead knew of the prohibition. Nonetheless, the Court also accepted that Whitehead, quite reasonably, did not appreciate the danger posed by the dog. Finally, the Court found that the Behrens were not aware of the dog's presence.

The Court did not definitively conclude on the matter of negligence.

Significance of the Case

This case confirmed that in determining whether or not harmful tendencies in an animal will be presumed for the purposes of a scienter action, the animal's species is the relevant test. All ferae naturae are presumed to be dangerous; as such, harmful tendencies do not need to be proved. The case reinforced the rule that the owner is under an absolute duty to confine or control a dangerous animal so that it will not do injury to others. Devlin J noted that whether the animal is dangerous is a question of law and not a question of fact, because it "is a matter upon which judicial notice has to be taken. The doctrine has from its formulation proceeded upon the supposition that the knowledge of what kinds of animals are tame and what are savage is common knowledge".

6.4 Draper v Hodder [1972] 2 QB 556

Prepared by Mansum Margaret Wong

Court

Court of Appeal of England and Wales (Civil Division)

Facts

Draper, the plaintiff, was three years old and lived with his parents on an un-gated property. This opened to a lane, located fifteen yards from the entrance to the defendant's property, which was also un-gated. The defendant was a breeder of Jack Russell Terriers and kept approximately thirty dogs and puppies.

While playing with another child in his backyard, Draper was attacked by seven terriers who had escaped from the defendant's property. Draper was severely injured, sustaining over one hundred bites.The Court noted that the dogs frequently visited the backyard and scavenged among the dustbins while Draper and other children were playing there without exhibiting any aggression.

A veterinary surgeon who was called as a witness for Draper identified the possibility that Jack Russell Terriers may get excited and attack children, and that Hodder, being an experienced dog breeder, should have been conscious of this characteristic. Further evidence provided by a dog breeder indicated that it was dangerous to allow Jack Russell Terriers to roam freely, as when they are with other dogs, they have a tendency to attack anything which is mobile.

Contrary to this evidence, a veterinary surgeon testifying on behalf of the defendant gave evidence that the terriers in question were of a particularly "mild strain." The witness further stated that he had never heard of an attack on children by Jack Russell Terriers. However, he also stated that he would not permit a pack of these dogs to roam without supervision, since there was a slight chance that they may fight and cause harm.

Issues
  • Whether the risk of injury to Draper was foreseeable, imposing a duty of care upon Hodder
  • If so, whether Hodder breached his duty of care to Draper
  • Whether Draper's father, the second plaintiff, was liable in any way for the injury
Decision and Reasons for the Decision

The Court affirmed the decision of the trial judge that an action based on scienter could not be maintained as it was impossible to identify which dogs were responsible for the injuries.

Foreseeability of harm

The relevant test for foreseeability was whether harm could be occasioned, rather than whether the actual physical harm which was sustained could have been anticipated. It was established that Hodder was aware of the dogs' freedom to roam and Draper's presence in the near vicinity. Given the propensity of Jack Russell Terriers to attack humans when acting in a pack, Hodder should have known that the dogs could be aggressive. As such, the Court held that Hodder "ought... to have realised that risk of real harm to the child was involved." Hodder therefore owed a duty of care to Draper.

Breach of duty of care

The expert evidence indicated that, given the risk of harm posed by the dogs roaming in packs, they should have been confined. Accordingly, it was held that Hodder breached his duty of care to Draper in failing to take "special precautions", namely measures to restrain the dogs.

The responsibility of Draper's father

The claim for a contribution from Draper's father failed as it was held that he could not have known of the risk, and that as such, he was not under a duty to protect Draper from its manifestation.

Significance of the Case

There is a duty for the owner to take reasonable care to prevent damage by animals, including domestic and seemingly harmless animals. Failure to do so could result in the owner being liable on the grounds of negligence for damage caused by the animal to third parties. The liability for a harmless animal's acts only arises if it has an abnormal dangerous characteristic that is known, or ought to be known, by its owner.

The case also raises interesting notions of animal culpability. In His Honour's statement of the facts, Davies LJ recounted that after discovering the puppies with blood around their mouths, Hodder shot two of them, and subsequently instructed his veterinary surgeon to euthanise five more. Hodder was deemed responsible for the injuries caused and as owner of the dogs he was also legally entitled to destroy the dogs whom he negligently permitted to escape. It is a consequence of animals' characterization as property that owners can deal with their animals in this way, even where humans are also liable for the animal's conduct,.

6.5 Galea v Gillingham [1987] 2 Qd R 365

Prepared by Rosario Russo

Court

Supreme Court of Queensland

Facts

Twelve year old Galea, the plaintiff, accompanied her father to a property inspection. Gillingham, the defendant, owned the neighbouring property and the common boundary was unfenced. While Galea's father was inspecting the property, Galea was wandering around the house and was attacked by a German shepherd. She was bitten on her chest and stomach and suffered multiple scratches.

Galea sued Gillingham, claiming damages for the injury she sustained from the dog attack. The trial judge found that Galea's injuries occurred as a result of Gillingham's negligence. Gillingham appealed against this finding.

Issues
  • Whether there was a foreseeable risk that the kind of injury sustained would be caused by the German shepherd
Decision and Reasons for Decision

Shepherdson J noted that Draper v Hodder [1972] 2 QB 556 established that a plaintiff suing in negligence for an attack by a domestic animal who was relatively placid prior to the incident, must prove:
  • That in the absence of reasonable care by the animal's owner, there was a foreseeable risk that the type of injuries suffered by the plaintiff could have occurred; and
  • A propensity on the part of the animal, not necessarily known to the owner, but one which was such that the owner ought to have known, and therefore, ought to have foreseen, that the risk of the injury complained of could be caused by the animal.
His Honour added that it was not sufficient for a plaintiff to prove a failure by a defendant to guard against the possibility that a tame animal will act in an uncharacteristically dangerous way.

Shepherdson J affirmed that Galea was not required to prove that the precise injury was foreseeable, rather that it would be sufficient to establish that the injury fell within a reasonably foreseeable class of injuries. His Honour noted that it was foreseeable that the German shepherd, being a large dog, could injure a child by, for example, knocking him or her over. Gillingham's comments after the attack to the effect that the dog should have been tied up were held to be an indication that Gillingham actually foresaw a risk of injury.

Shepherdson J further stated that the manner of proving a special propensity or special circumstances rendering the risk of injury foreseeable will depend on the circumstances of the case. In this case, the comments made by Gillingham immediately after the attack were taken to indicate that he in fact knew of the German Shepherd's dangerous propensity. However, all that would have been necessary was for the plaintiff to prove that the special propensity or circumstances ought to have been foreseeable to Gillingham.

Significance of the Case

This case represents the adoption of principles in Draper v Hodder [1972] 2 QB 556 in Australia. It establishes that for a plaintiff to succeed in claiming negligence for a defendant's failure to take measures to protect the plaintiff from a domestic animal who is usually of a placid nature, the plaintiff must demonstrate two matters. First, without the implementation of such measures, there must be a foreseeable risk of harm of the kind sustained. Second, there must be a special propensity on the part of the animal, or special circumstances relating to him or her, such that the owner ought to have foreseen the risk of injury presented by the animal.

6.6 Aleksoski v State Rail Authority (NSW) [2000] NSWCA 19

Case note prepared by Hikari Kato.

Court

New South Wales Court of Appeal

Facts

Mr and Mrs Aleksoski, the appellants kept their five month old Rottweiler at their property which adjoined a public road, Waverley Drive. Irons was employed by the State Rail Authority, the respondent. Irons was riding his motorcycle to work along Waverley Drive at approximately sixty kilometres per hour, which was within the legal limit, when the Aleksoskis' Rottweiler ran out and collided with him on the road causing him to suffer serious injury. When the accident occurred, the Aleksoskis' property was unfenced, and the dog was free to run out onto Waverley Drive.

As Irons was travelling to work, the State Rail Authority incurred liability to pay workers' compensation. The State Rail Authority recovered a verdict against the Aleksoskis, in the sum of $126,130 based upon a finding that Iron's injury was the consequence of the Aleksoskis' negligence. The Aleksoskis argued that Irons was liable for contributory negligence; however the trial judge rejected this contention.

In separate Court proceedings Aleksoski was charged under s 8(1) of the Dog Act 1966 (NSW)('the Act') and pleaded guilty.

Issues
  • Whether Irons' injury was foreseeable
  • Whether the Aleksoskis breached their duty of care to Irons
  • Whether the standard of knowledge required for the scienter doctrine applies to a claim in negligence
  • Whether Irons was contributorily negligent
Decision and Reasons for the Decision

The Court dismissed the appeal.

Foreseeability of the injury

The fact that the Aleksoskis regularly restrained the Rottweiler supported an inference that the dog's escape onto the road was foreseeable. Further, the dog's propensity to run out to the street, and thereby risk causing an accident, was established by his or her medium size, breed and youth, which inhibited the dog's responsiveness to training.

Breach of duty of care

Mr Aleksoski's guilty plea under s 8(1) confirmed that the Rottweiler was in a public place and not under the control of a competent person. However, the Court emphasised that guilt under this provision would not, without more, establish negligence. The Court deemed it unnecessary to decide whether the trial judge relied solely on the male appellant's guilty plea in establishing negligence, because there was other evidence on which to base a conclusion that the appellants were negligent.

The Court noted that the State Rail Authority bore the onus of proof of negligence; it commented, "The mere fact of the collision on the public road with the appellants' dog did not, without more, establish negligence... The mere fact that a dog escapes from restraint, or indeed from a property, does not establish negligence". Liability, the Court emphasised, requires proof of negligence.

The Court held that there was sufficient evidence to establish that this case was more than the accidental escape of the animal, rather there was a lack of due care which justified the conclusion that the appellants were negligent. Ordinarily, the dog was restrained out of necessity rather than excessive caution; Mrs Aleksoski testified that the dog was restrained due to his or her propensity to escape on to the road. As such, the failure to take similar precautions on the day of the accident was negligent.

Relevance of the standard of knowledge required for the scienter doctrine

The Court stated that the cause of action in negligence is an independent one. It stands outside the principles relating to an action on the basis of scienter. Accordingly, the State Rail Authority was not required to demonstrate that the Aleksoskis actually knew of the dog's vicious or dangerous propensity to be successful in negligence; it needed to establish that the Aleksoskis knew or ought to have known of the dangerous propensity in the Rottweiler, in addition to the other elements of negligence.

Contributory negligence

The Court affirmed the finding of the trial judge to the effect that there was no contributory negligence on Irons' part. He was an experienced bike rider who was travelling at the permissible speed on a familiar road. He had experienced no previous encounters with the dog. Hence, there was no failure by Irons to keep a proper look-out.

Significance of the Case

The case demonstrates the way in which an owner of an animal may be liable in negligence for failing to take precautions to restrain an animal where he or she has a special propensity which requires such protective measures to be taken and the risk of injury flowing from such a failure is reasonably foreseeable.

It also provides an insightful juxtaposition of the law's perception of the relative significance of human and animal interests. At trial, Mrs Aleksoski conceded that, as the dog's ability to escape to the road posed a danger to his or herself, the dog was never allowed outside unattended. This was used as evidence that Mrs Aleksoski was aware that if the dog escaped, he or she could cause a collision with road users and thereby cause human injury. The Court's consideration of animal interests was only relevant insofar as it could be used to establish a lack of regard to human interests.

6.7 Collins v Carey [2002] QSC 398

Prepared by Pamela Kalyvas

Court

Supreme Court of Queensland

Facts

Collins, the plaintiff, was a removalist employed by Grace Worldwide, the second defendant. Mr and Mrs Carey, the first defendants, hired Grace Worldwide, the second defendant, to pack and move their personal items from their house. Collins and two other employees of Grace Worldwide arrived at the house to undertake the removal. Mr Carey tied up his dog on a standard 2 to 2 1/2 metre chain. The dog was chained in the yard, near a cubby house which was to be moved. Mr Carey alleged that he told the removalist not to touch anything near the cubby house because the dog was chained there. However, contrary to this assertion, Collins alleged that Mr Carey asked him to remove the cubby house and that there was no mention made of the dog. Collins walked over to the cubby house, turned his back to the dog, and bent down to pick up a dismantled piece of the cubby house, and immediately after this, the dog bit him. Collins denied touching the dog before he or she bit him. In addition, one of the other removalists also said that he did not recall Mr Carey saying anything about the dog, or about not touching anything in the backyard.

Issues
  • Whether the Careys were liable in scienter, negligence or both
  • Whether Grace Worldwide was liable for negligence, breach of contract of employment or both
  • Whether Collins was contributorily negligent
Decision and Reasons for Decision

The Court found in favour of Collins and awarded him $130,062.05 in damages.

The liability of the Careys on the basis of scienter and negligence

The scienter action failed. The Court held that Collins did not show that Mr Carey had the requisite knowledge of the dog's aggressive tendencies to make out a case of scienter. The fact that Mr Carey gave a warning about the dog did not mean that either Mr or Mrs Carey knew that their dog had a tendency to bite or exhibit otherwise dangerous behaviour.

However, Mr Carey was found to be negligent because he did not restrain the dog to stop him or her being in the vicinity of the items to be moved. The Court relied on Galea v Gillingham [1987] 2 Qd R 365, which outlined that the plaintiff suing in negligence for damages as a result of injuries suffered by a domestic animal must prove that there:

"was a foreseeable risk that in the absence of reasonable care by the defendant, injuries of the type suffered could be caused by the animal; and a propensity on the part of the animal not necessarily known to the owner or keeper but one which was such that the owner or keeper knew or ought to have known and therefore ought to have foreseen that there was a real risk of the injury or damage complained of being caused by the animal exhibiting that propensity"

The Court, therefore, held that Mr Carey's statements and conduct indicated that he recognised that there was a risk that the dog might bite the removalists and that the risk was real enough for him to take the precaution of tying up the dog. Mr Carey, therefore, should have foreseen that there was a real risk of injury of one of the removalists being bitten by the dog. Accordingly, in the absence of reasonable care by Mr Carey, there was a risk that injuries of the type suffered by Collins would be sustained.

The liability of Grace Worldwide for negligence, breach of contract of employment or both

Grace Worldwide was found to have breached its duty of care in failing to ensure that all items which required removal were out of the range of the chained dog.

The liability of Collins for contributory negligence

The Court held that there was no contributory negligence on the part of Collins. He was bitten when he bent down to pick up a piece of the cubby house and in doing so, came within the dog's reach. Collins misjudged how far the dog could reach. This was a matter of inadvertence rather than negligence.

Significance of the Case

Animal owners may be held liable in negligence for failing to take adequate care to ensure that their animal does not injure a person who enters their property or approaches the vicinity in which the animal is kept. Any action taken by an animal's owner to restrain the animal may illustrate their recognition of a foreseeable risk that the animal could injure a person.

6.8 Beaumont v Cahir [2004] ACTSC 97

Prepared by Thuy Hoai Anh Nguyen

Court

Supreme Court of the ACT

Facts

Beaumont, the appellant, landed his hot air balloon on the National Equestrian Centre's paddock where Cahir, the respondent, and Yhani, the respondent's horse, were present. The horse was frightened and impaled herself on an uncapped star picket situated on the boundary fence, suffering serious injuries for which the Beaumont accepted liability. The Magistrate found that Cahir had acted reasonably in these circumstances in regards to treating the horse and mitigating losses and was thus not guilty of contributory negligence.

Issues
  • Whether the quantum of damages payable amounted to the cost of services to bring the horse back to a sound condition or to the cost of a replacement horse
  • Whether Cahir had acted reasonably to mitigate her loss
  • Whether Cahir was a credible witness
  • Whether Cahir was contributorily negligent
Decision and Reasons for Decision

The appeal was dismissed.

Quantum of damages payable

Cooper J held that Cahir was entitled to be restored to the position she would have been in had Beaumont not landed the hot air balloon in the paddock. She was therefore entitled to recover damages for the reasonable expenses incurred as a consequence of Beaumont's conduct. Cooper J echoed the decision in Banco de Portugal v Waterlow & Sons Ltd. [1932] UKHL 1, which held that reasonableness is a question of fact rather than one of law. His Honour found that the Magistrate had correctly treated "the fact that the horse was an injured suffering animal [who] required an immediate decision as to [her] treatment" as a relevant circumstance in determining the reasonableness of the decision to treat the horse rather than euthanise her. Unlike the case of a damaged vehicle, Cahir did not have the opportunity to obtain estimates of the cost of Yhani's treatment in order to compare this with the cost of replacing her. Further, Yhani had "special attributes on account of training, size and temperament which were particularly valued" by Cahir. Accordingly, Cahir was held to have acted reasonably in electing to treat the horse; the compensation recoverable by her was therefore not limited to the cost of a replacement horse.

Reasonable mitigation of loss

Beaumont submitted that the horse was worth "$500 and no more in terms of market value" and that the treatment costs were unreasonable as they exceeded this amount greatly. However, Cooper J identified that market value was the cost of obtaining a "replacement chattel having the same or substantially the same characteristics of the chattel damaged if there exists a market in which such a substitute could be obtained". The relevant consideration was the use of the horse before injury and the use to which Cahir intended to put the horse in the future. Cahir did not bear any onus of proving whether or not she could find a suitable replacement horse; she was required only to prove that the money she spent on Yhani's treatment was a direct consequence of Beaumont's conduct and that it was reasonable for her to spend the money. Cooper J rejected the contention that Cahir approached the situation with an attitude to the effect that "money was no object" and without proper regard to Beaumont's interests. It was relevant that Cahir had received an initial estimate of the total cost of treatment for the horse before deciding to rehabilitate her. Accordingly, the Magistrate had correctly found that Cahir "was acting reasonably and thereby looking after the defendant's interests" and was thus entitled to compensation.

Cahir's credibility as a witness

Although Beaumont challenged Cahir's credibility on a number of bases, Cooper J found that there was nothing in the evidence which compelled the Magistrate to conclude the Cahir was not a credible witness.

Contributory negligence

The evidence indicated that the uncapped Telecom star picket was hard against the boundary fence wires, though the wires did not pass through it. As such. the uncapped Telecom star picket stood on the same foundation as the other star pickets and posed no greater danger to Yhani than the rest of the fence. Since Yhani had spent several years in the paddock without sustaining injury and Cahir had no power to remove the uncapped star pickets, she did not negligently contribute to Yhani's injury by keeping the horse in the paddock.

Significance of the Case

First, the case recognises a distinction between animate and inanimate property, which may affect a determination as to the reasonableness of any expenditure made to repair the property. The award of damages for Yhani's injuries took into account factors that would not ordinarily be considered in the case of damage to inanimate property. It was acknowledged that Yhani was "not an inanimate chattel, but rather a living animal purchased and trained...for dressage". The Court noted that there was an "affectionate bond" and a "unique" relationship between Yhani and Cahir. This case demonstrates that although the monetary value of an animal may be less than reinstatement costs, an owner may still be acting reasonably in expending additional money, due to the special relationship between the owner and the animal.

Second, that the unreasonableness of Cahir's refusal to euthanase Yhani was pleaded by Beaumont and entertained - though rejected - by the Court, highlights how the property status of animals has the potential to subordinate their interests to the financial interests of humans.

Third, the case illustrates the way in which damages for injury to an animal are calculated by reference to the economic loss suffered by the animal's owner, another consequence of the characterisation of animals as property. The suffering experienced by the animal is not an independent basis for recovery.

6.9 Petco Animal Supplies Inc v Schuster 144SW 3d 554 (Tex. Ct App. 2004)

Prepared by Hikari Kato

Court

Court of Appeals of Texas, Austin

Facts

Schuster, the respondent, kept a fourteen-month-old miniature Schnauzer, named Licorice, as a companion animal. Schuster left Licorice for grooming at a store operated by Petco, the appellant. On her return, Schuster noticed that Licorice was running unrestrained in the street. After a four-day search of the area by Schuster and Petco employees, Licorice was found dead, having collided with traffic.

Schuster sued Petco for breach of contract, gross negligence and conversion. She obtained a default judgment , which awarded her damages to the value of $2302.08 for the animal's replacement value, obedience school, microchip implantation and for lost wages incurred during her search for the animal. Schuster was also awarded $160 in counselling costs, $6750 in legal costs, $10,000 each for mental anguish and "intrinsic value" loss of companionship, as well as $10,000 in exemplary damages.

Issues
  • Whether Schuster could claim damages for mental anguish, counselling costs, "'intrinsic value" loss of companionship" and lost wages flowing from the loss of her dog
  • Whether the Court improperly awarded exemplary damages
  • Whether the compensation awarded for legal costs was excessive
  • Whether, in allowing Schuster to claim in both tort and contract, the Court permitted double recovery
Decision and Reasons for the Decision

The Court reversed the previous court's decision relating to mental anguish damages, counselling costs, "'intrinsic value' loss of companionship", lost wages and exemplary damages. However, it affirmed the findings as they related to the animal's replacement value, reimbursement of expenses for training and microchip implantation, legal fees and court costs.

Damages arising purely from the loss of a dog

The Court referred to three principles deriving from Heilligmann v Rose, 81 Tex. 222, 16 S.W. 931 (1891). First, the Court recalled that dogs are to be considered personal property for the purposes of determining damage. Second, it noted that damages for loss of a dog are to be awarded in accordance with his or her market value if the dog has one, or some other "special or pecuniary value" which may be determined by the usefulness of the dog or the services he or she rendered. Third, the Court indicated that this "special or pecuniary value" exclusively concerns the dog's economic value and does not refer to value stemming from companionship.

The Court then applied these principles to Schuster's claims. It found that, while a claim for mental anguish may or may not be sustained where the damage rendered to an animal is deliberate, here the damage was caused at most by gross negligence. As there was no "ill-will, animus or desire by Petco to harm" Schuster, the claim for mental anguish failed. The Court also rejected Schuster's argument that dog grooming was a special relationship which "intensely emotional non-commercial subjects", applying instead the general rule that damages for mental anguish caused by breach of contract cannot be awarded.

This also resulted in a reversal of the award for counselling expenses.

The Court also found that the decision in Heilligmann prevented the recovery of damages for "'intrinsic value' loss of companionship" in Licorice. The Court also considered the amicus brief (a brief provided by a person not a party to the proceedings that affords additional material for the court) of the Animal Legal Defense Fund that the Court's perception of animals "fail[ed] to take account of the modern view of dogs as beloved friends and companions". However, it held that, being an intermediate appellate court, it could not overrule the precedent in Heilligmann. The Court also indicated that as intrinsic value damages are only available where an item of property lacks market or replacement value, Schuster, having conceded that Licorice's replacement value was $500, would not be entitled to such damages in any event.

On the question of damages for loss of wages, the Court found that the loss of income was too remote from Petco's conduct; that is it was not a sufficiently direct or foreseeable consequence of the conduct, for the Court to order damages on this basis.

Exemplary damages

The Court identified that for an award of exemplary damages to me made, Schuster would need to establish that the harm caused to her was the consequence of malice or fraud and that the act was an act of Petco as a corporation, rather than the unauthorised act of an employee. As it could not be said that the negligence which resulted in Licorice's death was an act of Petco, exemplary damages were held to be unavailable.

Similarly, as exemplary damages are not recoverable for breach of contract, Schuster could not be awarded them on this alternative basis.

Damages for legal costs

Based on the work completed by Schuster's lawyer in respect of the matter, the legal fees for which compensation was sought were not unreasonable.

Double recovery

Petco claimed that Schuster had been improperly awarded damages for both her claim concerning breach of contract and her claim in tort. However, the Court held that its reversal of the findings relating to mental anguish, counselling expenses, "'intrinsic value' loss of companionship" meant that only Schuster's claims in contract succeeded. These included replacement value of the anima, reimbursement of expenses for training and microchip implantation, legal fees and court costs.

Significance of the Case

The case affirmed that the value of companion animals is measured solely by their pecuniary worth as property. This is notwithstanding that companion animals assume a greater significance in human life, a point which was emphasised by the Animal Legal Defense Fund in the matter. It is notable that the Court did not reject this proposition outright; it stated, '[a]s an intermediate appellate court, we are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court unless and until the high court overrules them or the Texas Legislature supersedes them by statute'. As such, while the characterisation of companion animals as nothing more than property may seem disjunctive with contemporary experience, the Court's reason for applying the precedent suggests that such a characterisation may not be unchangeable.

6.10 Council of the City of Lake Macquarie v Morris [2005] NSWSC 387

Prepared by Hikari Kato and Hollie Harber

Court

Supreme Court of New South Wales

Facts

Morris, the defendant, owned a Rottweiler named Sole and an American Pit Bull Terrier named Mishka, who were alleged to have attacked a Staffordshire Terrier. On 25 March 2004, rangers found Sole and Mishka standing near the Staffordshire Terrier who was lying injured and motionless in the gutter. Rangers also observed that the Mishka displayed aggression towards the injured dog by lunging towards him or her, although the witnesses did not witness any actual physical contact between the dogs which was assumed to have been made.

The Council of the City of Lake Macquarie prosecuted Morris for a breach of s 16(1)(a) of the Companion Animals Act 1998 (NSW) ('the Act'), alleging that his dogs had committed an attack which caused injury to, and the subsequent death of, the Staffordshire Terrier. Section 16(1)(a) stipulates that "If a dog rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal, the owner of the dog is guilty of an offence". An American Pit Bull Terrier is also classified as a restricted breed, under s 55(1)(a) of The Act.

Morris claimed that there was no evidence as to which dog attacked whom; as such, it was claimed that the deceased dog's injury was the result of a "dog fight", rather than the consequence of a "dog attack". Morris also claimed the defence of provocation under s 16(2)(a) of the Act, which stated that an attack would not amount to an offence where it was "a result of the dog being teased, mistreated, attacked or otherwise provoked".

At the original trial, the Magistrate found that the Council of the City of Lake Macquarie could not negate a defence of provocation, put forward by Morris pursuant to s 16(2)(a) of the Act. Accordingly, the Magistrate found that there was insufficient evidence to prove the case against Morris beyond reasonable doubt, and dismissed the charge. The Council of the City of Lake Macquarie appealed. The appeal concerned only Mishka, the American Pit Bull Terrier. Morris submitted a Notice of Contention, claiming that it was not open to the Magistrate to find a prima facie case against him.

Issues
  • Whether the dog's conduct fell within the definition of an "attack"
  • Whether the Magistrate was incorrect to find that the Council was required to negative the defences, particularly provocation, without first considering whether the evidentiary burden required to raise the defence had been discharged by Morris
  • Whether the Magistrate erred in finding a prima facie case against Morris
Decision and Reasons for Decision

The appeal was allowed based on a finding of an error of law. The matter was accordingly remitted to the Local Court to be heard and determined according to law.

The definition of an "attack"

To determine the definition of "attack" as used in s 16(1)(a), the Court considered the meaning of the term under s 16(1) of the Dog Act 1966 (NSW), as interpreted in Eadie v Groombridge (1992) 16 MVR 263. In that decision, the Court noted that "attacking" occurred if there was "an act of hostility or aggression". The case also found that if a dog "came at"a person in the street this was an attack under s 20(1) of the Dog Act 1966 (NSW). Furthermore, circumstances involving a "growling and barking dog charging at a person" might amount to an attack (see Zappia v Allsop [1994] NSWCA 355), as might running, barking and yapping at a horse (Crump v Sharah [1999] NSWSC 884; Coleman v Barrat [2004] NSWCA). The Court indicated that based on the wording of the section itself, to constitute an "attack" under s 16(1), it was not necessary to prove that injury, or physical contact, actually occurred between the dog and the person or animal who is said to have been attacked. Further, an offence could be based on a single act or a series of acts. In this case, rangers witnessed the act of aggression by Mishka towards the deceased dog, and this satisfied the requirement of a dog attack under s 16(1) of the Act. The Court noted that conduct comprising the attack for the purposes of The Act was not limited to the first act of aggression. It also held that "[i]t might be inferred from the presence of the two attacking dogs in the vicinity of the badly injured Staffordshire terrier that those two dogs had occasioned injuries to the third dog".

The operation of the defence

The Court identified that s 16(2)(a) of the Act established a defence of provocation to a charge under s 16(1), which placed an evidentiary onus on Morris to raise the matter contained within the defence. Once the matter was raised, it would be for the Council to negative beyond reasonable doubt. Section 16(2) stated that the attack would not be an offence if "the incident occurred as a result of" the provocation. As such, it was necessary to show that the attack was caused by the provocation. In this case, the minor injury on the American Pit Bull Terrier's head was not adequate to discharge the evidentiary burden for the purpose of s 16(2)(a).

The presence of a prima facie case against Morris

The Court also found, contrary to Morris's submission, that the aggressive conduct of Mishka as observed by the rangers was sufficient to establish a prima facie case.

Significance of the Case

This case established the kind of behaviour which could constitute an attack for the purposes of s 16(1) of the Act. An injury is not required to conclude that an "attack" took place; moreover, an absence of physical contact between the dog and the person or animal will not preclude liability under the provision. Evidence of "lunging", "hostile action" or "initial (offensive) movement" is sufficient. It is also important to note that the severity of the offence is increased if the dog is classified as either a "restricted" or "dangerous" dog (Companion Animals Act 1998 (NSW) s 16(1)(b)(b)).

6.11 Ferguson v Birchmount Boarding Kennels Ltd (2006) 79 OR (3d) 681

Prepared by Betty Yeung

Court

Ontario Superior Court of Justice

Facts

In August 2002, the Fergusons, the plaintiffs, had boarded their dog, Harley, with Birchmount Boarding Kennels Ltd, the defendant. Harley escaped the kennels by squeezing through a gap in the fence of an enclosure while being exercised. The co-owner of the kennel testified that after examining the fence, he could not see a hole or a gap in it. Evidence was also adduced to the effect that kennel staff inspected the fence on a daily basis, only two other dogs had ever previously escaped and that a "ride on" mower used by the gardener may have struck the fence, causing the board to loosen.

Ms Ferguson testified that prior to letting Harley out in her own backyard, she would check the fence, though would not check each board. She also gave evidence as to the effect the incident had on her; Ms Ferguson was emotionally distraught and hysterical when she heard the news. She was delayed in her return to Toronto due to a lack of available flights, and when she did return, she suffered insomnia and nightmares, precluding her from working.

In October 2002, the Fergusons acquired another dog of the same breed as Harley.

The Fergusons sued Birchmount for damages and the trial judge awarded them $2,527.42 in damages for the loss of their dog.

Birchmount appealed on two grounds. First, it claimed that the trial judge had applied the wrong standard of care. Second, it argued that the trial judge failed to recognize that a companion animal is deemed by law to be a chattel, preventing the recovery of damages for pain and suffering upon the loss of the animal.

Issues
  • Whether the correct standard of care was applied
  • Whether the trial judge was correct to award damages for pain and suffering flowing from the loss of a dog
Decision and Reasons for Decision

The standard of care

Birchmount claimed that the proper standard of care was based on the law of bailment and that to conclude that Birchmount was negligent, the trial judge would have first needed to find that Birchmount failed to take some precaution which the owner of a dog in a similar situation would have taken.

The Court rejected this ground of appeal. It identified that the law of bailment requires the court to consider what care a reasonable owner would have exercised for the safety of the item in the circumstances. The Court also adverted to the law of bailment's imposition of an additional "onus [on the bailee] to prove that he took the appropriate care or that his failure to do so did not contribute to the loss".

Birchmount did not take reasonable steps to ensure that the fence was sound in order to prevent Harley from escaping. If the gardener damaged the fence and this was a foreseeable consequence of the mowing, it would have been reasonable for Birchmount to inspect the fence. As it did not do this, it was foreseeable that Harley would escape.

The Court found that the decision of the trial judge was supported by the evidence and that the same conclusion would have been reached irrespective of whether a "bailment" standard was used.

Availability of damages for pain and suffering from the loss of a dog

The trial judge allowed an award of damages in the amount of $1,417.12 on Mrs Ferguson claim for pain and suffering.

Birchmount argued that this finding failed to recognize that at law, animals are chattels, and that this status precludes the recovery of damages for suffering consequent upon their loss.

The Court distinguished cases upon which Birchmount relied in support of its contention. Rogers v Rogers [1980] OJ No 2229 (Dist Ct) concerned an application by a wife to access a dog owned by her husband, and the case centred upon whether the dog was a family asset. The Court in Pezzente v McClain [2005] BCJ No 1800 discussed whether a breeder should compensate the purchaser of a dog with health problems, for veterinary costs. In that case, the Court relied upon the classification of the dog as a "consumer product". However, in the present case, the Court indicated that it would be incorrect in law to deem the characterisation of an animal as a consumer product as a general or universal proposition.

The Court referred to the decision in Somerville v Malloy [1999] OJ No 4208 106 OTC 389 (SCJ), in which a plaintiff suffered trauma from being attacked by a dog and also watching the dog killing his own dog. In that case, "[t]he court based its decision to award the plaintiff damages for the effect the dog attack had on him and particularly the emotional trauma sustained by him, on two legal principles: first, a tortfeasor must take his victim as he finds him; and, second, the recognized head of damage in tort actions based on mental distress.".

The Court dismissed the ground of appeal on the basis of the suffering Mrs Ferguson experienced as a result of losing Harley.

Significance of the Case

This case is significant in that it challenges the common and longstanding conceptualisation of animals as mere consumer products, valued only in terms of their market worth. The case also recognises the distinct bond between humans and their companion animals, and that the loss of this warrants compensation.

6.12 Reed v Stretenovic [2008] NSWDC 202

Prepared by Lucinda Vale

Court

District Court of New South Wales

Facts

Proceedings were brought on behalf of Reed, the plaintiff, by Sullivan, his next friend, against the Stretenovics, the defendants, to recover damages pursuant to s 25 of the Companion Animals Act 1998 (NSW).

On 28 April 2005, Reed, who was 11 years old at the time, was attacked by the Stetenovics' unleashed dog. The Stretenovics admitted liability at the outset of the trial. Accordingly, the trial proceeded as an assessment of damages and consideration of the psychological and physical consequences to Reed.

Reed and his friend were walking along Vincent Street, St Marys when the unleashed dog escaped through an open passenger's door of the defendants' car. The dog, a Jack Russell Kelpie, chased Reed's companion, who managed to avoid being attacked. Reed ran to his home which was situated a short distance across the road. The dog caught up with Reed near his driveway and bit him at least three times on the right forearm, once on the abdomen and once on the right leg above the knee.

The dog released his or her grip on Reed after he or she was called away by the defendant, Mrs Stretenovic. Reed then ran into his home. Sullivan stated that it was her own screaming that led to the dog to let go of the plaintiff. Reed stated that he was in physical pain. He described the bleeding and how he felt sick and afraid from seeing the open cut on his arm. Sullivan wrapped Reed's arm in a towel and called an ambulance. According to Sullivan, Mr Stretenovic arrived at the house, walked into her home uninvited whereupon he aggressively and repeatedly argued that it was Reed's own fault that he was attacked because he should not have been playing in the street. However, Mr Stretenovic claimed he located the house, knocked on the door and introduced himself as the dog's owner whereupon he alleged Sullivan used offensive language at him.

Issues
  • Whether the dog attack and its immediate aftermath occurred in the manner described by Reed and Sullivan
  • The nature of the Reed's injuries and the reconciliation of differing psychiatric opinions
  • Assessment of the damages claimed by the plaintiff
Decision and Reasons for Decision

The recount of the attack

Judge Levy took into account the factual differences between Mr Stretenovic and Reed and Sullivan concerning the presence and conduct of Mr Stretenovic at the house shortly after the dog attack as well as contradictions in the evidence given by the Stetenovics. His Honour accepted the evidence of Reed and Sullivan that Mr Stretenovic entered the house after the dog attack and exchanged words in the manner and to the effect described in their evidence.

The injuries and the reconciliation of the psychiatric opinions

With respect to the injuries, Levy J accepted that Reed sustained ten lacerations and puncture wounds to his right forearm and a small puncture wound to the right knee. The judge found that the dog bites also caused Reed to sustain dermatitis and itching of the right arm, on the basis of a "common sense presumptive inference that such symptoms are causally linked". Further, Levy J found that the dog bites led to Reed putting on excess weight and leading an abnormal lifestyle due to the psychological effects of the dog attack, including a change in his personality. However, the trial judge also accepted that apart from having residual scarring from the dog bite wounds, since Reed's post-hospital discharge he had undergone a relatively uneventful physical recovery. His Honour then turned to the competing psychiatric evidence and stated that he preferred the evidence of Reed's expert witness.

The quantum of damages

The Court assessed damages for non-economic loss in accordance with s 16 of the Civil Liability Act(2002) at 35% of a most extreme case. This gave a sum of $154,500 based on the interlinked problems of the emotional suffering and the unsightly permanently disfiguring scars suffered by Reed. His Honour noted that these factors represented a serious and permanent impairment in Reed's ability to enjoy the amenity of his life. Furthermore, his Honour assessed Reed's damages for future treatment in the sum of $16,700. With regard to Reed's residual earning capacity his Honour award damages at 30% of average net weekly income between the ages of 18 and 65 years, after allowing a 25% discount for contingencies, resulting in an award for future economic loss of $170,923. The total assessment of damages amounted to $344,723.

Decision on appeal

The Stretenovics appealed. On appeal, Reed's damages were significantly reduced, particularly non-economic loss which was lowered from 35% to 20% of a most extreme case. The appeal judge, McColl J, found that the primary judge appeared to have applied either his personal opinion regarding Reed's future and present psychological condition and/or made findings of fact unsupported by evidence.

Significance of the Case

Although the damages were reduced on appeal, the case highlights the fact that those who are in control of an animal must exercise care; otherwise substantial damages may be awarded against them if the animal attacks and injures another person or animal.

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