Animals

Contributed by Harriet Ketley and current to 1 September 2005

The law governing the responsibility of people for their animals varies according to the type of animal involved and the circumstances surrounding its behaviour.

Each Council or Shire has its own rules about keeping animals. These rules are made under the Health Act. Check with the local authority about the rules that apply in a particular area.

LIABILITY FOR DAMAGE/INJURY

As a general principle, keepers of domestic animals (that is, animals which are normally tame) are only liable for damage caused if they knew that the particular animal had tendencies to do the particular damage (the scienter rule). For example, the keeper of a horse which habitually bit other horses has been considered not to know of its propensity to bite people.

The common law in relation to dogs and any damage or injury caused by them has been largely overtaken by legislation, the main provisions of which are outlined in the following section.

DOGS

Liability

The Dog Act 1976 (WA) (“the Act”) and regulations govern the keeping and registration of dogs, and imposes extensive obligations on people who own or control them. In 2002 a comprehensive review of the Act was undertaken, but at the time of writing changes to the Act had not yet been introduced.

Dog “owners” can be held liable for an on the spot fine or for a claim for damages. The word “owner” has a very broad meaning. The person last registered as a dog’s owner is deemed to be its owner, unless that person proves otherwise. Also, a person who ordinarily keeps a dog can be deemed to be the owner even if not registered. This means that the owner or tenant of any property where the dog is kept or allowed to live can be classified as an owner, as can a person who has the dog in his or her possession or control.

The onus is on any person charged with an offence under this Act to prove that he or she was not liable for the control of the dog at the time.

The fact that a dog is not registered does not exempt its owner from liability for offences under the Act.

The Act provides a general defence to charges relating to the control of dogs, that the person charged took “all reasonable precautions and exercised all due diligence to avoid the contravention”.

The most common offences under the Act include:

• allowing a dog to wander at large in a public place;
• allowing an untethered, unrestrained dog to be on private property without the consent of the owner of the property;
• allowing a dog to attack or chase people or animals; or
• allowing a dog to become a nuisance, by barking, for example.

The Act provides for a number of exceptions in certain circumstances.

Registration of dogs

The registration of dogs is generally administered by the local council.

All dogs over 3 months old must be registered. There is a penalty for failing to register a dog. Applications are made to the local council and must be in the name of a person over 18 years. A fee is payable. Certain classes of people and dogs are eligible for reduced fees. In public places a dog must wear a collar with the name and address of its owner and its registration disc attached.

Barking

A common problem between neighbours is caused by barking dogs. If the nuisance persists, the local council can take action. However, it can only do so once it has received a written complaint on the appropriate form available from the local council signed by three people, at least two of whom live at different addresses. In some cases the Council or Shire can act with less than 3 people signing the complaint if there is enough evidence.

If the nuisance continues, the occupier can be prosecuted. The on-the-spot fine for allowing a dog to bark too much is $100. If the matter is taken to court the fine can be up to $2,000.

No person is allowed to keep more than two dogs on their property unless their property is classed as a kennel.

Dog attacks

Dog owners and every person responsible for control of the dog can be prosecuted if:
• their dog chases or attacks any person; or
• their dog chases or attacks any animal owned by or in the charge of another person.

The Council or Shire can ask for a court order to destroy a dog if it has attacked and caused injury or damage. The penalty for a dog attack can be a fine up to $10,000.

A person who has been attacked can also take private legal action for any injury or damage, including medical costs, vet bills and damage to clothing etc.

The only defence an owner or other responsible person has is if the dog was provoked to attack, for example where the dog has been teased or assaulted, or where the dog attacks someone who is on the owner’s property “without lawful excuse,” (such as a burglar).

Dangerous dogs

The local council also has power to declare a dog which has already attacked someone, or shown a tendency or threatened to attack, to be a dangerous dog. Such a declaration means the owner must keep the dog muzzled and on a leash at all times, and leads to more severe penalties for breaches of the Act. An owner has a right of review of the council’s declaration in the State Administrative Tribunal.

Regulations under the Act introduced in 2002 impose similar provisions as those applying to declared dangerous dogs to those breeds of dog restricted from importation under Commonwealth legislation (this presently includes pit bull terriers and three other exotic breeds).

Seizure and destruction of dogs

A dog “wandering at large” can be seized by an authorised person (usually the council ranger). The dog can be detained and will be returned to its owner on payment of any costs involved. The owner may need to produce a registration certificate. A dog not returned may be sold or destroyed. Other dogs which may be destroyed include those which are injured, diseased or savage.

Where an attack by a dog can be shown to have caused injury or damage, a court or the State Administrative Tribunal (in the case of dangerous dogs) has the power to have the dog destroyed.

CATS

There is no legislation which directly affects cats. They are, of course, domestic animals and their owners are only liable for damage caused on proof of scienter (see above).

A person is not required to stop a cat straying onto a neighbour’s property unless he or she knows the animal is particularly vicious. For ordinary inconveniences such as running through flower beds, tugging at washing, scratching on car duco and biting other animals, a person can only take reasonable steps to stop the problem. Liability arises only when any accident caused is foreseeable.

OTHER ANIMALS

The law considers certain other animals to be ferae naturae or wild animals. The keeper of any of these animals is responsible for any damage done by them, whether or not he or she is negligent. The keeper is presumed to know of the animal’s dangerous tendencies.

Elephants, bears, lions and tigers fall into this category. It is the class of the animal, not the particular animal which is classified as wild and it is a question of law whether an animal is or is not in a dangerous class.