Duncan v Ryan & ACT [2002] ACTSC 47 (31 May 2002)

Last Updated: 20 June 2002

Celeste Duncan by her next friend Joy Duncan v Geoffrey Thomas Ryan & The Australian Capital Territory [2002] ACTSC 47 (31 May 2002)

CATCHWORDS

DOMESTIC ANIMALS - Statutory power to impound dog

DUTY OF CARE - power vested in dog catcher - absence of control - no duty of care

Dog Control Act 1975 s. 33, s 34

Brodie v Singleton Shire [2001] HCA 29, (2001) 180 ALR 145

Courtney v Tasmania [2000] TASSC 83

Emanuele v Hedley (unreported, ACT Supreme Court, Higgins J, 7 March 1997)

Hill v Chief Constable of West Yorkshire [1987] UKHL 12; [1989] AC 53

Mensinga v Commissioner, Australian Federal Police [2001] ACTSC 46

Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424

No. SC 560 of 1994

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 31 May 2002

IN THE SUPREME COURT OF THE )

) No. SC 560 of 1994

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CELESTE DUNCAN BY HER NEXT FRIEND JOY DUNCAN

Plaintiff

AND: GEOFFREY THOMAS RYAN

Defendant

AND: AUSTRALIAN CAPITAL TERRITORY

Third Party

ORDER

Coram: Master T. Connolly

Date: 31 May 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The third party claim be dismissed

2. The defendant to pay the third party's costs

1. This litigation arises from a savage dog attack on Ms Celeste Duncan, then aged 9 years, which occurred on 26 March 1993 as she was walking to school in Burges Place, Kambah, in the Australian Capital Territory. The defendant, Mr Ryan, was the owner of a male cross boxer terrier and a male cross bull terrier ridgeback which, I am satisfied, had been allowed to escape from his fenced yard and roam in the neighbourhood. They had previously savagely attacked a neighbour's pet. The attack on Ms Duncan was serious, requiring surgical intervention. She suffered lacerations to her head, trunk and limbs.

2. The substantive action settled on the day of the hearing with a judgment for the plaintiff in the sum of $150,000 plus costs, noting that the plaintiff was not required to repay treatment expenses to date, and the usual terms as to interest on both the judgment sum and costs. The matter proceeded to hearing on a contested third party claim issued by the defendant against the Australian Capital Territory. The defendant claimed a contribution from the Territory on the basis of an alleged failure by officers of the Territory in their administration of the Dog Control Act 1975.

3. The matter proceeded by way of a number of statements which went in to evidence by consent. From these statements I make the following findings of fact:

1) On 24 March 1993 Ms Bell of McDermott Street in Kambah noticed a dog which she believed to reside at the defendants address and another dog attacking a golden retriever. She called the dog catcher, but did not see herself what happened after that.

2) Before the dog catcher arrived builders working nearby were able to separate the dogs, and herded the two attacking dogs back into their yard at 7 Burges Place and closed the gate.

3) On the same date Mr Breidis, of Burges Place Kambah came home from work and discovered his golden retriever was missing. He was told that it had been attacked and taken to the pound. He retrieved his pet, but it was so badly injured it had to be put down.

4) On the same date dog control officers attended at parkland at McDermott Street Kambah. They took statements from witnesses that the two dogs that attacked the golden retriever had been chased by builders back in to the yard of the defendant. A minute paper from the Acting Registrar of Dogs of 1 April 1993 states that the patrol man was "unable to remove dogs".

5) On 25 March Ms Bell and her sister saw the two dogs again roaming around the street at about 8am. Her sister rang the dog catcher. She saw the dog catcher arrive about 8.30am and again place the two dogs back in the yard of the defendant.

6) A dog control officer was dispatched to Kambah. A record states that two cross bull terriers were found roaming. The box "savage" was ticked. The record states "no rego on these dogs" The inspectors report states "No one home. Left note to contact office......Locked gates."

7) The minute paper from the Acting Registrar of Dogs states that the dog van was undergoing repairs on this morning and the patrolman responded in a standard vehicle and so was not able to impound the dogs. He states "The patrolman then did the next best thing to secure the dogs in the rear of 7 Burges Place and lock the gates."

8) On the next day, 26 March 1993 the same two dogs savagely attacked the plaintiff.

4. The defendant says that the Territory, being responsible for the dog control unit, was notified on two occasions on the two days before this incident that these two dogs were savage and allowed by the defendant to roam the streets. On both occasions the officers from dog control attended, but did nothing other than to observe that the dogs were back in the yard, or place them back in the yard. On the third morning, the plaintiff was attacked when the dogs were again at large. The defendant, while acknowledging that he was in breach of his duty of care to the plaintiff by failing to himself secure his dogs, argues that the Territory is in breach of its duty of care in failing to properly exercise its powers under the Dog Control Act and impound the savage dogs when they were found to be roaming the streets and savage on the two days before the incident.

5. The law in relation to the duty of a public authority vested with statutory powers has recently been restated by the High Court in Brodie v Singleton Shire [2001] HCA 29, (2001) 180 ALR 145. In the joint judgment of Gaudron, McHugh and Gummow JJ they state at [102] that

"the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance.[103] It is often the case that statutory bodies which are alleged to have been negligent because they failed to exercise statutory powers have no control over the source of the risk of harm to those who suffer injury. Authorities having the control of a highway are in a different position. They have physical control over the object or structure which is the source of the risk of harm. This places highway authorities in a category apart from other recipients of statutory powers."

6. It is easy to comprehend how a highway authority can clearly be seen to have the requisite degree of control over roadworks, or how a local council with responsibility for approving plans has the requisite degree of control for imposing a duty of care in relation to negligently designed houses. (cf Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424). A road cannot be built or repaired, or a building constructed, without the relevant approval of the public authority. The dog control unit, on the other hand, is charged with responsibilities that may be more compared with police type powers. Moreover, certain of the powers conferred by the act are more broadly conferred on police officers as well as dog inspectors (s 33 Destruction of diseased or injured dogs) or on the public at large (s 34 Destruction of attacking dog). If the action lies against the Territory in respect of the failure of the dog control unit to seize the dogs and prosecute the owner, it presumably would also be arguable that it lay against the builders who chose to chase the attacking dogs away from the golden retriever rather than exercise the statutory power that they would have had under s 34 of the Act to destroy a dog attacking another domestic animal in a public place.

7. The defendants position is, in effect, to say that although I was in breach of my legal obligation to keep a dog under control, I should not be held solely financially accountable for my irresponsibility because the Territory should have prosecuted me and stopped me from acting irresponsibly in allowing my savage dogs to wander. Thus stated, the proposition is clearly unattractive. The analogy is to a claim against the police for failing to stop a criminal from causing criminal damage. Such an action, it has been held, does not lie at common law (Hill v Chief Constable of West Yorkshire [1987] UKHL 12; [1989] AC 53, Emanuele v Hedley (unreported, ACT Supreme Court, Higgins J, 7 March 1997), Courtney v Tasmania [2000] TASSC 83, Mensinga v Commissioner, Australian Federal Police [2001] ACTSC 46).

8. It seems to me that the reasoning that has lead courts to reject the imposition of a duty of care actionable by a citizen against police or prosecuting authorities for failing to prosecute a criminal who goes on to injure another person applies equally to the present situation. The dog control unit exercise, regulatory power and may impound or destroy dogs found at large. These statutory powers do not give rise to a duty of care actionable at the suit of a dog owner who has allowed his dogs to roam and attack another person.

9. I am of the view that there was no duty of care imposed by the common law on the Territory which was breached by the dog control officers. I dismiss the third party claim, with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 31 May 2002

Counsel for the Plaintiff: Mr F. G. Parker

Solicitor for the Plaintiff: Wood Fussell

Counsel for the Defendant: Mr G. Stretton

Solicitor for the Defendant: Abbott Tout

Counsel for the Third Party: Mr C. Erskine

Solicitor for the Third Party: ACT Government Solicitor

Date of hearing: 20 May 2002

Date of judgment: 31 May 2002