Simpson v Bannerman [1932] HCA 43; (1932) 47 CLR 378 (18 August 1932)

HIGH COURT OF AUSTRALIA

Simpson Plaintiff, Appellant; and Bannerman Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

18 August 1932

Gavan Duffy C.J., Starke, Dixon, Evatt and McTiernan JJ.

Herron (with him B. J. F. Wright), for the appellant.

Spender, for the respondent.

Herron, in reply.

The following written judgments were delivered:—

Aug. 18

Gavan Duffy C.J.,

Dixon, Evatt and McTiernan JJ.

The appellant was bitten on the hand by the respondent's Alsatian dog which, according to the findings of the District Court Judge, had to the respondent's knowledge a propensity to attack mankind.

The appellant sustained the injury through placing his hand on top of the fence separating the respondent's premises from the street while he stood looking over the fence in search of some timber that had gone astray. The dog, which was running loose within, sprang up and seized his hand. The appellant recovered damages in the District Court as at common law on the ground that, although he committed a trespass by placing his hand upon the top of the fence, nevertheless the presence of the dog near the highway separated from it only by such a fence was a source of danger intentionally created by the respondent in excess of any reasonable protection of his property. Upon appeal to the Supreme Court by the now respondent the judgment was reversed by Harvey C.J. in Eq. and Davidson J. (Halse Rogers J. dissenting). This decision was also based upon the common law. It proceeded upon the view that unless the animal had been deliberately kept for the purpose of inflicting serious injury upon trespassers the appellant could not complain.

Before us it was conceded that the Dog and Goat Act 1898 applied to the locality where the mischief occurred, and, as we think that the appellant was entitled under sec. 19 of that enactment to recover damages for the injury, we find it unnecessary to consider the respondent's common law liability. Sec. 19 provides: "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." The opening words of this provision express a liability without condition 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 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.

For these reasons we think the appeal should be allowed, and the judgment of the District Court restored.

Starke J.

The judgment for the plaintiff in this action for £50 can, in my opinion, be supported either at common law or under the Dog and Goat Act 1898, sec. 19. "A person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril, and ... if it does mischief, negligence is presumed without express averment" (May v. Burdett[1]).

In the present case the defendant kept a large and powerful Alsatian dog which the learned Judge who tried the action described as very savage. There was some evidence, though weak, which the learned Judge accepted, that the defendant had knowledge of its mischievous propensities (Judge v. Cox[2]). The defendant kept the dog at his house which was enclosed by a close boarded fence, 5 ft. 6 in. high, with a barbed wire along the top of the fence. The enclosure adjoined a public street. The dog was not confined in any way, and was large and powerful enough to spring as high as the top of the fence. The plaintiff was passing along the street, looked over the defendant's fence, and without a thought of danger put his hand upon the fence, and was immediately bitten by the dog.

The rule of responsibility in the case of dogs known to have mischievous propensities, though stated in absolute terms, depends upon the relation of the person complaining of injury to the keeper of the dog and the circumstances under which the injury was sustained. It is not unlawful to keep a savage dog. "Undoubtedly, a man has a right to keep a fierce dog for the protection of his property, but he has no right to put the dog in such a situation, in the way of access to his house, that a person innocently coming for a lawful purpose may be injured by it" (Sarch v. Blackburn[3]). But if a person goes on premises for no lawful purpose and is bitten he cannot complain of that which was brought upon him by his own act (Sarch v. Blackburn). And so if a person teased or excited such a dog so that it bit him. A keeper of a vicious dog has been guilty of no breach of duty towards such persons. Persons, however, passing along a public street are entitled to protection from dogs known to be vicious, and the keeper of such a dog must, in my opinion, secure it at his peril. The standard of duty in such a case is far higher than that of the ordinary and prudent man. The owner must take sufficient precaution that the dog shall do no injury to the public passing along the highway. A member of the public is not deprived of this protection if he unwittingly places his hand upon the fence surrounding the place in which the dog is kept or any part of his body within the dog's reach. The same result flows from the provisions of the Dog and Goat Act 1898, sec. 19. It was conceded that the Act applies to the present case. In my opinion, the effect of the Act obliges the owner of every dog to secure it at his peril. It alters the rule of the common law making it essential to prove that the keeper of a vicious dog had knowledge of its vicious propensities. But it also deals with the case of actual negligence. It seems that an action could also be maintained at common law for negligently keeping a dog that did harm though the keeper had no knowledge of any vicious propensities (Beven on Negligence, 3rd ed., p. 527; Fardon v. Harcourt-Rivington[4]). The Act renders it unnecessary in such a case to establish that injury was attributable to any neglect on the part of the owner. But responsibility imposed by the Act upon the owners of dogs, though stated in absolute terms, still, in my opinion, depends as at common law upon the relation of the person complaining of the injury to the owner of the dog and the circumstances under which the injury was sustained. Nothing, however, in the circumstances of the present case relieves the owner of the responsibility cast upon him by the Act to keep and secure his dog at his peril. The plaintiff was, as I have said, passing along the public street and the owner was bound to take sufficient precaution that his dog should do no injury to persons so using the street.

The appeal should be allowed.

Appeal allowed. Order of the Supreme Court discharged. Verdict of the District Court restored. Respondent to pay the costs of this appeal and of the appeal to the Supreme Court.

Solicitors for the appellant, Rowley, Roseby & Co.

Solicitors for the respondent, Hunt & Hunt.

[1] (1846) 9 Q.B., at p. 112; 115 E.R. at p. 1217.

[2] [1814] EngR 46; (1816) 1 Stark. 285; 171 E.R. 474.

[3] (1830) 4 C. & P. 297, at p. 300; [1830] EngR 428; 172 E.R. 712, at p. 714.

[4] (1930) 47 T.L.R. 25.