Gone to the Dogs?
The Bill in respect of legislation to be named the Dogs (Liability for Attacks) Act (referred to as the “Bill" in this article) has been passed in the House of Representatives and the Senate. The Bill requires the approval of the Governor General and it must be gazetted in order for it to become law. This is all expected to take place in short order, and has many dog owners concerned about how to keep their dogs, in some instances man’s best friend, under control, for fear of ending up ‘in the dog house’ for injury caused by their dogs.
This article, while reviewing provisions contained in Bill and its impact on dog owners and occupiers of premises where dogs are kept, also explores the treatment of dangerous dogs in another jurisdiction.
Dogs liable to bite the hands that feed them
Under the Bill, injury means injury to an individual or animal and includes death, disease or impairment of physical condition. In the case of an individual, mental impairment may also be considered an injury.
The owner of a dog includes the owner or occupier of a premises where a dog is kept, the person having custody or care of a dog at the time of a relevant injury and where the injury is in a public place, the person who caused the dog to be in the public place. In other words, one does not have to own a dog to be liable for injury caused by it. However, a person may not be liable for damages if it can be shown that at the time of the injury, the dog was in the custody or care of another person.
Also, the occupier of a premises (building or land) or public place includes any person having a duty of care to visitors and that includes a tenant. The issue of an unlawful occupier may be an interesting one where the ownership of a dog, which has caused injury, is concerned. Under the Bill, the occupier of any place where a dog is kept or permitted to live or remain shall be presumed the owner of the relevant dog. The Bill allows for more than one person to be presumed the owner of a dog and therefore, it is possible for more than one person to be held liable for injury caused by a dog.
Dog owners, while in public places, are obliged to keep their dogs under control, ensure that dogs are on a leash or muzzled and also that dogs do not enter public places where a notice prohibiting dogs is prominently displayed.
Under the Bill, once a civil claim is made within six years of the date of an injury, a dog owner may be liable in damages/compensation for injury caused by a dog in a public place. Interestingly, the party claiming for damages need not show that the relevant dog has a mischievous propensity, the owner’s knowledge of the dog’s mischievous propensity, or neglect by the owner causing the injury.
Also, a dog owner commits a criminal offence where his or her dog causes injury in a public place. The penalties for criminal liability include a fine of up to $500,000 or up to six months imprisonment in instances where the offender was not previously warned about the same dog or any other dog. This could very well become a ‘dog eat dog’ situation! Where the dog owner was previously warned, the fine may be up to $1,000,000 or six months imprisonment. Where the injury results in death or debilitating injury to an individual, the term of imprisonment increases to a maximum of five years, or fifteen years where the offender failed to attempt to restrain the dog or assist the individual being attacked. A court may also order that a dog be euthanized at the expense of its owner.
The possible defences to civil and criminal liability include an attack by a dog against an offence being committed by the person attacked, trespass by an unauthorized person or animal, or deliberate provocation of the dog.
Although the Bill covers injury in a public place, a person is not precluded in law from making a claim for injury occurring at the premises where a dog is kept.
“Every dog must have his day” – Johnathan Swift
The Registration (Strata Titles) Act which sets out the governing by-laws for strata corporations such as apartment complexes, states that a proprietor shall not keep animals on his strata lot or common property after receiving notice in that regard from a strata corporation’s executive committee. Some properties have taken steps to amend by-laws to ban dogs while others may have banned all pets. It would not come as a surprise if, as a consequence of the new Bill, strata corporations at the outset take the bold step of banning all dogs.
Owners and occupiers of strata or apartment complexes should be mindful that by-laws cannot be unilaterally amended. The law states that by-laws may only be amended either by a resolution passed by a specified majority of proprietors or, in certain instances, by a strata corporation.
In addition, homeowners who are signatories to homeowners’ agreements may wish to have their agreements reviewed with respect to owning and keeping dogs within gated communities, if not previously considered.
A dog’s world
In the United Kingdom, where its Dangerous Dogs Bill is in force, there are certain breeds of dogs which are banned (namely the Pit Bull, the Japanese Tosa, the Dogo Argentino and the Fila Brasileiro) because they are considered to be a risk to the public by the UK Government, for various reasons.
There is, however in that jurisdiction, an exempted dogs list and a dog owner may apply to the court for a certificate of exemption if the court is satisfied that the dog does not pose a risk to the public. The owner, however, is required to have the dog neutered and microchipped and must also obtain insurance for the dog against injury to other people.
Interestingly, pet insurance in that jurisdiction is common not only for third party liability in the event of injury but also, and more popularly, for veterinary visits similar to health insurance for individuals.
In addition, according to the Guide to the Dangerous Dogs Bill, a farmer in the UK is permitted to shoot a dog if it attacks livestock.
“As wonderful as dogs can be, they are famous for missing the point” – Jean Ferris
As it currently stands, the Bill does not seek to ban a specific breed of dog but it may be worthy of consideration as dogs are said to have minds of their own and it is often this "independence" that gets them and their owners into trouble.
It is apparent that the new Bill seeks to tighten the reigns of accountability of dog owners, more so now than ever before. And, rightly so, in light of recent tragic occurrences. However, it is hoped that dog owners who own and breed dogs for household security purposes may find a balance without having to compromise on security.
Only time will tell how the legislation and the position of the court may influence the future of owning, keeping and breeding dogs, and just how man and his “best friend” can withstand the rigours of the law.
Rachel McLarty is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Property Department. Rachel may be contacted via email@example.com or you can visit the firm’s website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.