Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Simon v Condran [2013] NSWCA 388
• Hearing dates: 11 November 2013
• Decision date: 20 November 2013
• Before: Macfarlan JA at [1]; Leeming JA at [2]; Sackville AJA at [49]

Decision

Appeal dismissed, with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PERSONAL INJURY - statutory liability for bodily injury caused by dog - plaintiff bitten by neighbour's dog when attempting to rescue her own dog on neighbour's property - whether plaintiff lawfully on property - whether defence of necessity available - plaintiff's presence on property brought about by her own negligence - plaintiff in breach of obligation to take all reasonable precautions to prevent her own dog escaping; STATUTORY INTERPRETATION - provision imposing criminal offence read with provision imposing civil liability - amendment read with statute as combined statement of will of legislature - provision authorising seizure of dog a defence to trespass to goods, not trespass to land - Companion Animals Act 1998, ss 12A, 22 and 25; TRESPASS - trespass to land - defence of necessity - exception for negligence; WORDS AND PHRASES - "lawfully" - Companion Animals Act 1998, s 25
• Legislation Cited: 6 Wm IV No 4; 11 Geo IV No 8; Civil Liability Act 2002; Companion Animals Act 1998; Companion Animals Amendment Act 2006; Dog Act 1966; Dog Act Amendment Act 1875; Dog (Amendment) Act 1977; Dog and Goat Act 1898; Dogs Act 1865 (Eng)
• Cases Cited: Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453; Crafter v Kelly [1941] SASR 237; CTM v The Queen [2008] HCA 25; 236 CLR 440; Esso and Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985; George v Rockett (1990) 170 CLR 104; Kuru v New South Wales [2008] HCA 26; 236 CLR 1; Petroleum Co Ltd v Southport Corporation [1956] AC 218; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Proudman v Allen [1954] SASR 336; R v Seller [2013] NSWCCA 42; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330; Sarkis v Morrison [2013] NSWCA 281; Simpson v Bannerman (1932) 47 CLR 378; Taikato v The Queen (1996) 186 CLR 454
• Texts Cited: RFV Heuston and RA Buckley, Salmond and Heuston on the Law of Torts, 21st ed (1996) Sweet & Maxwell; JA La Nauze, The Making of the Australian Constitution (1972) Melbourne University Press; New South Wales Law Reform Commission, Civil Liability for Animals (1970) Report No 8; WVH Rogers, Winfield and Jolowicz on Tort, 18th ed (2010) Sweet & Maxwell
• Category: Principal judgment
• Parties: Shari Leigh Simon (appellant); Deborah Anne Condran (respondent)
• Representation: Counsel: DR Toomey; SJ Holmes (appellant); J Guihot (respondent); Solicitors: Stacks/The Law Firm (appellant); Moray & Agnew (respondent)
• File Number(s): 2013/43747

Decision under appeal

• Jurisdiction: 9101
• Citation: [2013] NSWDC 32
• Date of Decision: 2013-02-06 00:00:00
• Before: Neilson DCJ
• File Number(s): 2010/429255

Judgment

1 MACFARLAN JA: I agree with Leeming JA and with the additional observations of Sackville AJA.

2 LEEMING JA: The appellant, Ms Shari Leigh Simon, who was the plaintiff in proceedings heard over five days in the District Court at Taree, appeals from a verdict for the respondent, Ms Deborah Anne Condran. The parties were neighbours in Piggott Street, Nambucca Heads. Both owned dogs. Ms Simon's dog, Jake, was a Staffordshire Bull Terrier/Cattle Dog crossbreed. Ms Condran's dog, Mack, was a Staffordshire Bull Terrier/Greyhound crossbreed. On 11 November 2009, the dogs fought when Jake strayed underneath Ms Condran's house. Ms Simon followed Jake under her neighbour's house and was bitten on the hand by Mack. She sued under s 25 of the Companion Animals Act 1998 (Act) and in negligence, but her appeal was confined to the liability created by s 25 of the Act.

3 Only if Ms Simon's presence on Ms Condran's land when she was bitten was lawful was Ms Condran liable under s 25 of the Act. Ms Simon's appeal should be dismissed because her presence was not lawful. It was not lawful for two reasons. The first is that, as the primary judge found, the occasion for Ms Simon to seek to rescue her dog from underneath her neighbour's house arose because of Ms Simon's negligence in letting Jake wander unrestrained in her unfenced backyard without continuously watching her dog. The second (which was advanced by Ms Condran's notice of contention) is that Ms Simon was herself in breach of s 12A of the Act, when she failed to take all reasonable precautions to prevent Jake escaping from her yard. That separately rendered her presence on Ms Condran's land not lawful.

The layout of the properties

4 Ms Condran acquired her property over ten years ago and has resided there subsequently. Ms Simon took a lease of a neighbouring property commencing on 6 March 2009. Both properties were rectangular and faced Piggott Street to the north.

5 In March 2009 not all of the boundary between the two properties was fenced. Pedestrian safety fencing separated the backyards, running south to north from the rear of the properties to a point roughly halfway along the common boundary. From the northern end of that fence Ms Condran had installed iron reinforcing mesh such as that used on building sites (described in the evidence at trial as "reo fence") which ran in an easterly direction to the elevated south-west corner of her house and continued underneath her house, effectively to the eastern boundary of her property, thereby securing Mack in the backyard. (At least the rear and verandah of Ms Condran's house was sufficiently elevated from the ground on concrete or brick plinths to allow an adult, crouched over, (or, indeed, a dog) to get underneath the house.) There was also some thin bamboo fencing following the pedestrian safety fencing and reo fence.

6 The property boundary further to the north, between the two houses, was not fenced. There was lawn on Ms Simon's side which (according to the photographs tendered at trial) continued onto Ms Condran's side, where there were planted some banana trees, right up to her house.

7 Shortly after Ms Simon commenced living in Piggott Street, it became obvious that Jake and Mack did not get along. An attempt to introduce the dogs to each other in the presence of their owners failed. At around that time, Ms Simon proposed supporting the dividing fence with corrugated iron. Ms Condran opposed the use of corrugated iron, but Ms Simon had it installed it in any event and it remained in place. Ms Simon and a friend placed sheets of corrugated iron on her side of the boundary along the pedestrian safety fencing, creating a solid barrier approximately as high as Ms Condran's house was raised off the ground. Ms Simon also had corrugated iron placed along the short length of reo fencing, entirely on Ms Condran's property, connecting the boundary with the south-west corner of her house. The corrugated iron extended, but only slightly, into the cavity under Ms Condran's house.

8 A reader may have difficulty in understanding the geographical layout of the neighbours' land and fencing from the foregoing, but no useful plan was tendered. What matters for present purposes was the following. At all times, Mack was secured within Ms Condran's yard. Mack could not pass through any of the boundary fencing, or through the reo fence connecting the boundary with the south-western corner of Ms Condran's house, or the reo fencing underneath her house.

9 On the other hand, no fence inhibited Jake from straying onto Ms Condran's land alongside her house crossing the unfenced northern portion of the boundary. Nothing prevented Jake from straying underneath Ms Condran's house, although the evidence was that, until 11 November 2009, Jake had never done so. Finally, although the pedestrian safety fencing and the corrugated iron prevented the two dogs from coming into physical contact with each other, underneath Ms Condran's house the only barrier (beyond the slight extension of the corrugated iron) was reo fence.

10 And there is one other important fact. Jake and Mack could pass their heads through the reo fence.

11 For those reasons, Ms Simon had constructed a "run" in her backyard, comprising a wire between two star pickets, to which Jake could be attached by collar and leash. As the primary judge put it:

"The inference to be drawn is that each of the plaintiff and the defendant was aware of the antagonism between her respective dog and had taken steps to keep them apart at the boundary between number 3 and number 5."

The events of 11 November 2009

12 Save for two issues which do not matter on the view I take, there was no dispute as to what occurred on the day Ms Simon was bitten. On 11 November 2009, Ms Simon was waiting for a friend to arrive and pick her up for lunch. While waiting, Ms Simon let Jake off the run. Ms Simon said she saw the two dogs on opposite sides of the boundary fence facing each other. There was a dispute as to whether they were barking or merely sniffing, but there was no dispute that both were travelling northward, separated by the fence, and approaching the area where the boundary fence ended.

13 When Jake was around one metre from where the reo fence connected to the boundary fence, Ms Simon's friend arrived. Ms Simon was distracted by her arrival and ceased looking at Jake. Shortly thereafter, she heard a fight break out between Jake and Mack. Both Ms Simon, and her neighbour's son Luke, raced as quickly as they could to the scene. (There was a dispute as to who arrived first; again, on the view I take, nothing turns on this.) Ms Simon went underneath her neighbour's house, where she could see Jake. She saw Jake's head in Mack's muzzle. She saw Luke striking Mack with his fists. Ms Simon, acting in the heat of the moment, started striking her own dog with her fists. She denied ever striking Mack. Luke's action caused Mack to let go of Jake's head, and it was at that point that Mack bit Ms Simon's left hand.

14 As the primary judge put it, "it was more than one short, fleeting, casual bite." Ms Simon was driven to Macksville District Hospital accompanied by the defendant. Her injuries were serious. Her appeal is as of right, because the primary judge assessed damages in the event he was wrong as to liability at $138,954. Neither party challenged the quantification of damages.

The legislative scheme

15 Ms Simon sued Ms Condran pursuant to s 25 of the Act, which is relevantly in these terms:

"(1) The owner of a dog is liable in damages in respect of:

(a) bodily injury to a person caused by the dog wounding or attacking that person, and

(b) damage to the personal property of a person (including clothing) caused by the dog in the course of attacking that person.

(2) This section does not apply in respect of:

(a) an attack by a dog occurring on any property or vehicle of which the owner of the dog is an occupier or on which the dog is ordinarily kept, but only if the person attacked was not lawfully on the property or vehicle and the dog was not a dangerous dog or restricted dog at the time of the attack, ..."

The section does not apply if the dog's attack is in immediate response to and is wholly induced by the intentional provocation of the dog (s 25(2)(b)) or if the dog is a police dog (or, since 2010, a corrective services dog) (s 25(3)). Section 25(4) preserves any other liability which would exist aside from the section.

16 Section 12A, introduced by the Companion Animals Amendment Act 2006, is also central to this appeal. It provides:

"12A Preventing dog from escaping

(1) The owner of a dog must take all reasonable precautions to prevent the dog from escaping from the property on which it is being kept.

Maximum penalty:

(a) 8 penalty units except in the case of a dangerous or restricted dog, or

(b) 50 penalty units in the case of a dangerous or restricted dog.

(2) For the purposes of subsection (1), owner of a dog includes the person who is for the time being in charge of the dog."

17 The provision which became s 25 may be traced fairly directly to s 9 of the Dog Act Amendment Act 1875 (39 Vic No 6):

"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 the owner."

18 That in turn derived from, but was an expansion of, s 1 of the (English) Dogs Act 1865 (28 & 29 Vic c 60), which confined the statutory liability to damage done to cattle or sheep. As the New South Wales Law Reform Commission reported in 1970 (Civil Liability for Animals, Report No 8 at 24), "[i]n view of the history of the legislation in respect of dogs in New South Wales it is not surprising that this liability without fault for injury done by a dog was not limited, as in the United Kingdom, to injury to cattle or sheep". For, as the Commission set out at 23-24, there had been earlier colonial legislation in New South Wales, commencing in 1830 with 11 Geo IV No 8, a temporary Act revived and continued in 1835 by 6 Wm IV No 4, both of which imposed penalties and dealt with the liability of dog owners. (Hence Edmund Barton's expression of irritation on amendments to the draft Constitution proposed by the Colonial Office, "This is a Constitution and not a Dog Act": see JA La Nauze, The Making of the Australian Constitution (1972) Melbourne University Press at 186.)

19 Section 9 of the 1875 colonial Act was reenacted as s 19 of the Dog and Goat Act 1898 and s 20 of the Dog Act 1966. All of this colonial and State legislation imposed liability in unqualified terms. Of the 1898 Act the joint judgment in Simpson v Bannerman (1932) 47 CLR 378 at 383 said that "the very generality of its terms provokes attempts at restriction by implication". The breadth in scope of the legislation was noted by Basten JA in Sarkis v Morrison [2013] NSWCA 281 at [10].

20 The Law Reform Commission considered that leaving the question of exceptions to the courts to determine by way of implication was unsatisfactory (at 25), and proposed (at 33) a qualification to the effect that the liability did not apply "in the case of an attack by a dog occurring on any land vehicle or other premises of which the owner of the dog is an occupier; or on which the dog is ordinarily kept". That recommendation was enacted by the Dog (Amendment) Act 1977 (see Sarkis at [11]) and is the immediate antecedent to s 25 of the Act.

21 Although the only damages claimed under the Act were damages to Ms Simon pursuant to s 25, it is necessary to construe the Act as a whole. Section 27 makes the owner of a dog liable in damages in respect of injury (whether or not fatal) to another animal (other than vermin) caused by the dog attacking or chasing it. Section 27(2)(a) provides that the section does not apply in respect of:

"a dog attacking or chasing another animal on any property or vehicle of which the owner of the dog is an occupier or on which the dog is ordinarily kept, but only if the dog is not a dangerous dog under this Act at the time of the incident..."

22 It will be seen that the liability imposed by the legislation of 1875, 1898 and 1966 for injury done to "any person, property or animal" was divided by the Act into separate bases of liability: s 25 for damage to a person or his or her personal property, and s 27 for damage to another animal. As will be seen from s 25 and s 27, additional obligations are imposed in the case of "dangerous dogs" or "restricted dogs"; it was common ground that Mack fell into neither category. Additional obligations are also imposed upon the owners of greyhounds by s 15 (principally, and speaking generally, they must be muzzled except when on the property occupied by their owner), but even if Mack were a "greyhound", s 15 would not apply because Mack was at all times on Ms Condran's property.

23 Dogs which are in a public place must be under the effective control of a competent person by means of an adequate chain, cord or leash attached to the dog: s 13 (there are exceptions including for areas designated as "off-leash areas", for working dogs and for police and corrective services dogs). The owner of a dog commits an offence if the dog (even if leashed) is in certain places including a children's play area, a school or a child care centre (except with the permission of the person controlling the school or centre) and a wildlife protection area: s 14 (there are exceptions for police and corrective services dogs, and assistance animals). The owner of a dog also commits an offence if the dog "rushes at, attacks, bites, harasses or chases" any person or animal, whether or not causing injury: s 16(1). However, s 16(2) provides that it is not an offence if the incident occurred as a result of the dog being teased, mistreated, attacked or otherwise provoked, as a result of the person or animal trespassing on the property on which the dog was being kept, as a result of the dog acting in reasonable defence of a person or property, in the course of lawful hunting or working stock or in the case of a police or corrective services dog.

24 It is convenient immediately to identify the following propositions flowing from the legislative scheme. First, the Act recognises that the owners of all dogs have responsibilities, because all dogs are capable of causing harm to persons (especially young children) and other animals. The Act differentiates "dangerous dogs", "restricted dogs" and, in one respect, greyhounds from all other dogs, and imposes greater obligations on their owners.

25 Secondly, although the liability imposed by the Act is both criminal and civil, ordinary principles of construction require all provisions of the Act to be read harmoniously. "The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute": Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] (emphasis added).

26 Thirdly, s 12A, although inserted by amendment, is to be construed together with the unamended provisions: Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463. As Bathurst CJ said in R v Seller [2013] NSWCCA 42 at [100]:

"Where a statute is amended both the act which is amended and the amending act must be read together as a combined statement of the will of the legislature as a consequence of which the effect of the amending act may be to alter the meaning which the remaining provisions of the amended act bore before the making of the amendments".

27 Fourthly, the provisions in the Act imposing both criminal and civil liability recognise the importance of dog owners being free to keep their dog unleashed in their own property, not least for security. In respect of criminal liability, it is an offence to fail to take all reasonable precautions to prevent a dog escaping its owner's property (s 12A), while it is not an offence for a dog to attack or bite a person as a result of the person's trespassing on the property on which the dog was being kept (s 16(2)(b)). In terms of civil liability, the owner of a dog (which is not a dangerous dog) is not liable for damage to another animal where the dog is on property of which its owner is an occupier or on which the dog is ordinarily kept (s 27(2)(a)). Nor is the owner of a dog (which is not a dangerous or restricted dog) liable for damages in respect of bodily injury to a person if the attack occurred on property of which its owner is an occupier or on which the dog is ordinarily kept, so long as "the person attacked was not lawfully on the property" (s 25(2)(a)).

28 Fifthly, it may be said that the civil liability created by s 25 and s 27 of the Act is "strict" (language used by the primary judge) or "no-fault" (language used on appeal). But there is danger in using such labels, and no advantage is thereby gained, for the only question is one of statutory construction: CTM v The Queen [2008] HCA 25; 236 CLR 440 at [149] (Hayne J). The liability created by s 25 and s 27 is not dependent upon any breach of duty on the part of the dog owner, from which it follows that the liability is not regulated by Part 1A of the Civil Liability Act 2002. Although that Part applies to claims brought under statute, it is confined to claims for damages for harm resulting from "negligence", negligence here meaning a failure to exercise reasonable care and skill: s 5 and s 5A.

29 The language of s 25 (and for that matter s 27) creates a liability on the part of an owner of a dog in the circumstances to which it applies. It will have been seen that the liability is replete with qualifications, including as to the nature of the dog and the location of the attack. There is a marked contrast between the Act and the legislation prior to 1977. Given the detailed articulation of sections imposing and qualifying the imposition of liability, there is little occasion for any further process of implication.

30 Sixthly, it was and is common ground that when Mack bit Ms Simon on 11 November 2009, s 25(1) was satisfied. The only provision relied on by Ms Condran is s 25(2)(a). That paragraph operates only if "the person attacked was not lawfully on the property" and the dog was neither a dangerous nor a restricted dog. As noted above, it was and is common ground that Mack was neither a dangerous nor a restricted dog. Hence the critical question was whether Ms Simon was not lawfully on Ms Condran's property at the time of the attack.

31 The parties proceeded on the basis that Ms Simon bore the onus of proving that the preconditions of the liability imposed by s 25(1) were satisfied. That meant that it fell to her to negate the non-application of the subsection by s 25(2)(a). Accordingly, as the primary judge held, it fell to her to demonstrate that she was lawfully on her neighbour's property.

32 Finally, the word "lawfully" takes its meaning from the context: Crafter v Kelly [1941] SASR 237 at 243. There is regularly a question whether in a particular context it means positively authorised, as opposed to not forbidden: see eg Taikato v The Queen (1996) 186 CLR 454 at 460 and 469. In the present case, it was not suggested that "not lawfully" meant anything other than the absence of a positive authority or entitlement to be present on the land. Questions which might arise in other cases might include was the person an invitee? Was there an implied licence? Was there some statutory authority (for example, to repair electrical works, or measure a utility meter)? But the parties litigated this issue on two bases: necessity and s 22. Separately, Ms Condran said that the effect of s 12A in its application to the facts meant that Ms Simon could not lawfully be on the property. I deal with each submission separately below.

Necessity

33 It was common ground that the common law recognised a defence of necessity to conduct which otherwise would amount to trespass to land: Proudman v Allen [1954] SASR 336, Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 and Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985. In Rigby, Taylor J held that a "defence of necessity is available in the absence of negligence on the part of the defendant creating or contributing to the necessity" (at 995). His Lordship quoted Winfield and Jolowicz on Tort, 12th ed (1984) at 722:

"Necessity negatives liability in tort provided, of course, that the occasion of necessity does not arise from the defendants own negligence, though the authority on it is scanty."

and Salmond and Heuston on the Law of Torts, 18th ed (1981) at 465:

"In any case, the defence [of necessity] is hardly available if the predicament in which the defendant found himself was brought about by his own negligence."

(Those passages appear, essentially unchanged, in the most recent editions of both texts: see WVH Rogers, Winfield and Jolowicz on Tort, 18th ed (2010) Sweet & Maxwell at 1168 and RFV Heuston and RA Buckley, Salmond and Heuston on the Law of Torts, 21st ed (1996) Sweet & Maxwell at 469. There is no occasion, given the parties' approach, to take the matter any further.)

34 In that way, the principal issue at trial and on the appeal was whether Ms Simon was "negligent". But that issue as framed needs to be understood in a particular way: was Ms Simon negligent so that it could be said that her negligence created the occasion for her needing to travel onto her neighbour's land, thereby denying to her what would have been a defence of necessity? It was not an issue which attracted the Civil Liability Act (because Ms Simon's underlying claim was one for statutory liability not based on a failure to take reasonable care). It was not necessary for there to be a finding of duty, or of loss.

35 Ms Simon submitted that what occurred when her friend arrived on 11 November 2009 and she neglected Jake was "momentary inattention or mere inadvertence". The primary judge rejected that submission:

"40 ... She took her eye off her dog at a critical time, that is, when the dog was in a critical place pursuing a critical activity, the pursuit of Mack, on the other side of the boundary fence. She was aware that Jake could go under the defendant's house, and Jake did so. That created the emergency which gave rise to the necessity.

41 Accordingly, in my view the defence of necessity is not available to excuse the plaintiff's trespass upon the defendant's land because the plaintiff's conduct contributed to the emergency which gave rise to the necessity."

36 Those factual findings were amply open on the uncontested evidence. Ms Simon knew of the antagonism between the dogs. She had been personally involved (together with her friend) in placing corrugated iron along the reo fence separating her property from Ms Condran's and connecting it with the south-west corner of Ms Condran's house. She was present for at least part of the time. The pre-existing barrier consisted of the same reinforced steel wire that continued under the house. She accepted in cross-examination that she was aware of the nature of that barrier. The overwhelming inference is that she was aware there was an opportunity for the two dogs to come into contact if Jake went under Ms Condran's house. She knew that nothing prevented Jake from going under Ms Condran's house, and knew that the two dogs had been interacting on opposite sides of the fence (although there was a dispute as to whether the dogs were barking at the time, there was no dispute that Ms Simon believed that Mack was interacting with her dog from the other side of the fence). She gave this evidence in cross-examination:

"Q. You told us yesterday that you were aware it was possible for your dog to go underneath Mrs Condran's house, that's right isn't it?

A. Yes.

Q. But you hadn't taken any steps to erect any barrier or ... to prevent your dog from going off your land underneath Mrs Condran's home had you?

A. No.

Q. Can I suggest that the reason why it never crossed your mind to put any barrier to prevent the dog from going underneath Mrs Condran's home was that it had never happened to your knowledge, it is fair to say?

A. Yes.

Q. On this particular day it's the case that you allowed your dog to wander around your backyard unrestrained?

A. Yes.

Q. And you in fact observed the two dogs on opposite sides of the boundary fence facing each other, that's right isn't it?

A. Yes.

...

Q. [I]t's the case that you did observe the two dogs, although on opposite sides of the boundary fence, moving their position going from the back of the yard towards the front -

A. Yes.

Q. - or in a direction of the front of the two properties, that's fair to say isn't it?

A. Yes.

Q. And at some point you ceased observing your own dog and next become aware of it when it was underneath the house, is that the case?

A. Yes.

...

Q. So if [Jake] was allowed to go wherever he chose to and you'd seen the two dogs moving on opposite sides of the boundary fence and you knew that your dog could go underneath Mrs Condran's home, you should have been keeping a lookout for your own dog, do you agree with that?

A. Yep."

37 In those circumstances, and in light of that evidence, it was open to the primary judge to find that Ms Simon had created what he described as a "critical" situation whereby, on almost no notice, it was possible for the two dogs physically to come into contact with each other. The words in his Honour's conclusion at [40] reproduced above are, in the context of the reasons, fairly to be read as reflecting the findings of fact earlier in his reasons: that "Jake was less than a metre from the right-hand turn which takes the ... boundary fence to the southwest corner" and that "one would expect a dog to take but a few seconds to round that right-hand corner and to follow the fence to the southwest corner of the defendant's house and then to go underneath the house", which allowed the dogs to confront each other. Although his Honour does not mention the proven animosity between Jake and Mack, that was plainly also inherent in his reasoning and conclusion. Thus his Honour's finding of negligence was not based simply on a momentary lack of attention by Ms Simon, but on her actions in creating a situation where there was a plainly foreseeable risk of Jake running onto Ms Condran's land and of continuing to a point where the two dogs could come into contact.

38 Ms Simon submitted that the primary judge had erred by failing to determine negligence prospectively, and invoked familiar authorities to the effect that a failure to act reasonably is to be determined prospectively not retrospectively (for example, Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [18] and [65]). But that submission conflates the two distinct ways in which "negligence" is being used. It is one thing to impermissibly find negligence through hindsight-influenced reasoning when, viewing the matter prospectively, what occurred was not reasonably foreseeable. The inquiry in the present case is different: it is whether Ms Simon was denied a defence of necessity because her own negligence brought about the occasion for her necessitous intervention. The fact that Jake had not previously run under Ms Condran's house, and the possibility that Ms Simon might not have been able to stop Jake from doing so even had she not been distracted, do not displace what emerges clearly from the evidence, namely, that Ms Simon's own conduct brought about the emergency.

Section 12A

39 The same conclusion may be reached by an alternative route, propounded by Ms Condran in submissions below and by her notice of contention, based on s 12A. The Minister with carriage of the Bill which inserted s 12A said of it:

"The bill also introduces a requirement for all dog owners to take reasonable precautions to prevent their dog from escaping from the property where it is ordinarily kept. Dog owners must realise that a dog that can escape from its yard is a potential danger. If a dog is out of its yard without its owner, it may fight with another dog, cause damage to property, cause a motor vehicle accident by running on the road or worse, attack a child, an elderly person or small animal": New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 October 2006 at 3283.

40 Ms Condran, on the evidence, had taken all reasonable precautions to prevent Mack from escaping from her property. In contrast, Ms Simon had failed to do so. There was nothing preventing her dog from straying over the boundary from the land she occupied, to that owned by Ms Condran to the extent that that boundary was unfenced. More particularly, there was nothing preventing Jake from going underneath Ms Condran's house, or inserting his head through the reo fence under Ms Condran's back verandah.

41 The evidence was not clear whether Ms Simon, by vigilantly monitoring Jake, was in a position to prevent her dog from going under her neighbour's house. But certainly when she ceased to monitor her dog, she had ceased to take all reasonable precautions to prevent Jake from escaping. She left Jake unleashed in her unfenced backyard knowing that nothing prevented her dog from moving onto her neighbour's land and then underneath her neighbour's house. She knew the dogs did not get along. She had physically separated the dogs by placing sheets of corrugated iron along the boundary and reo fences, including on her neighbour's land over her neighbour's protests. She knew the dimensions of the reo fence, and knew that it continued underneath her neighbour's house.

42 The Act must be read as a whole. It was common ground that the defence of necessity as picked up by s 25(2)(a) did not extend to necessitous intervention occasioned by the victim's own negligence. Nor does it extend to necessitous intervention occasioned by the victim's own breach of the Act. Ms Simon came to be underneath Ms Condran's house only because Ms Simon had not taken all reasonable precautions to prevent Jake from escaping from her property. The mischief of a dog which has escaped from its yard getting into a fight with another dog was the first instance given by the Minister when s 12A was introduced. Ms Simon was in breach of s 12A, and for that further reason, not "lawfully" on Ms Condran's property when she was bitten. As Ms Condran put it in closing address at the trial, "in my submission it's the failure on the part of the plaintiff to restrain her own animal that's created any emergency that might be present and the defence of necessity simply does not get off the ground".

Section 22

43 Ms Simon also submitted (but when the appeal was heard, was content to rely on her written submissions) that s 22(2) gave her a statutory entitlement to temporarily enter Ms Condran's property, thereby making her presence lawful. Section 22(2) is in these terms:

"Any person may lawfully seize, injure or destroy a dog if that action is reasonable and necessary for the protection of any person or animal (other than vermin) from injury or death."

It is far from clear that subsection applies at all. Ms Simon was not attempting to seize, injure or destroy Mack. She was trying to extract Jake from Mack's jaws. On one view that might be a "seizing" of her own dog in order to protect it from injury or death, but plainly enough that is a long way from the scope of the authority conferred by the section. It is not necessary to express a concluded view on this aspect of its operation.

44 Ms Simon's submission is to be rejected because, as the primary judge held, s 22(2) confers authority to seize, injure or destroy a chattel - to do that which, absent statutory authority, would be a trespass to goods. It is silent in relation to trespass to land. (It may be contrasted with s 22(5), which applies to trespass to land but only where a dog enters inclosed lands.) Settled principles of statutory construction require irresistible clarity before fundamental rights such as the exclusive possession of land are abrogated. In Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1 at [37] the joint judgment rejected an argument that statute, by implication, might undercut the "strong principle of Australian law defensive of the quiet enjoyment by an occupier of that person's residence", described as an "important civil right in our society". In George v Rockett (1990) 170 CLR 104 at 110-111, a unanimous High Court referred, in the course of construing a statute authorising a search warrant by insisting on strict compliance, to the need to keep in mind that such statutes "authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect".

45 Against this, Ms Simon advanced an expressio unius argument, by reference to the exceptions to criminal liability in s 16 in the case of a dog attacking a trespasser; it was said that the absence of a qualification in respect of trespassers made the authority conferred by s 22 universal. The answer to that submission is, as the primary judge held, that s 22 is not directed to trespass to land at all; it is directed to seizing, harming and in some cases killing a dog owned by another, which would otherwise be a trespass to goods. Section 22 says nothing as to Ms Simon's lawful presence on the land. The primary judge correctly rejected the submission that s 22(2) authorised Ms Simon's presence under her neighbour's house.

Other issues

46 By notice of contention, Ms Condran contended that it should be found that Luke arrived at the scene before Ms Simon, and that in any event, nothing Ms Simon did served any purpose in saving Jake; it followed that even if she were not negligent, there was no necessity for her to go underneath her neighbour's house. I would reject that contention. It is necessary in order to do so to put to one side the fact that Ms Simon created the occasion for necessitous intervention. The owner of a dog (or the parent of a child) is entitled to race to the scene of an emergency, even if it appears that there is little that he or she can do, or if it appears likely that another rescuer will arrive first. It follows that it is not necessary to deal with the competing evidence as to who arrived at the scene first. Nor is it necessary to deal with contributory negligence, or address Ms Simon's argument that s 5S of the Civil Liability Act could not apply because of the deeming provision in s 28 of the Act.

Orders

47 I share the primary judge's evident sympathy for Ms Simon. The circumstances are unfortunate, and it is entirely natural that she should race to rescue her dog. But the question in this appeal is whether there is statutory liability. Is Ms Condran, who secured her dog Mack within her own property, to be held liable for the damage caused by Mack when Ms Simon followed her dog Jake underneath Ms Condran's house and placed herself in a position where Mack could bite her through the reo fence? Ms Simon brought about the occasion for the need to expose herself to Mack. And in so doing, she failed to comply with the important obligation to take all reasonable precautions to keep her own dog secured. Only if she were lawfully on her neighbour's property is her neighbour liable, and because she brought about the situation and because she breached obligations imposed by the Act, she was not lawfully on her neighbour's property.

48 I propose that the appeal be dismissed. There is no reason for costs not to follow the event.

49 SACKVILLE AJA: I agree with the orders proposed by Leeming JA and with his Honour's reasons. I wish to add only a brief comment.

50 At the time the appellant ("Ms Simon") sustained her injuries, the respondent ("Ms Condran") had her dog securely fenced within her own premises. The injuries unfortunately sustained by Ms Simon came about because she attempted to rescue her dog, Jake, which as a result of Ms Simon's own actions, had been allowed to enter Ms Condran's property. Ms Simon's injuries were inflicted by Ms Condran's dog but that dog never left the secure enclosure on Ms Condran's land. Nor did Ms Simon have permission to enter Ms Condran's land.

51 In my opinion, it would be quite inconsistent with the text and structure of the Companion Animals Act 1998 ("CA Act") to hold Ms Condran liable for Ms Simon's injuries by reason of s 25(1) of the CA Act. As Leeming JA has explained, the CA Act must be read as a whole. A dog owner who contravenes s 12A(1) of the CA Act by failing to take all reasonable precautions to prevent the dog escaping onto a neighbour's property, and who enters that property without permission from the neighbour to rescue the dog, cannot rely on the doctrine of necessity to escape a finding that he or she was not lawfully on the neighbour's property (a finding that would prevent the owner claiming damages under s 25(1) of the CA Act). In such a case, the need to enter the neighbour's property to rescue the dog arises only because of the dog owner's failure in the first place to take reasonable precautions to prevent the escape of the dog. In other words, the alleged necessity said to justify the dog owner's entry onto the neighbouring property is a direct consequence of the owner's contravention of s 12A of the CA Act. To hold that s 25(1) applies in these circumstances would undermine the statutory scheme. That scheme recognises the dangers inherent in a dog escaping from the property on which it is being kept and, to avoid or minimise those dangers, imposes an obligation on the owner of the dog to take all reasonable precautions to prevent any such escape.

52 All that is necessary to establish a contravention of s 12A(1) of the CA Act is that the owner of a dog has failed to take reasonable precautions to prevent the dog escaping from the property on which it is being kept. Section 12A(1) therefore imposes a positive duty on dog owners: that is, to take all reasonable precautions to prevent the dog escaping from the property upon which it is kept. That may mean that if a dog is allowed out of a secure area on its owner's land, the dog owner must place the dog on a leash or take some other "reasonable" measure to ensure that the dog does not escape from the owner's land. To demonstrate a breach of s 12A(1) it is not necessary to show, for example, that it was reasonably foreseeable that the dog would escape to a particular place where it could inflict harm on another person or animal.

53 On the findings made by the primary judge, no conclusion can be reached other than that Ms Simon did not take all reasonable precautions to prevent Jake escaping onto Ms Condran's land. It is true that there was no evidence that Jake had ever gone under Ms Condran's house. But the evidence did not demonstrate that Jake had never been onto Ms Condran's land. In any event, once the dog had been permitted to leave the secure area at the rear of Ms Simon's house, it could hardly have been expected to confine its activities to one side of an unfenced boundary unless it was subject to some physical restraint. There was no evidence to suggest that Jake was so well trained and obedient that a mere call for restraint could reasonably have been expected to prevent the dog from escaping from Ms Simon's land onto her neighbour's property. Whether Jake then went under Ms Condran's house and came in contact with her dog was up to Jake.

54 There is no occasion to consider in this case whether the doctrine of necessity could apply where the escape of a dog creates imminent danger, for example, to a child on the neighbour's property, and the dog owner is injured by the neighbour's dog while attempting to rescue the child. In the present case, the "necessity" for Ms Simon to enter Ms Condran's land was said to arise from the need to prevent the escaping dog, Jake, from sustaining injury. Yet the danger to Jake was created by Ms Simon's failure to take all reasonable precautions to prevent Jake escaping from her land.

55 Since Ms Simon was not lawfully on Ms Condran's land when she sustained her injuries, she is not able to rely on s 25(1) of the CA Act to establish that Ms Condran is liable in damages for the injuries she sustained.

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Amendments

05 September 2014 - In the first sentence in brackets, the word "essentially" has been added before "unchanged".
Amended paragraphs: 33

05 September 2014 - In the fourth sentence, the words "to be abrogated" have been replaced by "are abrogated".
Amended paragraphs: 44

Decision last updated: 05 September 2014