By Matthew Skelly, Associate and Casey Thomas, Lawyer

We have been finding dog bite claims are becoming more and more frequent in our practice both in New South Wales and the Australian Capital Territory. As such, we consider the application of the Companion Animals Act 1988 (NSW) and Domestic Animals Act 2000 (ACT) are becoming more and more relevant. In this article we focus on two defences to the strict liability placed on owners of animals which cause personal injury or damage to property.

Section 25 of the Companion Animals Act 1988 (NSW) (the NSW Act) holds an owner of a dog strictly liable where their dog wounds or attacks a person, causing bodily injury or damage to personal property. However, the strict liability contained at section 25 of the NSW Act does not apply where the attack was an immediate response to, and wholly induced by, the intentional provocation of the dog by someone other than the owner.

Similar liability is reflected in the Domestic Animals Act 2000 (ACT) (the ACT Act) with the offence outlined in section 49A of the ACT Act featuring similar defences where the defendant can prove the person (or another animal) provoked the dog.

Complexity arises in the NSW Act with the use of the word ‘intentional’ and whether it applies equally to children.  Interestingly, the word ‘intentional’ is not employed in the ACT Act, suggesting an accidental action may enliven the defence.

The Courts have considered the word ‘intentional’ in the context of section 25 of the NSW Act, but not in the context of a positive act causing the dog to respond. The risk of attack to children is inevitable, as illustrated in Cuschieri Te Puia v Sheerin [2020] NSWDC 527, which involved a five year old boy who was playing in the backyard of a friend’s property. The child could hear dogs barking next door and he used a tree stump to climb onto the fence in an effort to, innocently, calm the dogs and reassure them the children were simply playing. The dogs leapt up and attacked the boy.

The Court found though the child’s conduct may have excited the dogs, it did not constitute an action of intentional provocation, and the dogs’ owner was held liable. In Sheerin the conduct of the child was passive and it was the boy’s presence which excited the dogs, not some positive action or assault on the dog. This was similar to the finding in Simpson v Bannerman (1932) 47 CLR 378 in which an adult had rested his hand on a fence, unaware of any danger posed by a dog enclosed in the private property beyond. This passive conduct did not amount to provocation of the dog.

In our assessment of the case law it appears Courts more readily read the word ‘intentional’ against a background of a wilful and deliberate act, where consideration of the risk was or ought to have been present. As neither ‘intentional’ nor ‘provocation’ are defined by either the NSW Act or the ACT Act (which does not require the provocation to be intentional) it is open to the Courts to apply the law pertaining to intentional provocation contextually to sufficiently address the differences between the intentions of children as opposed to adults.

Taking the above into consideration, for an adult to playfully pull a dog’s tail or poke it to get a reaction, means the risk of being attacked should be obvious and the defence ought apply. However, similar actions come naturally to a small child who is unable to appreciate the risk posed by their actions. Therefore, should the child be entitled to damages?

Our focus above relates to actions directed towards dogs and other animals, and we have not explored in detail the question of provocation in NSW in which the injured party has not considered, or otherwise would not consider the risk of harm. Specifically, could any action directed towards an animal which could illicit a response such as feeding or patting an unknown animal, both of which are deliberate acts, constitute an intentional provocation?  In our view, this is unlikely. However, Section 28 of the NSW Act allows for a reduction for contributory negligence on the part of the injured party.

Conversely, in the Capital, the absence of intention in the definition of the defence may result in the Courts finding the defence applies more readily. In our view, this is likely due to contributory negligence not being available in circumstances where a loss arises out of a breach of a statutory duty in the Capital. Therefore, a more broadly defined defence is required.