Fabian v Welsh[1999] QCA 365

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No.  12029 of 1998

Brisbane

[Fabian v Welsh]

BETWEEN:

SANDOR FABIAN

(First Plaintiff) Appellant

AND:

KEITH and SANDRA WELSH

(Defendants) Respondents

McMurdo P  

Derrington J

Chesterman J

Judgment delivered 7 September 1999.

Judgment of the Court.

APPEAL DISMISSED WITH COSTS.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 7 September 1999

1. The appellant was a postman who operated a service under contract in the course of which he delivered letters in the postal district of the respondents who lived in an acreage residential area.  For that purpose he rode a motor cycle on his deliveries.

2. On the relevant day he was riding it on the public road that passed the front of the defendants’ property.  It was on his left hand side.  As he had no deliveries to that property on that occasion, his speed was about 45 km/h.  He was keeping a look out for the respondents’ two dogs which on other occasions had had a propensity to run, barking, parallel to the path of his motor cycle, particularly when he had made a delivery to the property.  However, they had not ventured onto the road, but either kept to the footpath outside the respondents’ fence or ran along inside it. 

3. On this occasion they were not there but suddenly one of them appeared very close to him on his right hand side, apparently moving towards its home.  He did not see whence it had come, for till then he had failed to notice it.  It then proceeded further to cross the road in front of the motor cycle and was struck by its front wheel.  This caused the appellant to fall off, and he suffered moderately serious injuries.  Having regard to his speed, it must have been crossing the road ahead of him since it could not have overtaken him.

4. In his earlier experiences, neither of the dogs had attacked him, nor did that happen on this occasion.  Nor is there even evidence that this dog was running beside the motor cycle except to the extent that it may have done so for a very short time as it was running to the front of it in crossing the road.

5. The respondents were at their work at this time and did not know that the dog was untethered.  Until shortly prior to the event, it had been tethered, but their son, who had been given responsibility for it, had released it when he came home.  He may have been their agent for its control, but that will prove to be irrelevant.  They kept the dog on their premises in circumstances where  it could easily escape if, as was plainly foreseeable, it was untethered.

6. Their property had a front fence on the street alignment, but their dogs could easily escape into the street through an insufficient side fence onto a neighbouring vacant allotment.  The offending dog was about 40 cm high and active, and they must have known of its capacity to escape and wander onto the roadway.

7. Despite the appellant’s evidence as to the dog’s prior behaviour towards his motor cycle and the evidence of a witness, Mr Mulhall, as to its excessively agitated response to motor cycles, the respondents and their son all said that they were unaware of its disposition in that respect although they had owned it for some months.  The learned trial judge accepted this evidence but she did not discuss how it could be consistent with the evidence of the appellant and Mr Mulhall, both of whom she also believed.  It would be somewhat surprising if the dog’s misbehaviour was limited to occasions when the respondents and their son were absent.  Unfortunately, the limited statement of reasons for this and other findings makes it somewhat difficult to accept their validity, but fortunately the consequences of this are limited.

8. The respondents relied primarily upon the immunity of the owner of a domesticated animal that strays onto the highway, save where the animal has a known propensity to be vicious or mischievous in a way that causes the relevant harm.  This principle was stated in Searle v Wallbank^[1] and applied in Australia in SGIC (SA) v Trigwell.^[2]  Learned counsel for the appellant argued that this principle has been overtaken by the general approach of the High Court in Australian Safeway Stores Pty Ltd v Zaluzna,^[3] San Sebastian Pty Ltd v The Minister,^[4] Cook v Cook,^[5] and Burnie Port Authority v General Jones Pty Ltd.^[6]  Although these do not deal with a Searle v Wallbank situation, he pointed out its tendency to bring formerly disparate principles within the unified general principle of the law of negligence; and he advocated the extension of that process to this principle also. 

9. Until the High Court reverses or modifies it more clearly, it might be difficult to disregard the explicit authority of Trigwell upon the basis of some such perceived tendency of the court, but this case is not a suitable vehicle for that exercise.  Even if the appellant’s argument is accepted, he would still face insuperable obstacles to his success.

10. The reason is that there is simply no evidence of operative negligence.  Aside from any question of whether the respondents knew or ought to have known of this dog’s propensities to run along the footpath parallel with a passing motor cycle, there is no evidence to show that on this occasion it was engaging in such conduct, nor do the circumstances suggest any such probability.  It was not barking nor did it run with the appellant’s motor cycle for any relevant distance that would suggest that it was chasing it.  On the contrary, its conduct all suggests that it was crossing the road to its home.  Moreover, its prior pursuit of the motor cycle, although agitated, did not encompass its venturing further than the footpath, so that its location on this occasion was not consistent with any habit in that respect.

11. If as the probabilities fall it was merely crossing the road on the relevant occasion, then, although that should have been reasonably foreseeable by the respondents, it can hardly be said to have been negligent of itself to have failed to prevent that conduct.^[7]  To permit a dog to wander across the road without harassing the passing motor cyclist does not amount to a want of due care in this semi-rural suburban situation.  It is unfortunate that the appellant was distracted on this occasion as the result of his prior experience with the dog, but its conduct on those occasions was not dangerous and was not even repeated on this one.  This position has been recognised by the appellant, for his appeal on negligence is based on the  proposition that the dog was pursuing him in an excited and frenzied state; and the evidence does not support that.

12. This case may be distinguished from Eadie v Groombridge^[8] where the dog that escaped was known to be dangerous, and was found to have attacked the motor cyclist by “coming at” him.  These factors were the basis of the liability of its owner in that case and this predicates the absence of negligence in respect of the dog’s merely being on the road.  No member of the court suggested that that formed any part of the basis for its finding. 

13. In the present case, learned counsel for the appellant made reference to local government by-laws applying in an area which required dog owners to control them so that they would not cause harm to people.  He wisely refrained from continuing to rely upon a claim of breach of statutory duty, but used this subordinate legislation as setting a social pattern that would justify abandonment of the Searle v Wallbank rule in accordance with this change in social views.  Interesting as this is, the subject need not be addressed.  Further, it is not suggested that the standard of care required by the by-law sets the standard for common law liability.

14. Because the appellant would have failed to prove negligence in any case, it is unnecessary to investigate whether the respondents had the benefit of the immunity in Searle v Wallbank and whether the exception to that immunity would have included circumstances where the owner of the animal ought to have known of its mischievous propensities as distinct from actual knowledge of them.^[9]  It follows that even if he were successful on this point, the appellant could not have succeeded on the wider question that was necessary to the respondents’ liability.

15. Finally, it should be remarked that the learned trial judge omitted to make an assessment of damages for use by this Court if the appeal had been successful.  Such an omission is in conflict with the directions of this Court, which should be complied with.

16. The appeal is dismissed with costs.