Imbrogno v Brisbane City Council
[2016] QCAT 455
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- Unreported Judgment
- Imbrogno v Brisbane City Council[2016] QCAT 455
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Imbrogno v Brisbane City Council[2016] QCAT 455
Imbrogno v Brisbane City Council[2016] QCAT 455
CITATION: | Imbrogno & Anor v Brisbane City Council [2016] QCAT 455 |
PARTIES: | Alberto Imbrogno & Jeffrey John Langford (Applicants) |
v | |
Brisbane City Council (Respondent) |
APPLICATION NUMBER: | GAR124-16 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 30 August 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Cullen |
DELIVERED ON: | 28 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | ADMINISTRATIVE REVIEW – DANGEROUS DOG DECLARATION - whether declaration appropriate - where dog fight resulted in another dog sustaining grievous bodily harm. Animal Management (Cats and Dogs) Act 2008 (Qld), s 89, s 95, Schedule 1 Criminal Code Act 1899 (Qld), Schedule 1 s 1 |
APPEARANCES:
APPLICANT: | Mr Alberto Imbrogno Mr Jeffrey John Langford |
RESPONDENT: | Ms Shenna Singh for Brisbane City Council |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]The Tribunal has been asked consider the 11 April 2016 decision of the Brisbane City Council to declare two Doberman dogs, “Zeus” and “Thor” to be ‘Regulated Dangerous Dogs’ under s 89 and s 95 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Act’).
Zeus and Thor are more than just “dogs”
- [2]Mr Alberto Imbrogno and Mr Jeffrey John Langford are the owners, or as many dog owners refer to themselves, the ‘parents’ of Zeus and Thor. At the hearing of this matter, Mr Langford explained that Zeus and Thor are their children, whom they love and adore. He explained that, as a couple, he and Mr Imbrogno had paid particular attention to Zeus and Thor, as they could not practically have their own children. The Tribunal accepts that Zeus and Thor are loved and adored family members.
- [3]Unfortunately, whilst still only puppies, Zeus and Thor were involved in a savage altercation with a much smaller Australian Silky Terrier Cross named “Miffy,” at a Council off leash park area. Miffy was also playing in the off leash park area on the morning of 8 July 2015 when all three dogs became involved in a fracas, and it is not disputed that Miffy emerged worse for wear. The veterinary records in evidence establish that Miffy sustained nerve damage manifesting to an eye resulting in a lack of blink reflex. Miffy had surgery at the Animal Emergency Centre in Woolloongabba that same day in order to cleanse and close the multiple wounds she had sustained.
- [4]The altercation transpired whilst Miffy’s owners, Ms Tamsin Sutherland and Mr Philip Allan, where engaged in conversation with Mr Imbrogno. Despite being emotionally distressed, Mr Imbrogno did his best to assist the Tribunal in understanding what happened at the time of this incident, and admits that Miffy was injured, and sustained wounds to her neck and head.
The impact of Council’s decision
- [5]In the event that the Tribunal confirms the decision of the Council, it will require Mr Imbrogno and Mr Langford to comply with particular conditions,[1] in order to keep Zeus and Thor at home with them, which include fencing and de-sexing. In particular, they are concerned about the requirement to de-sex as they have carefully selected Zeus and Thor with the intention of breeding.
- [6]In short compass, the decision that the Tribunal is required to make in this matter turns on one pivotal issue – that being whether one episode such as this is sufficient for a dog to be declared dangerous. The legislation does not provide for a “free bite” – if the Tribunal is satisfied that the attack is serious and has caused ‘grievous bodily harm’ under s 1 of the Criminal Code (Qld),[2] there is no option but to confirm a decision finding that the dog is dangerous.
- [7]The definition is as follows:
grievous bodily harm means—
- (a)the loss of a distinct part or an organ of the body; or
- (b)serious disfigurement; or
- (c)any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;
whether or not treatment is or could have been available.
- [8]In the ordinary course of events, dogs are firstly declared menacing, and if they subsequently stray from the canine pathway of the “straight and narrow”, are then declared dangerous.
- [9]Here, the Council has bypassed a potential menacing decision in favour of determining that the attack on Miffy by Zeus and Thor was so savage that it warranted a dangerous dog declaration. In other words, Zeus and Thor have never been provided with what might be termed a warning, before more severe consequences faced them, in particular de-sexing. The fate that Rusty faced in the popular Far Side cartoon,[3] of travelling to the vet to be ‘tutored’ is looming.
- [10]The Tribunal accepts that Mr Imbrogno and Mr Langford provide exemplary care for Zeus and Thor. Together with their application for review, they provided the Tribunal with references from some of their friends, and veterinary experts, in relation to Zeus and Thor’s temperament. The Greencross Forest Lake Veterinary Surgery refers to Zeus and Thor as being:
well behaved, co-operative patients who has [sic] always been friendly and not showing any signs of aggression during the treatments we have performed which has involved bandage removals and bandage placements.
- [11]Additionally, the Tribunal has been provided with a letter from well-known celebrity animal behaviour veterinarian Dr Cam Day, which says that Zeus and Thor’s owners consulted with him following the events that unfolded at the dog park. Dr Day says that although he did not conduct formal aggression training, the dogs appeared to be friendly, robust family pets. He says that:
They are active dogs but are fully trainable and respond well to reward-based training.
They exhibited a good understanding of ‘bite inhibition’ and it is likely good success can be achieved with targeted training to reduce their reaction to other dogs.
I note that the dogs are taken to dog parks three times daily and that has occurred for months meaning they have been hundreds of interactions with other dogs. Thus this is one-only event
I have advised the owners to book a further session where a program will be implemented aimed at minimising their aggression towards other dogs.
- [12]There is no evidence before the Tribunal that the course of conduct suggested by Dr Day has been pursued. Even if it had been, given the constraints of the legislation, the end result would be the same. There is no discretion afforded to the Tribunal to reach a different decision if the attack results in grievous bodily harm.
Even if Miffy provoked the attack, the response was disproportionate
- [13]At the time of the altercation, Mr Imbrogno was at the dog park on his own with Zeus and Thor. He had has back to the dogs, whilst in conversation with Ms Sutherland and Mr Allan. It is his belief that Zeus and Thor were provoked by Miffy, as he knows their temperament. Mr Imbrogno admits that he did not see Miffy display any signs of aggression before the attack was already underway.
- [14]Ms Sutherland explained that Miffy was not barking at the time she, her husband, and Mr Imbrogno turned to see the melee between the three dogs already underway. She thought that Miffy was backing up towards the gate as Miffy appeared to be intimidated by Zeus and Thor, who are much larger dogs.
- [15]The evidence before the Tribunal provides no clear indication as to which of the three dogs growled or displayed aggressive behaviour first. Regardless, Miffy sustained quite serious injuries, and the Tribunal accepts the argument made by the Council that even if Miffy had been aggressive, the response by Zeus and Thor was disproportionate.
- [16]Ms Sutherland explained that she and her husband had to prise Zeus and Thor’s mouths from Miffy. Ms Sutherland did this by squeezing the testicles of one of the dogs and then continued to try to release Miffy from the grasp of the second dog (Zeus). Although Mr Imbrogno did try to call to Zeus to release Miffy, this did not happen fast enough to avoid serious injuries to Miffy’s head.
- [17]Ms Sutherland was concerned that Miffy had died, as, at one point, she went completely limp. Fortunately, Miffy has recovered, but the injury to her left eye took several months for her to recover from fully.
Miffy sustained grievous bodily harm
- [18]This episode has left all those involved, including Mr Imbrogno and Mr Langford, emotionally distressed. At the time of the episode, Zeus and Thor were eight-month old puppies, and therefore not fully trained. If there is any take away lesson for the broader public arising from this matter, it is that puppies, as with children, sometimes behave in unexpected ways that causes their parents significant grief. Mr Imbrogno and Mr Langford certainly did not encourage Zeus and Thor to behave in this way, and have been by all accounts responsible dog owners.
- [19]Unfortunately, the injuries Miffy sustained from took several months for her to recover. The Council has a difficult job of ensuring safety in its various off lead areas. In the words of Dog Whisperer Cesar Milan:[4]
Discipline isn't about showing a dog who's boss; it's about taking responsibility for a living creature you have brought into your world.
This is a case where Mr Imbrogno and Mr Langford must now take responsibility for the events that they never predicted.
- [20]It is sad that this episode happened so early in Zeus and Thor’s lives, and the Tribunal understands that owners are distressed when their dogs, who are important and loved family members, misbehave in ways that even the best owners could not predict. However, the Tribunal is obliged to apply the Act, and considers that the Council has made a decision open to it, based upon the severity of Miffy’s injuries.
- [21]Miffy’s injuries satisfy the definition of grievous bodily harm in the Act. As this was a serious episode, the Tribunal is satisfied that the decision made by the Brisbane City Council is the correct and preferable decision within the context of the Act.
Orders
- [22]The Tribunal confirms the 11 April 2016 decision made by the Brisbane City Council, declaring Zeus and Thor to be Regulated Dangerous Dogs under the Animal Management (Cats and Dogs) Act 2008 (Qld).