O'Gorman v Somerset Regional Council
[2021] QCAT 408
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- O'Gorman v Somerset Regional Council[2021] QCAT 408
- Add to List
O'Gorman v Somerset Regional Council[2021] QCAT 408
O'Gorman v Somerset Regional Council[2021] QCAT 408
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | O'Gorman v Somerset Regional Council [2021] QCAT 408 |
PARTIES: | LEIGH O'GORMAN |
(applicant) | |
v | |
SOMERSET REGIONAL COUNCIL | |
(respondent) | |
APPLICATION NO/S: | GAR122-21 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 15 November 2021 |
HEARING DATE: | 8 November 2021 |
HEARD AT: | Maroochydore |
DECISION OF: | Member Richard Oliver |
ORDERS: | The decision of the respondent dated 28 January 2021 is confirmed. |
CATCHWORDS: | Administrative law – Administrative Tribunals – Queensland Civil & Administrative Tribunal – Animals – Dangerous Dog – where unprovoked attack causing bodily harm – where bodily harm constituted wounds to the victim’s legs – where dangerous dog declaration made – whether the attack was by the applicant’s dog – where there is a dispute about an attack – where there is different versions of what occurred – where finding of fact necessary as to whether an attack occurred – where injury constitutes bodily harm Queensland Civil & Administrative Tribunal Act 2009, section 20 Animal Management (Cats & Dogs) Act 2008 [Qld], sections 89, 94 Brisbane City Council v Roy [2020] QCATA 147 Roy v Brisbane City Council [2019] QCAT 311 Slade v Cairns Regional Council [2021] QCAT 276. |
APPEARANCES & REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | Mr Kevin of King & Co solicitors |
REASONS FOR DECISION
- [1]Ms O'Gorman is the owner of a white Staffordshire cross dog known as Gandalf. On 12 October 2020 Ms O'Gorman was walking Gandalf along a public walking path off Kunde Crescent at Hazeldene. She has used this walking path on many occasions, prior to the incident the subject of these reasons, to exercise Gandalf, and her other dogs.
- [2]Karen Callender was staying with her son at his residence in Kunde Crescent. The property backs onto the walking path which is shown in an aerial photograph submitted with Ms O'Gorman’s material. Although not personally known to each other, they have seen each other on occasion, whilst Ms O'Gorman had been walking her dogs. Ms Callender is not familiar with Gandalf as she had not seen him before with Ms O'Gorman.
- [3]It is alleged that at approximately 9.20am that morning Gandalf left the walking path and came onto property whilst Ms Callender was in the back yard gathering palm leaves and putting them onto a pile. Whilst doing this she says that Gandalf, without warning or provocation, came up behind her and attacked her by biting both of her legs in the calf and shin region. Ms O'Gorman intervened, put the leash on Gandalf and left the property after there was a brief discussion between them. Ms Callender says she was distressed by the attack, took some photos of the wounds on her legs with her phone, and then sought medical treatment.
- [4]Mark Callender, her son, made a complaint to the Council by telephone on Ms Callender’s behalf the same day. The following day she provided a written statement setting out her version of what occurred. Ms Callender’s evidence at the hearing was consistent with the version given in the statement contained in the Council’s statement of reasons.[1]
- [5]It is Ms O'Gorman’s firm position that Gandalf did not bite Ms Callender and contests her version of what occurred. She does not dispute there was some interaction between Ms Callender and Gandalf but says it did not go so far as a bite or attack. Rather than attempt to summarise her version, it is best to set out what she recorded in her own statement [2] which is as follows:
- Gandalf’s mannerism was never aggressive, he was in a passive state the whole time on 12 October 2020.
- When Gandalf was near the accusing woman (Ms Callender) he did not make any noise, he did not lift his head or turn his head, never showed his teeth, never opened his mouth.
- At the same time the accusing woman called Gandalf to her, he had been walking approximately 5 metres from me, he then quickened his step to a toddle and toddled up to the woman. His nose went to the ground. He never touched the woman, he sniffed her runners, with his bottom in the air. Then he came over to me and we both walked back over to the woman who was still turning in circles lifting her knees breathing heavily.
- As we waited patiently for the woman to stop turning, Gandalf sat quietly next to me with his back to the woman, showing no interest.
- When the accusing woman stopped turning, and looked down, she knew then, that there was nothing wrong with her.
- Why she turned in circles lifting her knees I do not know, it was all very strange.
- When she started lifting her knees high and turning in circles when I called out “Don’t pat the dog”. This was before the dog even arrived to where the accusing woman had been crouched holding out her hand to the dog.
- I said “Don’t pat the dog” as I knew something was amiss when the accusing woman walked around the back of the pile of garden rubbish instead of a direct route to the pile from the house.
- [6]The effect of this evidence is that Gandalf was near to Ms Callender, in fact sniffed her runners. Further, as Ms O'Gorman’s says, Ms Callender’s behaviour of turning and lifting her legs was strange, if there was no apparent reason for doing that.
- [7]There are photographs attached to Ms Callender’s statement which clearly show what look like bite marks and lacerations to both lower limbs. One photo shows a semicircle of puncture wounds consistent with a dog’s mouth. The photos showing the wounds covered with bandages, I assume, were taken after receiving medical treatment.
- [8]A report from her general practitioner has been provided[3] and it is dated 2 days after the incident, 14 October 2020. For the purposes of accuracy the content of the report, which is short, is set out as follows:
… Karen presented to our practice following an animal attack to her lower legs. There was significant trauma to both lower legs, including multiple lacerations from multiple bites with major bruising, oedema, haematomas, as well as the ongoing pain from the wounds. She has required extensive wound care, and an ADT booster and dual antibiotics as listed below for the wounds sustained from the animal attack. She is now suffering from anxiety about going out onto her property following this allegedly unprovoked animal attack.
- [9]After the complaint was made to the Council investigations were undertaken. Initially, the Council assumed it was another dog registered to Ms O'Gorman called Mazda. However it was soon revealed that Mazda had died and the dog Gandalf was registered to Ms O'Gorman.
- [10]To determine whether or not Gandalf was the relevant dog, the Council provided Ms Callender with a montage of photographs of similar looking dogs. She selected from the various photographs, photograph 4 which in fact is Gandalf. To be clear there is now no dispute that Gandalf was the dog in question.
- [11]Having identified the dog, the Council issued a Dangerous Dog Declaration Notice pursuant to s. 89 of the Animal Management (Cats & Dogs) Act 2008 (the Act).[4] In that notice, the circumstances of the injury to Ms Callender are set out and the dog owner, Ms O'Gorman, is invited to request a review of the proposed regulated dog declaration notice. That was undertaken and in her grounds for review, Ms O'Gorman said:
Disagree with the sequence of events ascertained and used as evidence for the declaration which … also disagree with the Council officers.
- [12]Having conducted the internal review as requested, the Council’s decision to make the dangerous dog declaration was confirmed. The review[5] sets out the findings of fact upon which the Council confirmed its decision. Those facts are essentially those asserted by Ms Callender in her statement and summarised above, together with the medical evidence. Ms O'Gorman was also provided with an information notice about her rights to seek a review of Council’s decision in the Tribunal.
- [13]In her application to review the decision filed on 24 February 2021, Ms O'Gorman set out the basis of the review. She contends that the Council’s decision was unjust and unfair and further, and more importantly, that it is her contention that there has been “no consideration for the attack not to have occurred in the first place”.
- [14]If it is found firstly that Ms Callender was in fact attacked by a dog and secondly, that the dog was Gandalf, then the circumstances still exist and Council’s decision must be upheld.
- [15]The operation of the Act, in particular the interaction between ss. 89 and 94 have been considered in a number of cases in the Tribunal. The leading case now being the Appeal Tribunal’s decision is Brisbane City Council v Roy[6][7]. The effect of s. 89 of the Act is that if, on the review, having made a finding of fact that the circumstances about the attack still exist, the local authority must make the dangerous dog declaration. The Appeal Tribunal put it as follows:
[53] Section 89(2) sets out the considerations the local government is required to take into account in exercising the discretion conferred by s. 89(1) to declare a dog to be dangerous. Section 89(3) sets out the considerations the local government is required to take into account in exercising the discretion conferred by s. 89(1) to declaring a dog menacing.
[54] If the local government is satisfied about the facts out of which the power to make a declaration about dog arises, the local government must, by s. 94(2), of the AM Act, make the declaration.
[55] The ‘relevant ground’ in s. 94(2) is a reference to the considerations which must be taken to account in exercising the power to make a regulated dog declaration to which we have merely referred, that is s. 89(2) and (3).
[56] Use of the word ‘must’ in s. 94 indicates the power granted it is required to be exercised. There is no discretionary element involved save that the decision maker must satisfy the relevant ground under s. 89 is made out. If it is not, the regulated dog declaration cannot be made.
[57] Nor, do we consider s. 94(2) permits in such circumstance any other order than to refuse to make the proposed regulated dog declaration. The mandatory notice of proposed declaration of the s. 90(1)(c) must state the particular type of regulated dog declaration proposed to be made. Where the relevant grounds supporting the particular type of regulated dog declaration is not made out, the mandatory notice provision of s. 90 cannot have been satisfied with respect to another type of declaration.
- [16]In undertaking the review of the Council’s decision the Tribunal must, under s. 20 of the Queensland Civil & Administrative Tribunal Act, produce the correct and preferable decision. The correct and preferable decision is arrived at by applying the provisions of the enabling Act, and its interpretation as guided by previous decisions of both the Courts and the Tribunal.
- [17]What is made clear by the above statement by the Appeal Tribunal is that if in the circumstances here, there is a finding of fact that Gandalf did bite Ms Callender and caused bodily harm then the dangerous declaration must be made. Therefore, in hearing the matter afresh, and standing in the shoes of the decision maker, it is the Tribunal’s function to determine the true factual circumstances surrounding this incident. The central issue being whether Gandalf bit Ms Callender.
- [18]The only direct evidence concerning this attack comes from the two relevant witnesses, Ms O'Gorman and Ms Callender. Both have different versions of what occurred insofar as it relates to Gandalf’s contact with Ms Callender. To resolve that conflict it is prudent to look at any extrinsic evidence which might give some support one version or the other.
- [19]There is no dispute that there was some interaction between Gandalf and Ms Callender. Ms O'Gorman says it did not extend to biting. However, there was some behaviour on the part of Ms Callender from which one could infer that something occurred by reference to Ms O'Gorman’s statement that Ms Callender “was turning in circles lifting her knees, breathing heavily”. This was in the presence of the dog although it is contended that the dog was only close enough to sniff Ms Callender’s runners. After being warned not to pat the dog, Ms O'Gorman took the dog on the leash and continued on her way.
- [20]In addition to the strange behaviour by Ms Callender there is other extrinsic evidence in support of the attack. The photographs taken immediately afterwards showing lacerations to her legs clearly support her version of events. This was after or about the same time she called her son and decided to take herself off to the doctors. One might query why she would take photographs but obviously, from her perspective, she wanted some evidence of the dog bites which was easy enough to do with a mobile phone.
- [21]More telling however is her attendance on the doctor. It must of course be conceded that the doctor only reports what is being relayed by the patient. However, what is relevant here is the observation by the doctor of there being “significant trauma to both legs including multiple lacerations from multiple bites with major bruising …”. One can readily infer that the reference to bites is an inference open to the doctor having regard to what was being observed during the course of the consultation.
- [22]Ms O'Gorman has produced multiple references as to the dog’s behaviour, and they certainly support the view that Gandalf was not prone to attacks of this nature. Unfortunately, none of that evidence goes to what actually occurred on the particular day other than to provide some evidence the behaviour was out of character and consistent with Ms O'Gorman’s version of ‘no bite’.
- [23]It follows, and I find, that the only reasonable explanation for the lacerations and puncture wounds to Ms Callender’s leg is from a dog bite. It is, as submitted by the Mr Kevin for the Council, fanciful to infer that Ms Callender self-inflicted the wounds to her legs just so she could make a complaint about Ms O'Gorman’s dog.
- [24]I also find for completeness that the only dog that could have bitten Ms Callender is, in the circumstances of the interaction, Gandalf. The evidence that Gandalf was the culprit is overwhelming having regard to both the evidence of Ms O'Gorman, and Ms Callender’s. I find that she was seriously attacked having regard to the contemporaneous photographs of the lacerations, and more importantly, the medical report from her general practitioner. Further, having regard to those photographs and the medical evidence, both the letter and the clinical note,[8] I find that the injury constitutes bodily harm.
- [25]Having found that Gandalf is responsible for the attack on Ms Callender the correct and preferable decision is that the decision of the Council is confirmed.