Fabian v Welsh[1998] QDC 328

JUDGMENT

REASONS FOR JUDGMENT - O'SULLIVAN D.C.J.

Delivered the 4th day of December 1998

The Plaintiff's claim arises out of an incident on 27 November 1995 in which he alleges that he fell from his motor cycle as a result of a collision with a dog on the roadway. He claims damages for negligence and breach of statutory duty.

Findings of fact:

Evidence was given by the Plaintiff, and by Mr Mulhall and Mrs Roffey, neither of whom saw an actual collision but gave evidence of what they saw from their properties.

I make the following findings of fact:

1. 1.The Plaintiff was travelling along the road at a speed between 45 and 50 kilometres per hour. On the question of the speed of travel of the Plaintiff's motor cycle, I prefer the evidence of Mr Mulhall to that of Mrs Roffey.
2. 2.When in the vicinity of the Defendants' property a dog owned by the Defendants (“the dog”) appeared suddenly on the Plaintiff's right-hand side and crossed in front of his motor bike.
3. 3.The Plaintiff's bike collided with the dog, and the Plaintiff fell off his motor cycle and sustained injury. I accept the evidence of Mrs Roffey that she saw the dog sitting in the gutter but I consider that this is not inconsistent with its involvement in the incident as described by the Plaintiff.
4. 4.None of the witnesses had seen the dog on the road prior to the date of the incident (except for one occasion about which Mrs Roffey gave evidence). The dog was able to escape onto the road because of the nature of the fencing.
5. 5.Prior to the incident, on many occasions, the dog would run up and down barking at motorbikes, sometimes inside the barbed wire fence and sometimes outside. Neither the Defendants nor their son (who was responsible for the dog) knew of this behaviour. A tendency or desire to escape onto the road cannot be inferred from this behaviour.
6. 6.Prior to the incident, the dog had not run directly at the Plaintiff.
7. 7.Fencing on the Defendants' property did not prevent the dog escaping on the day of the incident.
8. 8.The dog had been chained on the day of the incident, and the Defendants' son had let it off the chain. These findings raise a number of matters of law, to which I now turn. Is Searle v. Wallbank applicable?

Searle v. Wallbank (1974) A.C. 341 is authority for the proposition that the owner of a property adjoining the highway is under no legal obligation to users of it so to keep and maintain his fences as to prevent animals from straying onto it, and that he is not under any duty as between himself and users of it to take reasonable care to prevent any of his animals, not known to be dangerous, from straying onto it.

It was not contended in this case that the dog was dangerous or had any vicious propensity. Counsel for the Plaintiff submitted that Searle v. Wallbank (supra) does not apply in this case because it does not apply to dogs, to dogs escaping (rather than straying) and to areas which are not rural.

He referred to Gomberg v. Smith (1962) 1 All ER 725 and Stevens v. Nudd (1978) Qd.R. 96. Counsel for the Defendants submitted that these have been overtaken by SGIC(SA) v. Trigwell (1979) 53 ALJR 656.

Counsel for the Plaintiff further submitted that Searle v. Wallbank is not applicable by virtue of Australian Safeway Stores Pty Ltd v. Zaluzna (1986-7) 162 CLR 479, especially at 488, and San Sebastian Pty Ltd v. The Minister (1986-7) 162 CLR 340 and Cook v. Cook (1986-7) 162 CLR 376. He submitted that the general principles of negligence should be applied without regard to past and ancient rules that had no real application to the present day. I agree with Counsel for the Defendants that this argument was specifically dealt with, and rejected, by the High Court in Trigwell (supra).

I consider that Searle v. Wallbank (supra) applies in Queensland. Unlike other States, Queensland has not abrogated the principle nor introduced a Dogs Act. The Queensland Law Reform Commission Report No. 18 recommended such a course in 1977.

Searle v. Wallbank (supra) does not apply if there are special circumstances. These might include where a defendant knew that a particular animal had a propensity which renders it dangerous when on the highway: Simeon v. Avery (1959) NZLR 1345; Graham v. Royal National Agricultural and Industrial Association of Queensland (1989) 1 Qd.R. 624, and Brock v. Richards (1951) 1 K.B. 529.

If Searle v. Wallbank (supra) applies, then in order to establish liability, the Plaintiff must prove, on the balance of probabilities, that the dog had the mischievous propensity of becoming excited and frenzied at the approach of motorised vehicles, including motor cycles, to Lot 24 and to rush out towards such vehicles and harass in the approximate manner that it harassed the Plaintiff, and that the Defendants knew of that propensity. In view of my findings of feet: (including finding numbered 5) the Plaintiff has failed to do either of these.

Counsel for the Defendants submitted that if Searle v. Wallbank (supra) applies, then the question of negligence cannot, as a matter of law, arise. I agree.

Concerning negligence, Counsel for the Plaintiff referred to Galea v. Gillingham (1987) 2 Qd.R. 365. I agree with Counsel for the Defendants that there is a relevant distinction between an action concerning an animal on private property and an animal on a highway, the latter involving Searle v. Wallbank (supra).

In any event, I consider that negligence has not been proven. Given my findings of fact, I am of the view that the Plaintiff has failed to prove that there was a foreseeable risk that in the absence of reasonable care by the Defendants, injuries of the type suffered by the Plaintiff could be caused by the dog. He has also failed to prove a propensity on the part of the dog not necessarily known to the Defendants, but one which was such that they knew or ought to have known and they therefore ought to have foreseen that there was a real risk of the injury complained of being caused by the dog exhibiting that propensity. I find that there was not a foreseeable risk that the dog would go onto the road. I find that there was no propensity to go onto the road and I consider it inappropriate to accede to the request to impute actual knowledge of the Defendants that the dog was unsettled in unfamiliar surroundings and its behaviour may well have changed since it was in the hands of its original owners.

Counsel for the Plaintiff referred me to Eadie v. Groombridge (1992) 16 MVR 263. I consider that the facts which supported the finding of negligence in that case (especially the history of the Defendant's knowledge of the dog jumping fences) are distinguishable from the facts as I have found them to be in this case.

Was there a breach of statutory duty?

I was referred to Clause 19(e) of the Beaudesert Shire Council By-Laws. Counsel for the Defendants submitted that construing Clause (e) in the context of the other paragraphs would lead to a conclusion that it relates to a situation when the owner of the dog is present with the dog, but does not have effective control of the dog, and not the situation which existed on the day of the incident, namely, when the dog was wandering at large. I can see considerable merit in this, but the paragraph is not limited in its terms, and I consider that it does apply to the situation on the day the Plaintiff was injured. Clause 32 of the By-Laws states:

I find that there was a breach of the statutory duty.

What follows from the breach of statutory duty?

I cannot agree that the breach of statutory duty is a particular of negligence.

The more complex issue is whether the statute creates a private right of action in damages. As is so often the case, the By-Law is silent. This is to be contrasted with the situation in Simpson v. Bannerman (1931-2) 47 CLR 378.

Did the legislature intend a private right of action to be conferred?

What tests should be applied to decide whether the private right of action exists is by no means clear from the authorities - there is a good discussion of this lack of certainty in “The Law of Torts in Australia” (Trindale & Cane - Second edition 1993) at p.662-9. At page 668 the authors say:

Some of the relevant authorities are: Sovar v. Henry Lane Pty Ltd (1967) 116 CLR 397; Darling Island Stevedoring & Lighterage Co Ltd v. Long (1957) 97 CLR 36; O'Connor v. SP Bray Ltd (1937) 56 CLR 464; Wright v. TIL Services Pty Ltd (1956) 56 SR(NSW) 413; Brisbane v. Cross (1978) VR 49; Byrne v. Australian Airlines Ltd (1995) 185 CLR 410. In the last named case, and most recent High Court authority, Byrne (supra), Chief Justice Brennan and Justices Dawson and Toohey, at page 424, looked to the public aims of the Act, its scope and purpose and whether there was an intention to benefit a particular class of persons. Justices McHugh & Gummow referred to the principles from Sovar (supra) including the following, at page 461:

I consider that the By-Laws should not be construed to confer a private right of action in damages.

The Plaintiff has accordingly failed to prove his case. Whether this is a harsh result, given my findings of fact, is a matter for Parliament and law reform.