DOG ATTACKS AND YOU the OWNER

This section is introduced with the observation that, at this point in time Australia does not have a National Dog bite Register to show how many people are being bitten by dogs in a year in Australia or National register of dog bite victims admission for treatment. How do we tell whether any state legal measures introduced to reduce dog attacks have been effective than others? In the USA the Federal government run Centre for Disease Control and Prevention collecting date from American medical emergency centres estimates that in 2015 that 4.5 million people were bitten by dogs and sought treatment. In England, official figures show 7,227 admissions for dog attacks in 2014 compared with 4,110 a decade ago an increase of 76% with under 10’s being the most likely to be admitted. The Australian Veterinary Association estimates that every year, more than 100,000 people a year are bitten by dogs in this country. Of these 1,400 bites a year require some kind of medical attention. The Australian Veterinary Association has called for the establishment of a national dog bite register so as to monitor the national progress of reducing dog bites/attacks. In New South Wales the register of reported dog attacks is maintained by Local Councils. Co ordination of all the Local Councils in New South Wales is overseen by the Local Government Division in the Premier and Cabinet Department. It’s sole report on Dog Attacks is for the years 2011-2012 and has the total number of dog attacks reported to NSW Local Councils in that 12 month period as 5,650.No data seems to be available as to the number of people who seek medical attention because of a dog attack in NSW a year nor the age of those who were bitten.

The sting in the tail for the owner’s of attacking dogs is the double trouble they now face because of their dog's actions and possibly the owner’s negligence. Attacking dog owners will be facing fines imposed by the Local Council or Local Court as well as being financially liable to the victim(s) of the attack, because they have a dual legal responsibility to prevent their pets from attacking people or damaging property under the Companion Animal Act NSW 1998 and the common law of Negligence. If your dog attacks someone or someone’s property i.e. another dog, the attacking dog owner (you) will be held liable under both the Companion Animal Act and the common law. So the owner can be fined for the attack by the Local Council or Local Court and damages can be awarded against the attacking dog's owner in a separate legal action launched by the victim of the dog attack against the owner in the District or Supreme Court. If damages are awarded against the attacking dog's owner, the owner will have to reimburse the victim for medical expenses past and future, past and future wage loss and non economic loss or general damages as well as any veterinary bills to the victim’s dog and do not forget the victim(s) legal costs and the dog's owners own legal costs.

Dog attacks and the Companion Animal Act NSW 1998

Like the criminal offence of assault, what is classified as a “Dog Attack” can have a range of meanings and like assault at common law it does not have to be proven by injury. The word “attack” under The Companion Animal Act NSW 1998
is given its literal meaning and it also encompasses acts of aggressive and negative canine behaviour that need not have caused injury. So an attack can be said to have occurred when a dog “rushes at” another person or animal. The same applies when a dog “chases’ another person or animal or “harasses” another person or animal. These “attacks without injury” are designed to “catch” all negative forms of canine intimidation behaviour that causes fear. All are considered as “attacks” under the legislation. Generally the Local Council will through its authorised officers investigate complaints of dog attacks and will issue fines at their discretion.”If you own a dog that has “attacked”, you will receive a “General Penalty Notice”.

You can either pay this (but remember it’s an admission) or apply for the Court to determine whether you have committed the alleged offence. When reading the penalties below, remember a penalty unit in NSW is currently $110.If the attack is of a serious nature a Court Attendance Notice will be served on the dog’s owner.

COMPANION ANIMALS ACT 1998 - SECT 16

Offences where dog attacks person or animal

16 Offences where dog attacks person or animal

(1) If a dog rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal:

(a) the owner of the dog, or

(b) if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the dog at that time-that other person,

is guilty of an offence.

Maximum penalty:

(a) 100 penalty units except in the case of a dangerous, menacing or restricted dog, or

(b) 400 penalty units in the case of a dangerous, menacing or restricted dog.

(1AA) If a dog (other than a dangerous, menacing or restricted dog) rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal:

(a) the owner of the dog is guilty of an offence if the incident occurs as a result of a reckless act or omission by the owner, or

(b) if the owner is not present at the time of the incident and another person who is of or above the age of 16 years is in charge of the dog at that time-that other person is guilty of an offence if the incident occurs as a result of a reckless act or omission by that other person.

Maximum penalty: 200 penalty units or imprisonment for 2 years, or both.

(1AB) If a dangerous, menacing or restricted dog rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal:

(a) the owner of the dog is guilty of an offence if the incident occurs as a result of a reckless act or omission by the owner, or

(b) if the owner is not present at the time of the incident and another person who is of or above the age of 16 years is in charge of the dog at that time-that other person is guilty of an offence if the incident occurs as a result of a reckless act or omission by that other person.

Maximum penalty: 500 penalty units or imprisonment for 4 years, or both.

(1A) The owner of a dangerous dog, a menacing dog or a restricted dog is guilty of an offence if:

(a) the dog attacks or bites any person (whether or not any injury is caused to the person), and

(b) the incident occurs as a result of the owner’s failure to comply with any one or more of the requirements of section 51 or 56 (as the case requires) in relation to the dog.

Maximum penalty: 700 penalty units or imprisonment for 5 years, or both.

Note : Conviction for an offence under this subsection results in permanent disqualification from owning a dog or from being in charge of a dog in a public place. See section 23.

(2) It is not an offence under this section if the incident occurred:

(a) as a result of the dog being teased, mistreated, attacked or otherwise provoked, or

(b) as a result of the person or animal trespassing on the property on which the dog was being kept, or

(c) as a result of the dog acting in reasonable defence of a person or property, or

(d) in the course of lawful hunting, or

(e) in the course of the working of stock by the dog or the training of the dog in the working of stock.

(3) This section does not apply to a police dog or a corrective services dog.

(4) If, on the trial of a person charged with an offence against subsection (1AA) or (1AB) the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence against subsection (1), the trier of fact may find the person not guilty of the offence charged but guilty of an offence against subsection (1), and the person is liable to punishment accordingly.

(5) For the purposes of this section, recklessness may also be established by proof of intention.

Stafford and Associates will represent you if you wish to defend or plead guilty to any charge under the Companion Animal Act NSW 1998 in the Local Court. We understand the processes and with your instructions will prepare your defence or plea of guilty.

Defences allowed by the Companion Animal Act NSW 1998

The owner may be able to avoid liability if the injured person:

• Teased, mistreated attacked or provoked the injury from the dog. We have not found any NSW reported decisions that touch upon this defence. We have had a “win” for a client whose dog was charged with being dangerous after it escaped his property and bit a child. We had the dog temperament tested by two independent assessors and as well an authorised Council Assessment. We established that the dog had been provoked repeatedly by the child’s father prior to the attack at the location of the attack. Council rescinded the dangerous dog charge.

• Was trespassing on the property where the dog is kept. Generally, a trespasser is someone who is not invited onto the property. But, if you have as most of us have, a home with a “open” front that is not enclosed and locked then you have an “implied invitation to the public” to enter your front yard and knock on your front door. An “implied invitation” does not extend to all of your property.

• Was attacking the owner or the owners property and the dog was being used in reasonable defence of a person or property.

• Was attacked when someone else had possession or control of the dog without the owner’s consent.

• Had contributed to the dog attacking.

• Was attacked in the course of lawful hunting.

• Was attacked while the dog was working stock or being trained to work stock.

STAFFORD LAW
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