DATE DOWNLOADED: Tue Dec 29 22:00:38 2020

SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 21st ed.

Statutory Liability for Canine Injuries: Commonwealth Variations, 9 Holdsworth L.
REV. 59 (1984).

ALWD 6th ed.

, Statutory liability for canine injuries: Commonwealth variations, 9(1) Holdsworth
L. Rev. 59 (1984).

APA 7th ed.

(1984). Statutory liability for canine injuries: Commonwealth variations. Holdsworth
Law Review, 9(1), 59-74.

Chicago 7th ed.

"Statutory Liability for Canine Injuries: Commonwealth Variations," Holdsworth Law
Review 9, no. 1 (1984): 59-74

McGill Guide 9th ed.

"Statutory Liability for Canine Injuries: Commonwealth Variations" (1984) 9:1
Holdsworth L Rev 59.

AGLC 4th ed.

'Statutory Liability for Canine Injuries: Commonwealth Variations' (1984) 9(1)
Holdsworth Law Review 59.

MLA 8th ed.

"Statutory Liability for Canine Injuries: Commonwealth Variations." Holdsworth Law
Review, vol. 9, no. 1, 1984, p. 59-74. HeinOnline.

OSCOLA 4th ed.

'Statutory Liability for Canine Injuries: Commonwealth Variations' (1984) 9
Holdsworth L Rev 59

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
 STATUTORY LIABILITY FOR CANINE INJURIES:
COMMONWEALTH VARIATIONS

The academic lawyer should be forgiven for regarding

with some cynicism the old adage that "the dog is man's best
friend," for, if the case-law is any guide, no species of
animal has caused anything approaching the amount of injuries to
mankind as the dog. This is undoubtedly due in part to the
fact that dogs are the most ponular household oets of the Western
world and that they invariably live in close proximity to man,
but it is equally clear that the typical canine disposition
is both boisterous and unpredictable and that, unlike in the
case of most other domestic animals, it is virtually impossible
to keep a dog under restraint without subjecting it to cruel
confinement. Furthermore, the extensive use of potentially
vicious dogs, such as Alsatians, to guard property greatly
increases the likelihood of innocent persons being injured.

Tortious liability for injuries caused by dogs in

Commonwealth jurisdictions isbasedupon common law principles
and on numerous statutes. Although the various statutory
provisions are derived from common origins, there is a surpris-
ing lack of uniformity in their interpretation by the courts.
An attempt will be made in this article to compare the statute
and case-law of several Commonwealth jurisdictions and to
examine some of the uncertainties which remain.

The scienter action

It is well established that, for the purposes of
liability at common law, dogs are classed as animals
mansuetae naturae, so that the owner or keeper of the dog will
be liable at common law for injuries caused by the animal only
if the plaintiff proves:
(a) that the particular animal had a vicious or mischievous
tendency to do harm of that kind, and
(b) that its owner or keeper knew of that tendency.

By the latter half of the nineteenth century it had

become recognised in England that dogs were a serious menace
to livestock and that some form of strict liability for injuries
to sheep and cattle was necessary. This was provided by the
Dogs Act 1865, later replaced by the Dogs Act 1906. Section 1
of the latter Act laid down that:
"The owner of a dog shall be liable in damages
for injury done to any cattle or poultry by that
dog; and it shall not be necessary for the person
seeking such damages to show a previous mischievous
propensity in the dog, or the owner's knowledge of
such mischievous oropensity, or to show that the
injury was " attributable to neglect on the part of
the owner.

The legislatures of most other Commonwealth juris-

dictions seem to have had less faith in the dog's benevolence
towards mankind, for the majority of these, whilst substantial-
ly adopting the wording of the English statute, provided for
strict liability additionally for other types of harm done by
dogs, including injuries to humans. Atypical example is section
20 of the Dog Act 1966 of New South Wales which provides:

"The owner of a dog shall be liable in damages for

injury done to any person, property or animal by
his dog, and it shall not be necessary for the
party seeking such damages to show a previous
mischievous propensity, or that the injury was 3
attributable to neglect on thepart of the owner."

As to the precise effect of such provisions, there

has been a considerable divergence of approach among the judges,
the Australian judges generally interpreting them as having
abolished the requirement of scienter in relation to dogs, and
the Canadian courts leaning in favour of the retention of some
form of scienter.

Effect of the Statutes

A good starting - point as regards the Canadian

approach is the decision of the British Columbia Court of
Appeal in Bebbington and Bebbington v. CoZquhoun. 4 This was
an action brought on behalf of a 20-month old infant who had
been bitten in a public park by the defendant's dog which,
contrary to a by-law, was not on a lead. Section 21 of the
Animals Act 19485 provided that
"in an action brought to recover damages for
injuries caused by a dog, it shall not be necessary
for the plaintiff ... to prove that the defendant
knew that the dog was or is of a vicious or mis-
chievous nature, or was or is accustomed to do
acts causing injury."

The plaintiff argued that section 21 had abolished the require-

ment of scienter altogether in respect of injury caused by dogs,
and had created absolute liability. The defendant, on the
other hand, contended that the section had not abolished
scienter but had merely shifted the onus of proof from the
Plaintiff to the defendant, so that the latter was prima facie
liable but could escape liability if he could show that he did
not have knowledge of his dog's mischievous propensity. The
Court accepted the defendant's contention and held that the
effect of the section was merely "to shift the onus of proof
of scienter" and to permit "this defendant as owner of the dog
to allege and prove the absence of scienter as a defence." 6
In coming to this conclusion the Court put forward no reasoning
of its own but contended itself with citing a passage from a
previous case, NeviZZ v. Laing,7 where a similarly-worded
section of an earlier statute had been in issue. In this
passage Begbie C.J. had somewhat surprisingly asserted that
"the whole gist of this action is negligence8 in the defendant
in keeping a dangerous thing." In his view, the obligation
on the part of the plaintiff to establish the mischievous
nature of the dog and the owner's knowledge thereof still
continued despite the statute, and the bite of the dog raised
only a prima facie presumption of scienter which the owner
could rebut "by showing the peaceful character of the dog, or
his own ignorance of any vicious propensity." In the Bebbington
case 9 the defendant gave evidence, which the trial judge had
accepted, that his dog was gentle and that he had no knowledge
of any vicious propensity. He was therefore not liable.

A different interpretation of a similarly-worded lO

statute was made by Tritschler C.J.Q.B. in Lamontagne V. Brown
where the learned judge held that section 27 of the Animal
Husbandry Act of Manitoba (the wording of which was almost
identical to that of the British Columbia statute)ll
"was meant to do no more than relieve a plaintiff
of the much-criticized and unfair onus of proving
that the defendant knew of his dog's vicious or
mischievous nature."12
The section was construed narrowly as meaning that the plaintiff
was relieved from proving the defendant's knowledge of his dog's
vicious propensity, but he was still required to show that the
defendant's dog had in fact displayed the particular kind of
viciousness complained of on at least one previous occasion.
This construction was possiblebecause of the wording of the
Manitoba statute which, like its British Columbia equivalent,
stated that it shall "not be necessary for the plaintiff to
prove that the defendant knew that the dog was or is of a
vicious or mischievous nature," and was silent about the necess-
ity for proof of the existence of a vicious or mischievous
propensity in the dog. It was therefore onen to the court to
hold that the common law requirement of proof by the plaintiff
of a previous vicious act remained unaffected by the statute.

This restylctive interpretation of the statute was

severely criticized and the Manitoba legislature eventually
succeeded in imposing strict liability by adopting an unambig-
uous wording in section 27 of the Animal Husbandry Act 197014
which replaced the earlier statute. This section provided
that in an action in respect of injuries caused by a dog

"it is not necessary for the plaintiff, in order

to entitle him to a verdict, to show or prove
(a) that the dog was, or is, or (b) that the
owner knew that the dog was or is, of a vicious or
mischievous nature ... "

In Lupu v. Rabinovitch 1 5 Solomon J. held that

"under the new section 27 of the Animal
Husbandry Act 1970 a plaintiff has been relieved
of the onus of proving that the dog is vicious
or mischievous and that the owner knew his dog
had those particular vicious or mischievous
propensities ... By clear language, the legis-
6
lature intended and did create absolute 1
 liability on the owner ... Under this section
the plaintiff needs only prove that he was
bitten by the owner's dog."

The position in Manitoba is therefore settled in

favour of strict liability, whilst in British Columbia the
principles laid down in the Bebbington 1 7 case still represent
the law.

It seems clear that the construction of the statute

taken in the Lamontagne 1 8 case was unjustifiable. In the first
place, a rule that would require the plaintiff to prove the
existence of a mischievous propensity in the dog but not the
defendant's knowledge of such propensity makes little sense.
The whole basis of the scienter action was that the owner of an
animal mansuetae naturae would be liable for harm caused by the
animal if he knew it to be dangerous and yet failed to prevent
it from doing the damage. The element of knowledge on the
owner's part was crucial, for if he did not know that an animal
of a normally harmless species had exhibited dangerous character-
istics not normally found in creatures of that species, how
could he be expected to control it? Furthermore, it has been
pointed out that the writ upon which the scienter action was
originally based made no division between the elements of
mischievous propensity. and owner's knowledge
19 of such propensity,
as the following statement of Hale shows:

"If the owner have notice of the quality of his

beast, and it doth anybody hurt, he is chargeable
with an action for it."

Accordingly, where a statute removes the requirement

of proof of knowledge of a propensity, the effect is inevitably
to abolish scienter and to impose a new statutory strict2 0
liability, as Macintosh J. recognised in Porter V. Joe:

"In (the scienter) form of action, liability was

dependent upon proof that the defendant knew or
ought to have known of the animal's dangerous
character. However, this form of action appears
to have no application in Nova Scotia by virtue
of the provisions of section 11 of the Stray Animals
Act 1967,21 which reads - 'it shall not be necessary
to prove knowledge by or notice to the owner or
harbourer of any mischievous propensity of a dog.'"

The round upon which strict liability was avoided in

the Bebbington 2 case, viz. that the statute merely altered
the burden of proof and did not affect the substantive require-
ments of the scienter principle is not, it is submitted,
warranted by the wording of the section. Furthermore, as
Professor Glanville Williams has pointed out,
"such an interpretation seems to defeat the
intention of the legislature. If the defendant
is entitled to give evidence that he had no know-
ledge of his animal's vice, the plaintiff, if he
 wishes to win the case, must give evidence in
rebuttal; yet2 3 this is just what the Act says he
need not do."

In Australia and New Zealand, by contrast, the judges

appear to have accepted from the outset that the relevant statut-
es abolished scienter and laid down strict liability, but there
has been considerable uncertainty as to the extent of liability
and the nature of the defences thereto. In particular, two
questions have caused difficulty:

(a) Is liability under the Acts confined to

"canine" injuries involving some hostile
act on the part of the dog, such as biting
or scratching?
(b) Is liability under the Acts "absolute", or are
there any defences available, and if so, what
is the nature and extent of those defences?
The answers to these questions depend primarily upon
whether the Acts are regarded as having merely abolished the
scienter rule (as regards dogs) but otherwise as having retained
the applicable common law principles, or whether they are regard-
ed as having created an entirely new basis of liability under
which the common law principles are irrelevant, or whether the
true position lies somewhere between these two extremes.

The type of injury

Section 22(1) of the Dog Act 1970 of Victoria 2 4 is
unusual in that it provides that "the owner of any dog which
rushes at, attacks, worries or chases any person, or any horse,
cattle, sheep or poultry shall be ... liable in respect of any
damages so caused by the dog." The statute may thus be seen
to be confined to "canine" injuries brought about by aggressive
conduct of the dog. Also, Section 2(1) of the Dog Owners'
Liability Act 1980 of Ontario 2 5 provides that "the owner of a
dog is liable for damages resulting from a bite or attack by
the dog on another person."

Liability under the scienter action at common law was

probably similarily confined to cases of aggressive conduct.
In the leading case on the point, Fitzgerald v. E.D. and A.D.
Cooke Bourne (Farms) Ltd., 23 the English Court of Appeal held
that there was no liability under the scienter principle where
a frolicsome filly knocked the plaintiff down and injured her,
since the filly was merely indulging in a natural propensity to
be playful and was not vicious or hostileP However, the legis-
lation of most other States and Provinces of Australia and
Canada provides for liability for "injury done by" dogs and
the question arises as to whether other forms of harm apart
from hostile attacks are included. Two New South Wales cases
in which this question fell for determination are Martianoni v.
larris 8and Twentieth Century BZinds Pty Ltd. v. Howes. 2 9 In
the former, the defendant's dog suddenly rushed across a street
and collided with the plaintiff's moving car. Moffitt J.A. and
Taylor A.J.A. in the New South Wales Court of Appeal acknowled-
ged that at common law there would have been no liability in
such circumstances since the dog was not doing anything other
than oursuing the natural instincts of its kind, but they took
the view that section 20 of the Dog Act 1966 had introduced a
wider area of liability than that covered by the common law
and that the section covered "injury done by a dog, even if in
bringing about that injury it was doing no more than indulqe
its natural propensity to run abroad on the highways." 3 0 In
the words of Moffitt J.A.:

"The words (of section 20) suggest some active

participation by the dog, but not limited to an
attack, in bringing about the injury. As, in my
view, the section does produce some enlargement
of the liability at common law, as distinct from
its proof, I think it can be said that at least
the act of a dog running across the road into the
path of and colliding
31
with a vehicle is within
the section."

In Twentieth Century Blinds Pty Ltd. v. Howes, 3 2 the

same Court took liability a step further in awarding damages
against the owner of a dog which had run towards the plaintiff
and, without coming into contact with hinatall, causedhin to take
33
a step back, fall and injure his hand. Reynolds J.A. said:

"There is no warrant to read down the words of

the section so as to limit liability to what
have been described as "canine" acts by a dog, 34
and this Court has so held in Martignoni V. Harris.
The section cannot be limited in its operation to
injury caused by direct physical contact between
the dog and the person, property or animal concerned.
So to limit it is to confine the words of the section
in a way which the Act does not require."

It is submitted with respect that the Court was correct

in holding that section 20 of the Dog Act 1966 established a new
and wider area of liability than that which had obtained at
common law. The restriction of liability at common law to
hostile attacks by animals was inevitable because,under the
scienter principle,the owner of an animal fansuetae naturae
was liable only where he knew of its vicious or, at least,
mischievous propensity. It would not have been sufficient to
show that the animal was known to have been merely playful or
frolicsome. 3 5 But once the requirement of scienter is excluded,
the need for the restriction of liability to hostile attacks
disappears and it simply becomes a matter of awarding damages
under the statute for "injury done" to the plaintiff, whatever
form that injury may take. It is perhaps surprising, therefore,
that in two New Zealand actions based on the Dogs Registration
Acts of 1908 and 1955 respectively the defendants escaped
liability in circumstances remarkably similar to those which
occurred in the Ho a and Martignoni cases. 3 6 In the first,
Chittenden . Bale", H went to visit a friend at the latter's
house and was proceeding up a flight of concrete steps to the
verandah when a dog belonging to C, which was held on a short
chain at the top of the steps, suddenly sprang towards H. H
was not bitten or touched but she lost her balance and fell
down the steps, sustaining injuries. Blair J. held that C was
not liable since section 27 of the Dogs Registration Act 1908
did not impose absolute liability and H's injuries
"were caused by suddenly stepping back when the
dog sprang at her to the extent the chain permitted..
All that the dog did on this occasion was what it
was natural for a dog to do, and in fact the dog
did ... precisely what people keep a dog for ...
The dog did not touch H. Her injuries were not
the result of any contact with the dog.... The
injury to the plaintiff was not a canine injury
at all .... Defendant'C's) restraint on the dog
was such that it could.not bite the plaintiff ...
It would be open to a dog-owner notwithstanding
section 27 to establish affirmatively, if he can,
facts excluding his liability. It seems
38
to me
that the facts in this case do this."
39
In the other New Zealand case, Knowlson v. Solomon, 40
the defendant was held not liable, as in Chittenden v. Hale,
on the ground that the injury was not "done by" his dog. In
this case the defendant's dog had collided with and damaged
the plaintiff's car which was being driven along the highway.
McGregor J. held the defendant not liable on the grounds that

(1) the action of the dog in moving on to the road into

the path of the car amounted to "mere blundering
into the highway." It did not arise from any
mischievous propensity and was not "an attack on
the car inspired by vice or ferocity."
(2) the words "injury done by the dog" in section 29
of the Dogs Registration Act 1955 "connoted something
of an active nature and not passive on the part of
the dog, "and
(3) notwithstanding section 29, it was open to the owner
of a dog "to establish affirmatively, if he can,
facts excluding his liability," 4 Tr to set up a
defence of inevitable accident.

A comparison between Knowlson v. Solomon and Twentieth

Century Blinds Pty Ltd. v. Howes 4 2 shows the wide difference of
approach adopted by the New Zealand and the New South Wales
courts respectively. It is submitted with respect that, for
the reasons given above, the approach of the latter is more
clearly in accord with the wording of the statutes, though it
may well be that the more lenient stance taken in New Zealand
produced fairer results in the circumstances of the particular
cases.

Defences
The question of defences to liability under the Dog
Acts was aptly put by Adam J. in the Supreme Court of Victoria
43
in Trethowan V. Capron:
 "It remains to consider whether, in the face of
the absolute and unqualified terms in which
liability is imposed by the Dog Act, this new
statutory ground of action should be treated as
subject to ... common law defences."

It might he argued that, upon a proper construction

of the Dog Acts, liability thereunder is absolute since no
defences are expressly provided for and the sections state
quite categorically that "the owner of every dog shall be
liable in damages for injury done to any person, property or
animal by his dog", with no words of exception or qualification.
However, it appears that none of the learned judges who have
considered this question have been preped to adopt such an
extreme view. In Simpson V. Bannerman, for instance, the
High Court of Australia seemed to envisage the existence of
defences to liability, though i refrained from specifying
any. And in Wilson v. Silvera, 5 the Jamaican Court of Appeal
concluded that "the Dogs Law does not create absolute liability.
It relieves the plaintiff of proof of scienter and of the proof
of negligence. Other defences which are open at common law may
still be raised."

The fullest examination of the question of defences

was made by Blair J. in Chittenden v. Hale.4 6 He took the view
that the defences which were available at common law in scienter
cases were equally applicable to actions based p the Dog Acts.
These defences wre (1) contributory negligence 4(2) volenti
non fit injuria 4 8 (3)(possibly) act of a stranger 4 and
(4) plaintiff a trespasser.

Of these defences, the one which has been most

directly in issue in the cases is the fourth: plaintiff a
trespasser. Two cases decided in 1897, one English and one
Australian, provide an igteresting comparison. In the English
case, Grange v. Silcock, 5 0 proceedings were brought by the
owner of sheep which were trespassing on the defendant's land
when they were attacked and killed by the defendant's dog.
The Divisional Court held the defendant liable. It was no
defence that the plaintiff's sheep51
were trespassing when they
were attacked. Collins J. said:

"The words of [the Dog Act 1865] are absolute,

and make no exception in favour of injuries
caused by a dog to sheep which are trespassing."

By contrast, the 9upreme Court of New South Wales

held in Wilkins v. Manning5 that a person who trespassed
upon the defendant's land and was there attacked by the
defendant's dog would be precluded from recovering damages.
Simpson J. took the view that the relevant Dog Act

"Imposes no further liability upon the owner of a

dog than existed at common law, except that it
renders it unnecessary for the plaintiff to allege
and prove, as he must have done before the statute,
 that the dog which inflicted the injury complained
of was of a mischievous disposition,
53 and that the
defendant was aware of it.",

Both judicial and academic opin4 2 n has preferred the

Australian view. In Trethowan v. Capron, for instance, Adam
J. emphasised that, apart from the requirement of scienter, "in
allother respects the rights an4 5 liabilities of the parties must
be regulated by the common law, and Professor Glanville
Williams castigated the decision in Grange v. Silcock 5 6 as
"absurd", since "if carried to its logical conclusion, it would
mean that no dog could be used to drive out tres assing
8
cattle." 5 7 Even Collins J. in Grange v. Silcock5 admitted
that "thewords of the statute may and must be read with some
qualification, for instance, if a wild bull come into my ground
and my dog, in turning him off, kills him, it may be that there
would be a defence under the statute," (though Collins J's
example seems to contemplate the defence of necessity rather
than that of "plaintiff a trespasser"). One factor which seens to have
weighed heavily in the minds of the judges is that if there
were no defence of "plaintiff a trespasser" then a burglar
would be able to recover damages from the owner of a guard dog
which had bitten him. 5 9 Thus, in Trethowan v. Capron Adam J.
concluded that
"whatever limitations may properly be implied upon
the liability imposed in absolute terms by section
26 of the Dog Act, I consider that the ancient and
established common law right in a man to guard and
protect his own property by any lawful means so
long as he does not thereby interfere with the
legal rights of others should be held to stand "
unaffected by the general language of section 26. 6
The desirability of providing a defence to liability
where straying livestock are injured by a leidowner's dog was
recognised by the Law Commission in England and such a defence
was included in section 5(4) of the Animals Act 1971:

"A person is not liable under section 3 of this

Act if the livestock was killed or injured on
land to which it had strayed and either the dog
belonged to the occupier or its presence on the
62
land was authorised by the occupier."
Section 3 of the Animals Act 1971, which replaced
section 1 of the Dogs Act 1906, is, like its predecessor,
confined to injuries to livestock. In England any action in
respect of injuries to a human must be brought under section
2(2) of the Animals Act which covers damage caused by "an animal
which does not belong to a dangerous species." A defence to
liability under section2 is contained in section 5 which provides
that a defendant will not be liable inter aZia "for any damage
suffered by a person who has voluntarily accepted the risk thereof,-
(s.5(2)), or "for any damage caused by an animal kept on any
premises .... to a person trespassing there, if it is proved
(a) that the animal was not kept there for the protection of
persons or property, or (b) (if the animal was kept there for
the protection of persons or property) that keeping it there
for that purpose was not unreasonable (s.5(3)).63
4
Section 5 was directly in issue in Cummings v. Grange
where the plaintiff had entered the defendant's scrap-yard at
night and been bitten by the latter's Alsatian dog. On the gate
leading to the yard was a sign, "Beware of the Dog". There was
no doubt that the plaintiff was a trespasser inthe yard. The
Court of Appeal held that section 5 applied and the defendant
had a good defence to liability, 6 5 since (1) the plaintiff was
a trespasser in the yard and the keeping of the guard dog was
not unreasonable in the circumstances, and (2) the plaintiff
must be taken to have voluntarily accepted the risk of being
attacked by the dog.

The question of defences to liability under the Dog

Act 1976 of Western Australia was in issue in the recent case
of Rigg v. Alietti, 6 6 the facts of which have a bizarre yet
all-too-familiar ring. In this case the plaintiff and defendant
were neighbours, their respective properties being separated by
a boundary fence. The plaintiff leaned over the fence, waving
her arm to attract the defendant's attention. As she did so
the latter's dog, which was clearly agitated and had been
jumping against the fence and snapping at the plaintiff as she
leaned over, administered a severe bite on the plaintiff's out-
stretched arm. All three judges of the Supreme Court of Western
Australia examined closely the wording of section 46 of the Dog
Act 1976 which provides:
"(1) The conviction of a person under this Act does not
affect any right or remedy by civil process of any party arising
in relation to the same matter, and the provisions of this Act
do not limit or affect any right, remedy or proceeding under any
other Act or law
(2) The owner of any dog .... may be liable in damages for
injury done by that dog
(3) It shall not be necessary in any proceeding for a party
seeking damages in respect of an injury caused by a dog to show
a previous mischievous propensity in the dog or the owner's
knowledge of that propensity, or that the injury was attributable
to neglect on the part of the owner of the dog."

Burt C.J. pointed out 6 7 that subsection6 8 (2), unlike the

statute previously in force in Western Australia (and, it may
be added, the other Australian statutes) provided that the
owner of a dog "may" be liable. The other statutes used the
word "shall". The effect of this, said the learned Chief Justice,
was that subsection (2) "is still a section which imposes liabil-
ity, but it does not now do so in absolute terms. It now
recognizes that the liability may be conditioned and qualified
by considerations such as contributory negligence, voZenti or
trespass, lying outside the 6 statute. Or, as Starke J. expresses
it in Simpson v. Bannerman, 9 it now recognises that the
liability 'depends upon the relation of the person complaining
of injury to the keeper of the dog and the circumstances under
which the injury was sustained'. Hence the dog owner may be
liable. It is not the case that without regard to the circum-
stances he shalt be liable." The Chief Justice noted 7 0 that
previous cases in which defences to liability under various
Dog Acts had been in issue appeared to have been decided
very much on a case-by-case basis. Thus, for example, in
Trethowan V. Capron 7 1 the trespass defence succeeded on the
basis that the owner of a dog was not liable for injuries
inflicted upon a trespasser if done in defence of the owner's
property. On the other hand, in Simpson v. Bannerman 7 the
defence failed because the trespass was merely "technical'
(the plaintiff had thoughtlessly placed his hand on the top of
a boundary fence and was bitten by the dog). The Chief Justice
concluded that even if the plaintiff in the present case had
committed a trespass in leaning over the fence with her arm
outstretched (which he doubted), the defendant could not rely
on the defence because this was not a case where the injury had
been inflicted in defence of the owner's property. Nor did
volenti non fit injuria apply since, despite its agitated
behaviour immediately before the bite, the dog was thought by
all who knew it to be "a perfectly safe animal", and one cannot
be voZens to a risk without being sciens 7 3 of it.

It seems safe to conclude, therefore, that common law

defences are available in actions under the Dogs legislation at
least of those jurisdictions in which the issue has been
considered by the courts, though it appears that the judges will
be very reluctant to allow such defences where the plaintiff
victim, though technically at fault, had acted innocently. It
is to be hoped that future legislation will spell out clearly
the conditions for the application of such defences so that, in
Burt C.J.'s words, "the owner of the dog would know when he
would and when he 7 would
4
not be liable for damages for injuries
done by his dog."

GILBERT KODILINYE
1. In addition, the owner or keeper of a dog may be liable
in negligence for harm done by the animal. In negligence
actions it is not necessary to prove any vicious or mis-
chievous tendency on the part of the dog or the owner's
knowledge of such a tendency (Fardon v. Harcourt-Rivington
(1930) 47 T.L.R. 25: Rigg v. AZietti (1982) W.A.R. 203,
at p. 2 11.), but only that the defendant failed "to take
care that (the dog) was so under his control that it would
not escape to do injury to persons": Martin v. Lowe (1980)
109 D.L.R. (3d) 133, at p.135, per Ruttan J. Most recent
Canadian cases have concerned injury to persons in public
parks or on highways. Where a dog is allowed to "run at
large" contrary to a by-law, this may be evidence of
negligence. See, e.g., Caine Fur Farms Ltd. v. Kokolsky
(1963) 39 D.L.R. (2d) 134; Morris v. Baily (1970)13 D.L.R.
(3d) 150; Weld v. McMyn (1972) 28 D.L.R. (3q) 253; Porter v.
Joe (1979) 106 D.L.R. (3d). 206; Martin v. Lowe, supra;
Moffett v. Downing (1981) 16 C.C.L.T. 313.
2. This section has now been replaced by Animals Act 1971, s.3.

3. See also, e.g., Dog Act 1976, s.46 (Western Australia);

Dog Control Act 1979, s.52 (South Australia); Animals Act
R.S.B.C. 1979, c.16, s.20 (British Columbia); Animal
Husbandry Act, R.S.M. 1970, c.A90, s.27 (Manitoba); Stray
Animals Act R.S.N.S. 1967, c.294, s.ll (Nova Scotia);
Dog Owners' Liability Act R.S.O. 1980, c.124, s.2 (Ontario);
Dogs (Liability for Injuries by) Act, Cap. 104, s.2 (Jamaica);
Dogs Act, Cap.71:05, s.3 (Guyana); Dogs Registration Act 1955
s.2 (New Zealand).
4. (1960) 24 D.L.R. (2d) 557.
5. R.S.B.C. 1948, c.12; now replaced by Animals Act R.S.B.C.
1979, c.16, s.20.
6. Ibid., at p.559.

7. (1892) 2 B.C.R. 100, at pp. 101, 102.

8. Although in its origin the scienter action was one of

negligence, the mere keeping of a dangerous animal being
negligent, subsequently liability became strict and "the
defendant was liable without proof of negligence, the
obligation being to keeD the animal safe at his peril":
Williams and Hepple, Foundations of the Law of Tort, (1976) p. 11.
9. Supra, n. 4.

10. (1963)39 D.L.R. (2d) 199.

11. R.S.B.C. 1948, c.12, s.21.

12. At p. 202.
13. Gibson, (1964) 42 Can.B.R. 141.

14. R.S.M. 1970 c.A90.

15. (1975) 60 D.L.R. (3d) 641, at p. 645.

16. It seems the learned judge used the word "absolute" in the
sense of "strict" and not as meaning that no defences at
all were available to a defendant. In Hall v. Sorley (1981)
23 B.C.L.R. 281, at pp. 283, Taylor J. said that liability
under the Anumals Act R.S.B.C. 1979, c.16, s. 20 was "absol-
ute" in the sense that "the defendant cannot plead that the
escape occurred without any fault on his part", but he never-
theless held on the facts of the case that the plaintiff
had assumed the risk of injury in approaching a dog which
he knew was liable to bite, and the defendant was thus not
liable.
17. (1960) 24 D.L.R. (2d) 557. The principle in Bebbington's
case was later applied by Toy J. in Dirks and Dirks v Bin-
ning (1975) 1 W.W.R. 73, by Nemetz C.J.S.C. in Rhoule v.
Walters (1977) 2 B.C.L.R. 243 (S.C.), and by Taylor J. in
Hall v Sorley (1981) 23 B.C.L.R. 281.

18. (1963) 39 D.L.R. (2d) 199.

19. History of the Pleas of the Cron, (1680), vol. I, p. 430.

20. (1979) 106 D.L.R. (3d) 206, at p. 208.

21. R.S.N.S. 1967, c. 294.

22. (1960) 24 D.L.R. (2d) 557.

23. Liability for Animals, (1939) p. 355.

24. Replacing Dog Act 1958.

25. R.S.O. 1980, c. 124.

26. (1964] 1 Q.B. 249.

27. Quaere whether section 2(2) of the Animals Act 1971 has
preserved or altered the position in England. See Winfield
and Jolowicz, op. cit., p. 437; of North, Modern Law of
Animals (1972), p. 49 et seq.
28. (1971) 2 N.S.W.L.R. 103.
29. (1974) 1 N.S.W.L.R. 244.
30. (1971) 2 N.S.W.L.R. at p. 111.
31. Ibid. In Irving v. Slevin [1982] ACLD 821 a dog collided with
a motor-cycle on the road after chewing its way through a
brush gate. Zelling J., following the Martignoni case, held
that the word "injury" in section 52 of the Dog Control Act
1979 of South Australia (which provides that the person
having control of a dog "shall be liable in damages for any
injury caused by the dog") included damage to property and thE
defendant was liable.
32. (1974) 1 N.S.W.L.R. 244.

33. Ibid., at p. 246.

34. Supra, n. 27.

35. Where the scienter principle is held not to be excluded

by the particular statute the position will be the same
as at common law. See Kirk v. Trerise(1981) 122 D.L.R. (3d)
642.

.36. Supra.

37. [1933] N.Z.L.R. 836. See also Campbell v. Wilkinson (1909)

43 I.L.T.R. 237. It seems that no action in tort would now
be possible in such a case in New Zealand since the passing
of the Accident Compensation Act 1972 which established a
comprehensive system of no-fault compensation for all
"personal injury by accident". For the meaning of "accident"
see (1975) N.Z.L.J. 770 (A.A.P. Willy); Accident Compensat-
ion Amendment Act 1974. See also Accident Compensation
Commission v. Auckland Hospital Board[1980] 2 N.Z.L.R. 748.

38. At pp. 851, 852.

39. [19691 N.Z.L.R. 686.

40. Supra, n. 37.

41. [1969] N.Z.L.R. at p. 689.

42. (1974) 1 N.S.W.L.R. 244.

43. [19611 V.R. 460, at p. 463.

44. (1932) 47 C.L.R. 381, at pp. 383, 384.

45. (1959) 2 W.I.R. 40, at p. 42.

46. [19331 N.Z.L.R. 836, at pp. 847, 848.

47. At p. 847;Christian v. Johannesson (1956) N.Z.L.R. 664

at p. 666; -McNeill V. Frankenfield (1963) 44 D.L.R. (2d)
132; Rigg v. Alietti [1982] W.A.R. 203. Cf. Dog Owners'
Liability Act 1980, c.65, s.2(3) (Ontario).

48. At p. 848; Hall v. Sorley(1981) 23 B.C.L.R. 281; Rigg v.

Alietti [1982] W.A.R. 203. Cf. Animals Act 1971, s.5(2)
(England). See also Lewis v. Oeming (1983) 24 C.C.L.T. 81.

49. Ibid.

50. (1897) 77 L.T. 340.

51. At p. 341.
52. (1897) 13 W.N. (N.S.W.) 220.

53. At p. 221.

54. (1961] V.R. 460.

55. At p. 465.

56. (1897) 77 L.T. 340.

57. Op.cit. , n. 23 at p. 356.

58. (1897) 77 L.T. 340, at p. 341.

59. See, e.g. Chittenden v. Hate (1933) N.Z.L.R. 836, at p. 847;

WiZson v. SiLvera(1959) 2 W.I.R. 40, at p. 42; Trethowan v.
Capron [1961] V.L.R. 460, at p. 464. Section 3(2) of the
Dog Owners' Liability Act, R.S.O. 1980, c.124 (Ontario)
specifically provides a defence in these circumstances.
See footnote 63, infra.
60. [1961] V.R. 460, at p. 466.
61. Law Commission Report, Law Comm. No. 13 (1967), para. 73.
62. This section thus overrules Grange v. Silcock(1897) 77 L.T.
340 as far as England is concerned.
63. Section 3(2) of the Dog Owners' Liability Act, R.S.O.
1980, c.124, s.2 (Ontario) provides that "where a person
is on premises with the intentionof committing, or in
the commission of, a criminal act on the premises and
incurs damage caused by being bitten or attacked by a dog,
the owner is not liable under section 2 unless the keeping
of the dog on the premises was unreasonable for the purpos-
es of the protection of persons or property."

64. [1977] 1 All E.R. 104.

65. Lord Denning did suggest, however, (at p. 109) that if the
owner of the dog were in breach of section 1 of the Guard
Dogs Act 1975, which forbidsthe use of unchained guard-dogs
except to guard dwelling-houses and farms, his action would
be "unreasonable" and he would have no defence to liability
under section 5(3) (b) of the Animals Act 1971 (though the
defence under section 5(2) might still be available). See
also [1977] C.L.J. 39. (J.R. Spencer).

66. [1982] W.A.R. 203.

67. At pp. 206, 207.

68. Dog Act 1903, s.24.

69. (1932) 47 C.L.R. 378, at p. 384.

70. Ibid., at pp. 206, 207.

71. [1961] V.R. 460.

72. (1932) 47 C.L.R. 378.

73. Ibid., at D. 207. This reasoning indicates that the

plaintiff's knowledge of the dog's previous propensity may
be relevant. See also, o.209, per Kennedy J, and pp. 210,
212, per Olney J.

74. Ibid., at p. 206.