Court said that the dog owner could have kept her pet in the car to avoid the attack
The High Court has ruled in favor of the Tauranga City Council in its appeal of a dog bite case, finding that there were practical steps the dog owner could have taken to avoid the dog’s attack.
In Tauranga City Council v Fraser [2023] NZHC 723, Helena Fraser brought her two-year-old Rottweiler, Chopper, to a veterinary clinic to be neutered. Fraser told the clinic that Chopper was wary of small dogs and anxious in unfamiliar surroundings and with people he had not previously met.
Fraser drove to the clinic with her dog and her 13-year-old son. Upon arriving at the clinic, Fraser walked Chopper around the car park. At one point, Fraser noticed a small dog, so she diverted Chopper down the side of a building to avoid confrontation. She eventually decided to leave Chopper with her son, so she could go inside the clinic to complete the paperwork.
Dr. Schneider entered the car park as Fraser walked towards the clinic building. Dr. Schneider was wearing a face mask. Fraser recalled that Dr Schneider greeted her loudly and walked towards Fraser’s 13-year-old son and Chopper “yelling” a greeting to the 13-year-old boy. Then, Chopper lunged at Dr Schneider twice, the second time biting her arm. Fraser immediately wrestled the dog back into the car.
The Tauranga City Council sued Fraser for violating the Dog Control Act of 1996. Under the law, any dog owner who attacks a person and causes serious injury is liable on conviction to imprisonment for a term not exceeding three years, a fine not exceeding $20,000, or both. The court may also order the “destruction” of the dog unless satisfied that the circumstances of the attack were exceptional and do not justify destruction.
The High Court noted that the offence created by the Dog Control Act is an offence of strict liability. Only a complete absence of fault will excuse the owner of a dog that caused severe injury to any person. The lower court judge found a total lack of fault on the part of Fraser and dismissed the charge accordingly. The judge said Dr. Schneider was responsible for determining how the situation must be handled when she walked out of the clinic and saw Chopper out of the car. The judge emphasised that Dr. Schneider could take appropriate steps to maintain and exercise control.
“She failed though to take any steps to maintain and exercise control, despite having every opportunity to do so. Had she done so, the incident would have been avoided. I consider that Dr. Schneider put herself in a position where she was vulnerable to attack by a dog who had not been assessed for safety purposes,” the judge wrote in its decision.
The High Court stressed that the onus was on Fraser to prove she was totally without fault. She must show that there were no practical steps she could have taken to avert the attack. The court further noted that total absence of fault requires consideration of all circumstances. The law requires that there was no practical step the applicant could have taken to avert the attack.
The court said whether Dr. Schneider could have acted differently to make the attack on her likely was irrelevant. The court pointed out that Fraser could have taken two simple steps. She could have kept Chopper in the car, or she could have kept physical control of Chopper rather than leaving the dog with her 13-year-old son. Neither option was done. Accordingly, the court allowed the Council’s appeal.
Source: thelawyermag.com
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