Dog control: The total absence of fault defence

Kia tika te puri i tō kurī | Control your dog

Dog control offences and the defence of total absence of fault

Contrary to what The Baha Men said more than 20 years ago, the Dog Control Act 1996 (Act) does not ask ‘who let the dogs out’.  Rather, it expects the owner to know.

An owner of a dog that attacks someone (or another animal) is strictly liable, unless he or she can prove a ‘total absence of fault’.  The only defence available under the Act is the focus of this article and here at Rice Speir we have plenty of experience prosecuting Dog Control cases for councils up and down Aotearoa.

Total absence of fault

Owning a dog that attacks is a strict liability offence.  It doesn’t matter that the owner didn’t want for the attack to happen, or that the dog hasn’t attacked before.  The Act is a public welfare statute with protection of people and other animals at its core.  However, an owner has a common law defence if he or she can show total absence of fault.  What needs to be established on the balance of probabilities is the total absence of fault which requires consideration of all circumstances, leaving there to be literally no practical step the dog owner could have taken to avert the attack.

For example, in Epiha v Tauranga City Council, it was not considered a total absence of fault when a dog, kept on a long leash on a property, attacked a community nurse during a scheduled visit.

Conversely, in Walker v Nelson City Council, Ms Walker went overseas, leaving her dog with a dog sitter.  The dog had a history of biting, including biting the sitter previously, which Ms Walker knew.  Subsequently, the dog attacked the sitter resulting in wounds that needed stitching.  The sitter had soreness and swelling for some time and was unable to drive for about a week.   The Court refused to accept total absence of fault as the dog’s owner knew of its biting history coupled with the recommendations of a canine behaviourist and therefore she had not established a total absence of fault.

In King v South Waikato District Council, the dog was already in the Council pound when it attacked another dog.  The Judge found that it was difficult to see how any owner could be held at fault when the Council has compulsorily removed control of the dog from its owner taking exclusive responsibility for its care and control.

In November, Rice Speir successfully persuaded the High Court to grant leave of appeal in the Tauranga City Council v Helen Fraser (‘Chopper’) case, which focuses on total absence of fault and in particular whether a vet who suffered serious injury from a dog attack was in effective control of the dog when she was bitten.  The substantive appeal will be heard in March next year.

Conclusion

Summer is approaching and that means more mingling of dogs and people.  A woman’s (or man’s) best friend comes with great responsibilities, not to be taken lightly.  The Dog Control Act creates strict liability offences for a reason.  The only defence is total absence of fault, which is a high bar and requires more than just what is reasonable in the circumstances.  Whether a person is the registered owner or simply taking the dog out for a stroll, the law requires every dog owner to keep their dog under control at all times.

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