By Pamela Kalyvas, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Zappia v Allsop [1994] NSWCA 355

Court – New South Wales Court of Appeal
Judges – Kirby P, and Clarke and Handley JJA
Date of Judgment – 17 March 1994

FACTS OF THE CASE

Allsop, the respondent, and his son were riding their bicycles along Clarke Street, Riverstone. A large dog emerged from Lot 24 Clarke Street, barking and growling at Allsop and his son. The dog ran towards the bicycles and collided with the rear wheel of Allsop’s bicycle causing him to be thrown to the ground, rendering him unconscious. Allsop was transported by ambulance to Blacktown hospital, where he was treated for concussion and minor abrasions. Allsop sued Zappia, the appellant, who was the owner of the property at Lot 24, Clarke Street for damages. Allsop relied on two causes of action. First, Allsop argued that Zappia was liable pursuant to s 20 of the Dog Act 1966 (NSW) (‘the Act’). Second, Allsop argued that Mr Zappia was liable in negligence at common law.

At first instance, Allsop succeeded on both actions, though the Court held that he was liable for contributory negligence. Zappia appealed, contending that he was not the owner of the dog and also that the Court erred in it its determination of the cause of action created by s 20 of the Act. Allsop cross appealed against the finding on contributory negligence.

THE ISSUES

• Whether Zappia was the owner of the dog.
• Whether the elements of s 20 of the Act were established.
• Whether Allsop was contributorily negligent.

THE DECISION

The Court dismissed the appeal and upheld the cross appeal.

Ownership of the dog

The Court held that Mr Zappia was in fact the owner of the dog and therefore upheld the decision of the trial judge. The Court noted that an “owner” was defined in s 4 of the Act as “the person by whom the dog is ordinarily kept” and included at s 4(a) premises “where the dog is, at any particular time, ordinarily kept on any land or in any premises, the person who is the occupier of that land or those premises at that time…”

It was accepted that Mr. Zappia was the occupier of Lot 24, but he argued that the facts contained within the evidence did not establish that the dog was ordinarily kept on that land. The Court found that the evidence led to a divergent conclusion. Allsop recalled that the dog came out of Zappia’s property and chased him about thirty times in the three to four months prior to the accident. The Court held that this was powerful evidence that the dog was ordinarily kept at Zappia’s premises. The Court also relied on additional material, including that the dog was permitted to feed on Zappia’s land. The Court rejected Zappia’s argument that prior to the accident, the dog only came onto the property to scavenge and was chased away when he or she did. It held that “The combination of the respondent’s evidence as to the events prior to the accident and the appellant’s admission that the dog was kept on the premises from the day after the accident raise in my mind an irresistible inference that the dog was ordinarily kept there both prior to and after the accident.”

Satisfaction of s 20 of the Act

The Court observed that to establish liability under s 20 of the Act, “it is necessary for a plaintiff to establish, first, that he or she suffered bodily injury and, secondly, that the injury was caused by a dog wounding him or her in the course of an attack upon him or her.” The Court rejected Zappia’s argument that “the particular wording used in the section introduces the…limitation of liability to occasions of direct wounding by a dog”, deeming such a limitation to be artificial. As such, that Allsop was injured as a result of the collision was sufficient to establish liability under the provision.

Kirby P diverged from the majority on this point, finding that the phrase “dog wounding” imported a required of “direct contact between the dog and the injured person.”

Contributory negligence

The Court reversed the finding of contributory negligence, holding that Allsop had every right to use the road and that Allsop’s failure to complain to the Local Council or Zappia about the dog could not base a finding that he was contributorily negligent.

COMMENTARY

This case demonstrates how “ownership” of a dog may take a range of forms and provides an example of what it means to be “a person by whom the animal is ordinarily kept.”

Mirroring s 4 of the Dog Act 1966 (NSW) is s 7(1)(b) of the Companion Animals Act 1998 (NSW). The provision states that “the person by whom the animal is ordinarily kept” is the “owner” of a companion animal for the purposes of the Act. The “inclusions” provided for in the Dog Act 1966 (NSW) are no longer part of the current Act; however, the interpretation of where the animal is “ordinarily kept” is still relevant.