By Rosario Russo, 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: Alford v Greater Shepparton City Council (General) [2011] VCAT 322
Court – Victorian Civil and Administrative Tribunal, Administrative Division
Tribunal Member – Member Butcher
Date of Judgment – 3 March 2011
FACTS OF THE CASE
Alford, the applicant, was the owner of a dog declared a “dangerous dog” by the Greater Shepparton City Council, the respondent. In accordance with s 34 of the Domestic Animals Act 1994 (Vic) (‘the Act’), the local Council may declare a dog dangerous if “the dog has caused the death of or serious injury to a person or animal by biting or attacking that person or animal”. Under the Act, a “serious injury” is defined as “an injury requiring medical or veterinary attention in the nature of (i) a broken bone, or (ii) a laceration, or (iii) a partial or total loss of sensation or function in a part of the body, or an injury requiring cosmetic surgery”.
It was alleged that Alford’s dog had attacked a goat belonging to the owner of a neighbouring property. The action before the Tribunal involved a review of the decision to declare the dog dangerous.
THE ISSUES
- Whether Alford’s dog did in fact bite or attack the neighbour’s goat.
- Whether Alford’s dog was dangerous.
THE DECISION
The decision declaring Alford’s dog dangerous was set aside.
Whether Alford’s dog caused the injury
VCAT Member Gerard Butcher accepted a veterinary report describing the injuries suffered by the goat and was therefore satisfied that the goat did suffer a “serious injury” as defined in the Act.
The Tribunal then turned to whether the applicant’s dog was the cause of the injuries, stating that the requisite standard of proof was the civil standard, being the balance of probabilities. The Tribunal further noted that when the law requires proof of a fact, the Tribunal must feel an actual persuasion of the occurrence or existence of the fact. Proof cannot be found as a result of a mere mechanical comparison of probabilities, independent of any belief in its reality. The seriousness of the allegation made, the unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the Tribunal’s reasonable satisfaction as to whether or not an issue has been proved.
Whether Alford’s dog was dangerous
Evidence was admitted indicating an absence of prior or subsequent incidents involving Alford’s dog and attesting to his gentle nature. Further evidence showed that the applicants and their neighbours had poor relations and a history of allegations of animals wandering onto each other’s property. The unavailability of key witnesses for the Greater Shepparton City Council meant that the Tribunal was unable to test this evidence under cross-examination, and as a result, it was accorded less weight than sworn evidence.
In considering the evidence the Tribunal was reasonably satisfied that the applicant’s dog did not cause the injury to the goat, and that he or she should consequently not be declared a dangerous dog.
COMMENTARY
The case demonstrates that the civil burden of proof, being the balance of probabilities applies when considering evidence whether a dog is a “dangerous dog” pursuant to s 34 of the Act. The VCAT must be persuaded of the actual occurrence or existence of an alleged event having regard to the gravity of the consequences before a declaration can be made.