By Hikari Kato, 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: Aleksoski v State Rail Authority (NSW) [2000] NSWCA 19

Court – New South Wales Court of Appeal
Judges – Mason P, and Priestley and Fitzgerald JJA
Date of Judgment – 16 February 2000

FACTS OF THE CASE

Mr and Mrs Aleksoski, the appellants kept their five month old Rottweiler at their property which adjoined a public road, Waverley Drive. Irons was employed by the State Rail Authority, the respondent. Irons was riding his motorcycle to work along Waverley Drive at approximately sixty kilometres per hour, which was within the legal limit, when the Aleksoskis’ Rottweiler ran out and collided with him on the road causing him to suffer serious injury. When the accident occurred, the Aleksoskis’ property was unfenced, and the dog was free to run out onto Waverley Drive.

As Irons was travelling to work, the State Rail Authority incurred liability to pay workers’ compensation. The State Rail Authority recovered a verdict against the Aleksoskis, in the sum of $126,130 based upon a finding that Iron’s injury was the consequence of the Aleksoskis’ negligence. The Aleksoskis argued that Irons was liable for contributory negligence; however the trial judge rejected this contention.

In separate Court proceedings Aleksoski was charged under s 8(1) of the Dog Act 1966 (NSW) (‘the Act’) and pleaded guilty.

THE ISSUES

• Whether Irons’ injury was foreseeable.
• Whether the Aleksoskis breached their duty of care to Irons.
• Whether the standard of knowledge required for the scienter doctrine applies to a claim in negligence.
• Whether Irons was contributorily negligent.

THE DECISION

The Court dismissed the appeal.

Foreseeability of the injury

The fact that the Aleksoskis regularly restrained the Rottweiler supported an inference that the dog’s escape onto the road was foreseeable. Further, the dog’s propensity to run out to the street, and thereby risk causing an accident, was established by his or her medium size, breed and youth, which inhibited the dog’s responsiveness to training.

Breach of duty of care

Mr Aleksoski’s guilty plea under s 8(1) confirmed that the Rottweiler was in a public place and not under the control of a competent person. However, the Court emphasised that guilt under this provision would not, without more, establish negligence. The Court deemed it unnecessary to decide whether the trial judge relied solely on the male appellant’s guilty plea in establishing negligence, because there was other evidence on which to base a conclusion that the appellants were negligent.

The Court noted that the State Rail Authority bore the onus of proof of negligence; it commented, “The mere fact of the collision on the public road with the appellants’ dog did not, without more, establish negligence… The mere fact that a dog escapes from restraint, or indeed from a property, does not establish negligence”. Liability, the Court emphasised, requires proof of negligence.

The Court held that there was sufficient evidence to establish that this case was more than the accidental escape of the animal, rather there was a lack of due care which justified the conclusion that the appellants were negligent. Ordinarily, the dog was restrained out of necessity rather than excessive caution; Mrs Aleksoski testified that the dog was restrained due to his or her propensity to escape on to the road. As such, the failure to take similar precautions on the day of the accident was negligent.

Relevance of the standard of knowledge required for the scienter doctrine

The Court stated that the cause of action in negligence is an independent one. It stands outside the principles relating to an action on the basis of scienter. Accordingly, the State Rail Authority was not required to demonstrate that the Aleksoskis actually knew of the dog’s vicious or dangerous propensity to be successful in negligence; it needed to establish that the Aleksoskis knew or ought to have known of the dangerous propensity in the Rottweiler, in addition to the other elements of negligence.

Contributory negligence

The Court affirmed the finding of the trial judge to the effect that there was no contributory negligence on Irons’ part. He was an experienced bike rider who was travelling at the permissible speed on a familiar road. He had experienced no previous encounters with the dog. Hence, there was no failure by Irons to keep a proper look-out.

COMMENTARY

The case demonstrates the way in which an owner of an animal may be liable in negligence for failing to take precautions to restrain an animal where he or she has a special propensity which requires such protective measures to be taken and the risk of injury flowing from such a failure is reasonably foreseeable.

It also provides an insightful juxtaposition of the law’s perception of the relative significance of human and animal interests. At trial, Mrs Aleksoski conceded that, as the dog’s ability to escape to the road posed a danger to his or herself, the dog was never allowed outside unattended. This was used as evidence that Mrs Aleksoski was aware that if the dog escaped, he or she could cause a collision with road users and thereby cause human injury. The Court’s consideration of animal interests was only relevant insofar as it could be used to establish a lack of regard to human interests.