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: Collins v Carey [2002] QSC 398  
 
Court – Supreme Court of Queensland  
Judge – Philippides J 
Date of Judgment – 3 December 2002 

FACTS OF THE CASE

Collins, the plaintiff, was a removalist employed by Grace Worldwide, the second defendant. Mr and Mrs Carey, the first defendants, hired Grace Worldwide, the second defendant, to pack and move their personal items from their house. Collins and two other employees of Grace Worldwide arrived at the house to undertake the removal. Mr Carey tied up his dog on a standard 2 to 2 ½ metre chain. The dog was chained in the yard, near a cubby house which was to be moved.

Mr Carey alleged that he told the removalist not to touch anything near the cubby house because the dog was chained there. However, contrary to this assertion, Collins alleged that Mr Carey asked him to remove the cubby house and that there was no mention made of the dog. Collins walked over to the cubby house, turned his back to the dog, and bent down to pick up a dismantled piece of the cubby house, and immediately after this, the dog bit him. Collins denied touching the dog before he or she bit him. In addition, one of the other removalists also said that he did not recall Mr Carey saying anything about the dog, or about not touching anything in the backyard.

THE ISSUES

• Whether the Careys were liable in scienter, negligence or both.
• Whether Grace Worldwide was liable for negligence, breach of contract of employment or both.
• Whether Collins was contributorily negligent.

THE DECISION

The Court found in favour of Collins and awarded him $130,062.05 in damages.

The liability of the Careys on the basis of scienter and negligence

The scienter action failed. The Court held that Collins did not show that Mr Carey had the requisite knowledge of the dog’s aggressive tendencies to make out a case of scienter. The fact that Mr Carey gave a warning about the dog did not mean that either Mr or Mrs Carey knew that their dog had a tendency to bite or exhibit otherwise dangerous behaviour.

However, Mr Carey was found to be negligent because he did not restrain the dog to stop him or her being in the vicinity of the items to be moved. The Court relied on Galea v Gillingham [1987] 2 Qd R 365, which outlined that the plaintiff suing in negligence for damages as a result of injuries suffered by a domestic animal must prove that there:

“was a foreseeable risk that in the absence of reasonable care by the defendant, injuries of the type suffered could be caused by the animal; and a propensity on the part of the animal not necessarily known to the owner or keeper but one which was such that the owner or keeper knew or ought to have known and therefore ought to have foreseen that there was a real risk of the injury or damage complained of being caused by the animal exhibiting that propensity”

The Court, therefore, held that Mr Carey’s statements and conduct indicated that he recognised that there was a risk that the dog might bite the removalists and that the risk was real enough for him to take the precaution of tying up the dog. Mr Carey, therefore, should have foreseen that there was a real risk of injury of one of the removalists being bitten by the dog. Accordingly, in the absence of reasonable care by Mr Carey, there was a risk that injuries of the type suffered by Collins would be sustained.

The liability of Grace Worldwide for negligence, breach of contract of employment or both

Grace Worldwide was found to have breached its duty of care in failing to ensure that all items which required removal were out of the range of the chained dog.

The liability of Collins for contributory negligence

The Court held that there was no contributory negligence on the part of Collins. He was bitten when he bent down to pick up a piece of the cubby house and in doing so, came within the dog’s reach. Collins misjudged how far the dog could reach. This was a matter of inadvertence rather than negligence.

COMMENTARY

Animal owners may be held liable in negligence for failing to take adequate care to ensure that their animal does not injure a person who enters their property or approaches the vicinity in which the animal is kept. Any action taken by an animal’s owner to restrain the animal may illustrate their recognition of a foreseeable risk that the animal could injure a person.