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: Galea v Gillingham [1987] 2 Qd R 365

Court – Supreme Court of Queensland
Judges – Kelly SPJ, and Matthews and Shepherdson JJ
Date of Judgment – 8 October 1986

FACTS OF THE CASE

Twelve year old Galea, the plaintiff, accompanied her father to a property inspection. Gillingham, the defendant, owned the neighbouring property and the common boundary was unfenced. While Galea’s father was inspecting the property, Galea was wandering around the house and was attacked by a German shepherd. She was bitten on her chest and stomach and suffered multiple scratches.

Galea sued Gillingham, claiming damages for the injury she sustained from the dog attack. The trial judge found that Galea’s injuries occurred as a result of Gillingham’s negligence. Gillingham appealed against this finding.

THE ISSUE

Whether there was a foreseeable risk that the kind of injury sustained would be caused by the German shepherd.

THE DECISION

Shepherdson J noted that Draper v Hodder [1972] 2 QB 556 established that a plaintiff suing in negligence for an attack by a domestic animal who was relatively placid prior to the incident, must prove:

• That in the absence of reasonable care by the animal’s owner, there was a foreseeable risk that the type of injuries suffered by the plaintiff could have occurred; and
• A propensity on the part of the animal, not necessarily known to the owner, but one which was such that the owner ought to have known, and therefore, ought to have foreseen, that the risk of the injury complained of could be caused by the animal.

His Honour added that it was not sufficient for a plaintiff to prove a failure by a defendant to guard against the possibility that a tame animal will act in an uncharacteristically dangerous way.

Shepherdson J affirmed that Galea was not required to prove that the precise injury was foreseeable, rather that it would be sufficient to establish that the injury fell within a reasonably foreseeable class of injuries. His Honour noted that it was foreseeable that the German shepherd, being a large dog, could injure a child by, for example, knocking him or her over. Gillingham’s comments after the attack to the effect that the dog should have been tied up were held to be an indication that Gillingham actually foresaw a risk of injury.

Shepherdson J further stated that the manner of proving a special propensity or special circumstances rendering the risk of injury foreseeable will depend on the circumstances of the case. In this case, the comments made by Gillingham immediately after the attack were taken to indicate that he in fact knew of the German Shepherd’s dangerous propensity. However, all that would have been necessary was for the plaintiff to prove that the special propensity or circumstances ought to have been foreseeable to Gillingham.

COMMENTARY

This case represents the adoption of principles in Draper v Hodder [1972] 2 QB 556 in Australia. It establishes that for a plaintiff to succeed in claiming negligence for a defendant’s failure to take measures to protect the plaintiff from a domestic animal who is usually of a placid nature, the plaintiff must demonstrate two matters. First, without the implementation of such measures, there must be a foreseeable risk of harm of the kind sustained. Second, there must be a special propensity on the part of the animal, or special circumstances relating to him or her, such that the owner ought to have foreseen the risk of injury presented by the animal.