“My 3 year old daughter and I were injured by a dog who escaped from his leash in the car park of the hardware store recently. Can I claim any compensation for my daughter’s injuries?”
Unlike other States and Territories, Queensland does not have specific legislation which holds the owner of a dog liable for loss, damage or injury resulting from the action of the dog, for example in NSW
The principles for the liability of a dog owner for a bite or attack can be in two forms at common law:-
A person who keeps an animal which is known by that person, or presumed in law, to be dangerous may be strictly liable for damage caused by the animal. This is referred to as the scienter action, because liability depends on the person’s actual or presumed knowledge of the animal’s dangerous propensities. Animals are divided into two classes for the purpose of scienter liability; ferae naturae (dangerous by nature) and mansuetae naturae (harmless by nature). Classification is by species and is a question of law. Domestic dogs fall into the category of mansuetae naturae.
As a result of the difficulties with proving “dangerous propensity” in dogs, which are classified at common law to be harmless by nature, it may be a more appropriate alternative to sue in negligence.
There a plaintiff must prove:-
1. 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;
2. 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.
It is arguable easier now in Queensland to prove negligence than knowledge of a dangerous propensity given that owners and the public are now more aware of the certain unpredictable nature of dog behaviour.
Whilst the owner here may have taken precautions to leash the dog, it may not be sufficient in the sense that dogs are known to be capable of chewing through or freeing itself from the leash. Further it may go to show that the owner knew of the danger of an unleashed dog (although it may also simply have been a way to prevent the dog from escaping and becoming injured).