TAURANGA CITY COUNCIL v FRASER [2023] NZHC 723

TAURANGA CITY COUNCIL v FRASER [2023] NZHC 723 [4 April 2023]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2022-463-000110[2023] NZHC 723IN THE MATTER of s 58 of the Dog Control Act 1996BETWEEN TAURANGA CITY COUNCILAppellantAND HELEN TINA FRASERRespondentHearing: 3 April 2023Appearances: J L Libbey for AppellantRespondent in personJudgment: 4 April 2023Reissued: 9 May 2023 at 2 pmJUDGMENT OF BREWER JThis judgment was delivered by me on 4 April 2023 at 10 amRegistrar/Deputy RegistrarSolicitors:Rice Speir (Auckland) for Appellant(Copy to Respondent in person)Introduction[1] On 12 July 2022, Judge IDR Cameron dismissed a charge laid againstMs Fraser under s 58 of the Dog Control Act 1996 by the Tauranga City Council (theCouncil).1 Section 58 provides:The owner of any dog that attacks any person or any protected wildlife andcauses—(a) serious injury to any person; or(b) the death of any protected wildlife; or(c) such injury to any protected wildlife that it becomes necessary todestroy the animal to terminate its suffering,—commits an offence and is liable on conviction to imprisonment for a term notexceeding 3 years or a fine not exceeding $20,000, or both, and the court shall,on convicting the owner, make an order for the destruction of the dog unlesssatisfied that the circumstances of the attack were exceptional and do notjustify destruction.[2] The offence created by s 58 is an offence of strict liability. Only a completeabsence of fault will excuse the owner of a dog which causes serious injury to a person.[3] Ms Fraser's dog, a two year old Rottweiler weighing some 50 kilograms, didcause serious injury to a person. The dog, "Chopper", bit a veterinary surgeon on thearm fracturing the ulnar.[4] Judge Cameron found a total absence of fault on the part of Ms Fraser anddismissed the charge accordingly.[5] The Council applied for leave to appeal Judge Cameron's decision, and leavewas granted by Wylie J on 3 November 2022. The point of appeal identified byWylie J is:Did the Judge's finding that the victim was in effective control of the situationat the time of the attack lead the Court into error in its assessment of the totalabsence of fault defence?[6] This Judgment decides the appeal.1 Tauranga City Council v Fraser [2022] NZDC 12499.Background[7] In October 2021, Ms Fraser arranged with a veterinary clinic to take Chopperthere to be neutered. He had not been to that clinic before. Ms Fraser gave evidencethat when she telephoned the veterinary clinic to make the appointment she told thenurse that Chopper was wary of small dogs and anxious in unfamiliar surroundingsand with persons he had not previously met.[8] Ms Fraser drove with Chopper and her 13 year old son to the veterinary clinicon the morning of 14 October 2021. On arrival she went into the clinic and upliftedthe necessary paperwork. Ms Fraser went back to the car and she let Chopper out intothe carpark because he was slobbering all over her 13 year old son. Chopper was ona leash and Ms Fraser walked him around parts of the carpark. At one point she noticeda small dog and so she changed direction and diverted Chopper down the side of abuilding to avoid any confrontation.[9] Ms Fraser was expecting the veterinary surgeon to come out into the carparkto assess how they would deal with Chopper. But after some 20-25 minutes that hadnot happened and so Ms Fraser decided to go back to the clinic building to inquireabout the delay and return the completed paperwork. She left Chopper outside the carand gave his leash to her 13 year old son.[10] As Ms Fraser walked towards the clinic building the victim, Dr Schneider,came out to the carpark. Dr Schneider was wearing a Covid mask. Ms Fraser'sevidence was that Dr Schneider greeted her in a loud voice and walked towards the13 year old and Chopper "yelling" a greeting to the 13 year old. It was then thatChopper lunged at Dr Schneider twice, the second time biting her arm. Ms Fraser tookimmediate action to cause Chopper to release his grip and she was able to get the dogback in the car.[11] Judge Cameron blamed Dr Schneider for the attack:[22] In the result, I consider that Dr Schneider was responsible fordetermining how the situation should be handled from the moment she walkedout of the clinic and saw Chopper out of the car. From that point she was in aposition to take appropriate steps to maintain and exercise control. She failedthough to take any steps to maintain and exercise control, despite having everyopportunity to do so. Had she done so, the incident would have been avoided.I consider that Dr Schneider put herself in a position where she was vulnerableto attack by a dog who had not been assessed for safety purposes.The appeal[12] The Council submits that Judge Cameron reversed the test for total absence offault. He focused on what Dr Schneider did or did not do instead of taking account ofwhat Ms Fraser, as Chopper's owner, did or did not do.[13] The Council submits that the Judge should have held that, knowing thatChopper was anxious in unfamiliar places and dealing with unfamiliar persons,Ms Fraser should have kept Chopper in the car or, at the very least, herself have keptcontrol of Chopper by holding on to his leash and sending her 13 year old son into theclinic to make inquiries about when the veterinary surgeon would come out.[14] Ms Fraser, in submissions on her own behalf, squarely blames Dr Schneiderfor Chopper's attack, submitting that Dr Schneider must be held accountable for hernegligence. Ms Fraser, despite me making the issue clear to her, appeared unawarethat it was her behaviour which was under scrutiny.Decision[15] I agree with the Council. Judge Cameron erred in his consideration of the test.[16] The onus was on Ms Fraser to prove that she was totally without fault. In otherwords, that there were literally no practical steps she could have taken to avert theattack. The Council's submissions summarise the law:10 The High Court in Walker v Nelson City Council2 considered the highbar for the defence of total absence of fault. In summary:a. "It is important not to confuse strict liability with negligenceby importing into the absence of fault defence, notions ofreasonableness. Total absence of fault is a threshold that is agood deal higher than behaviour which is reasonable in thecircumstances. The bar is set so high because strict liabilityoffences are designed to privilege the protection of publicwelfare over other interests involved";32 Walker v Nelson City Council [2017] NZHC 750.3 At [22].b. "Total absence of fault requires a consideration of allcircumstances. [Williams J found this to mean that],considering all the circumstances, the law requires there to beliterally no practical step the applicant [here, the respondent]could have taken to avert the attack";4c. "Total absence of fault does not mean that the owner mustremove any possibility of any kind of attack no matter howremote that possibility might be, before being able to accessthat defence".511 More recently, the High Court in Haenga v Porirua City Council6established that "ultimately, it is irrelevant, in terms of criminalresponsibility, whether the dog was under control, or not, at the timeof an attack. The central question will be whether a defendant canprove they took all reasonable steps to prevent an attack" and as suchthe actus reus of the offence is not something for which they are atfault.[17] It was irrelevant whether Dr Schneider could have acted differently, thusmaking the attack on her less likely. It was irrelevant whether Dr Schneider wasresponsible for determining how the situation should be handled. It was irrelevantwhether Dr Schneider put herself in a position where she was vulnerable to attack bya dog who had not been assessed for safety purposes.[18] Ms Fraser could have taken two simple steps. She could have kept Chopper inthe car. Or, and this might not have been enough, she could have kept physical controlof Chopper herself rather than leaving the dog with her 13 year old son.[19] It follows that I answer the issue on appeal, "Yes".Result[20] The appeal is allowed.[21] The Judge's dismissal of the charge is quashed.4 Walker, at [23].5 At [25].6 Haenga v Porirua District Council [2021] NZHC 1549 at [32].[22] I remit the case back to the District Court for sentencing.________________________________Brewer J