Johnson v Buchanan [2012] VSC 195: dog bites man; dog not at fault

We don’t get very many appellate decisions on dog bite cases, even though they are (unfortunately) relatively frequent in our Magistrates’ Courts.

Johnson v Buchanan [2012] VSC 195 was a judicial review under O56 rather than appeal under Criminal Procedure Act s 272, after a magistrate found a dog owner not guilty of an offence when his dog bit a neighbour’s arm. The accused dog owner successfully relied on the statutory defence of trespass under Domestic Animals Act 1994 s 29(9).

The informant applied to review the result on four bases:

  1. the victim was not a trespasser under s 29(9)
  2. if there was a trespass, it was not covered by the defence in that provision
  3. the trespass had not caused the injury
  4. the legislation should have been interpreted beneficially.

In a comprehensive, logical and thorough consideration of those points, Bell J concluded the magistrate was correct in his decision.

His Honour’s analysis of trespass and its ordinary legal meaning is very detailed and helpful. He referred to a couple of old chestnut cases — Semayne’s Case 5 Coke’s Rep. 91a, 77 Eng. Rep. 194 and Entick v Carrington (1765) 2 Wils KB 275; 95 ER 807 — followed by a great many more recent ones, and affirmed the general principle that any entry into another person’s property (including airspace) without consent is a trespass, even without any damage caused.

For good measure, His Honour also considered the doctrine of scienter — knowledge by an owner of an animal’s propensity to be ‘mischievous’, a legal euphemism for ‘likely to cause injury’ — and if the dog’s temperament was the cause of the injury, rather than the complainant’s trespass. In this case, neither of those vitiated the magistrate’s decision.

The application for judicial review was dismissed.

I’m sure this case will get a lot of attention, particularly from local councils. (It’s hard to not feel some sympathy for them, because they bear the brunt of the law enforcement role under the Domestic Animals Act — especially since the government’s push to ban American pitbull terriers — and often face criticism if they do act and if they don’t act, even though they are not primarily law enforcement agencies. Mind you, they do occasionally make some strange decisions.) But I expect it will have even broader application, in any criminal case involving consideration of trespass.

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