Turner v South Taranaki District Council [2017] NZDC 495 (31 January 2017)

Last Updated: 11 April 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT HAWERA

CRI-2014-021-000636 [2017] NZDC 495

IAN TURNER

Applicant

v

SOUTH TARANAKI DISTRICT COUNCIL

_Defendant

Hearing:	9 January 2017
Appearances:	Applicant appears in Person Mr J Marinovich appears for Defendant
Judgment:	31 January 2017

_{JUDGMENT OF JUDGE L HARRISON}

Introduction

[1] Floyd, a Great Dane dog, was put to sleep on 3 July 2013 under an order for destruction. Prior to that he had spent the last six months of his life impounded at the South Taranaki District Council Dog Pound (“the pound”).

[2] Floyd’s owner, Ian Turner, has prosecuted the South Taranaki District Council (“the council”) for failing Floyd under the Animal Welfare Act 1999 (“the Act”).

[3] Mr Turner summonsed three witnesses for the hearing, namely:

(a) Dr Brian Dixon, one of three vets from Taranaki Veterinary consulted by the council regarding Floyd.

IAN TURNER v SOUTH TARANAKI DISTRICT COUNCIL [2017] NZDC 495 [31 January 2017]

(b) Derryn Phillips, an Animal Control Officer who worked at the pound.

(c) John Mackenzie, Group Manager Environmental Services, South

Taranaki District Council.

[4] Mr Turner’s own evidence was in the form of an affidavit sworn on

19 August 2014 in addition to the oral evidence he gave in Court. [5] No witnesses were called by the defendant.

[6] The hearing was part heard and concluded on 9 January 2017. My decision was reserved.

[7] Mr Turner maintains the council has committed an animal welfare offence under s 12 in that the council being a person in charge of an animal has failed to comply in relation to that animal with s 10.

[8] Section 10 states:

The owner of an animal, and every person in charge of an animal, must ensure that the physical, health, and behavioural needs of the animal are met in a manner that is in accordance with both—

(a) good practice; and

(b) scientific knowledge.

[9] I have regard to the term “physical, health and behavioural needs.” This term

is defined in s 4 and it includes:

(a) proper and sufficient food: (ab) proper and sufficient water: (b) adequate shelter:

(c) opportunity to display normal patterns of behaviour:

(d) physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress:

(e) protection from, and rapid diagnosis of, any significant injury or disease,—

being a need which, in each case, is appropriate to the species, environment, and circumstances of the animal.

[10] The defendant authority entered a not guilty plea and gave written notice to the prosecutor and the District Court that the defendant was relying upon s 13(2)(a)(i) in that it took all reasonable steps to comply with s 10.

[11] The issue before the Court is whether the South Taranaki District Council

took all reasonable steps to fulfil its obligations to Floyd’s welfare.

Floyd’s circumstances

[12] Floyd was a dog who had to wear a muzzle. He was out one day without it. He was with a person (not his owner) when he bit another person and caused serious injury. Subsequently that resulted in the District Court making an order for his destruction under the Dog Control Act 1996.

[13] The evidence establishes:

(a) Floyd entered the pound on 2 January 2013.

(b) Because of his large size and his very aggressive nature, Floyd was housed in a kennel eight times bigger than a normal kennel. It was referred to as a dangerous dog cage made from heavy steel grading with a mechanical moving gate system which could confine Floyd and protect staff. This system allowed for safe cleaning of the cage.

(c) On entry to the pound Floyd was in good condition. He was fit and healthy.

(d) On 13 January 2013, Mr Turner wrote to the council expressing concern about the level of care required by his dog and requested that Floyd be returned to his care pending the District Court process. This request was refused by the Regulatory Service Manager, John Single, by way of letter 15 January 2013.

(e) Mr Turner visited Floyd on 17 January 2013. He was unhappy with the state of Floyd. According to Mr Turner, Floyd had lost considerable weight, was in a distressed state and was in a filthy kennel.

(f) Around the same time the animal control officers at the pound were having difficulty handling Floyd. The council engaged Dr Brian Dixon to attend upon Floyd.

(g) Dr Dixon saw Floyd on 17 January 2013 and he wrote a letter about his attendance on the same day. He was unable to carry out a physical examination of Floyd because of aggressiveness but he did observe him and he reported the following:

• No problems with locomotion (movement).

• No sign of pain.

• Body condition graded as light and was given a score of three on the body grading system.
  

• Abdominal tucked in, ribs visibly obvious.

• That Floyd expended a good amount of energy each day barking and pacing in his pen.
  

• Floyd was physically agitated, displaying very aggressive behaviour.

He lunged at people standing on the other side of the gate. In his

opinion the level of aggression he observed was very rarely seen in animals socially adjusted to people and other animals.

• He recommended worming and increasing Floyd’s food intake.

[14] Under cross examination Dr Dixon explained the body condition grading that he had given Floyd on that day. His evidence was in assessing the body condition he looks at the muscle and fat cover of the skeleton and markers such as back bone protruding, sunken back muscles and eye sockets. This gives a percentage of fat muscle cover. A score of three means a dog has a subnormal/suboptimal body condition although normally it does not take too much to decline in rating and raise concern.

Floyd’s environment

(a) Floyd was at the dog pound.

(b) He was in a large outdoor concrete cage which had an area for shelter under a concrete ledge and a metal panel which could be stood up against the ledge to provide additional shelter from the elements.

(c) The cage was cleaned regularly with a specific mechanism that enable the staff to clean it out safely. Dr Carr, a vet engaged by Mr Turner reported in May by way of letter about the cleanliness of the cage.

(d) Floyd’s bed was a crate with bedding. The bedding was regularly chewed and destroyed. Arising from Dr Dixon’s second assessment of Floyd on 12 February 2013, it was his recommendation that Floyd be given softer bedding to help reduce an irritation on his paw. But noted it may not be feasible given the dog’s current environment and temperament.

(e) Floyd was provided with water. This is independently verified by

Mr Turner’s own vet from the Eltham Vet Clinic, Dr Carr, in her May

2013 letter.

(f) Floyd was fed high energy Tux dog biscuits and was regularly assessed by the vets regarding his body condition. It was established and maintained around 3 to 3.5/9 between January 2013 and June

2013. His condition was described at times as being “light condition but adequate” and “in an acceptable condition”. Dr Carr’s assessment was to score him a 3 which she described as “being just under an ideal score of 4 or 5.”

(g) Floyd was not exercised daily. This was because of his aggressive nature. He was unable to be taken out of his cage for walks. He was unable to socialise with other dogs. There was an exercise area adjacent to his cage but he was unable to be handled to access that area.

(h) In respect of his physical handling, this was largely not possible other than on one occasion when he was attended by a vet from Taranaki Veterinary on 8 March 2013. He was sedated so that he could be given a thorough physical examination on that occasion.

[15] Mr Turner argues:

(i) If he had been able to be with Floyd at the pound, Floyd would not have been aggressive. It would have made handling the dog much easier for the vets and the staff. Under cross examination of Dr Dixon, Mr Turner put to him “Do you think you could have handled Floyd if I had been there?” His reply was “I have handled a lot of aggressive dogs. I would be a fool to go into a cage with him.”

(ii) His requests to be present at the pound were unreasonably declined.

He was declined on the basis of health and safety concerns. The evidence of Derryn Phillips was that owners can pose a risk at the pound. It is possible that dogs can be given commands that may put staff at risk.

(iii) The council should have been consulted an animal behavioural specialist. This is because Floyd had come from a difficult background. He had been a rescue dog, rescued from a life in a cage. According to Mr Turner being in a cage was a trigger for aggressive behaviour. However there is no evidence that Mr Turner put this specific suggestion to the pound at anytime.

(iv) Mr Turner had the opportunity to have Floyd seen by his own vet.

This was a standing invitation that was open to him from February 2013. He engaged his own vet on one occasion only, namely Teresa Carr from the Eltham Vet Services.

(v) That Floyd was fed an inadequate diet of Tux dog biscuits. Floyd had been used to a diet of meat, milk, water and dog biscuits. It was put to Dr Dixon under cross-examination by Mr Turner whether a change of diet was ever suggested by adding meat to the biscuits. Dr Dixon replied:

I personally would not have recommended that. Meat is not a complete diet. We recommended a high energy food for Floyd. Furthermore we would not recommend meat. It is a completely unbalanced part of the diet. In the wild dogs are carnivores. They have a balanced diet from eating guts, bones, and skin.

(vi) Nor was Dr Dixon able to recommend Floyd’s diet contained bones.

He would not recommend bones because of serious health issues that could arise such as constipation particularly in a dog who was cage confined and not able to be taken out and exercised.

My Analysis

[16] Floyd’s accommodation at the pound was not salubrious and it certainly did not have the creature comforts of home but it was adequate for his size and aggressive nature. This much was accepted by Mr Turner in his closing. However,

it was never intended to be a long term residence. In fact Floyd was the longest resident dog at the pound. This was due to the fact that Mr Turner had appealed to the High Court regarding the destruction order and the appeal process took many months.

[17] It was Mr Turner’s right to appeal the decision but early on in Floyd’s stay at

the pound it was pointed out to Mr Turner by way of letter from John Mackenzie on

28 February 2013 that the appeal will prolong the time that Floyd is kept in the pound. He was unable to be exercised due to his aggression. Releasing Floyd back into the care of his owner was not an option for the council in all the circumstances primarily regarding Floyd’s aggression and the fact that he had bitten somebody. In the letter Mr Mackenzie raises the suggestion that it would be perhaps more appropriate that Floyd be euthanized as soon as possible to reduce the amount of time he will need to spend incarcerated because of the appeal process. I find that suggestion was made with Floyd’s welfare at the forefront of his mind.

[18] Mr Turner responded to that letter. He was aghast and his correspondence of

12 March 2013 described his reading of the letter with a mixture of disbelief and anger. As at 12 March 2013 his view of the council’s treatment of his dog and himself was that it was most unkind and towards the dog, cruel.

[19] When I consider that statement I note there had been five vet visits including the visit on 8 March 2013 when Floyd was sedated, given a thorough physical examination and was prescribed a long acting broad spectrum antibiotic. Expert veterinary opinion had been given about Floyd’s dietary needs and about his bedding. Objectively I find no evidence of cruelty towards Floyd on the part of the council.

[20] Mr Turner’s letter goes on:

After reading your sanctimonious and incorrect statement I am more determined than ever to pursue all channels possible to secure the release of my dog and to take the council to Court for cruelty and failure to fulfil your responsibilities under the law to provide adequate food, shelter and exercise for Floyd.

[21] Floyd’s body condition went downhill in early June 2013. This was noticed by the animal welfare officers at the pound and the vet was alerted. Dr Dixon attended Floyd on 17 June 2013 and rated the body score as 3/9. He attended again on 25 June 2013. As of 25 June 2013 Floyd’s condition had dropped below that point. Notwithstanding Floyd being fed 50 high performance Tux biscuits a day (well above the recommended rate for a dog of Floyd’s size) he had lost condition. Dr Dixon wrote directly to Mr Turner on 25 June 2013 and pointed out that Floyd’s current environment was not conducive to his wellbeing as it was neither warm nor dry. He states that “Floyd is a very aggressive dog in this environment and cannot be handled safely by those responsible for his care. There is no opportunity to house him in a better situation while he is impounded”.

[22] Dr Dixon expresses his concern for Floyd’s welfare and was mindful of the High Court appeal and because of the appeal process said the time at the pound could be extended significantly. Dr Dixon advised Mr Turner in his professional opinion if Floyd continued to lose weight he would be advising euthanasia on welfare grounds. Mr Turner was strongly advised to arrange for his own veterinarian to make an appointment to view Floyd.

[23] What is pertinent to me is the last sentence of the letter, “Floyd’s welfare is my only concern and I have a legal obligation to ensure he does not continue to suffer because of circumstances he has no way of changing.”

[24] The High Court appeal released its decision on 2 July 2013. Floyd was put down on 3 July 2013.

[25] Standing back and considering all of the evidence I make the following findings:

[26] That Floyd was impounded is beyond argument.

[27] Floyd’s condition was regularly monitored by the staff at the pound and by vets.

[28] Expert vet opinion was provided to advise and guide the council on matters

concerning Floyd’s physical and environmental issues.

[29] At one point Floyd’s condition improved to a 3.5/9.

[30] Evidence from the vet engaged by Mr Turner confirms that she did not express any concerns nor make any particular recommendations to improve Floyd’s situation or to address any short comings in his care.

[31] Mr Turner’s own vet confirms Floyd’s condition was no worse in May 2013 than when he was first assessed by Dr Dixon some four months earlier.

[32] When staff noticed a deterioration in his condition the vet was called in. The

Council acted responsibly and appropriately in that regard. [33] Floyd was provided with proper and sufficient food. [34] Floyd was provided with proper and sufficient water.

[35] Floyd was given adequate shelter until June 2013, being a winter month when it was deemed to be inadequate for him, and particularly so in the context of Floyd having lost condition.

[36] Floyd was not able to be given the opportunity to display normal patterns of behaviour. He was unable to be safely physically handled other than on the occasion he was sedated for a thorough physical examination by the vet.

[37] Floyd’s temperament was a critical limiting factor to what was available to him in terms of his housing/shelter, bedding and his ability to be handled by staff, exercised and socialised with other dogs.

[38] Mr Turner’s unwillingness to accept Floyd’s predicament resulted in Floyd staying for much longer at the pound than would otherwise have been the case for a dog subject to a destruction order. Floyd has no control over his length of stay but Mr Turner did.

[39] Mr Turner’s negative view of the council was misguided when I objectively consider the evidence. The allegation of cruelty is not made out. The proposal that he hand Floyd over to the council to be put down was made out of genuine concern and compassion for Floyd.

[40] From the outset both the council and Mr Turner recognised the facilities are

not “ideal” for a long term stay.

Decision

[41] This prosecution is brought under Part 1 of the Act.

[42] The purpose of the Act is set out in s 9 and that particular section is found in

Part 1.

[43] S 9(1) states the purpose is to ensure owners and persons in charge of animals attend properly to the welfare of those animals.

[44] I am satisfied on the evidence before me that the council attended properly to the welfare of Floyd and that it did take all reasonable steps to meet Floyd’s physical, health and behavioural needs, in light of his particular circumstances and the environment he found himself in.

[45] I dismiss the charge.

L Harrison

District Court Judge