Easthope v Auckland Council [2017] NZHC 3142 (14 December 2017)

Last Updated: 16 December 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-346 [2017] NZHC 3142

BETWEEN	TERRENCE EASTHOPE Appellant
AND	AUCKLAND COUNCIL Respondent

Hearing:	12 December 2017
Counsel:	J B Samuel for appellant A R Govind for respondent
Judgment:	14 December 2017

JUDGMENT OF KATZ J

This judgment was delivered by me on 14 December 2017 at 4:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: A R Govind, Auckland Council, Auckland

J B Samuel, Jennifer G Connell & Associates, Auckland

EASTHOPE v AUCKLAND COUNCIL [2017] NZHC 3142 [14 December 2017]

Introduction

[1] Terrence Easthope’s dog, Buddy, attacked a toy poodle cross dog called Louie. Louie was seriously injured. Although strenuous efforts were made to save him, he ultimately had to be put down due to post-surgical complications.

[2] Mr Easthope pleaded guilty to a charge under s 57(2) of the Dog Control Act 1996 (“Act”) of being the owner of a dog that attacked another domestic animal. Judge A M Manuel ordered that Buddy be destroyed. In addition, she fined Mr Easthope $250 and ordered that he pay veterinarian costs of $5,000.

[3] Mr Easthope appeals against the order for destruction of the dog. He argues that the circumstances relating to Buddy’s attack were exceptional and that the order that he be destroyed was not warranted.

Facts

[4] Judge Manuel summarised the facts as follows:

[5] ... The defendant’s dog is a tan coloured male Labrador-cross who is six years old. On 1 January 2017 the complainant was feeding rabbits at a property in Mount Eden. She had a dog with her named Louis, a toy poodle cross. As she left the property she saw the defendant’s dog rushing towards her and Louis. The defendant’s dog attacked Louis, biting him on his neck and front right leg. The defendant’s dog picked Louis up and shook him from side to side. The complainant tried to pull Louis free, but to no avail. The defendant came over to assist. He finally managed to get his dog off Louis and contain his dog in his own property. The complainant took Louis to the Animal Emergency Centre for treatment. He had suffered serious injuries and required surgery. Unfortunately, there were complications post-surgery and on 23 January 2017 Louis was put down.

Applicable law

[5] Section 57 of the Act relevantly provides:

57 Dogs attacking persons or animals

(1) A person may, for the purpose of stopping an attack, seize or destroy a dog if—

(a) the person is attacked by the dog; or
(b) the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.

(2) The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on conviction to a fine not exceeding

$3,000 in addition to any liability that he or she may incur for any damage caused by the attack.

(3) If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack described in subsection (1) and that the dog has not been destroyed, the court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

...

[6] Section 57 therefore requires that an order for the dog’s destruction must be made following an attack unless:¹

(a) the circumstances of the offence were exceptional; and

(b) the circumstances do not warrant destruction of the dog.

[7] This is a two-stage test. In Halliday v New Plymouth District Council, Heath J considered that the following factors may be relevant to determining whether the circumstances of the offence were exceptional (the first stage):²

(a) the nature of the attack (including the fact that injury resulted);

(b) the appellant’s history as an owner of the dog;

(c) whether the dog had behaved in this way in the past;

(d) the steps that had been taken by the appellant to prevent such an attack occurring; and

¹ Anand v Auckland Council [2013] NZHC 445, [2013] NZAR 285 at [12].

2. Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005 at [48]. This approach was adopted in Anand v Auckland Council, above n 1, at [13]; Nicol v Whakatane District Council [2012] NZHC 727 at [16]- [21]; Snodgrass v Kapiti Coast District Council [2014] NZHC 1333, [2014] NZAR 834 at [37]; Liu v Auckland Council [2015] NZHC 2843 at [6]; Xu v Auckland Council [2015] NZHC 3024 at [9]; and McClintock v Taupo District Council [2017] NZHC 58, [2017] NZAR 272 at [8].
   • (e) the reasons why the steps taken did not prevent such an attack occurring on the occasion in question.

[8] These factors are not exhaustive. Events which post-date the offence, however, cannot be taken into account at the first stage, because the circumstances of the offence cannot include circumstances that have not yet occurred.³ The term “exceptional” creates a “very difficult test for a dog owner to surmount”.⁴ It requires the circumstances to be “unique or special or substantially unusual”. However, the circumstances need not be extreme.⁵

[9] The second stage of the inquiry, whether the circumstances do not warrant destruction of the dog, focuses attention on the need for a predictive assessment of whether the dog is likely to behave in a similar way in the future. The assumption behind the provision is that, once a dog has attacked, it will attack again unless there are reasons to think that another attack is unlikely.⁶ The second stage allows for consideration of subsequent protective measures to prevent the dog from attacking again.⁷

[10] The Act prioritises public safety. It does not contemplate second chances for dogs that attack people or animals other than in exceptional circumstances.⁸ The law prescribes destruction of the dog as the presumed (or default) penalty for unprovoked attacks.⁹ Accordingly, although the dog’s previous behaviour is a relevant consideration, it is rare for a prosecution to be brought in circumstances where a dog has a proven history of prior attacks.

Were the circumstances of the offence exceptional?

[11] The onus is on the appellant to satisfy the Court that the circumstances of the offence were exceptional.

³ Halliday, above n 2, at [43]; and Anand, above n 1, at [14].

⁴ Halliday, above n 2, at [20] and [40].

⁵ Halliday, above n 2, at [21]; and McClintock, above n 2, at [9].

⁶ Halliday, above n 2, at [41].

⁷ Anand, above n 1, at [21].

⁸ McClintock, above n 2, at [35].

⁹ See Rotorua District Council v Whakaue HC Rotorua AP12/98, 16 March 1998 at 4.

[12] Mr Samuel submitted that the Judge was wrong to find that the circumstances of the offence were not exceptional. When the circumstances are viewed in the round, Mr Samuel submitted, they meet the exceptionality threshold. First, Mr Easthope was not to blame for the attack. He was at home with Buddy early on New Year’s Day when his cousin Tania came around to visit. She was a regular visitor. As she had a key to the property, she simply let herself in the front door. Unfortunately, she left both the door to the house and the gate to the property open, enabling Buddy to escape. Mr Samuel submitted that Buddy’s escape was therefore directly attributable to Tania’s oversight, rather than any shortcomings on the part of Mr Easthope.

[13] The following additional considerations were also said to weigh in favour of a finding of exceptionality: Mr Easthope’s property is fenced; Buddy has been neutered, microchipped and registered; Buddy has not previously attacked; and Mr Easthope has (since the District Court hearing) undertaken to enrol Buddy in obedience classes.

[14] Mr Govind, for Auckland Council, submitted that the circumstances of the offence (in particular, Tania leaving the gate open) were not exceptional. Mr Easthope’s failure to maintain adequate control of Buddy compromised the safety of the public and resulted in the death of a domestic animal (Louie) and accompanying emotional injury to its owner.

[15] In terms of the Halliday factors, I find that:

(a) The nature of the attack was that Buddy escaped the property through an open gate while not under control. The attack was entirely unprovoked and a much-loved family pet ultimately died as a result of it. The attack was therefore a serious one.

(b) Mr Easthope appears to have generally been a fairly responsible dog owner. Buddy was neutered, registered and microchipped. Mr Govind did, however, note that in 2013 complaints were made to Animal Management in relation to Mr Easthope not having leads on his two dogs. Mr Easthope was sent an infringement notice.
(c) The Judge also refers in her decision to other complaints having been made about Buddy prior to this incident, that did not culminate in prosecution. It is not clear from the Judge’s decision (or any other material before me) what those complaints related to. I assume, in Mr Easthope’s favour, that they did not relate to previous attacks. (As noted above, however, the Act does not contemplate second chances, and a previous history of proven attacks will therefore be rare).

(d) Mr Easthope’s property was fenced and gated. The reason the gates did not prevent the attack is that Mr Easthope’s cousin Tania did not close the gate on her way in.

[16] The general circumstances of the attack, insofar as they involved a dog escaping an open gate and attacking another animal, were unexceptional. The key issue is whether the fact that the gate was left open by Mr Easthope’s cousin Tania, rather than by Mr Easthope himself, takes the case into the “exceptional” category.

[17] It is not possible to formulate general principles as to when third party carelessness might constitute an exceptional circumstance. At one end of the spectrum might be a burglar who came onto a property in the owner’s absence and cut off a lock on the gate, allowing a dog to escape. Such circumstances would likely be exceptional.

[18] On the other hand, it would probably not be exceptional for a teenage child to come home from school and leave a gate open. The same would apply to an adult partner of a dog owner who had come around to visit a property. Such circumstances are fairly common and tend towards the routine end of the spectrum rather than the exceptional.

[19] Mr Samuel relied on two cases in particular to support his submission that the circumstances here were exceptional. First, in Claridge v Auckland Council a dog had jumped over a fence into a neighbouring property and attacked a dog there. The primary reason why the circumstances were found to be exceptional was that the previous owners of the neighbouring property had allowed the offending dog free run of their property, through a gate between the two properties. After the property
changed hands, however, new owners moved in with their own two dogs. The attack on those dogs was essentially due to a misguided (but understandable) sense of territoriality by the offending dog.¹⁰ The facts of Claridge are far removed from this case and I therefore find it to be of little or no assistance.

[20] The second case Mr Samuel referred to is Auckland City Council v Watts. In that case a construction worker left a gate open, which led to a dog escaping. The Judge considered those circumstances to be exceptional.¹¹ The facts of that case are somewhat closer to this one, in that it involved a third party carelessly leaving a gate open.

[21] Ultimately, it will be a matter of fact and degree whether a visitor’s carelessness constitutes an exceptional circumstance. In this case, the person who left the gate open was a regular visitor. Mr Easthope indicated (in his sentencing submissions in the District Court) that it was not necessary for Tania to call before she came to visit. Indeed, she had been provided with her own house key so she could simply let herself it. Mr Easthope advised that Tania regularly visited the property to help Mr Easthope care for his elderly mother. The closeness of the relationship is evident from Mr Easthope’s statement that he and his mother “were happily supporting Tania while she was out of work”. Mr Easthope further stated that when his mother gets up out of bed either he or Tania are there with her constantly.

[22] Tania obviously knew of Buddy’s presence, and could reasonably be expected to close the gate to prevent him from escaping. On this occasion, however, she omitted to do so. It is not particularly unusual for a regular visitor to forget to close a gate or a door on the way in. Such circumstances could well have happened previously and could well happen again. If so, nearby dogs (or other domestic animals) could be at risk.

[23] For a regular and invited visitor to forget to close a gate does not, in my view, constitute exceptional circumstances. What occurred here is not unique, special or substantially unusual. It was well within the ordinary run of things. Nor does the fact

¹⁰ Claridge v Auckland Council [2013] NZHC 1806 at [18].

¹¹ Auckland City Council v Watts [2017] NZDC 639 at [8].

that Buddy was neutered, microchipped, registered, and had not previously attacked, take the case into the exceptional category.

[24] The Judge was right to conclude that the circumstances of the offence were not exceptional. She therefore had no option but to order that the dog be destroyed.

[25] Given this conclusion, it is unnecessary to consider the second stage of the inquiry, which relates to whether the circumstances of the case are such that destruction of the dog is not warranted.

Reparation order

[26] In his written submissions, Mr Samuel requested the Court to reconsider the issue of compensation of $5,000 that Mr Easthope has been ordered to pay (at $25.00 per week). The objection appears to be that this sum exceeds the maximum penalty of $3,000 allowed under the Act.

[27] Mr Samuel did not advance this matter in his oral submissions. I therefore assume it is not being pursued. In any event, the submission is misconceived, as it conflates two separate issues.

[28] The owner of a dog that makes an attack is liable on conviction to a fine not exceeding $3,000. Mr Easthope was fined $250, which is well under the statutory cap. The dog owner is also liable to pay for any damage caused by the attack. The order to compensate Louie’s owners in respect of their veterinarian bills (in the sum of $5,000) relates to this aspect. The two matters are separate. The Judge has not erred by both fining Mr Easthope and also making a compensation order.

Result

[29] The appeal is dismissed.

Katz J