BLIND MAN'S DOG

New Zealand Herald, Volume LXX, Issue 21554, 27 July 1933, Page 10

BLIND MAN'S DOG

WOMAN FRIGHTENED * INJURY IN FALL DOWN STEPS NO LIABILITY ON OWNER RULING ON LEGAL PROBLEM [bv TKr.EGU.U'H I'HKSS ASSOCIATION'] XEL SOX, Wednesday A woman who was frightened bv a chained dog and fell down some concrete steps and suffered injuries, appeared as respondent, with her husband, in a Supreme Court case, in which judgment was given to-day by Mr. Justice Blair. The ease was an appeal from a Magistrate's Court claim, in which John R. Halo and Hazel Hale were given damages ngainsi the dog's owner, George L. Chittenden, who is blind. The Supreme Court- case was an appeal on law from tho decision of the magistrate. His Honor allowed the appeal. The circumstances of the case were that Mrs. Halo went to visit a friend at about 7.15 p.m. The house was approached by a flight of concrete steps, up which Mrs. Hale walked in felt slippers. Appellant was also at tho friend's house that evening, and he had chained the dog, which lie kept to help him about, upon tho verandah with a very short chain. As Mrs. Hale reached the top of the steps, the dog, suddenly becoming nwaro of her approach, sprang toward her and attempted to bite her, but it was unable to do so, as the chain was too short. The dog did not reach Mrs. Hale, but she thought it did. She lost her balance, fell down the steps and mffered injuries. Real Cause of Injury In his judgment, His Honor said that respondent was thus not injured as a result of a dog bite, but because she moved back when tho dog sprang at her. The principle involved in tho case was not only difficult, but also very important. "The respondent," lie said, "contends that the legislature, having taken away the necessity to prove scienter, places dogs into the category of dangerous animals like lions and tigers, and respondent also contends that the legislature, having taken away the necessity of proving negligenco on the dog owner's part, places upon dog owners in New Zealand absolute liability for all damage, direct or indirect, done by their dogs. Shortly put the contention amounts to this, that once damage by a dog is proved, then no defence is available to the dogowner. If this bo the position, then the result is startling, because no matter how negligent or criminal tho acts or intentions of an injured person may be. he is absolutely entitled to damages if injured by a dog. Far-reaching Implications "Tho far-reaching nature of this contention becomes apparent by looking at a few possible instances. A dog lies asleep upon a .public pathway and someone trips over him and is injured. A dog, while chasing another dog, runs into a bicycle being ridden along the road and the rider is injured. A neurotic person has a fit merely because a dog barks at her. Instances liko those could bo multiplied indefinitely, and tho contention amounts to this, that there is no defence if the dog is the culprit." His Honor said that although proof of scienter and proof of negligence was not required in England if a dog injured sheep or cattle, yet proof of scienter or of negligence was required when a dog bit a man. The English legislature appreciated that the dog was the friend of man, and did not bito him unless of a vicious disposition or because of other good reasons. "We in New Zealand, and in Australia as well, have libelled the dog by treating him not as the friend of man, because we have enacted a statute which says that if a dog injures anyone, be it man or animal, then it is deemed natural for the dog to do this, and so the Legislature has said that neither mischievous propensity nor negligence must be proved. It is for me to examine with some care the position created by this legislation so as to see what is the extent of the dog owner's liability."

Part Played by Felt Slippers His Honor said the present ease clearly showed that the short chain which Chittenden used to confine the dog was effectual in preventing it from biting Mrs. Halo. The felt slippers she More would arouse suspicions in the dog's mind, and had it not been for the silent slippers, it was not impossible that the dog would havo detected Mrs. Hale's approach earlier, and made his presence known to her before she got close to him. If one had to consider the matter from the dog's point of view, it would be difficult to suggest that a woman going to visit a friend at, night timo,was to be deemed guilty of contributory negligenco because she wore shoes tha'; ei*abled her to tread noiselessly. All that the dog did on this occasion was what it was natural for a dog to do, and in fact, the dog did on that occasion precisely what many people kept a dog for. It was the circumstances that caused her injury. The dog was mi confined by appellant that it was unable to reach her. "If appellant," said His Honor, "beside tying the dog on a short chain, had muzzled it as well, or even had it in a cage, the' same injury could havo happened. The injury to respondent was not a canine injury at all, but assuming that the injury was done by the dog, there still remains the question whether the facts show that appellant was without blamo in the matter. There was a dutv'on him to prevent his dog from biting people. It is found that appellant's restraint of the dog was such that it, could not bite respondent. Dog and a Waitress "The Court of Appeal in England considered that a dog which collided with a waitress 011 stairs was not behaving in ->ther than the ordinary and natural way that dogs behave, and the learned Judges there consider there was no evidence of negligence. A cat or fowl f ot the top of the stairs eould have frightened respondent in precisely the same way as this dog did. The facts as found by the magistrate seem to me to exclude negligence on the part of appellant. I do not see what more it can bo suggested he could have done than to have confined his dog so that it could not reach anyone. He, as a blind man, has to use his dog to help him get about. "The injury to respondent, to my mind, was due. to an accident—the unfortunate combination of felt slip|>crs, the lliglit of stairs, the barking dog, to which was added a nervous woman. Having earlier in this judgment come to the conclusion that it would be open to a (.log owner, notwithstanding section ' 2~, to establish affirmatively ii' he can the facts excluding his liability, it seems to me that the facts in this ease do this. I allow the appeal and direct, judgment to be entered for appellant with costs L' 7 7s and disbursements. As this-case lias a certain difficult question of law in it. the case is, to my mind, one in which it :is proper that I give leave to appeal to the Court of Appeal."