The District Court of Queensland found a dog owner not liable to a plaintiff for injuries sustained after the dog left an unsecured yard and caused the plaintiff to fall.
In issue
- The nature and content of the applicable duty of care with respect to animals escaping from a property and causing injury, and whether the animal had a propensity to do so.
The background
The plaintiff, Mr Lockhart, was walking his dog along the footpath opposite the defendants’ residence when the defendants’ dog, Jaeger, came out from their driveway area through an open gate and ran towards the plaintiff. The plaintiff asserted that Jaeger collided with him and knocked him to the ground, causing injuries.
The plaintiff argued that in order to establish negligence (in line with the decision of Galea v Gillingham1) it was only necessary for the plaintiff to demonstrate:
- a propensity on the part of Jaeger to leave the yard when passers-by were in the vicinity and approach them in a manner that raised a not insignificant risk of injury. This was not a test of the actual knowledge of the defendants, but whether they knew, or ought to have known, of that propensity, and
- in the context of that mischievous propensity, that it was foreseeable, in the absence of reasonable care, that injuries could be caused by Jaeger.
The defendants denied that Jaeger was hyperactive, untrained and liable to run out onto the street if not restrained, and argued that:
- The plaintiff’s claim was a 'highway case'2 and (as opined by Mason J in Trigwell3) the rule from Searle v Wallbank4 provided an exception to the ordinary principles of negligence and operated to negate the existence of the otherwise applicable duty of care.
- The defendants therefore owed no duty to users of the roadway to take reasonable care to prevent Jaeger from straying onto it, in the absence of knowledge of a vicious or mischievous propensity.
- In any event, it was not foreseeable that a person would be injured if Jaeger was not appropriately restrained or confined to the house.
The decision at trial
The Court determined that this was not a 'highway case' and the defendants owed a duty of care as set out in Galea v Gillingham5, as modified by the Civil Liability Act 2003. In coming to that decision, the Court accepted that the plaintiff was standing on the grassed area between the footpath and the gutter when he fell, and not on the roadway. The Court held that Jaeger running across the roadway to the point where the plaintiff was walking did not attract the rule in Searle v Wallbank6.
Turning to the issue of foreseeability, the Court held that the plaintiff failed to establish that Jaeger had a propensity to leave the premises when passers-by were in the vicinity and approach them in a manner that raised a not insignificant risk of injury. The Court found there was no evidence that Jaeger had left the yard before the day of the incident, despite having numerous opportunities to do so.
Accordingly, the plaintiff failed to establish that the defendants had breached the applicable duty of care, and the claim was dismissed.
Implications for you
Absent evidence of a foreseeable risk and a demonstrated propensity of an animal to leave an unsecured yard and approach passers-by, a defendant is unlikely to be found negligent merely because an animal escapes from a yard and causes injury.
Lockhart v Bartholomai & Anor [2025] QDC 202
1 [1987] 2 Qd R 365
2 As per the principles from Searle v Wallbank, which was affirmed by the High Court in State Government Insurance Commission v Trigwell (1979) 142 CLR 617.
3 State Government Insurance Commission v Trigwell (1979) 142 CLR 617
4 [1947] AC 341
5 [1987] 2 Qd R 365
6 [1947] AC 341
