Posted on by Stephen Tuck

What is a dog?

Labradors like food.  The last one we had at the farm would eat anything his powerful jaws could grind up. He only came to grief when he tried it on a brown snake, with sadly fatal consequences (R.I.P. Roly).

So I was interested in a story that landed in my inbox this week.  According to 101.5 WPDH, Shannon Walton of Hopewell Junction, NY, fed her Labrador/beagle cross with “Blue Wilderness” dog food because it was advertised as “inspired by the diet of wolves.”  Her dog put on substantial weight and was diagnosed with diabetes and canine obesity.

The lawsuit claims that Blue Buffalo was deceptive in their advertising because the food contains “high levels of dietary carbohydrates, which are neither healthy for dogs nor a meaningful part of the diet of grey wolves.”

The Hopewell Junction woman is seeking a class-action lawsuit which she says could reach over $5 million.

This left me wondering what, specifically, such a claim would be for.  Strictly speaking, her dog is an item of property.  Presumably, Ms Walton would be entitled to the diminished value of the dog, which I suppose would be a few hundred dollars at most.  On the other hand, if the dog is viewed as part of her family, perhaps harm to it is something which the food manufacturer should reasonably have foreseen could cause mental harm to a person of ordinary fortitude (Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317).  If this is the case, then the claim may have significant value.  But, does this tend to treat Fido, not as an animal, but rather as a small human in a dog-suit?  And is this something the law should be doing?

Posted on by Stephen Tuck

Who owned the elephant?

Bart Simpson famously asked “where’s my elephant?”

He wasn’t the first.

In 1914 or 1915 Mr Maung Dwe of Burma captured an elephant and trained it to work. About six months later he sold it to Mr Maung Sin, for whom it worked until 6 June 1917 when it became lost in the jungle. The creature appears to have joined with a herd of wild elephants. In June 1918 it was recaptured by Mr Maung Shwe. He found it was able to be put to work very soon thereafter. Sin sued successfully for recovery of the elephant. The defendant appealed to the Lower Burma Chief Court.

Elephant at work - Rangoon, Burma
Elephants at work, Rangoon (c.1907) [Image from here]
Higinbotham J took his bearings from Halsbury’s Laws of England, vol.1 ¶¶798–799. According to Halsbury a person can have only “qualified” property in a wild animal.  If a wild animal escapes to its former liberty, the ownership is lost.  He continued –

Elephants are animals which, though by nature wild, are peculiarly amenable to training and quickly become tame. If any such tame and trained ani­mal should go off with a wild herd of other elephants and remain at liberty so long that when recaptured, it had to be dealt with and trained as if it were a wild animal, which had never before been tamed and trained, I think it would be correct to say that it had reverted to its natural state and was in fact a wild animal.  In such case, the former owner would have lost all property to it.  But if on recapture it was found to be tame and could be put to work again almost at once, I think it would be incorrect to say that it was a wild animal.

In this case the recaptured elephant had been returned to work in a very short time and appeared trained.  It followed that it was not a wild animal when recaptured and so Sin remained the owner.

Shwe v Sin, AIR 1921 Lower Burma 1

Posted on by Stephen Tuck

The neighs have it

An animal cruelty case recently came before Shepparton Magistrates Court.

In June 2018 horse trainer Pauline Brodie’s property was inspected by officers of the Royal Society for the Prevention of Cruelty to Animals (RSPCA).  Ten of the horses in her care were found to be in poor condition.  Three others required veterinary assistance.  The horses were subsequently relocated by Harness Racing Victoria.

Brodie was charged with two breaches of §9 of the Prevention of Cruelty to Animals Act 1986.  The Act relevantly provides that

A person who …

(f) is … the person in charge of an animal which is confined or otherwise unable to provide for itself and fails to provide the animal with proper and sufficient food, drink or shelter; or …

(i) is … the person in charge of a sick or injured animal and unreasonably fails to provide veterinary or other appropriate attention or treatment for the animal; …

commits an act of cruelty upon that animal and is guilty of an offence and is liable to a penalty of not more than, in the case of a natural person, 250 penalty units or imprisonment for 12 months or, in the case of a body corporate, 600 penalty units.

The matter was dealt with before Stuthridge M.  Ms Wendy Gutteridge appeared for the prosecution.  The defendant was represented by Mr Markorius Habib of counsel.  It was submitted that the defendant had been going through a difficult relationship breakdown, had struggled financially to care for the horses and had experienced significant humilation as a result of the incident.

The defendant was sentenced to a one year good behaviour bond without conviction and ordered to pay $500.00 to the Court fund.

RSPCA v Brodie (2019), Shepparton News, 2 July 2019 at 5

Posted on by Stephen Tuck

Who let the dogs out?

I have a pet theory that the period from 28 February 1991 to 10 September 2001 was “history’s long weekend”.  But despite the general laid-back feel of the era, some serious questions needed answering.  The Baha Men, for instance, asked –

Who let the dogs out?
Woof, woof, woof, woof, woof
Who let the dogs out?
Woof, woof, woof, woof, woof
Who let the dogs out?
Woof, woof, woof, woof, woof
Who let the dogs out?

We now know the answer.  And thanks to the Supreme Court of Vermont, we also know where the fault lay.

who-let-the-dogs-out-back-in-the-90s
Image from here

On 15 January 2016 the Flores family went to the home of the Pearo family. The Pearos has invited the Flores to let themselves in and left the door unlocked. As the Flores’ son opened the door, the Pearos’ three dogs (later claimed to be pit bulls) bolted from the house. The dogs ran up to passerby Eric Gross. They attacked his dog and grabbed the man’s arm, dislocating his shoulder.

Gross commenced proceedings in the Vermont Superior Court, alleging that the Pearos’ landlord and the Flores’ had negligently failed to control or restrain the dogs. The defendants sought summary dismissal of the case which was granted. Gross appealed.

The key question on appeal was whether either defendant owed a duty of care to protect third parties off the premises from harm caused by the Pearos’ dogs.  The Supreme Court of Vermont said no. The landlord had a duty to

… take reasonable steps to protect persons outside the land from injuries caused by a tenant’s dog if the landlord knew or had reason to know at the time of entering the lease that the dog in question posed an unreasonable risk of harm to such persons. … By permitting a tenant to keep a dog that the landlord knows to be vicious, the landlord could be viewed as having created the risk that led to the third person’s injuries. … Requiring the landlord to exercise due care to protect the public in such a situation is consistent with the general duty of care owed to the public by a landowner who personally carries on unreasonably dangerous activities on his or her land.

The plaintiffs did not offer evidence that the landlord knew or should have known of a vicious tendency in the dogs.

The court accepted for the sake of argument that the Flores’ were the dogs’ keepers at the relevant time. Vermont law considered keepers to face the same standard of care as owners of dogs. That is, they are not liable for injuries to persons unless they have some reason to know the animal is a probable source of danger.  When an owner or keeper knows a dog is dangerous, they must “exercise reasonable control and restraint” of the
dog to avoid injury to others. The case against the Flores’ failed for the same reason as the case against the landlord: they did not know the dogs were a danger to anyone.

Interestingly, the court took time to consider pit bulls are an inherently dangerous breed, stating that

this Court has never held that a dog’s breed alone is sufficient to put its owners or others on notice that it poses an unreasonable risk of harm, or that pit bulls or other breeds are dangerous per se. In Vermont, liability in dog-bite cases has always depended on the propensities of the individual animal.

Gross v Turner and Flores, 2018 VT 80

Posted on by Stephen Tuck

A dog’s death

Kindness and neglect can be surprisingly close companions. In a recent post we saw that this is true of how we treat humans. It’s also true of animals.

In late 2015 a resident of Canberra, Australia, found a stray dog entangled in his hedge. It was eventually found to be terminally sick, afflicted with lymphoma, underweight and flyblown . He brought the dog into his secure back yard but (as he later told the court) lacked sufficient funds to take it to a vet for care. In November 2015 a member of the public reported the dog’s predicament to the Royal Society for the Prevention of Cruelty to Animals (ACT) (RSPCA).

RSPCA
Image credit: RSPCA (ACT)

 

The RSPCA seized the dog and ultimately put it down (the Society’s press release is unsparing about how badly degraded was the dog’s condition). The man was charged with failing to seek veterinary treatment*.  The Australian Capital Territory’s Animal Welfare Act 1992 (ACT) §6B relevantly provides that

(1) A person in charge of an animal has a duty to care for the animal.
(2) A person in charge of an animal commits an offence if the person—
(a) fails to take reasonable steps to provide the animal with
appropriate—
…
(iv) treatment for illness, disease, and injury;  …
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(3) In this section:
appropriate means suitable for the needs of the animal having
regard to the species, environment and circumstances of the animal.
reasonable steps means the steps a reasonable person would be
expected to take having regard to all the circumstances.
treatment includes veterinary treatment if a reasonable person
would expect veterinary treatment to be sought in the circumstances.

The defendant was dealt with in the Australian Capital Territory Magistrates’ Court. He pleaded guilty to the charge but said that he had not been able to afford to get the dog treatment on a veteran’s pension.

Theakston M noted that by keeping the dog in his back yard, the defendant had prevented other people from helping it**. The offender “did the right thing, but in doing so failed to meet additional obligations” connected with taking charge of a dog.

His Honour imposed a 12 month good behaviour order. He did not order the defendant to cover the costs of caring for the dog, destroying it and holding a post-mortem, noting that the organisation would probably have incurred these costs regardless.

Royal Society for the Prevention of Cruelty to Animals v Van Duren (2016) Canberra Times, 5 December 2016.

===========

* A charge of failing to provide shelter was withdrawn.

** cf Zelenko v Gimbel Bros Inc, 158 Misc. 904; 287 NYS 134. One might wonder who His Honour thought was likely to help the dog.