7.1 The commission has proposed new laws that will provide more comprehensive protection for people with disability, service providers and the public. However in reforming the law it is important that provision is made to ensure that people who currently use assistance animals don't lose out while the system is in transition.
7.2 In law making it is common to make these provisions. They are often called "transitional arrangements". In the case of this reform, transitional arrangements will need to be included in the legislative scheme so that existing users of assistance dogs have legal protection.
Recommendation
26. That provisions be included in the Equal Opportunity Act 1995 and all other relevant laws to ensure effective transitional arrangements for existing users of guide, hearing and assistance dogs recognized under the Disability Discrimination Act 1992 (Cth).
Civil liability
7.3 During consultation, most people felt that the assistance animals should be under the effective control of the handler.479
7.4 Some service providers were concerned that they would be liable for damage or injury caused by an assistance animal. Public transport providers were particularly concerned about liability issues.480
7.5 In Victoria, liability for attacks by dogs is provided for in section 29 of the Domestic Feral and Nuisance Animals Act 1994. Under this section, if a dog attacks or bites any person or animal or rushes at or chases any person the owner is subject to penalties including terms or imprisonment for up to six months and/or fines. In addition, the court may order that the owner pay compensation for any damage caused by the conduct of the dog.
7.6 However, guide dogs are exempt from the statutory provision in Victoria. As a result, the common law dictates liability for property damage and personal injury caused by guide dogs and other animals not covered by legislation.
7.7 There is some specific consideration of property damage caused by a guide dog or assistance animal outlined in section 9 of the Disability Discrimination Act 1992. It provides that a person must not treat people less favourably because a guide dog or assistance animal accompanies them but that this requirement does not affect the liability of a person with a disability for property damage caused by their guide dog or assistance animal. The effect of this section is to provide that common law rules apply.
7.8 At common law such claims would be pleaded under the scienter principle or alternatively in negligence.481 "[A]nyone who keeps a mischievous animal does so at his peril, being responsible for the harm it may do in indulging its dangerous instincts, provided he knows or is presumed to know its vicious disposition".482 This proof is known as "the scienter".483
7.9 In the case of usually tame animals like dogs, the plaintiff must show that person in control of the animal knew that the particular animal was of a vicious disposition.
7.10 Liability for negligence in relation to damage or personal injury caused by an animal also turns on whether the owner or keeper of the animal "knows, or ought to know, of a dangerous propensity of the animal, and if other necessary elements of the cause of action are established".484
7.11 It should be noted that in the vast majority of cases where liability is found, it is attributed to the owner or keeper of the animal. The only circumstance where liability might rest elsewhere is where a training organisation is found to have passed the animal for public access knowing that it was of a vicious disposition.
7.12 The commission considers that it would be highly unlikely that a service provider which is obliged by law to grant access to an assistance animal would then be liable for property damage or personal injury caused by the animal. The commission found no cases where a business or public institution has been found liable for the acts of an animal not owned by it.
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Insurance
7.13 During consultation it was suggested that the person with a disability should take out insurance for their animal to assist in the case of any damage.485 However, to compel this would be discriminatory as no other dog owners are currently required to take out such insurance.486 Although, it was recognised that such a requirement may present financial difficulties for people with disability who may already be living on a low or fixed income.487
7.14 Currently, there are a range of practices regarding insurance for the assistance animals. For some organisations, such as Seeing Eye Dogs Australia (SEDA), the animal remains the property of the organisation for life. As such, the animal is covered by SEDA public liability insurance.488 A.W.A.R.E Dogs Australia requires that people who have dogs trained by the organisation are members, and all members are covered by the organisation’s insurance scheme.489
7.15 However, for other training organisations, once the animal has completed its training and is delivered to and tested in its new home, liability moves with it.490
7.16 Some people noted that guide dog users who would like to insure their dog against loss or theft, are unable to do so to their full value under general insurance products. It should be noted that the cost of replacing an assistance animal, both financially and in terms of the independence of the person with disability, is very high.
Conclusions
7.17 Issues around liability and insurance appear to be hypothetical as there have been no reported instances of liability having arisen in the past. However, mindful that the public debate may be skewed by unnecessary concern that dogs will attack, or that liability will arise we recommend the inclusion in legislation of an avoidance of doubt provision.
7.18 It should also be noted that in omitting section 7 of the Domestic Feral and Nuisance Animals Act 1994, the current exemption for guide dogs from section 29 would be removed, and they, along with other assistance dogs would be brought under the statutory scheme described above.
Recommendation
27. For the avoidance of doubt the Equal Opportunity Act 1995 should specify that a person possessing or accompanied by an assistance dog does not affect their liability for personal injury or property damage caused by the dog.
