Section 58 Dog Control Act 1996 – strict liability defence – total absence of fault – dismissal of charge – appeal – Walker v Nelson City Council [2017] NZHC 750 – Haenga v Porrirua City Council [2021] NZHC 1549

Tauranga City Council v Helen Tina Fraser [2023] NZHC 723

Helen Fraser’s two-year-old rottweiler bit a veterinary surgeon on the arm, fracturing the ulnar. The District Court dismissed a charge brought by the Tauranga City Council against the owner, finding a total absence of fault on the part of Fraser.

The council was granted leave to appeal. The point of appeal was whether the judge’s finding that the veterinary surgeon was in effective control of the situation at the time of the attack led the court into error in its assessment of the total-absence-of-fault defence.

The council submitted that the judge reversed the test for total absence of fault by focusing on the victim’s actions instead of taking into account what Fraser did (nor did not) do. Fraser, who was self-represented, submitted that the veterinary surgeon was responsible for the dog’s attack and should be held accountable for negligence.

The High Court agreed with the Tauranga City Council, finding that whether the victim could have acted differently was irrelevant. Whether the victim was responsible for determining how the situation should have been handled was also irrelevant, the court said.

Held: Appeal is allowed. District Court’s dismissal of the charge is quashed, and a conviction is entered against Fraser. Case to be remitted to the District Court for sentencing.

Jasmine Jackson is an Auckland criminal defence barrister and a member of the ADLS Parole Law Committee

Jasmine case 24 April