Australia: Beware of the dog – whether the risk of injury foreseeable and not insignificant – Civil Liability Act 2002 s 5B
Curwoods Case Note

Judgment date: 27 March 2012

Novakovic v Stekovic [2012] NSWCA 54

New South Wales Court of Appeal ¹

In Brief

• In determining whether a defendant is guilty of negligence, the court will first consider s 5B of the Civil Liability Act 2002 (CLA).
• A plaintiff will not succeed in establishing negligence in circumstances where the risk of harm was not reasonably foreseeable.
• A person does not breach his or her duty merely because there are steps that could have been taken to avert the risk. It is necessary to determine what a reasonable person would have done in response to that risk.

Background

The defendants were the brother and sister-in-law of the plaintiff, and the owners of a bullmastiff-kelpie dog.

On 19 January 2008, the plaintiff was invited to enter the defendants' house. At that time she encountered a dog owned by the defendants and, having a fear of dogs, retreated from the house quickly where she slipped and fell on a patio sustaining personal injuries.

The plaintiff was aware that the defendants owned the dog and that they had brought it back into the house following a recent break in. There was no evidence that the defendants were aware of the plaintiff's general fear of dogs.

The defendants gave no evidence at trial, and it was agreed that no adverse Jones v Dunkel inference could be drawn from this.

The plaintiff elected to focus her claim on her reaction to the dog, as opposed to her original focus that the patio was too slippery.

Section 5B of the CLA provides:

1. A person is not negligent in failing to take precautions against a risk of harm unless:
2. 1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
   2. the risk was not insignificant, an
   3. in the circumstances, a reasonable person in the person's position would have taken those precautions.

2. In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
3. 1. the probability that the harm would occur if care were not taken,
   2. the likely seriousness of the harm,
   3. the burden of taking precautions to avoid the risk of harm,
   4. the social utility of the activity that creates the risk of harm."

District Court Decision

The primary judge, Knox DJC, accepted that the plaintiff did not know that the dog was in the house, and that she was scared of it and left as soon as she saw it moving towards her because of "her reasonable fear". The primary judge also found that it was her quick egress from the house that caused the plaintiff to lose her balance and slip and fall.

Notwithstanding the above, the primary judge found in favour of the defendants, concluding that what occurred was not foreseeable and that the risk of this harm occurring was insignificant. The primary judge further found that the defendants neither could, nor should have anticipated the plaintiff's reaction, even had they considered the position of a person invited to the premises who was afraid of dogs. The primary judge did not think it was reasonable for the defendants to have to take precautions against a risk of harm having regard to the factors set out in s 5B(2)(a) to (d).

Court of Appeal Decision

The three grounds of the plaintiff's appeal were that the primary judge erred by:

1. Failing to determine whether the dog represented a danger in respect of which it was foreseeable that and reasonable for the plaintiff to take urgent evasive action.
2. Finding that the defendants neither could nor should have anticipated an urgent attempted departure because the risk was insignificant.
3. Finding that it was not reasonable to expect the defendants to remove the dog from the house before inviting entry of the plaintiff.

The focus of the plaintiff's submissions was that the primary judge erred in finding that owners of dogs that they had usually treated as dangerous need not foresee a fearful response of panicked flight and its consequences. It was also submitted that a simple solution would have been to put the dog outside when the plaintiff came to visit.

In response, the defendants submitted that the plaintiff's analysis of what happened was retrospective and was not supported by the objective circumstances. It was submitted that there was nothing in the evidence that suggested that the dog was dangerous or that the plaintiff believed that she was encountering such an animal on the day in question. It was further submitted that the dog did not in fact react in an aggressive manner to the plaintiff, and that the way that it was maintained inside was appropriate. Finally the defendants Page 3 of 4 submitted that the fact that the precautions for which the plaintiff contended were simple, does not mean that they were a reasonable response in the circumstances.

McColl JA, who delivered the unanimous judgment, stated that whether the defendants were guilty of a breach of duty turned first on a determination as to whether the risk in question was one of which the defendants knew or ought to have known (s 5B(1)(a)).

McColl JA noted that as occupiers the defendants owed the plaintiff a duty of care to take reasonable care to prevent injury to her on the assumption that she was using reasonable care for her own safety; (Australian Safeway Stores Pty Ltd v Zaluzna ² ). McColl JA stated that the measure of discharge of the duty to take reasonable care is now prescribed by s 5B of the CLA, but that at common law is "what a reasonable person would, in the circumstances, do by way of a response to the foreseeable risk (Hackshaw v Shaw ³ ).

Her Honour observed that the inquiry about whether the defendants ought to have taken the precautions for which the plaintiff contends turns on such matters as the foreseeability of the risk, whether that risk was not insignificant, and whether in the circumstances a reasonable person in the defendants' position would have taken those precautions (s 5B(1)). Her Honour also noted that this enquiry is not to be undertaken in hindsight (Vairy v Wyong Shire Council ⁴ ), but must be answered prospectively, before the incident occurred (Adeels Palace Pty Limited v Moubarak ⁵ ).

McColl JA noted that the inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. It is also necessary to ask would it have been reasonable for the defendants to take those measures (Neindorf v Junkovic ⁶ ). In this case that meant that the knowledge of how the plaintiff actually came to sustain her injuries had to be excluded when considering whether the defendants were obliged to take any precautions in the circumstances of having a dog in the house to which guests had been invited.

It was further noted by McColl JA that a person does not breach his or her duty merely because there are steps that he or she could have taken to avert the risk that actually materialised (Thornton v Sweeney ⁷ ).

McColl JA stated that the first question which had to be asked was whether the presence of the dog posed a foreseeable and not insignificant risk in the circumstances (s 5B(1)(a) and (b)). Only if that question is answered in the affirmative does the question arise as to what a reasonable person would do by way of response to the risk (s 5B(1)(c)).

In considering the above McColl JA found that there was no evidence that the plaintiff feared this particular dog, or that the defendants were aware of her admittedly abnormal fear of all dogs. Her Honour found it significant, especially approaching the incident prospectively, that the defendants were prepared to allow the plaintiff and her companions to enter the house while the dog was in the lounge room. An inference could therefore be drawn that the defendants were of the view that the dog posed no risk to entrants in such a situation.

For the above reasons McColl JA found that the primary judge was entitled to conclude that it was not incumbent on the defendants to foresee that there was risk that the plaintiff would, upon seeing the dog in the house, fear it and run from the house in panic. The appeal was therefore dismissed with costs.

Implications

Common law is common sense and this decision is a good example. While determined on its facts, the decision nonetheless clearly illustrates the process of reasoning to be undertaken in establishing foreseeability and breach of duty under s 5B of the CLA in order to succeed in a claim for negligence.

In determining breach of duty under s 5B of the CLA foreseeability of risk must first be established. This case provides a good example that foreseeability is not always a given. It is only if the foreseeability question is answered in the affirmative that s 5B(1)(c) of the CLA has to be considered regarding what a reasonable person would do by way of response to the risk.

Footnotes

¹ McColl JA, Whealy JA and Tobias AJA
² [1987] HCA 7
³ [1984] HCA 84
⁴ [2005] HCA 62
⁵ [2009] HCA 48
⁶ [2005] HCA 75
⁷ [2011] NSWCA 244

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