EADIE v GROOMBRIDGE [1992] NSWCA 61

EADIE v GROOMBRIDGE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and SHELLER JJA 1 July 1992, 11 August 1992 [1992] NSWCA 61

DOG ACT. FACTS: Respondent sues appellant for injuries in road accident. Respondent travels by motorcycle and is attacked by appellant's dog who has escaped from appellant's yard.

Respondent tries to avoid dog, but kills it and injures himself. Trial judge finds for respondent on common law count of negligence and statutory count based on s20 of Dog Act. Appeal on liability.

HELD: 1) (per curiam) In the case of this particular dog, and the recognised need to fence it in, the owner was negligent because he did not adopt some precaution to ensure that the gate, once opened, did not remain open.

2) (per Meagher and Handley JA, Sheller JA not deciding) There was an attack and a wounding within s20 of the Dog Act 1966.

s20 Dog Act. 1966 s9 Dog Amendment Act 1975 s19 Dog and Goat Act 1898 Moriarity v Brooks (1834) 6 Car and P 684 (172 ER 1419) R v Devire (1982) A Crim R 45 Harden v Ridges (1983) 2 NSWLR 584 Twentieth Century Blinds Pty Ltd v Howes [1974] | NSWLR 244 R v Halliday (1889) 61 Lt 701 R v Lewin (1970) Crim LR 647 R v Martin (1881) 8 QBD 54 Behrens v Bertram Mills Circus Ltd (1957) 2 QB 1 Simpson v Bannerman (1932) 47 CLR 378 Martignoni v Harris (1971) 2 NSWLR 102

Meagher JA Mr WJ Groombridge, the plaintiff (who is the respondent before us) sued Mr Eadie, the defendant and present appellant, for injuries he sustained in a road accident which occurred in the afternoon of 26 November 1985 at Rundle Street, Busby. Mr Groombridge was coming home from work on his motorcycle at a speed of about 50 kilometres per hour when a German Shepherd dog "came at" him from the footpath on his left. It belonged to Mr Eadie, who owned a nearby house. The dog ran parallel with the motorcycle for some short distance and then turned right into the plaintiff, who tried to avoid it by turning further right but who collided with it, killing it and injuring himself. The injuries he suffered were considerable. The learned judge, Conomos DCJ, before whom the matter came, found the defendant negligent and awarded a verdict in favour of the plaintiff against the defendant in the sum of $173,970.83. No appeal has been brought against the quantum of the verdict but this appeal has been brought against his Honour's finding that the defendant was liable. There were two counts: one common law count in negligence, and one statutory count based on s20 of the Dog Act 1966. His Honour found for the plaintiff on both counts.