ROMANO v SPAGNOL [1994] NSWCA 271

ROMANO v SPAGNOL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and COLE JJA 17 October 1994, 17 October 1994

[1994] NSWCA 271

ANIMALS — dog — liability of owner for dogs at common law — need to prove scienter — traveller attacked by two dogs tender of dog chain

ANIMALS — dogs — liability for — plaintiff attacked by dogs — sues only at common law — necessity to prove scienter — primary judge (Christie DCJ) draws inference of scienter from heavy chain and other evidence — prefers version of dog attack given by plaintiff to that of defendant — small verdict recovered — on summons for leave to appeal

Held: Enough to sustain inference drawn by judge.

Zappia v Allsop [1994] NSWJB 19 refd to.

DISTRICT COURT - costs - recovery of judgment under $10,000.00 - need for special certificate - omitted - leave to argue refused. COSTS - District Court - recovery of low judgment - need for special certificate for costs.

Held (refusing leave to appeal) (Kirby P; Meagher JA and Cole JA concurring):

(1) Where a plaintiff sues an animal owner in respect of injury by domestic animals, it is necessary at common law to establish that the owner knew of the animals' vicious propensities.

Eadie v Groombridge (1992) 16 MVR 263 (CA); Zappia v Allsop, Court of Appeal (NSW), unreported, 17 March 1994; [1994] NSWIB 19, distinguished;

(2) On the evidence proved, it was open to the judge to infer such knowledge and the challenge to his decision in this regard could not be sustained.

Cruttendon v Brenock [1949] VLR 366 (VFC), applied;

(3) Leave to appeal refused.

DISTRICT COURT - costs - recovery of low verdict - requirements of Pt39 RIB DCR - verdict of less than $10.000.00 entered with costs - failure to certify sufficient reason for bringing action in District Court - summons for leave to appeal - held (Kirby P; Meagher JA and Cole JA concurring): Although a legal error had been shown, the margin of costs that would be needed to correct the error was such that, having regard to the merits of the case, leave to raise the point should be refused.