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. COSTS - District Court - recovery of judgment less than $10,000.00 - need for certificate that proceedings in District Court warranted, rather than in Local Court - failure to secure certificate - whether leave should be granted - held: Leave refused. Dog Act 1966, s20. District Court Rules Pt39 RIB. ORDERS Summons dismissed with costs. Kirby P Before the Court is a summons for leave to appeal. It has been argued with considerable vigour and skill by counsel for the claimant. However, in my view, it must be dismissed. A TRAVELLER IS ATTACKED BY DOGS AND SUES THE OWNER The summons arises out of proceedings in the District Court before Christie DCJ. The proceedings brought by the opponent arose, in turn, out of an incident which occurred near Bonnyrigg on 4 April 1992. The opponent claimed that he 2 UNREPORTED JUDGMENTS alighted from his car to seek directions. He says that he mounted the gutter of the claimant's property to attract the attention of the claimant for that purpose. But almost immediately, two dogs emerged from long grass and savaged him on the footpath. Christie DCJ, who had the advantage of seeing the opponent give his evidence, accepted his evidence in this respect. The claimant's evidence before his Honour was entirely different. It was that, although he did not actually see the attack on the opponent by the dogs, he had heard the dogs barking for a long time. He therefore drew the inference that the opponent had been taunting the dogs for upwards of ten minutes or more. It is obvious, from Christie DCJ's acceptance of the version of events given by the opponent, that his Honour must have rejected the version of the evidence given by the claimant. PROOF OF SCIENTER WAS SUFFICIENTLY ESTABLISHED The short point which was argued on the summons was this. The opponent, having chosen to sue only at common law, it was necessary for him to establish that the claimant had the requisite knowledge of the tendency of the dogs in question to be "vicious and to bite mankind" (as the old pleading used to assert). See JG Fleming The Law of Torts (7th ed) Law Book Co, Sydney 1987, 332f. The position is different when an injured person has a cause of action under the Dog Act 1966. See Eadie v Groombridge (1992) 16 MVR 263 (CA) and Zappia v Allsop, Court of Appeal (NSW), unreported, 17 March 1994; [1994] NSWJB 19. It was said that the evidence before Christie DCJ did not disclose any knowledge in the claimant of this propensity on the part of the dogs. Proof of such knowledge is often a matter of difficulty for plaintiffs suing at common law for injuries by domestic animals, such as dogs. Sometimes the problem is overcome by the calling of expert evidence concerning the propensity of a particular breed of animal. See Heath's Garage Ltd v Hodges [1916] 2 KB 370 (CA) 378. Such evidence was not offered by the opponent in this case. Instead, the opponent rested his case upon his description of the dogs, the tender of a chain by which the dogs were restrained, and the description by the police of the fact that, when they attended at the premises soon after the attack, they found the dogs docile and chained to a spike. From those three elements of the evidence, the opponent persuaded Christie DCJ that the requisite knowledge of the propensity of the dogs had been shown to exist in the claimant. In my view, it was open to his Honour to draw the inference which he did from these facts. He refers, for example, in his reasons to "the mere size of the chains". From this his Honour obviously drew the inference that the dogs were "hardly the pet variety to which the [claimant] made reference". In cases of this kind it is usually accepted that slight evidence is sufficient to sustain knowledge, the matter of the actual propensity of the particular animals usually being peculiarly within the owner's knowledge. See eg Cruttendon v Brenock [1949] VLR 366 (VFC) 368. It was said that his Honour ought to have accepted the evidence of the claimant, that he had no reason to believe that the dogs were vicious and that the only reason why he chained the dogs was because they were given to chewing everything in sight, being young dogs. However, his Honour, having the advantage of seeing the witnesses (if not the dogs) had an advantage which this Court does not have, viz of choosing amongst the primary evidence and drawing his own conclusions from it - inter alia, from the very size of the chain. It was open to Christie DCJ to draw the requisite URJ ROMANO v SPAGNOL (Kirby P) 3 inference as to the claimant's knowledge. His Honour's conclusion is not open to challenge in this Court. In this aspect, the summons is without merit. Leave to appeal against his Honour's judgment in favour of the opponent must therefore be dismissed. OMISSION OF CERTIFICATE FOR COSTS DOES NOT WARRANT LEAVE There was, however, a second point argued which has more legal substance. The amount of the verdict and judgment which Christie DCJ entered was, in total, $8,250.00. That is the reason why leave to appeal must be sought by the summons. A right of appeal is not available to this Court in a judgment of this small dimension. Christie DCJ went on to order the claimant to pay the opponent's costs. He made no special order in this regard. It must, therefore, be inferred that his Honour was ordering the payment of party and party costs in the District Court pursuant to the lowest ordinary scale of that Court. It would appear that his Honour's attention was not drawn to Pt39 R1B of the District Court Rules. So much has been conceded before the Court today. Relevantly that rule says: "1B. (1) If in any action which could have been brought in a Local Court but which is brought in the [District] Court (a) the plaintiff recovers a total amount which does not exceed the prescribed amount by payment by or on behalf of the defendant without judgment; or (b) judgment is given or entered up in favour of the plaintiff for an amount which does not exceed the prescribed amount, the plaintiff shall not be entitled to recover any costs in the action UNLESS THE COURT CERTIFIES THAT IT APPEARS TO IT THAT THERE WAS A SUFFICIENT REASON FOR BRINGING OR TRYING THE ACTION IN THE COURT." (emphasis added) The Court has been informed, and it is common ground, that the prescribed amount was $10,000.00. Accordingly, by the rule mentioned, the opponent was not entitled to recover any costs, unless Christie DCJ, for the District Court, certified that there was sufficient reason for bringing or trying the action in the District Court as opposed to the Local Court. On the face of his Honour's reasons, his Honour did not so certify. It was therefore urged that the Court would give leave to appeal on this point to correct the obvious legal error. In my opinion, although an error has been demonstrated, it is not one which requires, or justifies, leave. If leave were granted and the order for costs alone were set aside, the matter would be remitted to the District Court. That would involve the parties in the considerable additional cost and a further day in the District Court. Those additional costs are virtually certain to outweigh the margin between the costs of the District Court and of the Local Court of the trial. It would therefore not be justifiable, for this reason only, to take the course urged by the claimant. Clearly, the opponent has succeeded in the trial. The trial was not without difficulties. It is possible that if the matter went back to the District Court the judge of that Court would certify for the costs of the District Court. But whether this would be so or not, sending the matter back is not warranted by the marginal difference between the District Court and Local Court costs and the other merits of the case. Leave on this point should therefore be refused. Order Accordingly, the order which I favour is summons dismissed with costs. 4 UNREPORTED JUDGMENTS Meagher JA I agree. Cole JA I also agree. Kirby P: The order of the Court is that the summons is dismissed with costs. 5 Summons dismissed with costs. Counsel for the Claimant: LV Stapleton Instructed by: Peter J Scarcella and Co Counsel for the Opponent: JR Wilson Instructed by: Gorman Dunbier MacKenzie