Simon v Condran [2013] NSWDC 32

District Court New South Wales

Medium Neutral Citation: Simon v Condran [2013] NSWDC 32 Hearing dates: 30 - 31 January, 1 & 4 February 2013 Decision date: 06 February 2013 Before: Neilson DCJ Decision: Verdict and judgment for the defendant. Plaintiff to pay the defendant's costs. Catchwords: PERSONAL INJURY - Dog bite - Plaintiff and defendant neighbours - Plaintiff and defendant both owned dogs who were antagonistic towards each other - Plaintiff bitten on hand by defendant's dog whilst breaking up fight between the two dogs - Wounding of plaintiff occurred on defendant's property

STATUTORY CAUSE OF ACTION - Question of whether plaintiff was lawfully on defendant's property - Whether there was trespass on defendant's land when plaintiff's dog entered it - Whether plaintiff trespassed on defendant's land when she went under defendant's house - Whether technical trespass sufficient to oust statutory cause of action - Principle of necessity - Whether necessity was caused by the plaintiff's negligence or momentary inattention / mere inadvertence - Statutory provision that plaintiff who fears for injury to herself or her dog may lawfully seize, injure or destroy the dog in question - Question of whether this permits trespass to land

TORT OF NEGLIGENCE - Foreseeability of risk - Whether risk was not insignificant - Whether a reasonable person would have taken those precautions - Burden of taking precautions to avoid the risk of harm - Whether causation of plaintiff's injury was factually related to defendant's alleged negligence Legislation Cited: Civil Liability Act 2002 ss 5B, 5C, 5D Companion Animals Act 1998 ss 12A, 22, 25 Cases Cited: Anderson Group Pty Limited v Tynan Motors Pty Limited (No 2) [2006] NSWCA 120 Herning v GWS Machinery Pty Limited (No 2) [2005] NSWCA 375 Hobartville Stud Pty Limited v Union Insurance Company Limited (1991) 25 NSWLR 358 League Against Cruel Sport Limited v Scott [1985] 2 All ER 489 Mead v Kerney [2012] NSWCA 215 Proudman v Allen [1954] SASR 336 Rigby v The Chief Constable of Northamptonshire [1985] 2 All ER 985 Shaw v Thomas [2010] NSWCA 169 Simpson v Bannerman (1932) 47 CLR 378 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Stuart v Walsh [2010] NSWCA 186 Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353 Category: Principal judgment Parties: Shari Leigh Simon (Plaintiff) Deborah Anne Condran (Defendant) Representation: Mr D Toomey (Plaintiff) Mr J Guihot (Defendant) Stacks/The Law Firm (Plaintiff) Moray & Agnew Lawyers (Defendant) File Number(s): 2010/429255