District Court New South Wales Medium Neutral Citation: Novakovic v Stekovik [2011] NSWDC 253 Hearing dates: 29 - 30 March 2011 Decision date: 20 April 2011 Before: Knox DCJ Decision: 1. The plaintiff's statement of claim is dismissed 2. Judgment for the defendants 3. Liberty is reserved to the parties to approach to have the matter listed for submissions as to costs on or before 2 May 2011 4. Absent the receipt of submissions on costs to the contrary, the order as to costs will take effect from 2 May 2011 5. Subject to any submissions, the plaintiff shall pay the costs of the defendants as agreed or taxed Catchwords: TORTS - negligence - duty of care - anticipated attack by dangerous dog - plaintiff's fear of dogs and response - measures reasonably necessary to forestall attack Legislation Cited: Civil Liability Act 2002 Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Laresu Pty Ltd v Clark [2010] NSWCA 180 Phillis v Daly (1988) NSWLR 65 Wyong Shire Council v Shirt (1980) 146 CLR 40 Youkhana v Di Veroli [2010] NSWCA 322 Category: Principal judgment Parties: Mileva Novakovic (Plaintiff) Michael Stekovic (First Defendant) Snezana Stekovic (Second Defendant) Representation: Mr Carney (Plaintiff) Mr Scotting (Defendants) Koutzoumis Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendants) File Number(s): DC 2010/7 Judgment Pleadings 1By an amended statement of claim filed 14 October 2010, the plaintiff seeks damages and costs arising out of an incident on 19 January 2008 in Queanbeyan NSW. The defence filed puts all issues in dispute but during the hearing there has been substantial agreement on issues of quantum should liability be found. Liability is strongly disputed both on issues of foreseeability as well as the nature and scope of any duty on the defendants. The defendants also submit that contributory negligence is a substantial issue in all the circumstances. Evidence 2Evidence in these proceedings comes from the statement of claim and oral evidence given by the plaintiff on 29 March 2011. No other oral evidence was called by either side in amplification of the tender bundle (exhibit 2). It was agreed that no Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inferences would be available nor drawn following that agreement. Incident 3On 19 January 2008, the plaintiff attended the defendants' premises, a town house at Ross Road Queanbeyan. The defendants were, and are, the plaintiff's brother and sister in law and occupied those premises. The plaintiff attended those premises at the invitation of the defendants. The plaintiff attended with another sister in law, her daughter and her sister in law's daughter. 4They knocked at the door and the second defendant opened the door. All four visitors entered the house. The plaintiff entered the premises last. When they went into the premises, the defendants' dog, a bullmastiff / kelpie cross called 'Cougar' was inside the lounge-room. A photograph was tendered showing the height of the dog. The plaintiff, Ms Novakovic said that she did not expect to see the dog there and was surprised when she saw that it was inside the house. No-one had told her that the dog was in the house. She had never seen the dog in the house before. She knew from her conversations with the defendants that it was normally kept in the rear of the property. 5The other three invitees ran to the other side of the lounge-room, leaving the plaintiff isolated. She said that she saw the dog (which was initially about 5 metres away) get up and move towards her. It was neither barking nor running. She was scared of the dog. She immediately went to the front door and left, closing the screen door behind her. The whole incident took about two or three seconds. 6On exiting the house through the front door, the plaintiff turned around to her right and her left leg went up off the tiles of the patio outside the front door. She fell back and fell onto a mat on the front door. Most of her body weight went onto her right arm/elbow. She got up but was unable to breathe. She was taken by her sister-in-law to the Queanbeyan Hospital where her arm was put in a sling and she was given pain-killers. Resulting injury 7The following morning the plaintiff saw her GP and was immediately sent to the x-ray department of the emergency ward of the Canberra Community Hospital. There, she was operated on by an orthopaedic surgeon and ultimately had a prosthesis put in her arm. 8She had a severe fracture which was operated on two days after the incident. There was considerable pain and suffering associated with the injury, both from the operation and the resulting treatment. Fear of dogs 9The plaintiff said that she had been aware that her brother, the first defendant, owned the dog concerned; further that the dog was a hunting dog and, to her knowledge, was normally kept in the backyard. She had a general fear of dogs for which she had not received - nor had she seen it as necessary to receive - any treatment. Condition of premises 10At the time of the incident, the patio area was moist if not wet. There had been some light rain. Photographs were tendered of the patio area showing a doormat on the tiled patio area. The tiles to the patio area were intact. 11Following directions, a joint experts' report was submitted (exhibit 2) which sets out that the slip resistance measurements establish that the tiles afforded adequate slip resistance for normal pace and moderate attention. Further, that sudden movement may increase the utilised friction demand. In summary, it is agreed that the slip resistance for the patio surface was not a significant factor in this incident and the principal factor appears to have been the response of the plaintiff to the dog. 12The plaintiff submits and the defendants deny that the tiles were inadequate for someone leaving the house urgently and turning in a sudden manner. However, the primary issues in terms of submissions (see below) are whether the circumstances were foreseeable and whether they gave rise to a duty of care on the defendants to the plaintiff and whether her actions in all the circumstances were reasonable. Plaintiff's work 13The plaintiff is aged 41 and has trained as a hairdresser. She now works as a librarian or clerical assistant. At one stage, while she was trying to build up her employment, she worked as the executive assistant to the Director General of the Department of Defence in Canberra for some months. It could be anticipated that she would have a working life of about 20 - 24 years. The plaintiff's position at the time of the accident was in the public service earning approximately $51, 000 annually. 14The plaintiff did not go to work for some 6 to 7 months after the injury and thereafter had physiotherapy. She could not drive for some four months. Ultimately she recommenced work on a casual basis in part-time positions in 2009. She returned to part-time work on 12 January, 2009 and thereafter increased her work hours until resuming full-time work in March, 2010. 15In terms of the effect the injuries have had on the plaintiff's ability to function, the plaintiff: (a)finds it difficult to use the computer mouse for extended periods with the right hand; (b)is unable to lift weights in excess of 5 kilograms; (c)finds house-work difficult. 16The plaintiff is consistently on pain-killer medication, including codeine and paracetamol. Law 17Sections 5B and 5C of the Civil Liability Act 2002 provide as follows: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) 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): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 18I have been referred to the decisions of Youkhana v Di Veroli [2010] NSWCA 322, Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380, Council of the City of Greater Taree v Wells [2010] NSWCA 147 and Laresu Pty Ltd v Clark [2010] NSWCA 180 as well as s 5 of the Civil Liability Act. Counsel for the defendants submits that, should the question of contributory negligence arise, it needs to be looked at from the perspective of the reasonable observer. Submissions Plaintiff 19The plaintiff submits that the Court's approach should be whether in all circumstances the incident was foreseeable and if so, that a duty of care existed on the defendants to take reasonable precautions to ensure that the dog was restrained such that it did not come in the direction of the plaintiff. Here, it is submitted that there was such a duty. Moreover, that the incident which occurred was neither far-fetched nor fanciful but was foreseeable and not insignificant. The plaintiff also submits that, in all the circumstances, it was reasonable to expect a person in the position of the defendants to have taken precautions to: (a)ensure the dog did not come in the direction of the plaintiff such that it would cause her to rapidly retreat from the lounge-room; or (b)in the alternative, that the plaintiff should have been alerted to the dog's presence inside the lounge-room. 20The plaintiff further submits that it could have been anticipated that a person in the position of the plaintiff would have had to have left the premises quickly and that her actions in getting out via the doorway (with her body going in one direction) and then turning back to close the door behind her - inferentially to stop the dog following her - led to her body motion being effectively in two different directions. It is submitted that that was the direct cause of her feet going out from under her leading directly to the injuries she suffered from the fall. 21As part of the same submissions, the plaintiff urges that I find that she was of a class of persons who were scared of dogs who might be expected to visit the premises; further that those persons would be likely to react as she did and that it was reasonable for her to act as she did -in other words, to bid a hasty retreat out of the house immediately upon seeing a dog of that nature with her knowledge of it. That reaction was all the more reasonable in circumstances when the dog's presence was unexpected. Defence 22The defendants submit that the approach should be whether it was reasonable for an occupier in the position of the defendants to expect that reaction and to take appropriate precautions. In this case, the defendants submit that that was not the case. Secondarily, that the plaintiff contributed to the accident and, viewed objectively that it was not reasonable for her to act in the way she did based on an objective view of the situation. 23The defendants submit that there were other reasonable responses available to the plaintiff given that the dog did not do anything other than come towards her. It was the actions of the plaintiff in hurrying out the door and closing it in a rush which was the cause of the incident and her injuries and that nothing could have been expected of the defendants. 24Further, that the plaintiff's reaction was unreasonable and that it would have been reasonable for the plaintiff to either get the defendants to do something about the dog or that she should have retreated in a more slow and safe manner given that the dog was about 5 metres away from her and was not approaching her in an aggressive manner. 25In summary, the defendants submit that it was the manner of the plaintiff's egress from the premises which caused the incident and that her reactions were not reactions that could have been anticipated from a reasonable person in the circumstances in which she was. Mr Scotting submits that there were other reasonable responses available to her. Further, that simply because there was an option for the defendants to warn the plaintiff of the presence of the dog or to restrain the dog- for example, by keeping it tethered and incapable of advancing towards the plaintiff - does not mean that such measures should have been taken. 26In the event that this decision is reviewed elsewhere, I set out the findings I think are appropriate to be made on the evidence. The issues of quantum were agreed during the hearing. Findings 27I am satisfied on the evidence and find that: 28The first and second defendants were the owners and occupiers of the relevant premises; that they owned the dog involved at the relevant time and that the plaintiff was at the premises at the invitation of the defendants or one of them. 29The plaintiff did not know that the dog was in the premises and that she left the premises immediately she saw the dog get up and come in her direction. I accept her evidence was that she left the house because she was scared of the dog. 30That decision was made in a very short space of time - probably about two or three seconds at most. She then turned around and went out the door closing it and the screen door behind her, inferentially to stop the dog following her. 31The plaintiff left the premises on the basis of her reasonable fear given that the dog was a bullmastiff / kelpie cross dog which was moving towards her. She was aware that the dog had normally been kept in the backyard and not in the house. 32It was as a result of her quick egress from the house and from the different directional pressures of her body in leaving and turning to close the door behind her that she lost her balance, slipped on the tiled patio floor and fell, thereby injuring herself. 33Those injuries resulting from her fall were a fracture to the head and neck and the right radius of the right elbow region. Her right wrist is injured and there has been a partial tear of the rotator cuff in her right shoulder. Those latter matters appear to have either settled or become quiescent. 34In the event that this decision is reviewed elsewhere and a contrary view taken on my findings, I will attach (appendix A) the agreement reached on the issue of quantum. Consideration 35This case falls to be considered under the provisions of the Civil Liability Act and against the background of the law relating to the duty of care owed by an occupier to entrants on his premises and the assessment of the foreseeability of risk which was not insignificant. The measure of the discharge of the duty is what a reasonable man would do by way of response to the foreseeable risk - again in the circumstances of the particular case - see generally Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479; Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 and Phillis v Daly (1988) NSWLR 65 per Mahoney JA; Wyong Shire Council v Shirt (1980) 146 CLR 40. 36If it could be foreseen that there was a risk of injury to the plaintiff, then it needs to be determined what a reasonable man would do in response to the risk taking into account factors as specified in s 5B. 37Only if I was satisfied on those matters would I consider whether there was a breach of that duty, whether the breach caused the plaintiff's injuries and whether there should be an assessment of contributory negligence. Foreseeability 38I find that what occurred was not foreseeable nor was the risk of the events occurring foreseeable. Moreover, that the risk of this harm occurring was insignificant. Further, 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. In my view, it could not have been anticipated that a person in the position of the plaintiff would react in the way she did and then slip and fall when she left the premises. I do not think it was reasonable for the defendants to have taken precautions against a risk of harm having regard to the factors set out in s 5B (2) (a) to (d). 39Focussing in the alternative on what it was precisely that the defendants should or should not have done and having regard to the plaintiff's submissions, I do not think it would be reasonable to expect that the defendants take the precautions suggested. Duty of care 40There is no evidence of any defect in the premises nor of any failure in my view of any duty of care incumbent on the defendants. The fact that the plaintiff did slip and fall and then suffered the damages she did, does not establish that there was a breach of a duty nor that what occurred was foreseeable. 41Accordingly in my view the plaintiff's claim fails and I dismiss the statement of claim. Costs 42The parties agreed that costs should follow the event. Further, that the costs should be as agreed or taxed on the usual basis but that if there are any reasons why costs should not be ordered that either party should have liberty to seek to have the matter listed. 43Accordingly I order that the pay the costs as agreed or taxed, such order not to issue until seven days from the date of this order. I indicate that I will be in the Sydney registry of the Court from 18 April, 2011. Given the holidays associated with Easter, I will extend the date for submissions on costs until 2 May, 2011 before the costs orders foreshadowed are made. Orders 1. The plaintiff's statement of claim is dismissed 2. Judgment for the defendants 3. Liberty is reserved to the parties to approach to have the matter listed for submissions as to costs on or before 2 May 2011 4. Absent the receipt of submissions on costs to the contrary, the order as to costs will take effect from 2 May 2011 5. Subject to any submissions, the plaintiff shall pay the costs of the defendants as agreed or taxed Appendix A QUANTUM The parties, after some discussions, have agreed on the question of quantum should I find that liability is established. The percentage of non-economic loss not being agreed. The following is derived from a schedule of damages which became exhibit 5: Non-economic loss $50,050 The figure to be utilised should be 27% based on the pain and suffering associated with the incident and subsequently, the operation, the time of convalescence, the possibility of a future operation with the attendant pain and suffering. There are also the inconveniences associated with the ongoing restrictions on the plaintiff's capacities to move and lift Out of pocket expenses Past ($3387) and Future ($5000) $8,387 Past economic loss $39,814 19/06/08 to 11/01/09 $19,745 12/01/09 to 22/03/10 $20,064 Future economic loss $30,000 Total $128, 251 In relation to the figures for the 'cushion' for future out-of-pockets, it is submitted that there is a likely need for a future operation. After submissions and discussion it was agreed that an appropriate figure for that would be of the order of $5 000.00. In terms of the 'cushion' for future losses based on the plaintiff's age of 41 with arguably 24 years in the workforce, with an income of $50 per week and discounts for contingencies and vicissitudes it is common ground, should liability be found, that a reasonable figure for that heading would be $30 000.00. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2013