Australia: Beware of the dog – whether the risk of injury foreseeable and not insignificant – Civil Liability Act 2002 s 5B

Curwoods Case Note
Last Updated: 7 April 2012
Article by Nicholas Gordon

Judgment date: 27 March 2012

Novakovic v Stekovic [2012] NSWCA 54

New South Wales Court of Appeal 1

In Brief

  • In determining whether a defendant is guilty of negligence, the court will first consider s 5B of the Civil Liability Act 2002 (CLA).
  • A plaintiff will not succeed in establishing negligence in circumstances where the risk of harm was not reasonably foreseeable.
  • A person does not breach his or her duty merely because there are steps that could have been taken to avert the risk. It is necessary to determine what a reasonable person would have done in response to that risk.


The defendants were the brother and sister-in-law of the plaintiff, and the owners of a bullmastiff-kelpie dog.

On 19 January 2008, the plaintiff was invited to enter the defendants' house. At that time she encountered a dog owned by the defendants and, having a fear of dogs, retreated from the house quickly where she slipped and fell on a patio sustaining personal injuries.

The plaintiff was aware that the defendants owned the dog and that they had brought it back into the house following a recent break in. There was no evidence that the defendants were aware of the plaintiff's general fear of dogs.

The defendants gave no evidence at trial, and it was agreed that no adverse Jones v Dunkel inference could be drawn from this.

The plaintiff elected to focus her claim on her reaction to the dog, as opposed to her original focus that the patio was too slippery.

Section 5B of the CLA provides:

"5B General principles

  1. A person is not negligent in failing to take precautions against a risk of harm unless:
    1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
    2. the risk was not insignificant, an
    3. in the circumstances, a reasonable person in the person's position would have taken those precautions.
  1. 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):
    1. the probability that the harm would occur if care were not taken,
    2. the likely seriousness of the harm,
    3. the burden of taking precautions to avoid the risk of harm,
    4. the social utility of the activity that creates the risk of harm."

District Court Decision

The primary judge, Knox DJC, accepted that the plaintiff did not know that the dog was in the house, and that she was scared of it and left as soon as she saw it moving towards her because of "her reasonable fear". The primary judge also found that it was her quick egress from the house that caused the plaintiff to lose her balance and slip and fall.

Notwithstanding the above, the primary judge found in favour of the defendants, concluding that what occurred was not foreseeable and that the risk of this harm occurring was insignificant. The primary judge further found 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. The primary judge did not think it was reasonable for the defendants to have to take precautions against a risk of harm having regard to the factors set out in s 5B(2)(a) to (d).

Court of Appeal Decision

The three grounds of the plaintiff's appeal were that the primary judge erred by:

  1. Failing to determine whether the dog represented a danger in respect of which it was foreseeable that and reasonable for the plaintiff to take urgent evasive action.
  2. Finding that the defendants neither could nor should have anticipated an urgent attempted departure because the risk was insignificant.
  3. Finding that it was not reasonable to expect the defendants to remove the dog from the house before inviting entry of the plaintiff.

The focus of the plaintiff's submissions was that the primary judge erred in finding that owners of dogs that they had usually treated as dangerous need not foresee a fearful response of panicked flight and its consequences. It was also submitted that a simple solution would have been to put the dog outside when the plaintiff came to visit.

In response, the defendants submitted that the plaintiff's analysis of what happened was retrospective and was not supported by the objective circumstances. It was submitted that there was nothing in the evidence that suggested that the dog was dangerous or that the plaintiff believed that she was encountering such an animal on the day in question. It was further submitted that the dog did not in fact react in an aggressive manner to the plaintiff, and that the way that it was maintained inside was appropriate. Finally the defendants Page 3 of 4 submitted that the fact that the precautions for which the plaintiff contended were simple, does not mean that they were a reasonable response in the circumstances.

McColl JA, who delivered the unanimous judgment, stated that whether the defendants were guilty of a breach of duty turned first on a determination as to whether the risk in question was one of which the defendants knew or ought to have known (s 5B(1)(a)).

McColl JA noted that as occupiers the defendants owed the plaintiff a duty of care to take reasonable care to prevent injury to her on the assumption that she was using reasonable care for her own safety; (Australian Safeway Stores Pty Ltd v Zaluzna 2 ). McColl JA stated that the measure of discharge of the duty to take reasonable care is now prescribed by s 5B of the CLA, but that at common law is "what a reasonable person would, in the circumstances, do by way of a response to the foreseeable risk (Hackshaw v Shaw 3 ).

Her Honour observed that the inquiry about whether the defendants ought to have taken the precautions for which the plaintiff contends turns on such matters as the foreseeability of the risk, whether that risk was not insignificant, and whether in the circumstances a reasonable person in the defendants' position would have taken those precautions (s 5B(1)). Her Honour also noted that this enquiry is not to be undertaken in hindsight (Vairy v Wyong Shire Council 4 ), but must be answered prospectively, before the incident occurred (Adeels Palace Pty Limited v Moubarak 5 ).

McColl JA noted that the inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. It is also necessary to ask would it have been reasonable for the defendants to take those measures (Neindorf v Junkovic 6 ). In this case that meant that the knowledge of how the plaintiff actually came to sustain her injuries had to be excluded when considering whether the defendants were obliged to take any precautions in the circumstances of having a dog in the house to which guests had been invited.

It was further noted by McColl JA that a person does not breach his or her duty merely because there are steps that he or she could have taken to avert the risk that actually materialised (Thornton v Sweeney 7 ).

McColl JA stated that the first question which had to be asked was whether the presence of the dog posed a foreseeable and not insignificant risk in the circumstances (s 5B(1)(a) and (b)). Only if that question is answered in the affirmative does the question arise as to what a reasonable person would do by way of response to the risk (s 5B(1)(c)).

In considering the above McColl JA found that there was no evidence that the plaintiff feared this particular dog, or that the defendants were aware of her admittedly abnormal fear of all dogs. Her Honour found it significant, especially approaching the incident prospectively, that the defendants were prepared to allow the plaintiff and her companions to enter the house while the dog was in the lounge room. An inference could therefore be drawn that the defendants were of the view that the dog posed no risk to entrants in such a situation.

For the above reasons McColl JA found that the primary judge was entitled to conclude that it was not incumbent on the defendants to foresee that there was risk that the plaintiff would, upon seeing the dog in the house, fear it and run from the house in panic. The appeal was therefore dismissed with costs.


Common law is common sense and this decision is a good example. While determined on its facts, the decision nonetheless clearly illustrates the process of reasoning to be undertaken in establishing foreseeability and breach of duty under s 5B of the CLA in order to succeed in a claim for negligence.

In determining breach of duty under s 5B of the CLA foreseeability of risk must first be established. This case provides a good example that foreseeability is not always a given. It is only if the foreseeability question is answered in the affirmative that s 5B(1)(c) of the CLA has to be considered regarding what a reasonable person would do by way of response to the risk.


1 McColl JA, Whealy JA and Tobias AJA
2 [1987] HCA 7
3 [1984] HCA 84
4 [2005] HCA 62
5 [2009] HCA 48
6 [2005] HCA 75
7 [2011] NSWCA 244

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.