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Focus: Novakovic v Stekovic [2012] NSWCA
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Introduction
This decision deals with issues of foreseeability and
reasonableness having regard to the factors set out in s5B(2) of
the Civil Liability Act 2002 (NSW) (CLA). The CLA
is in similar terms in Queensland and in the other states of
Australia.
Facts
On 19 June 2008, the appellant sustained personal injuries when
she slipped and fell at the respondents' home whilst retreating
from the house in fear of the respondents' dog kept on the
premises. The dog in question was a bullmastiff-kelpie, measuring
60 cm high to its shoulder.
The appellant was afraid of the dog and had given evidence that
the dog had usually always been in the backyard when she visited,
but on this particular occasion the dog was inside the house. The
dog came towards her and she exited through the front door, only to
slip and fall on her right arm.
The issue on appeal was whether the primary judge had erred in
finding that the risk of the appellant suffering personal injury
was not foreseeable. The primary judge had found that the risk of
such harm occurring was insignificant and that the respondents
neither could, nor should, have anticipated the appellant's
reaction such to require them to have taken precautions.
The appellant argued that it was foreseeable and reasonable for
her to have taken evasive action in the circumstances, and that the
respondents should have foreseen this and had acted unreasonably by
allowing her to enter the premises without first removing the
dog.
Decision
The Court of Appeal dismissed the appeal, agreeing with the
primary judge that it was not incumbent on the respondents to
foresee that there was a risk that the appellant would, upon seeing
the dog in the house, fear it and run from the house in a
panic.
With reference to established common law cases the Court
confirmed that the respondents, as occupiers of the land, owed the
appellant a duty to protect the appellant from a 'not
insignificant' risk which could reasonably be foreseen and
avoided. The Court referred to a recent decision of Thornton v
Sweeney [2011] NSWCA 244 to reinforce the premise that a
person does not breach a duty of care merely because there are
steps that could have been taken to avert the risk that actually
materialised.
When applying these general principles and those detailed in
s5B(2) of the CLA, the Court found that as the respondents were
prepared to allow the appellant to enter the house while the dog
was inside, they were of the view that the dog posed no risk to
entrants in such a situation. Such an inference was borne out of
the fact the dog did nothing aggressive prior to the appellant
turning to the front door, and it was found that the respondents
could not reasonably be expected to have foreseen that an entrant
might have a general fear of dogs.
Implications
This decision provides a timely reminder that the issue of
foreseeability must be considered on a case-by-case basis. The
decision also confirms that something will not be foreseeable just
because steps could have been taken to avert a risk. Consideration
must be given to the reasonableness of undertaking those steps in
the circumstances.
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