Australia: Dangerous dog? Enter at your own risk. Forseeability & reasonableness under the Civil Liability Act

Focus: Novakovic v Stekovic [2012] NSWCA 54
Services: Insurance
Industry Focus: Insurance

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.

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.