Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Novakovic v Stekovic [2012] NSWCA 54
• Hearing dates: 26 March 2012
• Decision date: 27 March 2012
• Before: McColl JA at [1], Whealy JA at [51], Tobias AJA at [52]

Decision

Appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - personal injury - appellant afraid of dogs - invited to respondents' home - respondents owned hunting dog called Cougar - appellant injured when slipped and fell while leaving hastily after seeing dog inside premises - whether breach of respondents' duty of care - whether risk of injury foreseeable and not insignificant - whether respondents should have taken precaution of keeping dog outside - Civil Liability Act 2002 s 5B
• Legislation Cited: Civil Liability Act 2002
• Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479; Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112; Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614; Jones v Bartlett; [2000] HCA 56; (2000) 205 CLR 166; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330; Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Reports ¶82-065; Thornton v Sweeney [2011] NSWCA 244; (2011) 59 MVR 155; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
• Category: Principal judgment
• Parties: Mileva Novakovic - Appellant; Michael Stekovic - First Respondent; Snezana Stekovic - Second Respondent
• Representation: Counsel: J P Gormly SC with W J Carney - Appellant; A C Scotting - Respondents; Solicitors: Koutzoumis Lawyers - Appellant; Moray & Agnew - Responsents
• File Number(s): 2011/132623

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-04-20 00:00:00
• Before: Knox DCJ
• File Number(s): 7 of 2010

Judgment

1 McColl JA: The appellant, Mileva Novakovic, appeals against a decision of Knox DCJ dismissing her claim for damages, entering judgment in favour of the respondents, Michael Stekovic and Snezana Stekovic, and ordering her to pay the costs of the proceedings: Novakovic v Stekovic (District Court of NSW, Knox DCJ, 20 April 2011, unreported). The appellant had sought to recover damages for negligence in relation to an incident which occurred on 19 January 2008 at the respondents' home in Queanbeyan.

2 The respondents are the brother and sister-in-law of the appellant. They were the owners and occupiers of the premises and the owners of a dog that was involved in the incident.

3 In short, the appellant's claim for damages arises from injuries she sustained after entering the respondents' house where she encountered a dog owned by the respondents and, having a fear of dogs, retreated from the house quickly where she slipped and fell. The fall caused significant injuries which required surgery and prevented the appellant from returning to work for over six months. Even then, she was only able to return on a part time basis for over a year.

4 The key issue is whether the primary judge erred in finding that the risk of the appellant suffering personal injury was not foreseeable. The appellant argues that it was both foreseeable and reasonable for her to take urgent evasive action, that the respondents should have anticipated this action and that the respondents acted unreasonably by failing to remove the dog from the house before inviting her inside.

Legislative framework

5 The question whether the respondents breached their duty of care turns on s 5B of the Civil Liability Act 2002 which provides:

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.

Statement of the case

6 The respondents admitted at trial that they owed the appellant a duty of care to take reasonable steps to avoid a foreseeable risk of injury.

7 The circumstances of the accident were within narrow confine. The respondents owned a dog called "Cougar" described as a bullmastiff - kelpie. A photograph of the dog was tendered with a tape measure showing it to be 60 cm high to its shoulder.

8 On 19 January 2008, the appellant was invited to the respondents' house. They had lived there for a couple of years. She had visited there fortnightly during that period. The appellant is afraid of dogs. When she visited the dog was always in the backyard.

9 On 19 June 2008 at about 8pm in the evening the appellant and three female relatives (one of whom was a child) went to visit her brother and his wife at the latters' invitation. She knew that her brother owned "Cougar", of which she said:

"I know that he's a hunting dog; he's a dangerous dog. My brother always takes him out hunting. There's a few occasions that he had bit my brother's friends. I know when my brother used to live at my Mum's house and we would come over, I'd come over with my kids, my Mum always came out the front and made sure to tell me not to let the kids out the backyard because the dogs were out of their cage; they're running around the backyard because they're very dangerous. I know that my brother doesn't own those dogs anymore, because he told me that actually they're dangerous dogs, I have a baby in the house."

10 The appellant's counsel at trial conceded that the evidence as to what happened after the event was not particularly relevant. The appellant's counsel on appeal accepted that he could not rely on the evidence that the dog had bitten his friends no doubt for the reason, extracted in cross-examination, that this incident post-dated the appellant's action and was a reaction by the dog to being provoked: see [16] below.

11 The appellant's evidence was that when she and her companions arrived at the respondents' house her sister-in-law opened the door and she and her companions entered. The appellant gave evidence that they "all got surprised with the dog inside the house". She continued:

" ... the other three ran on the other side of the lounge room, and I stood near the door, and then quickly went to the front door to go out and close the screen door, only had three or two steps -

...

Q. And then the other three ran to the other side of the lounge?

A. The other side, and then the dog got up, and he was coming towards me, and then I just - that's when I quickly turned around and went out the front door - or closed the screen door ... once I was outside, and when I turned around, that's when I - my left leg went up and I fell, slipped back, and fell on top of the - my whole body weight fell on top of my right arm."

12 In cross-examination the appellant agreed that within about two or three seconds of seeing the dog she "decided to leave at the front door and wait for her to take the dog out through the back door". In that short period of time no one said anything about the fact the dog was in the house. She decided to retreat because of the "fear [she had] for dogs in general". She did not like to come into contact with "specially big [dogs] like that that are hunting dogs that let you know that they're dangerous". She agreed that she didn't like dogs in general and would "take any steps to avoid any dogs".

13 When she entered the room the dog was about five metres away from where she was. "He was lying down and then he got up". She decided to go "as soon as he got up". When the dog got up he was not "speeding" or barking. The appellant said she was "just scared".

14 She closed the screen door, turned around and "that's when I felt my legs go up in the air ... and then I fell back." She was turning to the right at the time. She accepted that she fell because she was moving quickly and lost her balance.

15 The appellant said she had never seen the dog in the house before, he was always in the backyard.

16 The appellant accepted in cross-examination that her brother had not told her prior to her accident that "the dog was dangerous". It was also after the accident that her brother had told her the dog had bitten some one of his friends who "was stirring the dog up".

17 The appellant agreed in cross-examination that she knew before going to the house that there had been a break-in there about a week before her accident while her brother was sleeping and that her brother had brought the dog back to the house in order to protect it.

18 The respondents did not give evidence. The parties agreed that no Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference would be available or drawn from that fact.

19 There was no evidence that either respondent was aware of the appellant's general fear of dogs, let alone that if she saw a dog she might react with what senior counsel for the appellant described as "panicked flight".

20 At the time the appellant slipped, the patio was either moist or wet as a result of light rain which had fallen earlier in the evening. As originally framed, the appellant's case at trial turned on the patio floor having been too slippery. However according to the primary judge's reasons, this case was either abandoned or faintly put in light of a joint experts' report that the tiles afforded adequate slip resistance for normal circumstances and apparent agreement that their slip resistance was not a significant factor in the incident, the most significant factor having been the appellant's reaction to the dog. There is no complaint about his Honour approaching the appellant's case in this manner.

21 At trial, the appellant submitted that the Court's approach should be to consider whether the incident was foreseeable and if so, then find that the respondents had a duty of care to take reasonable precautions to restrain the dog to ensure it did not move towards the appellant and cause her to retreat rapidly. She submitted that what occurred was not farfetched and it could have been anticipated that she would have left the premises quickly and slipped as she was doing so. The appellant also submitted that the trial judge should find that she was in a class of persons who were scared of dogs who might be expected to visit the premises and react as she did, and that it was reasonable for her to "bid a hasty retreat...upon seeing a dog of that nature with her knowledge of it.

22 The respondents submitted at trial that it was not reasonable for them to expect the appellant's reaction. They submitted that the appellant could have reacted in other, reasonable, ways such as by asking the defendants to do something about the dog or move away in a slow and safe manner given the distance between her and the dog and the fact it was not moving aggressively.

The primary judgment

23 The primary judge noted the appellant's evidence that she knew her brother owned the dog, that it was a hunting dog and was generally kept in the backyard. He also recorded that she had a general fear of dogs for which she had not received any treatment.

24 The primary judge described the incident that occurred as follows:

"They 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 Defendant's 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.

The three other 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.

On 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."

25 The primary judge found that the appellant did not know the dog was in the house, that she was scared of it and left as soon as she saw it moving towards her. He also found that within about two or three seconds of seeing the dog the appellant had left the house and closed the door, inferring she did so to stop the dog following her. His Honour found she took this step because of "her reasonable fear given that the dog was a bullmastiff/kelpie cross dog which was moving towards her".

26 He also found that it was as a result of her "quick egress from the house and from the different directional pressures of her body leaving and closing the door behind her that she lost her balance, slipped on the tiled patio floor and fell", injuring herself.

27 The primary judge found:

"...[W]hat occurred was not foreseeable nor was the risk of the events occurring foreseeable. Moreover, the risk of this harm occurring was insignificant. Further, that the Defendants neither could, not 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)." (Emphasis added)

Grounds of Appeal

28 The appellant appeals from the whole of the decision in the court below. She submits that the primary judge erred in the following three respects:

(1) Failing to determine whether the dog represented a danger in respect of which it was foreseeable that and reasonable for the [appellant] to take urgent evasive action.

(2) Finding that the [respondents] 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 [respondents] to remove the dog from the house before inviting entry of the [appellant].

Submissions

29 The appellant submits that the respondents knew, or ought to have known, that there was a foreseeable risk that an entrant to the house, with the knowledge that Cougar was a "dangerous dog", would, upon seeing the dog in the house, fear it and run from the house in panic and could be injured in the course of flight. She further contends that that risk was "not insignificant" and that a reasonable person in the respondents' position would have taken the simple precaution of keeping the dog outside. Once a "triggering breach" was established, the appellant contends it is unnecessary her "to show that the precise manner in which [her] injuries were sustained was reasonably foreseeable", relying on Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 (at 120-121).

30 The appellant submits that the evidence supports the conclusion that the appellant and the respondents knew that "Cougar" was "a large, dangerous dog trained to hunt". It was usually kept in a cage and the appellant's and first respondent's mother had not allowed children into the backyard of her house when the dog was not caged. She contends that the first respondent had known for years that the dog was "dangerous", although she accepted that the respondent's description of the dog as such was information he communicated to her after the accident.

31 The appellant accepts that her reaction to seeing the dog was not because of anything the animal did, but was because of her fear of dogs and, she contends, because of what she had been told about the dog prior to the incident. She accepts that her panicked reaction was not rational. In oral submissions she placed some weight on the fact that one of the entrants to the house was a child. She also relied on the fact that the dog had been brought inside the house to protect the household after the burglary a week earlier as supporting the proposition that the respondents ought to have foreseen that a person knowing that fact would believe the dog was kept in the household in order to attack entrants.

32 The appellant's first complaint is that the primary judge did not specifically address the question of whether the dog was dangerous. However, she accepts that his Honour concluded that she left the house because she was scared of the dog and that that reaction was a "reasonable fear given that the dog was a bull mastiff/kelpie cross dog that was moving towards her".

33 The appellant submits first, 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; secondly, that his Honour failed to find panicked flight was a reasonable response to the appellant's reasonable fear which carried with it the risk that injury might follow from its hasty execution and thirdly, that the primary judge erred in finding that her response was not foreseeable and that "a simple solution was to put the dog outside".

34 The respondents submit that the primary judge did not err. They emphasise that his Honour found the appellant's fall was caused by her sudden exit from the house. The respondents contend that the appellant's complaint that the primary judge failed to find that the dog was "dangerous" is misconceived in light of the evidence that she has a morbid fear of dogs and avoided any contact with them. They also submit that her analysis of what happened is retrospective and is not supported by the objective circumstances. On such an analysis they submit that there was nothing in the evidence that suggests that the dog was dangerous or that the appellant believed that she was encountering such an animal on the day in question.

35 The respondents contend that the fact the dog was trained, albeit to hunt, supports the proposition that they had control over it and, in any event, there was no evidence to the contrary. Next they contend that the evidence the dog was kept in the backyard was neutral and there was no evidence as to why the grandmother kept the children away from the dog. They also made the same submission about keeping the dog in a cage, contending that "crate training is a modern and common practice in keeping dogs". Significantly, they point out that the dog did not react in an aggressive manner when the appellant entered the house.

36 Finally the respondents contend that the fact the precautions for which the appellant contends were simple, does not mean they were a reasonable response in the circumstances. As such, the respondents submit that the trial judge was correct in finding that the plaintiff's reaction was unreasonable and unforeseeable.

Consideration

37 The question whether the respondents were guilty of breach of duty turns first on determining whether the risk in question is one of which the defendant knew or ought to have known: s 5B(1)(a). This means the risk must be defined. Before doing so, however, it is essential to determine the scope of the duty of care the respondents owed the appellant.

38 The respondents, as occupier of the land onto which the appellant entered, owed her a duty to take reasonable care to prevent injury to her on the assumption she was using reasonable care for her own safety: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 487-488) per Mason, Wilson, Deane and Dawson JJ; Jones v Bartlett; [2000] HCA 56; (2000) 205 CLR 166; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [47]) per Gummow J. There was no suggestion that the appellant had fallen short of the last requirement.

39 What was reasonable turns on the circumstances of her entry upon the premises: Australian Safeway Stores Pty Ltd v Zaluzna (at 488). The duty to take reasonable care required the respondents to protect the appellant, or the class of person of which she was a member, from a "not insignificant" risk which could reasonably be foreseen and avoided. The measure of the discharge of the duty, at common law, was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (at 663) per Deane J. The measure is now prescribed by s 5B of the Civil Liability Act.

40 The inquiry about whether the respondents ought to have taken the precautions for which the appellant contends turns on (amongst other relevant matters) the foreseeability of the risk, whether that risk was not insignificant and whether in the circumstances, a reasonable person in the person's position would have taken those precautions. The inquiry is not to be undertaken in hindsight (Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [126]) per Hayne J), but must be answered prospectively, before the incident occurred: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (at [31]).

41 The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is necessary to ask also: would it have been reasonable for the respondents to take those measures?: Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 (at [93]) per Hayne J. In other words, the knowledge of how the appellant actually came to sustain her injury has to be excluded when considering whether the respondents were obliged to take any precautions in the circumstances of having a dog in the house to which guests had been invited: Neindorf v Junkovic (at [96] - [97]) per Hayne J.

42 A person does not breach his or her duty of care merely because there are steps that he or she could have taken to avert the risk that actually materialised: Thornton v Sweeney [2011] NSWCA 244; (2011) 59 MVR 155 (at [131]) per Sackville AJA (Campbell JA and Tobias AJA agreeing).

43 The first question which must be asked is whether the presence of the dog in the house 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). That was the approach the primary judge took. Having answered the first question in the negative he did not proceed further.

44 The appellant placed much emphasis on the description of the dog as "dangerous", a label the first respondent apparently ascribed to the animal after the incident and without elaboration. However the appellant dwelt on the fact that the dog was a "trained hunting dog". This was said to support the submission that she feared such a dog would hunt and slay its prey.

45 There was no evidence from the appellant that she feared the dog for that, or indeed, any particular reason. Rather, it will be recalled, her evidence was that she did not like dogs in general and would "take steps to avoid any dog". As I have said there was no evidence the respondents were aware of that tendency. The respondents submitted she had a "phobia" in this respect, a description the appellant eschewed. I would not place any reliance on that label, just as I would not place any weight upon the first respondent's ex post facto description of the dog as "dangerous".

46 More significant, in my view, approaching the incident prospectively, is that the respondents (in this case the second respondent) were prepared to allow the appellant and her companions to enter the house while the dog was in the lounge room. It might be inferred that, therefore, they (in particular the second respondent) were of the view that the dog posed no risk to entrants in such a situation. That inference is borne out by the fact the dog did nothing which could be characterised as aggressive before the appellant took the two to three steps to the front door. I do not accept that the respondents ought to have foreseen that an entrant might have a general fear of dogs, or, confining the inquiry to the appellant (Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Reports ¶82-065 (at [40]) per Macfarlan JA; (Beazley and Tobias JJA agreeing) that they ought reasonably to have foreseen her reaction.

47 In my view the primary judge was entitled to conclude in those circumstances 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 panic. The appellant's submissions appear to be shaped more through the prism of hindsight than foresight.

48 On one view, as the primary judge found, it could be said that what befell the appellant had little to do with the presence of the dog. She left the premises hurriedly and slipped on a wet patio. In other words, she had removed herself from any area of what might have been envisaged as foreseeable danger before she was injured, having left the respondents' premises and closed the door behind her. It was when she turned that she slipped on the tiles on the landing which were wet because there had been light rain. The appellant contended at trial that this slip was also a foreseeable consequence of the respondents' failure to take reasonable precautions for her safety, that is to say that she might fall and injure herself in the course of fleeing the dog. It is unnecessary to consider this further as the appellant has not established the "triggering event" which might place this part of the incident within the class of foreseeable risk.

49 In my view the primary judge did not err in concluding the appellant had not established that the risk of injury was foreseeable.

Orders

50 I would dismiss the appeal with costs.

51 Whealy JA: I agree with McColl JA.

52 Tobias JA: I agree with McColl JA.

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Decision last updated: 27 March 2012