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

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. Background

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

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