Occupiers' liability and foreseeable risk of harm

In brief – Claimant fails to establish that risk of harm was foreseeable

In the case of Novakovic v Stekovic [2012] NSWCA 54 (27 March 2012), the Court of Appeal has recently considered the requisite criteria for establishing whether a risk of harm was foreseeable such that precautions were warranted to avoid that risk eventuating.

The decision of the court below was upheld, finding that the appellant had not established that the risk of harm was foreseeable.

Incident at residential premises

The appellant, Ms Mileva Novakovic, brought proceedings in the District Court against the respondents, Mr and Mrs Stekovic (her brother and sister in law) for injuries arising from an incident at their home on 19 January 2008.

Ms Novakovic had visited the home on a fortnightly basis for some two years. The Stekovics owned a bull mastiff-kelpie dog, which was usually kept in the backyard of the premises. On this occasion, however, Ms Novakovic and three other relatives entered the home and found the dog sitting inside.

Unbeknownst to the Stekovics, Ms Novakovic had a fear of dogs. As she entered the house, the dog rose and approached her. In response, Ms Novacovic panicked and rushed out the front door, closing it behind her. As she turned, she slipped and fell on the wet surface outside.

Ms Novakovic required surgery for the injury she sustained and was off work for a period of six months. She later returned to work, but was only able to work on a part time basis for the course of the following year.

Duty of occupiers to protect claimant from foreseeable risks

The duty...