Blacktown City Soccer Club Limited v Hodge

[2004] NSWCA 125

Reported Decision: (2004) Aust Torts Reports 81-745

Court of Appeal

CITATION:	Blacktown City Soccer Club Limited v Hodge [2004] NSWCA 125
HEARING DATE(S):	21/04/04
JUDGMENT DATE:	21 April 2004
JUDGMENT OF:	Beazley JA at 23; Santow JA at 24; Ipp JA at 1
DECISION:	(1) Application for leave to appeal granted (2) Appeal upheld (3) Orders made by the trial judge set aside (4) Grant a verdict and judgment for the claimant (5) Opponent to pay the costs of the trial and the costs of the appeal. Opponent to have a certificate under the Suitors' Fund Act 1951 if so qualified.
CATCHWORDS:	NEGLIGENCE - Where plaintiff attacked by Rottweiler dog after patting the dog - Where the dog was tethered to a railing at the entrance to a club, on club premises - Where people using the entrance might have been under the influence of alcohol - Whether the dog was a "temporary hazard" - Whether the club had knowledge of the dog being present - Whether duty of the club to have the dog removed. D
CASES CITED:	Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES :	Blacktown City Soccer Club Limited (Claimant) Suzanne Valerie Hodge (Opponent)
FILE NUMBER(S):	CA 40588/03
COUNSEL:	I Harrison SC (Claimant) C Leahy SC/J Wynyard (Opponent)
SOLICITORS:	Riley, Gray-Spencer (Claimant) Schrader & Associates (Opponent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 8486/01
LOWER COURT JUDICIAL OFFICER :	Hungerford ADCJ

CA 40588/03
DC 8486/01

BEAZLEY JA
SANTOW JA
IPP JA

Wednesday 21 April 2004

BLACKTOWN CITY SOCCER CLUB LIMITED v SUZANNE VALERIE HODGE

Judgment

1 IPP JA: This is an application for leave to appeal and appeal which have been heard together. The appeal concerns an incident at the claimant club on Christmas Eve 2000. The opponent was then a visitor at the Club and was there bitten by a Rottweiler owned by another visitor to the Club. The opponent sustained injuries in consequence of the bite she received. She sued the Club for negligence. Hungerford ADCJ held that the Club had breached a duty of care it owed the opponent, in consequence of which the opponent sustained damages which his Honour assessed at $34,888.

2 The opponent had arrived at the Club at about 2pm to have lunch with friends. She remained for some seven hours, talking and drinking.

3 When she left the Club that evening she noticed a Rottweiler dog sitting on the steps outside the main doors. At that stage, according to her evidence, she was not intoxicated but was not sober. Hungerford ADCJ described what then happened:

“The dog seemed quietly content and was not showing any aggressiveness. It was, as the plaintiff said, ‘just sitting there’. Feeling sorry for the restrained dog the plaintiff went up to it and patted it on the head. The dog did not react and she said ‘you poor little thing, what are you doing here?’ As she went to pat it again, however, the dog growled, reared up and bit the plaintiff on the right side of the forehead and on the right cheek.”

4 His Honour found that the Club owed a duty of care to the opponent which it had breached:

“in that it allowed or permitted the dog as a temporary hazard to remain at the entrance way of the premises contrary to common sense and to its by-laws, or otherwise failed to supervise the dog.”

His Honour held that the fact that the dog was left at the main point of access to and egress from the Club “exacerbated the failures.”

5 Plainly, the Club, as an occupier of the premises, owed a general duty to take reasonable care to avoid a foreseeable risk of injury to the opponent: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.

6 I would accept that the generalised duty to take reasonable care to avoid a foreseeable risk of injury to invitees owed by the occupier or person in control of a club or similar establishment extends to the foreseeable risk of injury to patrons caused by animals which the club knows or ought to know are on the premises.

7 In considering the scope of this duty regard must be had to the functions of the establishment concerned and in particular as to whether it sells liquor for consumption on the premises. The likely lack of complete sobriety of some patrons is a matter that is relevant in the determination of the scope of the duty of care.

8 It is necessary to determine whether the Club breached a duty of care in these terms. The first question that arises in this regard is whether the Club knew of the presence of the dog before the opponent was bitten by it. Such knowledge is a vital element of the opponent’s case. It is self-evident that without knowledge that the dog was on the premises the Club was not in a position to take steps to remove it.

9 The trial judge found that the opponent “actually left the Club shortly after 9 pm.” According to the statement of claim the opponent left the Club at approximately 8 pm. In her evidence in chief she said that she realised that that time was not correct. She appears to have reconstructed her testimony by reference to the time when the ambulance was called to attend on her. The process of her reasoning was as follows: The ambulance was called at 9:24pm. It was called from a nearby house to which the opponent had walked after she realised that the bite she had received was serious. The opponent testified that after the attack by the dog she did not feel any pain and walked to the Club’s car park to go home. On seeing blood on her chest, however, she realised that she had been badly bitten. Shock started to set in and she walked to the nearest house to seek assistance. It was from there that the telephone call to the ambulance was made. She said that subsequently she tested how long it would take to walk from the car park to the house in question and she discovered that the journey took three minutes 20 seconds. On this basis she said that she left the Club “shortly after” 9pm.

10 This evidence has to be seen against a reception report by the Club’s receptionist, Melanie Franklyn, which was admitted in evidence. Ms Franklyn said that at approximately 9:15 pm on the evening in question a member walked into the reception area and asked her if one Rodney was in the Club. She was not certain about this and allowed the man to enter the Club to find Rodney. The member found Rodney and apparently invited him to lunch on Boxing Day. He then returned to the reception desk and stood there talking to Ms Franklyn. That is when Ms Franklyn first learned that the Rottweiler was sitting on the front steps. No complaint about the dog had previously been made to her, she had not previously been told of the presence of the dog and she had not seen the dog.

11 Ms Franklyn’s testimony was the only evidence on which the opponent relied to establish knowledge on the part of the Club of the presence of the dog that evening. On this evidence it is highly unlikely that Ms Franklyn learned of the presence of the dog before about 9:20 to 9:30 pm. On the basis of this evidence, and accepting the evidence of the opponent at face value, it cannot be said on the balance of probabilities that the opponent proved that the Club knew that the dog was at the front of the premises before she was bitten. Indeed on this evidence the opponent was bitten some ten to 20 minutes before Ms Franklyn knew that the dog was outside the Club building.

12 Mr Leahy SC, who together with Mr Wynyard appeared for the opponent, attempted to avoid the implications of this finding by putting the matter in a different way. He drew attention to evidence that other members of the Club had seen the dog tethered outside the main entrance on other occasions. He submitted that this demonstrated that the Club knew that dogs, and indeed this particular dog, were being brought on to the premises from time to time. He submitted that this constituted a risk of harm to visitors to the Club, and the Club in the exercise of its duty of care should have prohibited visitors from bringing dogs to the premises.

13 He submitted there were other steps that the Club could have taken which would have prevented the dog being there on the night in question. A video camera installed outside the Club was not working on the evening. He argued that had it been in proper working order the Club would have found out that the dog was there and could have taken steps to remove it. He drew attention to the fact that the trial judge himself had made reference to the possibility that the Club might have had a security guard outside the premises who would have prevented the dog from being left there.

14 Firstly, in regard to these submissions, it does not seem to me that the case was put at trial in this way. The particulars of negligence, to the extent that they are of any detailed particularity, all relate to alleged neglect on the night in question. The judge’s finding of breach (which I have quoted) is directed, it seems to me, only at the conduct of the Club on the night in question.

15 In any event, despite Mr Leahy’s submissions – and I should say that he put the case for the opponent as cogently as it could have been put – I am not prepared to find that an occupier of premises, even an occupier of premises where alcohol is sold for consumption, is duty bound not to allow a dog to be tethered at the entry to those premises. It would be unreasonable to impose an obligation on occupiers of premises of the broad and virtually absolute kind contended for by the opponent.

16 I would add, moreover, that even had there been evidence that the Club knew of the existence of the dog before it attacked the opponent, I do not consider that the Club breached its duty to the opponent in the respects found by his Honour.

17 The judge found that when the opponent first went up to the dog it seemed quietly content and was not showing any aggressiveness. It was sitting on the ground and showing no signs of being dangerous. It was tethered to a handrail by a rope two feet long. On these facts it would not have been unreasonable for the receptionist to have taken no steps to have the dog removed, even had she been aware of its existence.

18 All dogs are capable of biting, that is common knowledge. The mere fact that the dog was a Rottweiler does not lead to the inference that it was more likely to bite than other dogs. All indications were that the dog was peaceful, not aggressive and not likely to cause harm to anyone. A significant feature is the fact that it was closely secured to the handrail. Any person, including the opponent, could have avoided the dog simply by walking past it. The dog was not in the way of persons who wished to enter and leave the club premises. The opponent was bitten only because she went up to the dog and patted it.

19 In my opinion the question of the opponent being affected by alcohol and having her judgment impaired was not a relevant factor. On the opponent’s own evidence, she was not intoxicated and was well able to understand the consequences of her actions.

20 The opponent sought to place reliance on by-law 18 of the Club which provides:

“Pets are not permitted on the Club premises or in the Club vicinity.”

In the particular circumstances of this case I do not think that that the by-law is of any assistance to the opponent. Failure to exercise a power contained in the by-law does not on its own constitute negligence. Something more must be shown before a breach of a duty of care is established.

21 Finally, Mr Leahy argued that leave should not be granted because the verdict was of a modest amount and no issue of principle was involved. It is true that the verdict is of a relatively small amount but in my opinion the judge was clearly wrong in his reasons and an injustice would result if the judgment were allowed to stand.

22 In all the circumstances I would grant the application for leave to appeal, uphold the appeal, set aside the orders made by the trial judge, grant a verdict and judgment for the claimant and order the opponent to pay the costs of the trial and the costs of the appeal. I would grant the opponent a certificate under the Suitors’ Fund Act 1951 if otherwise entitled.

23 BEAZLEY JA: I agree.

24 SANTOW JA: I agree. I would wish to add only these observations. The trial judge at p 17 of his judgment said the following:

“Coupled with those facts, my view also is that everyday common knowledge regarding the potential risk of strange dogs is sufficient to find the vulnerability of persons as they walked past the Rottweiler sitting on the front steps of the Club.”

25 The critical fact here, though, as Justice Ipp has explained, is that this person, the opponent, did not merely walk past the Rottweiler, having plenty of room to do so, but chose to approach it and patted it – and that notwithstanding that she had been bitten two years previously by a Rottweiler. That obvious, known danger that a dog may bite in those circumstances is the clearest possible case where everyday common knowledge should inform a person in the opponent’s position of the risk in taking such a step. There is no suggestion that the danger was camouflaged in some seductive manner.

26 When an everyday danger is so blatantly obvious not just to defendant but also plaintiff and more particularly where it does not carry with it horrendous, possibly fatal consequences, the need for a warning sign as was suggested in argument to avert liability simply does not arise, at least for normal adults. That applies either to a warning sign warning against patting strange dogs, or a warning sign that owners should not tether dogs. Owners are entitled to rely on rational behaviour of adult passers-by, vis a vis the tethered dog. It is therefore nothing to the point to say that such a sign would not be costly or inconvenient, invoking the Shirt calculus (Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J). I would adopt as directly applicable what Heydon JA said in Van Der Sluicev Display Craft PtyLtd [2002] NSWCA 204 at [74] and [83]. He essentially concluded that a reasonable person may choose not to take measures, even though they be simple and cheap, to warn of or eliminate the possibility that a normal adult will fail to avoid “unnecessary and blatantly obvious risks.”

27 With those additional observations I agree with Justice Ipp.

28

: The orders of the Court are those proposed by Justice Ipp.

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Last Modified: 05/11/2004