Coleman v Barrat

[2004] NSWCA 27

CITATION:	Coleman & Anor v Barrat [2004] NSWCA 27
HEARING DATE(S):	12/08/04
JUDGMENT DATE:	23 November 2004
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 2; Gzell J at 6
DECISION:	Appeal allowed in part. Non-economic loss assessed at 22%. Verdict reduced to $45,400 plus interest.
CATCHWORDS:	ANIMALS - Liability of Owners and Keepers in respect of injuries by animals - Companion Animals Act 1998, s 25 - Indirect wounding caused by dog - DAMAGES - Non-economic loss at 30% of a most extreme case eroneous
LEGISLATION CITED:	Companion Animals Act 1998 (NSW) Civil Liability Act 2002 Suitors' Fund Act 1951
CASES CITED:	Eadie v Groombridge NSWCA (1992) 16 MVR 263 Zappia v Allsop NSWCA (unreported, 17 March 1994) Crump v Sharah [1999] NSWSC 884. [27]-[40] Devries v Australian National Railways Commission (1992-1993) 177 CLR 472 at 479 Fox v Percy (2002-2003) 214 CLR 118 at 127 Eadie v Groombridge (1992) 16 MVR 263 Southgate v Waterford (1990) 21 NSWLR 427 Woolworths Ltd v Lawlor [2004] NSWCA 209 Kurrie v Azouri (1998) 28 MVR 406 Moran v McMahon (1985) 3 NSWLR 700 The Owners - Strata Plan 156 v Gray [2004] NSWCA 304 Video Excellence Pty Ltd v Cincotta (1998) 44 NSWLR 742
PARTIES :	Ian Lyle Coleman and Coleman - Appellants Margaret Mary Barrat - Respondent
FILE NUMBER(S):	CA 40978/03
COUNSEL:	Mr A C Bridge SC/ S Kettle - Appellant Mr D Jenkins - Respondent
SOLICITORS:	Thompson Cooper Lawyers - Appellants Phil Harris Solicitor - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 86 of 2002
LOWER COURT JUDICIAL OFFICER :	McLoughlin DCJ

CA 40978/03
DC 86/2002

SHELLER JA
BEAZLEY JA
GZELL J

TUESDAY 23 NOVEMBER 2004

IAN LYLE COLEMAN & ANOR v MARGARET MARY BARRAT

All parties reside in Moonbi, a village outside Tamworth. Ms Barrat (the plaintiff/respondent) was riding her horse at about 5pm on 22 September 2000, when a dog ran across the street, barking, in front of her and the horse. The horse shied away from the dog, radically changing its travel direction, and the respondent was thrown to the ground and sustained substantial injuries to her left wrist, left elbow, left shoulder blade and to her neck. The dog was seen to have emerged from bushes on the footpath outside the house across the street, in which Mr and Mrs Coleman (the appellants) resided. The appellants own a fox terrier of a similar description. The respondent’s riding companion gave evidence that he had seen the appellants’ dog in similar locations during their previous horse-riding trips on at least six occasions, and that it was the same dog on this particular afternoon.

The trial judge found that the appellants were the owners of the dog, whose behaviour caused the accident, and that the appellants were liable for the respondent’s injuries, firstly under the Companion Animals Act 1998, and secondly in negligence. His Honour assessed non-economic loss at 30% of a most extreme case. These findings are challenged on appeal.

HELD per…