CITATION: Coleman & Anor v Barrat [2004] NSWCA 27 HEARING DATE(S): 12/08/04 JUDGMENT DATE:
23 November 2004JUDGMENT 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 1951CASES 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 742PARTIES :
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 - RespondentSOLICITORS: 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 86/2002TUESDAY 23 NOVEMBER 2004SHELLER JA
BEAZLEY JA
GZELL J
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…
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- Coleman v Barrat [2004] NSWCA 27
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- [2004] NSWCA 27
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CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the trial judge had erred in assessing the plaintiff's non-economic loss and, consequently, the total damages awarded. Specifically, the appeal questioned the quantum of damages for non-economic loss, with the appellant arguing it was assessed at an erroneously high proportion of a most extreme case.
The Court of Appeal reviewed the evidence and the trial judge's assessment of damages. It found that the award for non-economic loss was indeed excessive, having been calculated at 30% of a most extreme case. The Court applied the principles governing the assessment of damages for non-economic loss, considering the severity of the plaintiff's injuries and the relevant statutory provisions.
Ultimately, the Court of Appeal allowed the appeal in part. It reassessed the non-economic loss at 22% of a most extreme case and reduced the total verdict accordingly to $45,400, plus interest.
Orders
Orders of the court
Appeal allowed in part. Non-economic loss assessed at 22%. Verdict reduced to $45,400 plus interest.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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