Collins v Carey - [2003] QCA 291

SUPREME COURT OF QUEENSLAND

CITATION:

Collins v Carey & Ors [2003] QCA 291

PARTIES:

LANCE STANLEY COLLINS
(plaintiff/respondent/cross-appellant)
v
PAULA JAYNE CAREY and
GREGORY JAMES CAREY
(first defendants/appellants/first cross-respondents)
GRACE WORLDWIDE (AUSTRALIA) PTY LTD
ACN 070 345 845
(second defendant/second cross-respondent)

FILE NO/S:

Appeal No 11745 of 2002
SC No 11531 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury - Liability & Quantum

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

4 July 2003

JUDGES:

Davies, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.        Appeal dismissed with costs to be assessed
2.        Cross-appeal dismissed with costs to be assessed

CATCHWORDS:

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - REMOTENESS AND CAUSATION - FORESEEABILITY OF DAMAGE - PERSONAL INJURIES - PARTICULAR CASES - where plaintiff was a furniture removalist - where plaintiff bitten by first defendants' dog whilst working at first defendants' premises - where dog chained in back yard - where dog was a cattle dog cross-breed - where evidence adduced that cattle dog crosses are the most likely breed to attack people - whether first defendants' ought to have appreciated that there was a real risk that their dog may attack one of removalists

TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - OTHER CASES - where plaintiff in vicinity of tethered dog - where plaintiff had back turned and was bent over - whether plaintiff contributorily negligent for injury

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN PERSONAL ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT - GENERALLY - where learned trial judge awarded damages for, inter alia, past economic loss, past assistance and future economic loss - whether learned trial judge's assessment and measure of arriving at assessment appropriate in each case

ANIMALS - LIABILITY OF OWNERS AND KEEPERS IN RESPECT OF INJURIES BY ANIMALS - LIABILITY IN THE ABSENCE OF SCIENTER - FORESEEABILITY OF RISK - where trial judge found that prior to the incident, first defendants had no knowledge of any dangerous propensity of the dog - whether in absence of such knowledge, first defendants ought to have foreseen risk of injury and therefore could be liable in negligence

Draper & Anor v Hodder [1972] 2 QB 556, considered

COUNSEL:

J A Griffin QC, with P W Hackett, for appellants/first cross-respondents
M Grant-Taylor SC, with J B Rolls, for second cross-respondent
R I M Lilley for respondent/cross-appellant

SOLICITORS:

HBM Lawyers for appellants/first cross-respondents
Phillips Fox for second cross-respondent
MurphySchmidt for respondent/cross-appellant

DAVIES JA:
1.     The appeal

These are an appeal and cross-appeal against a judgment in the Supreme Court for the plaintiff against the defendants in the sum of $130,062.05 damages for personal injury caused by the negligence of the defendants. The appeal is by the first defendants/appellants Gregory James Carey and Paula Jayne Carey against the finding of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] QCA 291
Decision Date: 18 July 2003

CaseChat Overview and Summary

The case of Collins v Carey involved a furniture removalist, Collins, who was bitten by a dog while working at the premises of the first defendants, Carey. The dog, a cattle dog cross-breed, was chained in the back yard of the property at the time of the incident. Collins sought damages for his injuries, claiming that the Careys should have been aware of the risk their dog posed and should have taken steps to prevent the attack. The primary issue for the court was whether the Careys had a duty to foresee the risk of their dog attacking someone and whether they could be held liable in negligence for Collins' injuries.

The court found that the breed of the dog, a cattle dog cross, was a relevant factor in determining whether the Careys should have appreciated the risk their dog posed. The evidence presented indicated that cattle dog crosses were more likely to attack people, suggesting that the Careys should have been aware of the potential danger. The court considered the foreseeability of the risk and whether it was reasonable for the Careys to have taken precautions to prevent an attack. Ultimately, the court held that the Careys were liable in negligence for Collins' injuries as they should have foreseen the risk and taken steps to mitigate it.

Additionally, the court examined whether Collins was contributorily negligent in the circumstances of the incident. Collins was in the vicinity of the tethered dog when he was bitten, with his back turned and bent over at the time. The court determined that Collins was contributorily negligent, as he should have been more vigilant in the presence of a potentially dangerous animal. However, this did not absolve the Careys of their liability for the incident.

Regarding the measure of damages, the court found that the trial judge's assessment of damages for past economic loss, past assistance, and future economic loss was appropriate. The court also considered the Careys' cross-appeal regarding the measure of damages and found no grounds for altering the trial judge's assessment. The court concluded that the trial judge's method of arriving at the assessment of damages was appropriate in the circumstances.

In summary, the court dismissed the appeal and cross-appeal, holding the Careys liable for Collins' injuries and affirming the trial judge's assessment of damages. The court ordered that costs be assessed in favour of the plaintiffs.

Orders

Orders of the court

1. Appeal dismissed with costs to be assessed

2. Cross-appeal dismissed with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Collins v Carey & Ors [2003] QCA 291
PARTIES:	LANCE STANLEY COLLINS (plaintiff/respondent/cross-appellant) v PAULA JAYNE CAREY and GREGORY JAMES CAREY (first defendants/appellants/first cross-respondents) GRACE WORLDWIDE (AUSTRALIA) PTY LTD ACN 070 345 845 (second defendant/second cross-respondent)
FILE NO/S:	Appeal No 11745 of 2002 SC No 11531 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Personal Injury - Liability & Quantum
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 July 2003
DELIVERED AT:	Brisbane
HEARING DATE:	4 July 2003
JUDGES:	Davies, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal dismissed with costs to be assessed 2. Cross-appeal dismissed with costs to be assessed
CATCHWORDS:	DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - REMOTENESS AND CAUSATION - FORESEEABILITY OF DAMAGE - PERSONAL INJURIES - PARTICULAR CASES - where plaintiff was a furniture removalist - where plaintiff bitten by first defendants' dog whilst working at first defendants' premises - where dog chained in back yard - where dog was a cattle dog cross-breed - where evidence adduced that cattle dog crosses are the most likely breed to attack people - whether first defendants' ought to have appreciated that there was a real risk that their dog may attack one of removalists TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - OTHER CASES - where plaintiff in vicinity of tethered dog - where plaintiff had back turned and was bent over - whether plaintiff contributorily negligent for injury DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN PERSONAL ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT - GENERALLY - where learned trial judge awarded damages for, inter alia, past economic loss, past assistance and future economic loss - whether learned trial judge's assessment and measure of arriving at assessment appropriate in each case ANIMALS - LIABILITY OF OWNERS AND KEEPERS IN RESPECT OF INJURIES BY ANIMALS - LIABILITY IN THE ABSENCE OF SCIENTER - FORESEEABILITY OF RISK - where trial judge found that prior to the incident, first defendants had no knowledge of any dangerous propensity of the dog - whether in absence of such knowledge, first defendants ought to have foreseen risk of injury and therefore could be liable in negligence Draper & Anor v Hodder [1972] 2 QB 556, considered
COUNSEL:	J A Griffin QC, with P W Hackett, for appellants/first cross-respondents M Grant-Taylor SC, with J B Rolls, for second cross-respondent R I M Lilley for respondent/cross-appellant
SOLICITORS:	HBM Lawyers for appellants/first cross-respondents Phillips Fox for second cross-respondent MurphySchmidt for respondent/cross-appellant