Cuschieri Te Puia v Sheerin

Case [2020] NSWDC 527


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Cuschieri Te Puia v Sheerin [2020] NSWDC 527
Hearing dates: 4 August 2020
Date of orders: 14 September 2020
Decision date: 14 September 2020
Jurisdiction:Civil
Before: Judge Levy SC
Decision:

1. Verdict and judgment for the plaintiff in the sum of $315,500;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

ANIMALS – plaintiff attacked and wounded by two dogs owned by the defendant – whether strict liability applies pursuant to s 25(1) of the Companion Animals Act 1998 (NSW); DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002 (NSW), s 16

Companion Animals Act 1998 (NSW), s 25

Dividing Fences Act 1991 (NSW), s 3, s 10

Domestic Animals Act 1994 (Vic), s 29

Evidence Act 1995 (NSW), s 60

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd (1987) 2 EGLR 173

Bernstein of Leigh (Baron) v Skyview & General Ltd [1978] QB 479

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

Johnson v Buchanan [2012] VSC 195

LJP Investments Pty Ltd & Anor v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490

Penrith City Council v Parks [2004] NSWCA 201

Simon v Condran [2013] NSWCA 388

Simpson v Bannerman (1932) 47 CLR 378; [1932] HCA 43

State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53

Category:Principal judgment
Parties: Dejgaren Cuschieri Te Puia bht Dodie Cuschieri (Plaintiff)
Noella Jane Sheerin (Defendant)
Representation:

Counsel:
Mr R Sheldon SC with Ms K Boettcher (Plaintiff)
Mr B Hull (Defendant)

Solicitors:
Brydens Lawyers (Plaintiff)
Holman Webb Lawyers (Defendant)
File Number(s): 2019/305310
Publication restriction: None

Judgment

Table of Contents

Nature of case

[1] – [2]

Evidence overview

[3] – [5]

Facts

[6] – [57]

Plaintiff’s injuries and initial treatment

[58] – [62]

Subsequent medical and allied reviews

[63] – [67]

Consideration of disparate medical opinions

[68] – [70]

Issues

[71]

Legislation

[72] – [76]

Issue 1 – Was plaintiff attacked whilst on defendant’s property?

[77] – [91]

Issue 2 – Whether plaintiff was not lawfully on defendant’s property

[92] – [115]

Issue 3 – The assessment of damages

[116] – [138]

Non-economic loss

[117] – [128]

Future loss of earning capacity

[129] – [133]

Future treatment

[134] – [137]

Summary of damages assessment

[138]

Disposition

[139]

Costs

[140]

Orders

[141]

Nature of case

  1. The plaintiff, Dejgaren Cuschieri Te Puia, a minor who is now aged 9 years, brings these proceedings by his mother, Ms Dodie Cuschieri, as his tutor. He claims damages for personal injury from the defendant, Ms Noella Jane Sheerin, after he was attacked and bitten by the defendant’s two German Shepherd…

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Details
AGLC
Cuschieri Te Puia v Sheerin [2020] NSWDC 527
Case
[2020] NSWDC 527
Decision Date

CaseChat Overview and Summary

In the matter of Cuschieri Te Puia versus Sheerin, the plaintiff sought compensation for injuries sustained due to an attack by two dogs owned by the defendant. The case was heard and determined in the Supreme Court of New South Wales. The plaintiff, who was attacked and injured by the dogs while on the defendant’s property, sought to establish liability under the strict liability provisions of the Companion Animals Act 1998 (NSW), and to quantify the damages awarded.

The court was required to consider whether the statutory provision for strict liability applied to the circumstances of this case. Additionally, the court had to determine the appropriate quantum of damages to be awarded to the plaintiff for the physical and psychological injuries suffered, as well as for any other losses claimed. The primary focus of the court’s analysis was on the application of the statutory provisions and the assessment of the plaintiff's losses in a manner consistent with the principles of fairness and justice.

The court found that the statutory provision for strict liability under section 25(1) of the Companion Animals Act 1998 (NSW) did apply to the facts of the case. It was established that the plaintiff was lawfully on the defendant’s property when the attack occurred, thus satisfying the conditions for strict liability. The court also concluded that the plaintiff had suffered significant physical injuries, ongoing medical treatment needs, and psychological trauma as a direct result of the attack. After considering the evidence presented, the court awarded the plaintiff a total of $315,500 in damages, reflecting the totality of the harm suffered. The defendant was further ordered to pay the plaintiff's costs on the ordinary basis, unless otherwise directed by the court.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff in the sum of $315,500;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

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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