Cuschieri Te Puia v Sheerin - [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

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…

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.

Continue reading Cuschieri Te Puia v Sheerin

Details

AGLC: Cuschieri Te Puia v Sheerin [2020] NSWDC 527
Case: [2020] NSWDC 527
Decision Date: 14 September 2020

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

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.

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

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]