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Meimaropoulos v Cheum

Meimaropoulos v Cheum

Case [2014] NSWDC 26 27 March 2014

Causation

Contributory Negligence

Compensatory Damages

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Meimaropoulos v Cheum [2014] NSWDC 26
Hearing dates: 28 - 31 January, 7 February 2014
Decision date: 27 March 2014
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the plaintiff for $28,458.77.
(2) Costs reserved with liberty to apply, to be exercised in 28 days.
(3) Exhibits retained for 28 days.

Catchwords: TORT - personal injury - plaintiff falls on a public street when a dog runs around and jumps up on her - Companion Animals Act 1998 (NSW) - whether defendants "owners" - whether dog was "attacking" (s 25(1)) - contributory negligence - damages - causation
Legislation Cited: Civil Liability Act 2002 (NSW), s 16
Companion Animals Act 1998 (NSW), ss 7, 25 and 28
Dog Act 1966 (NSW), s 4(2)
Uniform Civil Procedure Rules 2005 (NSW), r 42.35
Cases Cited: Coleman v Barrat [2004] NSWCA 27
Crump v Sharah t/as Sharah Henville & Co [1999] NSWSC 884
Czatyrko v Edith Cowan University [2005] 79 ALJR 839
Dybka v McKenzie [2002] NSWCA 171
Hatch v Wood-Davies [2006] NSWDC 96
Knight v Tassal Ltd (Supreme Court of Tasmania, Wright J, 18 August 1993)
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mason v Demasi [2009] NSWCA 227
McGlen-McLeod v Galloway [2012] NSWCA 388
Penfold v Betteridge [2011] NSWDC 146
Porter v Cook [1971] 1 NSWLR 318
Reece v Reece (1994) 19 MVR 103
Riley v The Owners of Strata Plan 73817 [2012] NSWCA 410
Sarkis v Morrison (2013) 64 MVR 433
The Nominal Defendant v Kostic [2007] NSWCA 14
Simon v Condran [2013] NSWCA 388
Varga v Galea [2011] NSWCA 76
Zappia v Allsop [1994] NSWCA 355
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Antonia Meimaropoulos
First Defendant: Sorn Cheum
Second Defendant: Muy Lim Hay
Third Defendant: Heang Lay
Representation: Plaintiff: Ms E Welsh
Defendants: Mr A M Gruzman
Plaintiff: Brydens Compensation Lawyers
Defendants: Di Lizio & Associates

File Number(s): 2011/36909
Publication restriction: None

Judgment

Introduction

The plaintiff brings proceedings for damages arising out of an incident on 30 August 2008, when she fell from a footpath onto the gutter following an attack by the defendants' dog. The claim is brought under the CompanionAnimals Act 1998 (NSW) ("the Act") only, a claim for negligence under the Civil Liability Act 2002 (NSW) having been abandoned in closing submissions.

The plaintiff and the defendants are neighbours, living in the same street in Hinchinbrook, a suburb of Sydney. On Saturday 30 August 2008, the plaintiff, a 68-year-old pensioner, was walking to the shops along the suburban street in which she lived, which entailed passing by the defendants' home. The defendants, like many other residence in the area, kept dogs; the sight of other residents walking their dogs was a familiar one to the plaintiff, and she had no particular fear of dogs herself.

As the walked past the defendants' home, a dog described as "small and fluffy" ran towards her barking, having burrowed under the gate to the high fence…

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 Meimaropoulos v Cheum

Details

AGLC: Meimaropoulos v Cheum [2014] NSWDC 26
Case: [2014] NSWDC 26
Decision Date: 27 March 2014

CaseChat Overview and Summary

In the case of Meimaropoulos v Cheum, the plaintiff claimed damages for personal injuries sustained when she fell on a public street after a dog, owned by the defendants, ran around and jumped up on her. The dispute came before the Local Court of New South Wales, which had to determine whether the defendants were the "owners" of the dog as defined by the Companion Animals Act 1998 (NSW) and whether the dog was "attacking" the plaintiff under section 25(1) of the Act. Additionally, the court had to consider the issue of contributory negligence and the appropriate quantum of damages for the plaintiff's injuries.

The court first addressed whether the defendants were the "owners" of the dog, a determination crucial for establishing liability under the Act. It was established that the defendants were indeed the owners of the dog. The court then considered whether the dog was "attacking" the plaintiff at the time of the incident. The court concluded that the dog was not attacking the plaintiff but was rather exhibiting playful behaviour. However, because the dog's actions caused the plaintiff to fall and sustain injuries, the defendants were held liable under the Act. The court also found that the plaintiff was contributorily negligent, reducing her damages by 10%.

After assessing the evidence regarding the plaintiff's injuries and the defendants' liability, the court awarded the plaintiff damages of $28,458.77, reflecting the reduction for contributory negligence. The court reserved the issue of costs with liberty to apply, to be exercised within 28 days. Additionally, the exhibits were retained for 28 days to allow for any potential application for costs. This comprehensive approach ensured that all aspects of the dispute were thoroughly examined and appropriately resolved.

Orders

Orders of the court

(1) Judgment for the plaintiff for $28,458.77.

(2) Costs reserved with liberty to apply, to be exercised in 28 days.

(3) Exhibits retained for 28 days.

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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Citations

AGLC Citation

Meimaropoulos v Cheum [2014] NSWDC 26

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 19 of 19 shown

Simon v Condran
[2013] NSWCA 388 Para 1

…t because the fact situation in most cases involves an actual attack or biting. A claim for contributory negligence was considered in Simon v Condran [2013] NSWCA 388 and Penfold v Betteridge [2011] NSWDC 146, where the plaintiff was injured when two dogs began fighting, but in both cases the court considered no is…
Sarkis v Morrison
[2013] NSWCA 281 Para 1

…unding contact with a person for the requirement of "wounding or attacking" to be made out, as is explained by the New South Wales Court of Appeal in Sarkis v Morrison (2013) 64 MVR 433 at [7]-[9]:…
Riley v The Owners - Strata Plan 73817
[2012] NSWCA 410 Para 1

…econcile inconsistencies between her evidence and contemporaneous medical reports, in the manner explained in Riley v The Owners of Strata Plan 73817 [2012] NSWCA 410 and McGlen-McLeod v Galloway [2012] NSWCA 388. In Riley v The Owners of Strata Plan 73817 , supra , the plaintiff gave inconsistent evidence about wh…
Wardle v Agricultural and Rural Finance Pty Ltd (No 2)
[2012] NSWCA 388 Para 1

…and contemporaneous medical reports, in the manner explained in Riley v The Owners of Strata Plan 73817 [2012] NSWCA 410 and McGlen-McLeod v Galloway [2012] NSWCA 388. In Riley v The Owners of Strata Plan 73817 , supra , the plaintiff gave inconsistent evidence about where she had slipped on a ramp and the trial ju…
Anne Penfold v John Betteridge and Carol Betteridge
[2011] NSWDC 146 Para 1

…involves an actual attack or biting. A claim for contributory negligence was considered in Simon v Condran [2013] NSWCA 388 and Penfold v Betteridge [2011] NSWDC 146, where the plaintiff was injured when two dogs began fighting, but in both cases the court considered no issue of contributory negligence arose.…
Varga v Galea
[2011] NSWCA 76 Para 1

…e assessment of non-economic loss for a person of the plaintiff's age. I am conscious, however, of the NSW Court of Appeal's warning in Varga v Galea [2011] NSWCA 76 at [72] - [76] as follows:…
Mason v Demasi
[2009] NSWCA 227 Para 1

…The facts of this case are unlike the much more dramatic events of many of the decisions on s 25, such as Mason v Demasi [2009] NSWCA 227 at [15]. However, it is not necessary for a dog to make some form of wounding contact with a person for the requirement of "wounding or attacking" to be made out, as is explained…
Nominal Defendant v Kostic
[2007] NSWCA 14 Para 1

…of claims arising from medical treatment first sought after a lengthy period of time has elapsed have been set out in The Nominal Defendant v Kostic [2007] NSWCA 14. It is, however, not uncommon for referrals for depression and anxiety problems to emerge as a result of injuries, or not to become apparent for some…
Mark Phillip Hatch v Morris Wood-Davies and Kerry Wood-Davies
[2006] NSWDC 96 Para 1

…In Hatch v Wood-Davies [2006] NSWDC 96 at [137] - [142], Neilson DCJ explained the history and construction of these definitions in the Act:…
Czatyrko v Edith Cowan University
[2005] HCA 14 Para 1

…In stepping backwards the plaintiff failed to look where she was going: Czatyrko v Edith Cowan University [2005] 79 ALJR 839 at 840. This was the street on which the plaintiff lived, so she was not in unfamiliar territory: Knight v Tassal Ltd (Supreme Court of Tasmania, Wright J, 18 August 1993) at 6. In addit…
Coleman v Barrat
[2004] NSWCA 27 Para 1

…In Coleman v Barrat [2004] NSWCA 27 the New South Wales Court of Appeal held that an assessment of 22% of a most extreme case for a similar injury was a reasonable award. The defendant submits that if I accept the plaintiff's injuries were suffered as alleged, the non-economic loss damages would be in the range of…
Dybka v McKenzie
[2002] NSWCA 171 Para 1

…to demonstrate that items cannot or should not be claimed, the court must analyse these submissions and determine them accordingly: Dybka v McKenzie [2002] NSWCA 171.…
Crump v Sharah
[1999] NSWSC 884 Para 1

…he Court of Appeal noted at [15], wounding and attacking are alternative bases of liability. For example, in Crump v Sharah t/as Sharah Henville & Co [1999] NSWSC 884, two dogs barking at a horse caused it to buck and throw the plaintiff to the ground. Davies AJ at [26] found that actual contact was not necessary t…
Christalli v Cassar
[1994] NSWCA 48

…JA made abundantly clear when considering Reece v Reece in Marshall v Clarke (Court of Appeal, unreported 5 July 1994); see also Christalli v Cassar [1994] NSWCA 48 (at 3) where Kirby P (with whom Powell and Cole JJA agreed).…
Zappia v Allsop
[1994] NSWCA 355 Para 1

…up on the repealed legislation, s 4(2) Dog Act 1966 (NSW), the meaning of which is discussed in Porter v Cook [1971] 1 NSWLR 318 and Zappia v Allsop [1994] NSWCA 355. In Porter v Cook , supra , the dog in question was a stray dog who had been brought onto the defendant's premises some weeks prior to the date of th…
Reece v Reece
[1994] NSWCA 259

…705 Mason v Demasi [2009] NSWCA 227 McGlen-McLeod v Galloway [2012] NSWCA 388 Penfold v Betteridge [2011] NSWDC 146 Porter v Cook [1971] 1 NSWLR 318 Reece v Reece (1994) 19 MVR 103 Riley v The Owners of Strata Plan 73817 [2012] NSWCA 410 Sarkis v Morrison (2013) 64 MVR 433 The Nominal Defendant v Kostic [2007] NSWCA 1…
Dell v Dalton
[1991] NSWCA 76

…As Handley JA observed in Dell v Dalton (1991) 23 NSWLR 528 (at 532), although Windeyer J was in dissent, this passage "reflected the previous law"."…
Thatcher v Charles
[1961] HCA 5

…Act now requires, as assessed by reference to a "most extreme case". In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71 - 72) remain cogent:…
Pty Ltd v Sprowles
636 F Supp 1419 Para 1

…ary prerequisite to findings of fact on matters the subject of expertise. No alternative expert report was tendered by the defendant in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705.…

Legislation cited in this decision · 6

Companion Animals Act 1998 (NSW)
25, 28, 7 4 mentions (from Para 1)
Civil Liability Act 2002 (TAS)
16 2 mentions (from Para 1)
Dog Act 1966 (NSW)
4(2) 2 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
42.35 2 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Law Reform (Miscellaneous Provisions) Act 1965 (ACT)
1 mention

Medium Neutral Citation:	Meimaropoulos v Cheum [2014] NSWDC 26
Hearing dates:	28 - 31 January, 7 February 2014
Decision date:	27 March 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff for $28,458.77. (2) Costs reserved with liberty to apply, to be exercised in 28 days. (3) Exhibits retained for 28 days.
Catchwords:	TORT - personal injury - plaintiff falls on a public street when a dog runs around and jumps up on her - Companion Animals Act 1998 (NSW) - whether defendants "owners" - whether dog was "attacking" (s 25(1)) - contributory negligence - damages - causation
Legislation Cited:	Civil Liability Act 2002 (NSW), s 16 Companion Animals Act 1998 (NSW), ss 7, 25 and 28 Dog Act 1966 (NSW), s 4(2) Uniform Civil Procedure Rules 2005 (NSW), r 42.35
Cases Cited:	Coleman v Barrat [2004] NSWCA 27 Crump v Sharah t/as Sharah Henville & Co [1999] NSWSC 884 Czatyrko v Edith Cowan University [2005] 79 ALJR 839 Dybka v McKenzie [2002] NSWCA 171 Hatch v Wood-Davies [2006] NSWDC 96 Knight v Tassal Ltd (Supreme Court of Tasmania, Wright J, 18 August 1993) Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mason v Demasi [2009] NSWCA 227 McGlen-McLeod v Galloway [2012] NSWCA 388 Penfold v Betteridge [2011] NSWDC 146 Porter v Cook [1971] 1 NSWLR 318 Reece v Reece (1994) 19 MVR 103 Riley v The Owners of Strata Plan 73817 [2012] NSWCA 410 Sarkis v Morrison (2013) 64 MVR 433 The Nominal Defendant v Kostic [2007] NSWCA 14 Simon v Condran [2013] NSWCA 388 Varga v Galea [2011] NSWCA 76 Zappia v Allsop [1994] NSWCA 355
Texts Cited:	-
Category:	Principal judgment
Parties:	Plaintiff: Antonia Meimaropoulos First Defendant: Sorn Cheum Second Defendant: Muy Lim Hay Third Defendant: Heang Lay
Representation:	Plaintiff: Ms E Welsh Defendants: Mr A M Gruzman Plaintiff: Brydens Compensation Lawyers Defendants: Di Lizio & Associates
File Number(s):	2011/36909
Publication restriction:	None