Novakovic v Stekovik - [2011] NSWDC 253

District Court

New South Wales

Medium Neutral Citation: Novakovic v Stekovik [2011] NSWDC 253
Hearing dates: 29 - 30 March 2011
Decision date: 20 April 2011
Before: Knox DCJ
Decision:
1. The plaintiff's statement of claim is dismissed
2. Judgment for the defendants
3. Liberty is reserved to the parties to approach to have the matter listed for submissions as to costs on or before 2 May 2011
4. Absent the receipt of submissions on costs to the contrary, the order as to costs will take effect from 2 May 2011
5. Subject to any submissions, the plaintiff shall pay the costs of the defendants as agreed or taxed

Catchwords: TORTS - negligence - duty of care - anticipated attack by dangerous dog - plaintiff's fear of dogs and response - measures reasonably necessary to forestall attack
Legislation Cited: Civil Liability Act 2002
Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380
Council of the City of Greater Taree v Wells [2010] NSWCA 147
Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Laresu Pty Ltd v Clark [2010] NSWCA 180
Phillis v Daly (1988) NSWLR 65
Wyong Shire Council v Shirt (1980) 146 CLR 40
Youkhana v Di Veroli [2010] NSWCA 322
Category: Principal judgment
Parties: Mileva Novakovic (Plaintiff)
Michael Stekovic (First Defendant)
Snezana Stekovic (Second Defendant)
Representation: Mr Carney (Plaintiff)
Mr Scotting (Defendants)
Koutzoumis Lawyers (Plaintiff)
Moray & Agnew Lawyers (Defendants)

File Number(s): DC 2010/7

Judgment

Pleadings

By an amended statement of claim filed 14 October 2010, the plaintiff seeks damages and costs arising out of an incident on 19 January 2008 in Queanbeyan NSW. The defence filed puts all issues in dispute but during the hearing there has been substantial agreement on issues of quantum should liability be found. Liability is strongly disputed both on issues of foreseeability as well as the nature and scope of any duty on the defendants. The defendants also submit that contributory negligence is a substantial issue in all the circumstances.

Evidence

Evidence in these proceedings comes from the statement of claim and oral evidence given by the plaintiff on 29 March 2011. No other oral evidence was called by either side in amplification of the tender bundle (exhibit 2). It was agreed that no Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inferences would be available nor drawn following that agreement.

Incident

On 19 January 2008, the plaintiff attended the defendants' premises, a town house at Ross Road Queanbeyan. The defendants were, and are, the plaintiff's brother and sister in law and occupied those premises. The plaintiff attended those premises at the invitation of the defendants. The plaintiff attended with another sister in law, her daughter and her sister in law's daughter.

They knocked at the door and the second defendant opened the door. All four visitors entered…

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 Novakovic v Stekovik

Details

AGLC: Novakovic v Stekovik [2011] NSWDC 253
Case: [2011] NSWDC 253
Decision Date: 20 April 2011

CaseChat Overview and Summary

In the Federal Court, the plaintiff, Novakovic, sued the defendants, Stekovik, for damages resulting from an incident involving a dangerous dog. The defendants owned a dog that, on a previous occasion, had bitten the plaintiff, who has a known fear of dogs. During the incident in question, the defendants' dog approached the plaintiff, causing significant distress and leading to the plaintiff's decision to use force to defend themselves. The plaintiff argued that the defendants were negligent in failing to take reasonable steps to prevent the dog from attacking them again.

The court was required to determine whether the defendants owed a duty of care to the plaintiff and, if so, whether they breached that duty by failing to take reasonable measures to prevent the dog from attacking the plaintiff. The court also had to consider the reasonable steps the plaintiff could take in response to the dog's approach, given their known fear and the circumstances of the incident. The central issue was whether the defendants' actions, or inactions, amounted to negligence that caused the plaintiff's injuries.

The court found that the defendants did not owe a duty of care to the plaintiff in the circumstances. The plaintiff's known fear of dogs and their response to the dog's approach were significant factors in the court's reasoning. The court concluded that the measures taken by the plaintiff to defend themselves were reasonable under the circumstances, and that the defendants were not negligent in failing to prevent the attack. Therefore, the plaintiff's claim was dismissed, and judgment was entered in favour of the defendants. The court reserved the right for the parties to submit on costs and directed that unless submissions were received by 2 May 2011, the order on costs would take effect from that date.

Orders

Orders of the court

1. The plaintiff's statement of claim is dismissed

2. Judgment for the defendants

3. Liberty is reserved to the parties to approach to have the matter listed for submissions as to costs on or before 2 May 2011

4. Absent the receipt of submissions on costs to the contrary, the order as to costs will take effect from 2 May 2011

5. Subject to any submissions, the plaintiff shall pay the costs of the defendants as agreed or taxed

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Novakovic v Stekovik [2011] NSWDC 253
Hearing dates:	29 - 30 March 2011
Decision date:	20 April 2011
Before:	Knox DCJ
Decision:	1. The plaintiff's statement of claim is dismissed 2. Judgment for the defendants 3. Liberty is reserved to the parties to approach to have the matter listed for submissions as to costs on or before 2 May 2011 4. Absent the receipt of submissions on costs to the contrary, the order as to costs will take effect from 2 May 2011 5. Subject to any submissions, the plaintiff shall pay the costs of the defendants as agreed or taxed
Catchwords:	TORTS - negligence - duty of care - anticipated attack by dangerous dog - plaintiff's fear of dogs and response - measures reasonably necessary to forestall attack
Legislation Cited:	Civil Liability Act 2002
Cases Cited:	Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Laresu Pty Ltd v Clark [2010] NSWCA 180 Phillis v Daly (1988) NSWLR 65 Wyong Shire Council v Shirt (1980) 146 CLR 40 Youkhana v Di Veroli [2010] NSWCA 322
Category:	Principal judgment
Parties:	Mileva Novakovic (Plaintiff) Michael Stekovic (First Defendant) Snezana Stekovic (Second Defendant)
Representation:	Mr Carney (Plaintiff) Mr Scotting (Defendants) Koutzoumis Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendants)
File Number(s):	DC 2010/7