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 322Category: 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…
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- AGLC
- Novakovic v Stekovik [2011] NSWDC 253
- Case
- [2011] NSWDC 253
- Decision Date
CaseChat Overview and Summary
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
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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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