Reed v Sretenovic & Anor

[2008] NSWDC 202

CITATION:	Reed v Sretenovic & Anor [2008] NSWDC 202
HEARING DATE(S):	12; 13; 14 & 15 August 2008
JUDGMENT DATE:	10 September 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment for the Plaintiff in the sum of $344,723. 2. Defendant to pay the Plaintiff’s costs.
CATCHWORDS:	Damages – Plaintiff repeatedly attacked and bitten by a dog – liability determined pursuant to s.25 of Companion Animals Act, 1998 - Causation – Assessment of causal connection of certain disabilities of a psychological nature to injuries where expert medical opinion is silent on a connection of those disabilities to the injuries sustained - Assessment of damages – Considerations for the assessment of future loss of earning capacity in the case of a minor – reference to average weekly earnings as a guide.
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) s.13, s.16 Companion Animals Act 1998 (NSW) s.25
CASES CITED:	Adelaide Stevedoring Co. Ltd v Forst [1940] 64 CLR 538 Blaxter v Commonwealth of Australia [2008] NSWCA 87 Commissioner of Police v Rea [2008] NSWCA 199 Commonwealth v McLean [1996] NSWLR 389
PARTIES:	James Reed by his next friend Sharlene Sullivan (Plaintiff) Rados Sretenovic (First Defendant) Monica Sretenovic (Second Defendant)
FILE NUMBER(S):	5558 of 2007
COUNSEL:	Mr A Campbell (Plaintiff) Ms E Bielby (Defendants)
SOLICITORS:	Gerard Malouf & Partners (Plaintiff) Sparke Helmore (Defendants)

Introduction

1. This matter involves the assessment of damages arising out of injuries received by the Plaintiff on 28 April 2005 as a consequence of a terrifying incident in which the Plaintiff, when aged 11 years, was ferociously attacked and repeatedly bitten by a domestic dog belonging to the Defendants. In this case the assessment of damages requires the consideration of the physical and psychological consequences of the incident to the Plaintiff.

The Parties

2. The Plaintiff is a minor. The proceedings were brought on his behalf by his mother, Mrs Sharlene Sullivan, as the next friend.

3. The First Defendant, Mr Rados Sretenovic and the Second Defendant, Mrs Monica Sretenovic are husband and wife. The Defendants jointly owned the dog which attacked the Plaintiff. The dog was a Jack Russell Kelpie cross breed.

Formulation of the claim

4. The case was initially listed for trial on all issues. The Statement of Claim pleaded a count under Section 25 of the Companion Animals Act, 1998.

5. By paragraph 6 of the defence filed on 21 November 2006 the Defendants claimed that the Plaintiff provoked, tormented, aggravated and abused the dog in question. The Defendants abandoned these allegations at the outset of the trial when they admitted breach of duty of care by filing an amended defence.

6. The Statement of Particulars filed included claims for exemplary and aggravated damages but the Statement of Claim made no reference to such claims. Counsel for the Plaintiff opened the case to seek an award of exemplary damages on the basis that the Defendants knew their dog had attacked someone else before the incident…