Sarkis v Morrison

Case [2013] NSWCA 281

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Sarkis v Morrison [2013] NSWCA 281
Hearing dates:26 August 2013
Decision date: 30 August 2013
Before: Basten JA at [1];
Macfarlan JA at [38];
Ward JA at [39]
Decision:

(1) Allow the appeal and set aside the judgment and orders made in the District Court.

(2) Enter judgment for the defendant in the District Court, with costs.

(3) Order that the respondent pay the appellant's costs in this Court.

(4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of his costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PERSONAL INJURY - injury to person caused by dog - plaintiff injured when defendant's dog ran onto road and collided with plaintiff's motorcycle - dog did not attack plaintiff - whether owner of dog strictly liable to person wounded as a result of action by dog - owner liable for "bodily injury to a person caused by the dog wounding or attacking that person" - whether "wounding or attacking" disjunctive - whether "wounding" requires aggression on part of dog - where exceptions to liability assume "attack by a dog" - Companion Animals Act 1998 (NSW), s 25 - Coleman v Barrat [2004] NSWCA 27 considered

WORDS AND PHRASES - "wounding or attacking that person" - Companion Animals Act 1998 (NSW), s 25
Legislation Cited: Companion Animals Act 1998 (NSW), ss 25, 27; Pt 3, Div 2
Dog Act 1966 (NSW), ss 20, 20B
Dog and Goat Act 1898 (NSW), s 19
Dog (Amendment) Act 1977 (NSW)
Cases Cited: Coleman v Barrat [2004] NSWCA 27
Crump v Sharah [1999] NSWSC 884
Eadie v Groombridge (1992) 16 MVR 263
Martignoni v Harris [1971] 2 NSWLR 102
R v Halliday (1889) 61 LT 701
R v Mandair [1995] 1 AC 208
R v Salisbury [1976] VR 452
Victims Compensation Fund Corporation v Brown [2003] HCA 54; 77 ALJR 1797
Zappia v Allsop [1994] NSWCA 355
Texts Cited: Law Reform Commission Report of June 1970, Civil Liability for Animals
Category:Principal judgment
Parties: Toney Sarkis (Appellant)
James Morrison (Respondent)
Representation:

Counsel:

R Cavanagh SC/A Renshaw (Appellant)
B Toomey QC/A McSpedden (Respondent)
Solicitors:

Sparke Helmore (Appellant)
Marsdens Law Group (Respondent)
File Number(s):CA 2013/7508
 Decision under appeal 
Jurisdiction:
9101
Date of Decision:
2012-12-12 00:00:00
Before:
Truss DCJ
File Number(s):
DC 2011/294465

Judgment

  1. BASTEN JA: On 15 September 2008, Mr James Morrison ("the plaintiff") was riding a motorcycle on a country road near Picton, west of Sydney, when a dog owned by Mr Sarkis ("the appellant") ran out of a driveway and collided…

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AGLC
Sarkis v Morrison [2013] NSWCA 281
Case
[2013] NSWCA 281
Decision Date

CaseChat Overview and Summary

In *Sarkis v Morrison*, the plaintiff was injured when the defendant's dog ran onto the road and collided with the plaintiff's motorcycle. The plaintiff did not allege that the dog attacked him. The dispute concerned whether the owner of the dog was strictly liable to the plaintiff for the injuries sustained.

The central legal issue before the Court of Appeal of New South Wales was the interpretation of section 25 of the *Companion Animals Act 1998* (NSW). Specifically, the court had to determine whether the phrase "bodily injury to a person caused by the dog wounding or attacking that person" imposed strict liability only where the dog actually wounded or attacked the person, or if it encompassed other forms of injury caused by the dog's actions. The court also considered whether the terms "wounding" and "attacking" were disjunctive and whether "wounding" required aggression from the dog.

The Court of Appeal reasoned that the wording of section 25, particularly the phrase "wounding or attacking that person," indicated that liability was confined to situations where the dog directly inflicted injury through wounding or attacking. The court noted that exceptions to liability under the Act also presupposed an "attack by a dog." Applying this interpretation, the court found that the plaintiff's injury, caused by a collision with the dog rather than a direct attack or wounding by the dog, did not fall within the scope of section 25.

The appeal was allowed, the judgment of the District Court was set aside, and judgment was entered for the defendant. The defendant was awarded costs in both the District Court and the Court of Appeal.

Orders

Orders of the court

(1) Allow the appeal and set aside the judgment and orders made in the District Court.

(2) Enter judgment for the defendant in the District Court, with costs.

(3) Order that the respondent pay the appellant's costs in this Court.

(4) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of his costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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