Simon v Condran

Case [2013] NSWCA 388

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Simon v Condran [2013] NSWCA 388
Hearing dates:11 November 2013
Decision date: 20 November 2013
Before: Macfarlan JA at [1];
Leeming JA at [2];
Sackville AJA at [49]
Decision:

Appeal dismissed, with costs.

[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 - statutory liability for bodily injury caused by dog - plaintiff bitten by neighbour's dog when attempting to rescue her own dog on neighbour's property - whether plaintiff lawfully on property - whether defence of necessity available - plaintiff's presence on property brought about by her own negligence - plaintiff in breach of obligation to take all reasonable precautions to prevent her own dog escaping

STATUTORY INTERPRETATION - provision imposing criminal offence read with provision imposing civil liability - amendment read with statute as combined statement of will of legislature - provision authorising seizure of dog a defence to trespass to goods, not trespass to land - Companion Animals Act 1998, ss 12A, 22 and 25

TRESPASS - trespass to land - defence of necessity - exception for negligence

WORDS AND PHRASES - "lawfully" - Companion Animals Act 1998, s 25
Legislation Cited: 6 Wm IV No 4
11 Geo IV No 8
Civil Liability Act 2002
Companion Animals Act 1998
Companion Animals Amendment Act 2006
Dog Act 1966
Dog Act Amendment Act 1875
Dog (Amendment) Act 1977
Dog and Goat Act 1898
Dogs Act 1865 (Eng)
Cases Cited: Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453
Crafter v Kelly [1941] SASR 237
CTM v The Queen [2008] HCA 25; 236 CLR 440
Esso and Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985
George v Rockett (1990) 170 CLR 104
Kuru v New South Wales [2008] HCA 26; 236 CLR 1
Petroleum Co Ltd v Southport Corporation [1956] AC 218
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Proudman v Allen [1954] SASR 336
R v Seller [2013] NSWCCA 42
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
Sarkis v Morrison [2013] NSWCA 281
Simpson v Bannerman (1932) 47 CLR 378
Taikato v The Queen (1996) 186 CLR 454
Texts Cited: RFV Heuston and RA Buckley, Salmond and Heuston on the Law of Torts, 21st ed (1996) Sweet & Maxwell
JA La Nauze, The Making of the Australian Constitution (1972) Melbourne University Press
New South Wales Law Reform Commission, Civil Liability for Animals (1970) Report No 8
WVH Rogers, Winfield and Jolowicz on Tort, 18th ed (2010)…

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Simon v Condran [2013] NSWCA 388
Case
[2013] NSWCA 388
Decision Date

CaseChat Overview and Summary

In *Simon v Condran*, the New South Wales Court of Appeal considered an appeal concerning statutory liability for injuries caused by a dog. The plaintiff, Ms Simon, suffered injuries when she was bitten by her neighbour's dog, Mr Condran's dog, while on Mr Condran's property attempting to rescue her own dog. The central dispute revolved around whether Ms Simon was lawfully on the property and whether the defence of necessity was available to Mr Condran.

The Court was required to determine two primary legal issues. Firstly, whether Ms Simon's presence on Mr Condran's property was lawful, particularly in light of her own actions in allowing her dog to escape and subsequently entering the neighbour's land to retrieve it. Secondly, the Court had to consider whether the defence of necessity could be invoked by Mr Condran, given that Ms Simon's presence on his property was arguably brought about by her own negligence in failing to prevent her dog from escaping.

The Court reasoned that Ms Simon's presence on the property was not lawful in the context of the *Companion Animals Act 1998* (NSW). It held that the defence of necessity, while generally available to excuse trespass, does not apply where the trespasser's presence on the land is a consequence of their own negligence. Ms Simon's breach of her obligation to take reasonable precautions to prevent her dog from escaping meant that her subsequent entry onto Mr Condran's property to retrieve it was not a lawful act for the purposes of the statutory provisions. The Court also noted that a provision authorising the seizure of a dog was a defence to trespass to goods, not trespass to land.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed, with costs.

[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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