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Simon v Condran

Simon v Condran

Case [2013] NSWDC 32 6 February 2013

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District Court

New South Wales

Medium Neutral Citation: Simon v Condran [2013] NSWDC 32
Hearing dates: 30 - 31 January, 1 & 4 February 2013
Decision date: 06 February 2013
Before: Neilson DCJ
Decision:
Verdict and judgment for the defendant.
Plaintiff to pay the defendant's costs.

Catchwords:
PERSONAL INJURY - Dog bite - Plaintiff and defendant neighbours - Plaintiff and defendant both owned dogs who were antagonistic towards each other - Plaintiff bitten on hand by defendant's dog whilst breaking up fight between the two dogs - Wounding of plaintiff occurred on defendant's property

STATUTORY CAUSE OF ACTION - Question of whether plaintiff was lawfully on defendant's property - Whether there was trespass on defendant's land when plaintiff's dog entered it - Whether plaintiff trespassed on defendant's land when she went under defendant's house - Whether technical trespass sufficient to oust statutory cause of action - Principle of necessity - Whether necessity was caused by the plaintiff's negligence or momentary inattention / mere inadvertence - Statutory provision that plaintiff who fears for injury to herself or her dog may lawfully seize, injure or destroy the dog in question - Question of whether this permits trespass to land
TORT OF NEGLIGENCE - Foreseeability of risk - Whether risk was not insignificant - Whether a reasonable person would have taken those precautions - Burden of taking precautions to avoid the risk of harm - Whether causation of plaintiff's injury was factually related to defendant's alleged negligence
Legislation Cited: Civil Liability Act 2002 ss 5B, 5C, 5D
Companion Animals Act 1998 ss 12A, 22, 25
Cases Cited: Anderson Group Pty Limited v Tynan Motors Pty Limited (No 2) [2006] NSWCA 120
Herning v GWS Machinery Pty Limited (No 2) [2005] NSWCA 375
Hobartville Stud Pty Limited v Union Insurance Company Limited (1991) 25 NSWLR 358
League Against Cruel Sport Limited v Scott [1985] 2 All ER 489
Mead v Kerney [2012] NSWCA 215
Proudman v Allen [1954] SASR 336
Rigby v The Chief Constable of Northamptonshire [1985] 2 All ER 985
Shaw v Thomas [2010] NSWCA 169
Simpson v Bannerman (1932) 47 CLR 378
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Stuart v Walsh [2010] NSWCA 186
Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353
Category: Principal judgment
Parties: Shari Leigh Simon (Plaintiff)
Deborah Anne Condran (Defendant)
Representation: Mr D Toomey (Plaintiff)
Mr J Guihot (Defendant)
Stacks/The Law Firm (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s): 2010/429255

Judgment

HIS HONOUR: The plaintiff, Ms Shari Leigh Simon, brings an action for damages for personal injury as a consequence of her being bitten by the defendant's dog, known as Mack, on Remembrance Day 2009. The defendant, Ms Deborah Anne Condran, was and still is the plaintiff's next-door neighbour.

The plaintiff and the defendant have certain things in common. They both like living in Piggott Street, Nambucca Heads. They both work in the aged care profession. They both like dogs.

The plaintiff has a dog known as Jake. Jake is a Staffordshire…

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 Simon v Condran

Details

AGLC: Simon v Condran [2013] NSWDC 32
Case: [2013] NSWDC 32
Decision Date: 06 February 2013

CaseChat Overview and Summary

Simon and Condran were neighbours who both owned dogs that were antagonistic towards each other. During a fight between the two dogs, Simon was bitten on her hand by Condran's dog while attempting to break up the fight. The incident occurred on Condran's property. Simon brought a personal injury claim against Condran, asserting that Condran was negligent in failing to properly restrain his dog. The case reached the court to determine the validity of Simon's claim.

The central legal issues before the court were whether Simon was lawfully on Condran's property, whether there was a trespass when Simon's dog entered Condran's land, and if Simon herself trespassed when she went under Condran's house. The court also examined if any technical trespass was sufficient to exclude Simon's statutory cause of action and whether the principle of necessity applied. Additionally, the court considered whether the statutory provision permitting a person to seize, injure or destroy a dog if they fear injury to themselves or their dog allowed for trespass on land. The court further evaluated the tort of negligence, specifically whether the risk of harm was foreseeable, not insignificant, and whether a reasonable person would have taken precautions. The court also assessed whether the burden of taking precautions was reasonable and if the causation of Simon's injury was factually related to Condran's alleged negligence.

After considering the evidence and arguments presented, the court found that Simon was not lawfully on Condran's property at the time of the incident, and her presence there constituted a trespass. The court determined that the statutory provision permitting the seizure, injury, or destruction of a dog in certain circumstances did not allow for trespass on land. Furthermore, the court held that Simon's actions were not justified by the principle of necessity. The court also concluded that Condran was not negligent in failing to restrain his dog, as the risk of harm was not foreseeable, and the burden of taking precautions was not reasonable. Consequently, the court found that Simon's injury was not factually related to Condran's alleged negligence. The court ruled in favour of Condran, dismissing Simon's claim. Simon was ordered to pay Condran's costs.

Orders

Orders of the court

Verdict and judgment for the defendant.

Plaintiff to pay the defendant's costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Actions

Citations

Simon v Condran [2013] NSWDC 32

Most Recent Citation

Simon v Condran [2013] NSWCA 388

Cases Citing This Decision

Simon v Condran [2013] NSWCA 388
Citation 1

…Solicitors: Stacks/The Law Firm (appellant) Moray & Agnew (respondent) File Number(s): 2013/43747 Decision under appeal Jurisdiction: 9101 Citation: [2013] NSWDC 32 Date of Decision: 2013-02-06 00:00:00 Before: Neilson DCJ File Number(s): 2010/429255…

See all citing cases →

Cases Cited

Mead v Kerney [2012] NSWCA 215
Citation 1 (Para 1)

…However, Counsel then thought it appropriate to refer me to the decision of the Court of Appeal in Mead v Kerney [2012] NSWCA 215, where the principal judgment was given by Macfarlan JA, with whom McColl JA and Sackville AJA concurred. Essentially, it is up to the defendant to adduce evidence that the part-time wor…
Stuart v Walsh [2012] NSWCA 186
Citation 2 (Para 1)

…dable and ought be linked to the event now in question. In particular, Mr Toomey referred me to the decision of the Court of Appeal in Stuart v Walsh [2012] NSWCA 186, in particular the judgment of Tobias AJA, with whom Bathurst CJ and Basten JA concurred. Mr Toomey directed my attention to that section of his Hono…
Pegela Pty Ltd v Oates [2010] NSWCA 186
Citation 3

…[1985] 2 All ER 985 Shaw v Thomas [2010] NSWCA 169 Simpson v Bannerman (1932) 47 CLR 378 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Stuart v Walsh [2010] NSWCA 186 Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353 Category: Principal judgment Parties: Shari Leigh Simon (Plaintiff) Deborah Anne Condran (Defenda…
Shaw v Thomas [2010] NSWCA 169
Citation 4 (Para 1)

…her degree of probability of harm. The difficulty for the committee was in determining what the appropriate form of words should be. In Shaw v Thomas [2010] NSWCA 169 Macfarlan JA, with whom Beazley and Tobias JJA concurred, said at [44]:…
Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120
Citation 5 (Para 1)

…element of compromise": Herning v GWS Machinery Pty Limited (No 2) [2005] NSWCA 375 and Anderson Group Pty Limited v Tynan Motors Pty Limited (No 2) [2006] NSWCA 120. Consequently, where the plaintiff's offer is in substance merely a demand for payment of the full amount claimed or a formal offer designed simply t…
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Citation 6 (Para 1)

…er the rules and under the general law, the offer must involve "a real and genuine element of compromise": Herning v GWS Machinery Pty Limited (No 2) [2005] NSWCA 375 and Anderson Group Pty Limited v Tynan Motors Pty Limited (No 2) [2006] NSWCA 120. Consequently, where the plaintiff's offer is in substance merely a…
Sungravure Pty Ltd v Meani [1964] HCA 16
Citation 7 (Para 1)

…on or mere inadvertence. The classic case in which that principle arose as a defence to an allegation of negligence was in Sungravure Pty Ltd v Meani (1964) 110 CLR 24, which arose out of the industrial accident where the defendant had a duty to provide not only a safe place of work but a safe system of work. Where…
Simpson v Bannerman [1932] HCA 43
Citation 8 (Para 1)

…n par 17.140 of Professor Vine's work. The only authority which the plaintiff could refer me to in that regard is the decision of Simpson v Bannerman (1932) 47 CLR 378. However, the Court was there concerned with action under s 19 of the Dog and Goat Act 1989, the terms of which are not the same as the current s 25.…
[1912] 1 KB 496 [1912] 1 KB 496
Citation 9

…f authority as to the nature and limits of necessity as a defence in tort. Counsel for the defendant referred me to three cases. Cope v Sharpe (No 2) [1912] 1 KB 496 was a case of alleged trespass where the defendant had sought to prevent a heather fire from spreading. Cresswell v Sirl [1948] 1 KB 241 was a case o…
[1956] AC 218 [1956] AC 218
Citation 10 (Para 1)

…referred to three authorities, the first being that of Hannan AJ in Proudman v Allen [1954] SASR 336, Esso Petroleum Limited v Southport Corporation [1956] AC 218 and Rigby v The Chief Constable of Northamptonshire [1985] 2 All ER 985, a decision of Taylor J sitting in the Queen's Bench Division. Commencing at…
[1948] 1 KB 241 [1948] 1 KB 241
Citation 11

…harpe (No 2) [1912] 1 KB 496 was a case of alleged trespass where the defendant had sought to prevent a heather fire from spreading. Cresswell v Sirl [1948] 1 KB 241 was a case of alleged trespass to a dog which the defendant had shot to prevent it worrying sheep. In each case the defence prevailed. Esso Petroleum…

Legislation Cited

Civil Liability Act 2002 (TAS) 5B, 5C, 5D
4 mentions (from Para 1)
Companion Animals Act 1998 (NSW) 12A, 22, 25
4 mentions (from Para 1)
Dog Act 1966 (NSW)
1 mention
Dog and Goat Act 1898 (NSW)
1 mention

Medium Neutral Citation:	Simon v Condran [2013] NSWDC 32
Hearing dates:	30 - 31 January, 1 & 4 February 2013
Decision date:	06 February 2013
Before:	Neilson DCJ
Decision:	Verdict and judgment for the defendant. Plaintiff to pay the defendant's costs.
Catchwords:	PERSONAL INJURY - Dog bite - Plaintiff and defendant neighbours - Plaintiff and defendant both owned dogs who were antagonistic towards each other - Plaintiff bitten on hand by defendant's dog whilst breaking up fight between the two dogs - Wounding of plaintiff occurred on defendant's property STATUTORY CAUSE OF ACTION - Question of whether plaintiff was lawfully on defendant's property - Whether there was trespass on defendant's land when plaintiff's dog entered it - Whether plaintiff trespassed on defendant's land when she went under defendant's house - Whether technical trespass sufficient to oust statutory cause of action - Principle of necessity - Whether necessity was caused by the plaintiff's negligence or momentary inattention / mere inadvertence - Statutory provision that plaintiff who fears for injury to herself or her dog may lawfully seize, injure or destroy the dog in question - Question of whether this permits trespass to land TORT OF NEGLIGENCE - Foreseeability of risk - Whether risk was not insignificant - Whether a reasonable person would have taken those precautions - Burden of taking precautions to avoid the risk of harm - Whether causation of plaintiff's injury was factually related to defendant's alleged negligence
Legislation Cited:	Civil Liability Act 2002 ss 5B, 5C, 5D Companion Animals Act 1998 ss 12A, 22, 25
Cases Cited:	Anderson Group Pty Limited v Tynan Motors Pty Limited (No 2) [2006] NSWCA 120 Herning v GWS Machinery Pty Limited (No 2) [2005] NSWCA 375 Hobartville Stud Pty Limited v Union Insurance Company Limited (1991) 25 NSWLR 358 League Against Cruel Sport Limited v Scott [1985] 2 All ER 489 Mead v Kerney [2012] NSWCA 215 Proudman v Allen [1954] SASR 336 Rigby v The Chief Constable of Northamptonshire [1985] 2 All ER 985 Shaw v Thomas [2010] NSWCA 169 Simpson v Bannerman (1932) 47 CLR 378 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Stuart v Walsh [2010] NSWCA 186 Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353
Category:	Principal judgment
Parties:	Shari Leigh Simon (Plaintiff) Deborah Anne Condran (Defendant)
Representation:	Mr D Toomey (Plaintiff) Mr J Guihot (Defendant) Stacks/The Law Firm (Plaintiff) Moray & Agnew Lawyers (Defendant)
File Number(s):	2010/429255