Simon v Condran

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.