Occupiers’ liability to visitors to domestic premises – presence of dog

Legal Directions

Novakovic v Stekovic [2012] NSWCA 54

Background

In this case, the New South Wales Court of Appeal held that the presence of a dog in a house did not pose a foreseeable and not insignificant risk of harm to a visitor to premises.

Facts

Mileva Novakovic, sued her brother Michael Stekovic and sister in law Snezana Stekovic, the owners and occupiers of a domestic dwelling and the owners of a bullmastiff-kelpie dog called ‘Cougar’.

The Stekovics had lived in the premises for a number of years, and Novakovic had visited the premises fortnightly at which times the dog had always been in the backyard of the premises.

Novakovic suffered personal injuries as a result of a fall at the premises on 19 January 2008. Novakovic had entered the premises where she encountered the Stekovics’ dog, and being afraid or generally fearful of dogs, she promptly retreated from the premises, in the course of which she slipped and fell. As a result of the incident, Novakovic required surgery and time off work.

Trial

Novakovic submitted a number of things at trial, including that:

  • The court should consider whether the incident was foreseeable. Further, if the answer to that inquiry was a positive one, that the Stekovic’s ‘had a duty of care to take reasonable precautions to restrain the dog to ensure it did not move towards [Novakovic]’ and cause her to hastily exit the premises
  • The incident  was not farfetched. Further, ‘it could have been anticipated that she would have left the premises quickly and slipped as she was doing so’.

The Stekovics’ argued that it was not reasonable for them to expect Novakovic’s reaction to the presence of the dog.

The trial judge found in favour of the Stekovics and held that, ‘what occurred was not foreseeable nor was the risk of the events occurring foreseeable. Moreover, the risk of this harm occurring was insignificant…. it could not have been anticipated that a person in the position of [Novakovic] would react in the way she did and then slip and fall when she left the premises’.

Novakovic appealed the trial judge’s decision.

Appeal

The Court of Appeal unanimously dismissed Novakovic’s case after consideration of established case law and s5B of the Civil Liability Act 2002 (NSW).

Justice McColl noted that there was no evidence that the Stekovics were aware that if Novakovic saw a dog, that she might react in the fashion that she did. Further, there was also no evidence that the Stekovics were aware of Novakovic’s fear of dogs.

The court determined that the Stekovics’ did owe a duty of care to protect Novakovic from a not insignificant risk which could reasonably have been foreseen and avoided.

The Court considered that the relevant matters to take into account in the ‘inquiry about whether the [Stekovics] ought to have taken the precautions’ submitted by Novakovic, were (amongst others) whether the risk was not insignificant and the foreseeability of the risk. Further, the court confirmed that the ‘inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is necessary to ask also: would it have been reasonable for the [Stekovics] to take those measures?

The court noted that it could be inferred that because the Stekovics had allowed Novakovic to enter the premises whilst the dog was present in the home, that the Stekovic’s believed that the dog posed no risk to entrants or visitors, such as Novakovic.

Conclusion

Ultimately, the court held that the trial judge was correct in deciding that the risk of injury was not foreseeable, as was submitted by Novakovic.

The decision confirms that simply because action could have been taken to avoid a risk presenting itself, does not mean that a breach of duty of care has occurred.

Authored by Natalie Purves, Lawyer, Brisbane.


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