Novakovic v Stekovic [2012] NSWCA 54

Novakovic v Stekovic [2012] NSWCA 54

The appeal failed because the primary judge was entitled to conclude that the respondents were not required to foresee a risk that the appellant, on seeing the dog in the house, would fear it, run from the house in panic and be injured. There was no evidence that the respondents knew of the appellant's general fear of dogs, the dog did not act aggressively, and the assessment of foreseeability had to be made prospectively rather than with hindsight. Accordingly, the appellant did not establish the necessary foreseeable risk under s 5B of the Civil Liability Act 2002.

Jurisdiction
Australia
Judgment Date
27 March 2012
Procedural Posture
Torts Negligence Personal Injury / Appeal From Decision of Knox DCJ Dismissing the Appellant's Claim for Damages and Entering Judgment for the Respondents
Outcome
Appeal dismissed with costs
Legal Topics
['breach of Duty of Care' 'foreseeability of Risk' 'risk Not Insignificant' 'precautions Against Harm' 'civil Liability Act 2002 S 5 B' 'injury After Hastily Leaving Premises on Seeing Dog']
['torts' 'negligence' 'personal Injury' "occupiers' Liability"] ['breach of Duty of Care' 'foreseeability of Risk' 'risk Not Insignificant' 'precautions Against Harm' 'civil Liability Act 2002 S 5 B' 'injury After Hastily Leaving Premises on Seeing Dog']

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Procedural Posture

Torts Negligence Personal Injury / Appeal From Decision of Knox DCJ Dismissing the Appellant's Claim for Damages and Entering Judgment for the Respondents

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that the risk of the appellant suffering personal injury was not foreseeable.' 'Whether the respondents ought to have foreseen that an entrant seeing the dog in the house would fear it, run from the house in panic and be injured in the course of flight.' 'Whether the risk of injury was not insignificant under s 5B of the Civil Liability Act 2002.' "Whether a reasonable person in the respondents' position would have taken the precaution of keeping the dog outside before inviting the appellant inside."]

Ratio Decidendi

The appeal failed because the primary judge was entitled to conclude that the respondents were not required to foresee a risk that the appellant, on seeing the dog in the house, would fear it, run from the house in panic and be injured. There was no evidence that the respondents knew of the appellant's general fear of dogs, the dog did not act aggressively, and the assessment of foreseeability had to be made prospectively rather than with hindsight. Accordingly, the appellant did not establish the necessary foreseeable risk under s 5B of the Civil Liability Act 2002.

Court Disposition

Appeal dismissed with costs

Orders

  • ['Appeal dismissed with costs']