A 5 year old child was attacked and wounded by a neighbour’s dogs while playing in a friend’s backyard, and received a significant award of damages.
The pivotal issues at trial were as follows:
- whether the plaintiff was on the defendant’s property at the time he was attacked by the dogs (and, if so, to what extent and effect)
- whether the plaintiff was not lawfully on the defendant’s property (pursuant to s 25(2) of the Companion Animals Act 1998)
- the assessment of the plaintiff’s entitlement to damages.
On 9 November 2016, the plaintiff, a minor who was 5 years old at the time, was playing in the backyard of private domestic premises that adjoined the defendant’s property, which was fenced, when he was attacked and bitten by the defendant’s two German Shepherd Pointer dogs.
Prior to the attack, the defendant’s dogs were securely enclosed in the backyard of the defendant’s premises, and had been trained to protect the premises from intruders. The plaintiff climbed onto a tree stump and then stood on a cross beam of the dividing fence, with his hands located at the top of the dividing fence, in order to look at the dogs. One of the dogs leapt up and bit the plaintiff on his right forearm, and the other leapt up and bit him on the face.
The assessment of liability was governed by section 25 of Companion Animals Act 1998 (NSW), and the damages component was governed by the Civil Liability Act 2002 (NSW).
The decision at trial
Section 25 of the Companion Animals Act 1998 makes the owner of a dog liable for bodily injury to a person caused by the dog wounding or attacking that person. This does not apply to (a) an attack occurring on property occupied by the owner of the dog, or (b) in respect of an attack by a dog that is in immediate response to, and is wholly induced by, intentional provocation of the dog (s 25(2)).
Based on the evidence provided by the plaintiff at trial, the trial judge, Levy SC DCJ, found that, at the time the plaintiff was attacked by the defendant’s dogs, he was not relevantly on the property occupied by the defendant. This conclusion was reached on the basis that the plaintiff’s head, torso, lower limbs and most of his upper extremities were behind the dividing fence running along the defendant’s property, and did not intrude into the airspace over the defendant’s property. Any incursion into the airspace, such as by a protrusion of the tips of the plaintiff’s fingers, did not amount to a trespass and should be considered inadvertent incursion.
With respect to the second consideration, the court did not consider the plaintiff’s conduct constituted an intentional provocation of the defendant’s dogs so as to create an attack response by those dogs. The plaintiff’s evidence, which the court accepted, was that he was “peeking over” the top of the dividing fence to tell the dogs to “calm down”. For these reasons, the defendant’s case was not made out and the court found in favour of the plaintiff.
In assessing the plaintiff’s award for non-economic loss, the court emphasised the cosmetic scarring and disfigurement the plaintiff had suffered to his face and right arm, as well as future surgeries and lasting psychological problems, which would have ongoing impacts on his leisure and working life. The plaintiff’s non-economic loss was assessed at 35% of a most extreme case, equating to $230,500, noting that, as the plaintiff grew older, he would inevitably be confronted with a daily awareness of his facial disfigurement.
Despite the defendant’s submission that there was a lack of medical evidence suggesting any future restrictions in the plaintiff’s capacity for work, the court concluded that the plaintiff’s scarring would create a disadvantage in competing for employment on the open labour market in a range of occupations. As such, a buffer of $75,000 was allowed for future loss of earning capacity, and a buffer of $10,000 in respect of future treatment expenses. This resulted in a total damages award of $315,500.
Implications for you
Given the plaintiff’s young age, there was significant uncertainty regarding future heads of damages. Even so, the plaintiff received a significant award of damages as a result of buffers. With the proliferation in the number of dogs being purchased in the last 6 months or so as a result of COIVD-19, the decision is a reminder for dog owners to check that the fencing between neighbours is appropriate, particularly where dogs are allowed to roam in their garden.