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Dog attack ruling appealed

Keywords

Negligence – dog attack – meter reader – workplace accident – appeal.

Facts

The Plaintiff was a meter reader for the Central Highlands Regional Water Corporation (CHRWC). In July 2018, he was attacked by an American Pitbull x Staffy dog while attempting to read a meter. The attack left the plaintiff with severe lower left leg injuries, that required surgery and a skin graft, and also a psychiatric injury.

At the time of the attack, the plaintiff had with him a meter reading device, and also a screwdriver. Neither of these implements were effective in stopping the dog from attacking him. The Plaintiff alleged he had not been provided with any dog training or other means of stopping a dog attack, for example a citronella spray or similar.

The matter went to a jury trial, with the jury finding no liability for the CHRWC. In closing submissions (at trial), the plaintiff’s counsel submitted that had the dog training and the citronella spray been provided, then the plaintiff would have suffered no injury, or alternatively, that his injuries would have been less severe.

The trial judge refused to allow the alternative proposition to go to the jury, that is, that the plaintiff’s injuries would have been less severe. The trial judge only permitted the one option to be put, and that was that the plaintiff would have suffered ‘no injury’. That decision resulted in a direction to the jury that it was, in effect, only to consider ‘whether or not the training and provision of the spray would have resulted in no injuries to the plaintiff’. During its deliberations, the jury had a question for the judge. It related to clarification on her direction that the jury was ‘not considering the issue of a reduction in the severity of injury, that is, it was not to consider whether the spray and training (if provided), would have meant less severe injury’.

Decision

Macaulay JA, Gorton AJJA & J Forrest AJJA, decision delivered 12 December 2024

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TR CoCounsel

The application for leave to appeal was granted and the appeal allowed. The judgment of the County Court was set aside and the proceeding remitted to that court to be retried.

Ratio

On appeal the CHRWC submitted that the court should deny the leave to appeal even if the appeal had a real prospect of success. The CHRWC argued that there would not have been any different result/outcome, because if properly instructed the jury could not conclude that the CHRWC’s negligence caused the plaintiff to suffer any more injuries than he would suffered.

Also, even if leave was granted, a new trial should not be ordered because no substantial wrong or miscarriage had been occasioned by any error. The CHRWC argued that the evidence rose no higher than suggesting that proper precaution, such as dog safety training or citronella spray, might possibly have resulted in the plaintiff suffering less severe injuries than he otherwise would have suffered. CHRWC argued that the plaintiff had to establish that on the balance of probabilities, the precautions would have prevented him from suffering more severe injuries than he would otherwise have suffered.

The Court of Appeal agreed that the evidence established that there was a sequence of related steps during the dog attack. There were a number of different injuries sustained by the plaintiff, with the worst of those being his lower left leg, on top of which he sustained PTSD of some severity.

The expert called by the plaintiff, Dr Ley, provided evidence about potential effectiveness of strategies to deal with aggressive dogs, including what to do when first confronted by a dog and then what to do once under attack. These were designed to prevent or escape an attack, and then to reduce the duration of any attack and the severity of any injuries flowing from it.

Dr Ley detailed some measures that could be taken. The court agreed that such safety training, and the supply of the citronella spray, could not guarantee their use by the plaintiff, and also that at some point (during a dog attack) some of the strategies’ effectiveness would be reduced.

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TR CoCounsel

There are many variables regarding the possibility that the provision of the training and the spray would have reduced the duration and severity of the attack, including the level of agitation of the dog, the speed with which events occurred and unfolded, the likelihood that the person being attacked would have the presence of mind to adopt the training and use the spray and the likely response of the dog after such measures were taken.

The court was of the view that it was difficult to say that the judge’s direction did not deprive the Plaintiff of at least the possibility of a successful outcome if the jury was directed that they were permitted to consider whether the CHRWC’s breach caused the plaintiff to suffer injuries or ‘more severe injuries’.

It was at least possible that the jury may have concluded that the breach would not have prevented the plaintiff from suffering some injury, but also would have avoided him suffering the full extent of the injuries sustained in the attack. The jury would then have proceeded to assess the appropriate amount of damages to compensate the plaintiff for the pain and suffering he sustained by reason of those additional or more severe injuries.

The court concluded that such an outcome was available as a matter of law, and at least as a possibility on the evidence given at trial. The court concluded that there was a material misdirection by the judge at trial, and that in line with the court’s power, it set aside the judgment and ordered a retrial.

The question then for the court was what the retrial would involve, and who should hear that. The Court of Appeal ultimately decided that the judge erred in directing the jury not to consider the less severe injury case, and that error occasioned a substantial wrong or miscarriage in the trial, and that there should be a new trial by a jury in the County Court on all of the issues joined in the proceeding.

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