Dog attacks in the media are not uncommon. At the same time, most of us know somebody who has been bitten by a dog, whether it was in a friend’s backyard or on a footpath after the dog rushed out from a driveway.
Dog attacks are potentially deadly and can cause severe physical and psychological injury, loss and damage. In our experience, people injured by a dog may not be aware of their entitlement to compensation.
Stacks Goudkamp has successfully achieved compensation for many victims of dog attacks. The purpose of this article is to provide an overview of the process of claiming compensation for a dog bite in New South Wales.
WHAT DOES THE LAW SAY ABOUT DOG ATTACKS IN NEW SOUTH WALES?
The Companion Animals Act 1998 (NSW) (‘the Act’) provides for the effective and responsible care and management of companion animals, being cats and dogs.
The Act imposes what is called a ‘strict liability’ on dog owners. This means that there is no requirement to show that a dog owner was negligent or at fault when the dog attack occurred.
Liability for injury caused to a person will arise if it can be established that a dog:
- Caused bodily injury to a person by wounding and attacking that person; and
- There was damage to the person caused by the dog in the course of the attack;
In practical terms, this means that a dog owner will be extremely limited in its ability to defend a claim against it for a dog bite. There are generally only three defences available to them to refute liability. Those defences are that:
- You were unlawfully on their property when the dog attack occurred; and/or
- The dog attacked because of inducement or provocation and/or;
- The attack occurred partly or wholly because of contributory negligence on your part.
These Defences will not be available to attacks from what is known as a ‘dangerous dog’, when a dog provokes the attack rather than the injured person and when someone is bitten when intervening in a fight between two dogs.
WHAT OBLIGATIONS DOES A DOG OWNER HAVE?
The Act imposes a number of general responsibilities on dog owners. These include but are not limited to:
- An obligation to prevent dogs from escaping and keeping them secure by way of leash or fence;
- An obligation to effectively control a dog in a public place and prevent them from roaming off leash;
- An obligation to keep dogs out of certain places, including children’s play areas and shopping areas where dogs are prohibited; and
- An obligation not to encourage the dog to attack.
Owners of what the Act defines as ‘dangerous or menacing dogs’ have additional responsibilities. These are set out at Division 4 of the Act.
WHO IS LIABLE FOR MY INJURIES?
The Act imposes liability on the ‘owner’ of a dog. An owner is defined to include:
- The registered owner; or
- The person who ordinarily keeps and control of the dog; or
- An unregistered owner who owns the dog in the sense of it being personal property.
This broad definition means that liability can be potentially be imposed on a number of people who have a relationship with a dog. This is relevant when selecting who to sue.
WHAT IS THE PROCESS OF SUING A DOG OWNER – WHO DO I SUE?
The dog owner will be personally liable for the injury, loss and damage you experience as a result of the dog attack. This means that you sue the owner personally and claim damages from them in their personal capacity.
What some injured people (and dog owners themselves) may not be aware of is that there may be insurance cover that corresponds with any personal legal liability they have for the attack. Most home and contents insurance policies will cover dog attacks as they fall within the scope of ‘personal legal liability’ coverage commonly found in such policies. In that case, an insurer will ‘indemnify’ the dog owner for the claims against it and the coverage provided for by the policy will be called on to satisfy the damages claimed.
Whether or not the claim is against the owner personally or against the owner via their insurer, the process for claiming compensation can be complex. It involves making a personal injury claim on the basis of the strict liability imposed by the Act for the specific acts or omissions of the owner and thereafter an assessment of damages.
The assessment of damages will be governed by the Civil Liability Act 2002 (NSW), on the basis that it is a claim arising from civil liability.
WHAT COMPENSATION CAN I CLAIM?
Each compensation claim is unique and we will always advise you on your entitlements. However, if you are injured in a dog attack, whether you sustain physical or psychological injury, you may be entitled to:
- Non-economic loss: this head of damage relates to losses that are not capable of precise mathematical calculation. Traditionally, this has included pain and suffering, loss of amenities, disfiguration, loss of life expectancy and loss of enjoyment of life. Section 16 of the Civil Liability Act 2002 (NSW) sets out the threshold you must meet to qualify for this head of damage and also sets out a statutory maximum.
- Care and domestic assistance:this head of damage encompasses any personal care (such as assistance with dressing and showering) and domestic assistance (help with the gardening, cooking, washing etc) that you have needed in the past and will need in the future due to the injuries you sustained because of the dog attacks.
- Past and future gratuitous care: in order to claim for ‘gratuitous’ (or unpaid care often provided by family members), you must satisfy the statutory threshold provided by Section 15 of the Civil Liability Act 2002 (NSW) The care must be provided for at least 6 hours per week for at least 6 consecutive months.
- Commercial care: A claim may be paid for both past commercial care (this is care such as cleaning and nursing that you have been required to pay for) and for future commercial care. The care must be reasonable and necessary and usually requires support in the form of evidence from medical practitioners.
- Past and future out-of-pocket expenses: Past out-of-pocket expenses include any reasonable expenses you have incurred for treatment, medication and travel due to your injuries. These expenses should be evidenced by receipts and medical evidence. Future out-of-pocket expenses relate to the treatment you will require into the future such as physiotherapy, psychological intervention, surgery, medication etc. Again, claims for future treatment must be supported by medical evidence.
- Past and future economic loss: if you were employed at the time of the dog attack and could not work at the same capacity as before your accident or at all, you are entitled to claim for past economic loss. This includes any lost wages, bonuses, over-time and superannuation that you forwent due to your injuries. Future economic loss takes into account the ongoing effects of your injuries on your ability to perform your pre-accident duties, future employment prospects and any loss of earning potential you suffer due to the dog attack.3.
IS THERE AN EXAMPLE OF A DOG ATTACK COMPENSATION CASE I CAN VIEW?
The decision of Cushieri Te Puia v Sheerin  NSWDC 527 illustrates how the District Court assessed damages and imposed a strict liability on a dog owner.
You can read our summary of that case here: https://stacksgoudkamp.com.au/court-reports/cushieri-te-puia-v-sheerin-2020-nswdc-527/
DO I HAVE A CASE FOR MY DOG ATTACK?
No two cases are the same. Whether you are likely to succeed in a compensation claim will turn on the facts of your case and it is for that reason that we recommend that you get in touch with one of our expert lawyers.
We recommend getting in touch with us if you were bitten by a dog and that dog was not secured, controlled and/or was loose.
WHAT EVIDENCE WILL I NEED?
Photographs of your injuries and medical reports will be extremely helpful.
The name and address of the dog owner will also be of assistance, as well as any police report, notification of the accident to your Local Council and statements.
WHO DO I GET IN TOUCH WITH?
Tom Goudkamp and his team have extensive experience acting for victims of dog attacks.