CUSHIERI TE PUIA v SHEERIN [2020] NSWDC 527

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The District Court of New South Wales Considers the Liability of a Dog Owner for the Injuries Sustained by a Five-Year-Old Boy Over Whilst Peering Over an Adjourning Fence in the Decision of Cuschieri Te Puia v Sheerin [2020] NSWDC 527.

IN BRIEF

IN BRIEF

RELEVANT LEGAL PRINCIPLES

THE DECISION – WAS THE DOG OWNER LIABLE?

In determining the dog owner’s liability, His Honour was required to consider the Defendant’s Defence to the claim, which essentially alleged that:

  1. The Plaintiff’s head, torso, lower limbs and most (if not all) of his upper extremities were behind the dividing fence on the friend’s side of the fence;
  2. To the extent that the Plaintiff’s finger tips were on the top of the fence, the area was also part of the jointly occupied dividing fence;
  3. There was no evidence to suggest that any part of the Plaintiff’s body was protruding into the airspace over the Defendant’s premises;
  4. ‘Peeking’ over the fence should not be interpreted to mean that the Plaintiff’s head, or any part of his head, had actually protruded over the fence, or that any part of his body had invaded or had constituted an incursion into the airspace; and
  5. ‘Peeking’ should not be interpreted to mean that any part of the Plaintiff’s body was protruding into the Defendant’s airspace.
  1. There was no part of the Plaintiff that was over the airspace before the mauling took place;
  2. The dogs assumed an attitude in which they separately launched themselves at the Plaintiff, with those actions constituting the initial phases of the attacks. The first physical contact and mailings that followed formed part of the continuum of attacks;
  3. No part of the Plaintiff’s body was relevantly on the Defendant’s property before those events occurred; and
  4. If there was an incursion, such as the tips of the Plaintiff’s fingers protruding into the airspace, this was in the nature of a casual, unintended or inadvertent incursion, which should not be characterised as an intentional trespass. It did not interfere with the Defendant’s use of the premises.

THE DECISION – WAS THE DOG OWNER LIABLE?

  1. Non-economic loss;
  2. Future treatment expenses;
  3. Future impairment of his earning capacity; and
  4. Legal costs.

Non-economic loss

Future Earning Capacity

Future treatment

Costs

LESSONS FROM THIS DECISION

Written by Megan Sault.

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I could write a book as to how the last 4 years would have been different if not for Tom and his team.
The support, assistance, advice from the first conversation till even after the settlement was second to none from the team at Stacks Goudkamp.
Four years on and after many downs, my children and I have our lives back.
We are unable to THANK YOU enough, but know that you have changed our lives for the better in so many ways since the accident.

- Andrew and Family
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