The Common Law and The Civil Liability Act
Under the Common Law in NSW all civil legal actions commenced by dog attack victims are based on the Tort of Negligence. The Civil Liability Act NSW applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. Elements of this tort are the foreseeabilty of risk, whether the risk was not insignificant, whether a reasonable person would have taken those precautions to avoid the risk of harm, whether causations of injury factually related to the alleged negligence. See Civil Liability Act NSW ss 5B,5C,5D.
A civil personal injury claim almost always requires the assessment of the following heads of damages
• None Economic loss; These are also known as general damages and is a term applied to non pecuniary damages or non economic loss suffered as a result of pain, disability, loss of enjoyment of life, disfigurement or loss of the expectation of life. see s16 of the Civil Liability Act NSW which provides at s16 (1) NO damages may be awarded for non-economic loss unless the severity of the non –economic loss is at least 15% of the most extreme case. The Court will assess the severity of the non economic loss as a proportion of “the most extreme case” and express it as a percentage.s16 (2) “Caps” the maximum amount for damages for non economic loss at $350,000.s16 (3) requires the assessed proportion/ percentage figure to be applied to a “fixed” range of percentages of the most extreme case amount. For example, if the general or non economic loss is assessed as 15% of the most extreme case the fixed figure for damages per the table is 1% of $350,000 or $3,500.00.
• Pecuniary Loss: This covers out of pocket expenses involved in medical and other treatment expenses, aids and appliances, domestic and personal care.
• Income Loss ; covering actual income lost to the date of trial and loss of future income earning capacity Note the Civil Liability Act NSW s 13(2) requires the amount to be discounted for contingencies or the vicissitudes of life. PUNITIVE DAMAGES can also be awarded according to the circumstances of the injury.
• Aggravated damages: awarded to a plaintiff who suffered increased distress as a result of the manner in which the defendant behaved when committing the wrong or thereafter.
• Exemplary damages ; awarded to a plaintiff to mark the court’s disapproval of the conduct of the defendant and to deter its repetition by the defendant and others. Once known as “Vindictive damages” these can be awarded when there has been aggravating factors of violence, malice, hostility, fraud or wanton conduct on the defendant’s part. Lamb v Cotogno (1987)164 CLR 1;74 ALR 188.
Every dog owner should check to make sure that they have liability insurance to cover possible damage caused by their dog(s) both inside and outside of their home. Injuries caused by dogs can cost the owner tens of thousands of dollars in damages. Without liability insurance the dog owner will be obliged to pay the victim damages as assesses by the Court and legal fees of the injured person, as well as their own lawyer’s fees. Note if you have liability cover remember it does not extend to either aggravated or exemplary damages.
See Reed V Sretenovic & Anor 2008 NSWDC 202
Damages-Plaintiff repeatedly attacked and bitten by dog-liability determined per s25 (1) Companion Animal Act 1998 Civil Liability Acts13,s16. Victim awarded $344,723 (less any HIC deduction) and Costs.
Liability Insurance
Generally most home owners carry home building and contents insurance. Most of the policies offered carry a “Liability cover” that includes the family pet causing injury or damage to property both within and outside the home but not all so you should read what your home insurance does cover and what it does not cover.
Some companies refuse to cover an incident caused by a dog that a Local Council has declared to be a dangerous dog.(see Dangerous Dog section).
Policy Holders beware
Uberrimae Fidei is Latin for “requiring the utmost good faith”. Under the Insurance Contracts Act 1984 (CTH) s13,the duty of utmost good faith is an implied term in each contract of insurance. This law imposes a duty on the policy holder to disclose to the insurer ,whether asked or not, all facts which a prudent insurer would reasonably consider material to the decision whether to undertake the insurance at all and if so on what terms and at what premium. This duty applies to all contracts of insurance. It applies at entry into the contract and arguably during the contract. This is the insurance companies “magic wiggle room” .If the insurance company conceives you have not told them something relevant to the risk they are covering, then you have not acted in “utmost good faith” and so it can refuse to honour its policy because you had not informed the insurer fully about what it was insuring.
Breeders Beware
All insurance companies’ policies contain exclusions, clauses that say specific types of incidents are not covered. Because homeowner's insurance is supposed to insure homes, not businesses, many home owners’ policies have”business pursuits" exclusion. Such policies do not cover claims that arise from a homeowner's business activities at home. The exclusion may apply when an incident happens in the home even if the business conducted there is only a part-time like dog breeding .If you are a breeder check with your policy provider as to whether or not this exclusion applies to your situation and how to get the liability cover you really need before you invite someone onto your property to view your dogs or puppies.