Paws for thought: court rejects dog-bite claim

The Court recently handed down judgment in the matter of Bevan v Smith [2026] NSWDC 260.

Background

Jennifer Bevan (Plaintiff) and Gregory Michael Smith (Defendant) were neighbours and the only lot owners in a strata scheme. Their units were side-by-side, and they shared a driveway which formed part of the common property.

On 18 December 2020, the Plaintiff's dog ('Gracie') escaped the property and ran across the road. The Plaintiff followed Gracie and brought her back to the property immediately. As the Plaintiff started walking up the driveway (with Gracie in her arms), she saw the Defendant's dog ('Evie') approach her. Evie jumped up onto the Plaintiff and her paws came into contact with the Plaintiff's breast area. The Plaintiff yelled at Evie to "get away" and Evie initially started to walk away. However, a few moments later, Evie turned around, ran and jumped on the Plaintiff. The Plaintiff was knocked over and suffered injuries to her right wrist.

Legal Issues

The Plaintiff sued the Defendant for damages under section 25 of the Companion Animals Act 1998 (NSW) (Act). In the alternative, the Plaintiff alleged that the Defendant was liable in negligence.

Section 25 of the Act provides that the owner of a dog is liable in damages in respect of bodily injury to a person caused by the dog "wounding or attacking" that person. In determining what constitutes "wounding or attacking", the Court referenced the principles established in Sarkis v Morrison [2013] NSWCA 281 and accepted that "wounding or attacking" is limited to conduct involving an element of aggression or other deliberate conduct.

In determining whether the Defendant was negligent, the Court considered what the risk of harm was and whether that risk was foreseeable.

Decision

The Court noted there was no evidence that Evie barked, growled, snarled, scratched or bit the Plaintiff prior to the Plaintiff's fall. There was also no evidence that the Evie had been aggressive towards anyone previously, including the Plaintiff or Gracie. To the contrary, evidence was submitted that the Defendant had looked after Gracie on previous occasions and the dogs had played together when they were younger.

The Court was not satisfied that there was any aggression on the part of Evie. The Court held that Evie did not wound or attack the Plaintiff and the Defendant was not liable in damages under section 25 of the Act.

On the question of negligence, the Court determined that the risk of harm was the risk that Evie would jump on the Plaintiff and knock her over while on the property. The Court was not satisfied that such a risk was foreseeable given there was no evidence that Evie had ever jumped on or been aggressive towards anyone else before.

Key Takeaways

This matter reinforces the principles established in Sarkis and serves as a reminder that where a person suffers bodily injury due to contact with a dog, this does not, in itself, give rise to a finding of liability against a dog owner.

This matter also highlights how much weight a Court will place on the facts of each case. If the dog had scratched or barked at the Plaintiff or had a history of aggressive behaviour towards other people or dogs, the outcome may have been different.