McMahon v Balint-Smith [2026] VCC 297

1. The plaintiff was born in April 1960 and is currently 65 years of age.
2. The plaintiff is divorced and has no dependants. At the time of the incident, she lived in a rented house near the beach in Mount Martha. She completed year 12 at school and went on to complete a Bachelor of Arts majoring in education and qualifying as a primary school teacher. She has had a varied work history including working in hospitality, working as a bar manager as well as working as a teacher. She worked in University House in a sales role as well as in corporate sales and real estate. She has travelled extensively. In the years before the incident, she worked substantially as a casual relief teacher. When she first started working at Peninsula Specialist College she was employed directly by it, but later her employment was through ANZUK, an agency that provides casual relief teachers. Peninsula Specialist College was a school for disadvantaged children who had both physical and intellectual disabilities.
3. Her ability to work during the COVID years was greatly affected. During the first lockdown period, the Education Department paid her based on the number of hours she had worked in the previous financial year. During the subsequent lockdowns, she was placed on JobKeeper and was paid an allowance through Centrelink.
4. After the lockdowns ended, she returned to casual relief teaching at the same school. She also commenced work as a disability support worker for NDIS clients taking on her first client in October 2021. This employment was obtained through word-of-mouth, and she has been able to develop good working relationships with the parents of the children enrolled at the school at which she undertook the causal relief teaching. Because her earnings had been affected by COVID, she was keen to make up for those losses, and she pursued weekend work with the NDIS clients which was more remunerative. She enjoyed her work and had no plans to retire. She had been a worker all her life and had never wanted to stop working.
5. The plaintiff attended McCrae beach ('the beach') in the afternoon on 15 April 2022. It was Good Friday, a public holiday and school holidays. The plaintiff described it as a beautiful sunny day and about 24 to 25 degrees. Daylight saving had ended.
6. McCrae Beach is situated on the Mornington Peninsula and lies between Dromana and Rosebud beaches. Dogs are permitted at McCrae beach at various times depending on the season, leash free.
7. There were signs positioned at various locations, including at the entrance to the beach, stating the following:[1]

'Leash free from 7pm to 9am the next day during daylight saving and leash free all other times of the year. Dogs must immediately be brought under effective control if it threatens or annoys any person or animal'.

8. The plaintiff gave evidence that there "were more people there without dogs than with dogs" and there were families with their children in the water, toddlers on the beach and dog walkers.[2]
9. The plaintiff arrived at the beach with her dog Audrey, a Groodle. She was in the habit of taking Audrey to the beach twice a day and she described the beach "as one of the nicest beaches on the peninsula and you're allowed to take your dog".[3] She was familiar with many of the dogs and dog owners who used the beach, given she frequented the beach with Audrey as well as with her previous dog. Audrey was described as a timid and quiet dog that was a little more social with dogs she met regularly on the beach. She was often off leash at the beach, and she enjoyed swimming and keeping to herself rather than engaging in play.
10. The plaintiff had met the defendant with Georgie at the beach on four of five occasions before the incident. She had noticed that when Georgie was not in a harness, Georgie ran really fast and seemingly as if she could not see obstacles in her path. This concerned the plaintiff as she was a large dog and the speed at which she moved made her feel like "a missile coming" at her,[4] and so she had an awareness and exercised caution when Georgie was on the beach. She did not believe Georgie to be a malicious dog but nevertheless did not believe that she was controlled, and that she exhibited erratic behaviour. Audrey kept herself clear of Georgie because the plaintiff thought she was scared of her.
11. Ms Morgan also described Audrey as a very gentle dog who hung around the plaintiff; she was well behaved and obedient.

1. The plaintiff gave evidence that she was talking to Ms Morgan, an acquaintance whom she had met at the beach, and was standing on the beach near the water's edge, close to a set of groynes, facing towards the Dromana end of the beach. The plaintiff was standing closer to the water. Ms Morgan was positioned with her right shoulder to the beach and was standing further from the water. They were twisted to an angle to talk. The plaintiff said that they had been talking for about five minutes or possibly a little more before the incident. Ms Morgan said they were chatting for a long time, up to a quarter of an hour before the incident. Ms Morgan was focused on the plaintiff, and they were both engaged in conversation whilst the plaintiff was watching Audrey.
2. The plaintiff was keeping an eye on Georgie before the incident occurred and even though she was talking to Ms Morgan she was still turning to keep her eyes on Georgie as she was doing "this really weird running thing, where she'd just go racing up the beach and then turn around and come racing back".[5]
3. In examination in chief, the plaintiff said that she did not observe Audrey and Georgie interacting. Audrey was off leash and had gone into the water for a swim. In cross-examination, she did not accept that just prior to the incident that Audrey and Georgie were playing together and doing laps around her, although she conceded that Audrey may have been interacting with another dog at the time. She said she was keeping an eye out for Georgie while she was talking with Ms Morgan and there may have been another dog there, but she did not recall it being a dog that she knew. Ms Morgan said that prior to the incident she was standing and talking to the plaintiff. Whilst they were talking, the plaintiff was also looking at Audrey.
4. The plaintiff believed the defendant called out to her, but she could not actually make out what was being said and she turned to look at him, and virtually in that moment, Georgie collided very forcibly into the plaintiff's leg and knocked her over. She immediately felt severe injury. The plaintiff never had a broken bone in her life before. She had a fractured left tibial plateau, and she went on to have a total knee replacement. She also developed a DVT during the course of the treatment.

1. Ms Morgan is a retired teacher librarian and regularly attends McCrae beach. On the day of the incident, she was at the beach with her husband Philip Morgan. She had befriended the plaintiff at the beach and considered her an acquaintance that she would meet on the beach to go swimming and walking. They did not socialise away from the beach.[6] Her evidence was that there were a lot of families using the beach on the day of the incident.
2. At the time of the incident, Ms Morgan was talking with the plaintiff and was standing with her right shoulder to the water. The plaintiff was facing more towards the Dromana end. Ms Morgan estimated that they had been chatting for some time, possibly up to 15 minutes prior to the incident, although conceded her recollection of the exact timing was not certain. She had not noticed Georgie prior to the incident or made any observations of Georgie running around or of her behaviour immediately before the impact. Her evidence was that out of the corner of her eyes, she saw a large dog hurtling very fast towards the plaintiff, striking her left leg just below the knee.[7] She described it as a fierce blow where the plaintiff "crumpled" to the ground.[8] Immediately following the incident, Ms Morgan's focus and attention was on the plaintiff and she did not observe Georgie.[9]

1. Mr Morgan attended the McCrae beach with his wife, and his evidence was that they arrived around 3:30pm to 4:00pm. He also knew the plaintiff as a beach acquaintance and confirmed they did not socialise outside the beach context.[10]
2. His evidence was that the beach was busier than usual and at the time of the incident he was seated reading a book, about 40 metres to 50 metres away from the plaintiff and his wife, who were situated to his right. He was also looking out and observing the beach. Mr Morgan did not see Georgie and the defendant arrive at the beach; Georgie was already there when he noticed her. He recognised Georgie on the beach that day, recalling her as a large, fast dog. He described Georgie as "absolutely loony and out of control" running around the beach at high speed and dodging in and out of people and other dogs.[11] He said that it did not appear that Georgie was under her owner's control. He did not observe anyone in effective control of Georgie or calling her in the moments before the incident. Georgie was playing with other dogs at times but would rush off, circle around and then "hoon off" elsewhere.[12] He remembered remarking to the person sitting next to him that "that dog is going to knock someone over unless someone takes control of it".[13]
3. Mr Morgan gave evidence that he saw Georgie running at speed from his left, being the Rosebud end, across the beach and colliding side on with the plaintiff's lower left leg. He described the impact as enormous, likening Georgie's speed to that of a greyhound, and the blow as full force, knocking the plaintiff to the ground.[14] He did not observe Georgie's behaviour immediately following the incident as his attention was on the plaintiff; he observed others coming to her immediate assistance and helping her.[15] He did not recall seeing the defendant bring Georgie under control or how quickly this occurred after the incident.
4. In cross-examination, Mr Morgan said that he was not certain which dogs were playing together and did not recall seeing Georgie play with Audrey. He estimated that he had observed Georgie's behaviour for about 5 minutes before the incident. He acknowledged in cross-examination that given the time of day, there was some glare and so he could only see hazy figures, although he was able to identify people he knew.[16] He also acknowledged that given the passage of time since the incident, his memory of some details was not great.

1. Mr Moore has lived on the Mornington Peninsula for 47 years and he had frequented McCrae beach, often twice daily, for decades. He had known the plaintiff for approximately 20 years primarily through their dogs.[17] He learnt of the plaintiff's injury a few days after it occurred and was not present at the time of the incident. He gave evidence regarding his observations of Georgie prior to and around the time of the incident.
2. Mr Moore had a number of encounters with Georgie and her owners before the incident. His first encounter with Georgie was several months before the incident. On that occasion, Georgie was on a leash but was "almost pulling [the defendant] over".[18] Mr Moore described Georgie as not really being under control even when on a leash.[19] He had gone to say hello to the defendant and the dog jumped up and nearly knocked him over. The dog had hit him fairly firmly, even though Georgie was on a lead.[20]
3. There were subsequent encounters when he saw Georgie on the off-leash beach on three occasions leading up to April 2022. He said that on each occasion, Georgie was "not really under any control whatsoever". He had observed the defendant calling Georgie, but she would not pay any attention and continued running around. When asked about his observations on the way in which Georgie engaged or behaved at the beach compared to other dogs, based on the 3 to 4 occasions he had seen Georgie before the incident, his evidence was that:[21]

"she used to run around crazy, really. Just sort of racing around the beach, running in between people and dogs and having a wonderful time by herself but under no control whatsoever, unfortunately".

4. Mr Moore also relayed a conversation he had with the defendant on one of their encounters before the incident, in which the defendant said to him:[22]

"I can't control her. She won't listen - she won't obey any commands, and it was a lot easier for me to leave the dog at home than to bring her to the beach".

5. When Mr Moore saw the defendant on the occasion when Georgie was not with him, he asked after Georgie and the defendant responded:[23]

"I've left her at home. I can't control her; she's out of control. It's a lot more pleasant for me to be down the beach without the dog."

1. The defendant, the owner of Georgie, gave evidence regarding Georgie's training, temperament and behaviour at off-leash areas, as well as of the incident.
2. The defendant's evidence was that Georgie was acquired as a puppy in early 2021 from a local family and was socialised early on, with exposure to children and other dogs. She attended puppy socialisation classes at Best Friends Pets, as well as group obedience classes at the Mornington Peninsula dog club.[24] After the incident, she also underwent private training at Sit Happens. Aside from attending the formal training, the family took steps to entrench the usual commands of sit, stay, come, leave it. The defendant undertook some semiregular training in his backyard with Georgie, and he used treats to train her as he found Georgie was very responsive to commands with the use of the treats.[25] They had trained her out of jumping on people early on.[26]
3. By the second half of 2021, his evidence was that Georgie was responsive to recall commands and he was taking her to a few different leash free areas where she stuck pretty close to him and kept an eye on where the defendant was. He described her as one of those dogs that, if she lost sight of "her person" she would worry, and so she stuck fairly close to him within sight. He said that he did not have any trouble with her at leash free areas.[27]
4. Prior to the incident, the defendant had taken Georgie to various off leash areas including the McCrae, Somers, Flinders, Mornington and Mount Martha beaches on at least 20 occasions.[28]
5. He was asked whether before the incident there were any occasions where Georgie had given him any reason for concern. He responded as follows:[29]

A: No. The only - I've reflected on this. The only incident I can remember where I felt concern was very early on. It was just me and Georgie on the beach - there was another lady walking - and Georgie went alongside the lady and walked with her for maybe 20, 30 yards, kind of looking up at her, maybe - I don't know - expecting a treat and on that occasion it took a few more calls to bring her back, but she did eventually come back. I guess if I'm looking at it - and if I thought that that was going to be a regular thing, then I would have stopped taking Georgie to the beach. > > Q: Was it in fact a repeated behaviour? > > A: No, and the lady in question didn't complain to me, didn't seem annoyed, but I could see how someone could be annoyed by that behaviour.

6. The defendant denied that there were any times where Georgie had bumped into anyone or not being aware of where she was going, before the incident, as well as denying that he told Mr Moore that Georgie was out of control or that he would no longer bring Georgie to the beach, saying that "I didn't say that and I don't believe that's true."[30] The defendant also had no recollection of Georgie jumping up on Mr Moore. He could not say if it did not happen, or that if it did happen, he just could not recall it.[31] He said that he had not observed any behaviours on her part that caused him "significant concern".[32]
7. The defendant gave evidence that Georgie had had positive interactions with Audrey before the incident. On the first occasion, he along with his wife and children, were walking along the beach with Georgie on leash and encountered the plaintiff with Audrey off leash. The defendant said hello and asked the plaintiff if they could take Georgie off leash to play with Audrey. The plaintiff encouraged this and the dogs played positively so that by the end of the encounter, they introduced themselves to each other and were known to each other on a first name basis.[33] He denied any indication from the plaintiff that she was concerned about Georgie's behaviour.
8. On the day of the incident, the defendant said he arrived at the park behind the start of the leash free area towards the Rosebud end of the beach with Georgie. He assessed the environment and let her off leash after seeing many people and dogs. It was about 10 yards from the plaintiff and another woman, presumably Ms Morgan, when he let Georgie off leash and Georgie ran ahead to play with the other two dogs who were in their vicinity. He said he was watching Georgie closely, keeping within close proximity as she played with other dogs around the plaintiff and Ms Morgan. He was not concerned about Georgie's behaviour in those 2 to 3 minutes before the incident and said he was well positioned to see Georgie. He described Georgie as running in a circuit with two other dogs around the plaintiff and Ms Morgan. She was running in an orbit, maybe about 5 to 10 yards, mainly around the plaintiff and Ms Morgan stood there and watched.
9. Just before the incident, Georgie was not with the other dogs, and the defendant conceded that Georgie possibly could have "been a little faster at that point"'.[34] He disputed that Georgie was oblivious of her surroundings and was running full pelt, not mindful of obstacles in her path. Georgie was running past the plaintiff, focused on the other dogs and not on the plaintiff, colliding side on with the plaintiff's knee. He accepted Georgie was running at speed but did not accept that she was oblivious of her surroundings and running out of control, and maintained she was playing as dogs do at off leash areas.[35] He conceded that Georgie had failed to avoid obstacles in her path at that point but did not accept that that was a habit of hers. His evidence was that he saw no indication that Georgie was running in an erratic style that was likely to cause an injury. He was prepared to acknowledge in hindsight that Georgie did pose a risk given her close proximity to the plaintiff and Ms Morgan.
10. The defendant's response immediately upon the incident was to use a treat to recall Georgie, which was effective, and he put Georgie's harness on.[36] He denied any delay or difficulty in regaining control of Georgie. He stated he had not been warned by anyone on the beach about Georgie's behaviour and he maintained that Georgie's behaviour on the day of the incident was typical of off leash dog play and was not out of control.

1. Dr Balint-Smith, the defendant's wife, gave evidence that Georgie was acquired as an eight-week-old puppy from a family that they knew through their children's kindergarten. Georgie was exposed to children from a very early age, and the Balint-Smith family chose the Groodle breed as it is known for being safe around children.[37]
2. She confirmed Georgie attended a puppy socialisation program at Best Friends Pets in Mornington which involved four sessions with other puppies. Due to COVID restrictions, the owners were not present, but the dogs socialised together and the owners attended training via Zoom. Her daughter also took Georgie to the Mornington dog obedience school in Mount Martha. This was a large club and involved many dogs. The focus was on basic commands and socialisation.[38] After the incident, Dr Balint-Smith had taken Georgie to Sit Happens for private classes to address Georgie's barking and attention seeking behaviour.[39]
3. Both Dr Balint-Smith and her husband had had some prior experience training dogs, having previously owned a rescue dog that required significant training. They worked with Georgie on basic commands such as sit, stay, wait and come, as well as recall, using treats and consistent practice in their large garden.[40] Dr Balint-Smith's own observations confirmed that Georgie was a nervous and timid dog especially in new environments such as at the vet or the groomer. She was a gentle dog especially with children and small dogs and never observed to be aggressive or problematic. Dr Balint-Smith consistently found Georgie to be responsive to recall commands, especially 'treat', and Georgie always kept her owner in sight and returned promptly when called.[41]
4. Dr Balint-Smith would take Georgie to off leash parks and beaches where Georgie interacted happily with other dogs and people. Georgie stuck close to Dr Balint-Smith especially as a timid dog around unfamiliar or snappy dogs, and she was easily recalled. Dr Balint-Smith never observed Georgie to run erratically or uncontrollably. There were no prior incidents where she observed Georgie running into and knocking over anyone, nor did she have any concerns about Georgie's behaviour before the incident.[42]
5. Dr Balint-Smith recalled at least 2 to 3 occasions before the incident in which she and Georgie met the plaintiff at the beach. On the first occasion, the plaintiff encouraged them to unleash Georgie, which they did, and Georgie went off to play with Audrey.[43] The dogs played well together and there were no concerns expressed by the plaintiff. Dr Balint-Smith identified videos of Georgie playing at an off-leash beach with Michelle May's dog, Rocco, and described the behaviour depicted as typical of Georgie's behaviour.
6. In cross-examination, Dr Balint-Smith conceded that Georgie could run fast, especially when chasing a ball, but not in a way that was dangerous or uncontrolled around people. She reiterated that she had no concerns about Georgie's behaviour and no one had raised concerns with her prior to the incident. Even when Georgie was excited or had energy to burn, she never caused the defendant any concern prior to 15 April 2022.[44] She did not concede that running all over the place, dodging in and out people and running towards people was typical of Georgie's behaviour.

1. Ms Foster, a librarian and casual dog sitter, gave evidence about her experience caring for Georgie during June 2022 at her home in Coburg North, Melbourne. This is the first occasion that she dog sat for the defendant, and he had informed her of the incident with the plaintiff, in advance of her looking after Georgie.[45]
2. Whilst dog sitting, she took Georgie to various dog parks and undertook different activities with her. This was Georgie's first extended stay in the city. Ms Foster's evidence was that she let Georgie off leash in dog parks and described her as very good. She was the only dog Ms Foster allowed off leash, out of the many dogs she had cared for, as she was able to trust Georgie to come when called.[46]
3. Ms Foster described Georgie as a very happy dog who was very good with other dogs and was very gentle with children and small dogs. Georgie did a lot of running around, playing with other dogs, and her running was not any different from other dogs. Ms Foster's evidence was that Georgie was very easy to recall, never once had she experienced difficulty recalling her, and Georgie did not push boundaries.[47] She had no concerns about Georgie's behaviour or with her interactions with people or dogs during periods that she cared for her.
4. Ms Foster has looked after Georgie a few times, usually during school holidays when the family was away, and although Georgie usually stayed with her, there was one occasion when Ms Foster stayed at the defendant's house on the peninsula. On that occasion, Ms Foster took Georgie to the beach.[48]

1. Ms May is a landscape designer and long-time acquaintance of Dr Balint-Smith. They have known each other since their children attended preschool together and she gave evidence about her experiences with Georgie prior to the incident.
2. She first met Georgie in January 2022, when she went walking with Dr Balint-Smith and Georgie at Flinders dog beach. They attended this beach on three occasions, namely in January, February and March 2022.[49] On those occasions, Ms May had her own dog Rocco who was approximately eight months old, and the two women would meet at the dog beach, arriving separately. On all three walks, Ms May observed Georgie to be well-behaved and responsive to recall, especially when prompted with treats.[50] Her observations were that Georgie had a close bond with Dr Balint-Smith and was under good control. Georgie had played with Rocco, and they ran together playing in and around the water. Their interactions were typical of dog play with no issues or aggression displayed. She did not witness Georgie running uncontrollably or erratically or in any fashion. Nor did Ms May see Georgie running into anyone or behave in a way that would cause concern about her being at an off-leash space.[51]

1. Overall, I accept that the beach was a busy family friendly public beach with lots of people and dogs enjoying the warm and sunny holiday afternoon.

1. The plaintiff at the time of the incident was talking to Ms Morgan. The plaintiff was keeping an eye on Audrey, and when the defendant arrived, she was also keeping an eye on Georgie as the plaintiff regarded Georgie as completely out of control; not in a malicious way, but she would run very fast without any apparent awareness of her surroundings. Therefore, she was watching Georgie and taking care of her own safety.
2. The plaintiff gave evidence that she turned towards the defendant as she thought he had said something to her, and she responded along the lines of "pardon me?".[52] The defendant agreed in his evidence that he may have waived to the plaintiff and said "hello" from a distance.[53] At that point Georgie ran into the plaintiff's left leg at knee height. She described Georgie as fully impacting her.[54] Although Georgie did not attack her aggressively, the plaintiff nevertheless described her as rushing at her at enormous speed. She heard an almighty crack before she hit the ground. She was in quite a bit of pain on the ground. The defendant went to assist the plaintiff after the impact and help her up, but she asked him not to.[55] She felt sick and nauseous. Two friends of the plaintiff, Helen and Jim, were approaching the Rosebud end of the beach and came to her assistance, helping her to her car.

1. It was submitted on behalf of the plaintiff that the case relied on by the defendant, Jolly v Kondos[56], is distinguishable from the present case. Whilst there were similarities, there were significant differences in that Jolly involved a dog park not a public beach. His Honour Judge Purcell in Jolly may have accepted that "dogs will wrestle, scuffle, bark and play with other dogs and possibly even people" in dog parks,[57] but this was not appropriate behaviour for a public beach like McCrae. McCrae Beach is used by a wide range of people including families and children and is not a space where people should expect uncontrolled dog behaviour. The McCrae Beach whilst allowing off leash dogs, required dogs to be kept under effective control at all times, as stated on the signage and confirmed by the plaintiff and Mr Moore. The concept that "dogs can do what they like, and anyone present in the park is there at their own risk" was not the evidence or the expectation of dog behaviour at McCrae Beach.[58]
2. There was clear evidence that Georgie had a propensity to run in an uncontrolled manner, without regard for obstacles, and her behaviour had given reason for concern from a number of witnesses, namely the plaintiff and Mr Morgan on the day of the incident. The court also heard evidence from Mr Moore regarding Georgie's erratic behaviour on earlier occasions. It was this propensity to run in an uncontrolled manner that was the cause of the injury to the plaintiff. On the day of the incident, Georgie's behaviour was dangerous and out of control, as observed by Mr Morgan. The defendant had failed to exercise control because he did not perceive the risk or had been unable to do so. Whether or not the defendant had the capacity to control Georgie was not the issue, rather, the key issue was that he failed to do so when Georgie's behaviour was hazardous and likely to cause injury. Mr Moore's evidence of the conversation he had with the defendant, wherein the defendant acknowledged Georgie was uncontrollable, demonstrated the defendant's knowledge of the risk. The plaintiff also referred to the further decision of his Honour Judge Clark in Zycher v Pergl which emphasised the duty to exercise reasonable care and prevent foreseeable injury and submitted that this was the applicable standard.[59]

1. The defendant submitted that the plaintiff has failed to satisfy her burden notwithstanding previous incidents reported by lay witnesses and none of those previous incidents rose to the level required for a finding that Georgie was out of control. He further submitted that on the evidence, Georgie was a timid dog, good-natured, not out of control or uncontrollable, she had not exhibited past instances of being out of control or uncontrollable, that she was responsive to commands, well-trained, and socialised, including at puppy obedience school and she had very responsible dog owners. The defendant's ultimate submission was that negligence was not made out, and he drew a detailed analogy to the case of Jolly which involved similar facts, namely, a dog colliding with a person in an off-leash dog area. The defendant submitted that even more significant prior incidents in that case were found insufficient to establish negligence. He submitted that as in Jolly, the evidence did not show that the defendant knew or ought to have known Georgie posed a risk of this type of harm.
2. His core submission was that the defendant gave clear reliable evidence about the incident and the plaintiff's case was undermined by inconsistencies and unreliable witness recollections.
3. The defendant pointed to what he labelled internal inconsistencies in the plaintiff's evidence regarding how long Georgie had been present at the beach and what she was doing before the incident. He contrasted the plaintiff's account with that of the witnesses, Mr and Ms Morgan, and their differing recollections about the duration and nature of Georgie's activity before the collision. He submitted that the plaintiff, along with Mr and Ms Morgan, gave conflicting and vague accounts, in contrast with the defendant's clear, detailed and consistent evidence of what Georgie was doing the entire time he was watching her.
4. It was the defendant's submission that the incident was a sudden and unpredictable event, not preceded by any behaviour from Georgie that would have alerted a reasonable owner to a risk. There was no evidence he submitted of Georgie being out of control in the moments before the collision, and the defendant had her under effective control, as demonstrated by his ability to recall her immediately following the incident. The evidence about Georgie's prior behaviours, at its highest, did not amount to knowledge of a tendency to cause harm. Moreover, neither Mr Moore nor the plaintiff had ever said to the defendant that Georgie was out of control. In addition, the prior incidents alleged were minor and not predictive of the harm that occurred. The law did not require perfection from dog owners in off leash areas, only reasonable care and control. The defendant exercised such care and control.

1. Ultimately, the decisions of Jolly and Zycher are confined to their facts. What I am required to decide in this case is whether the defendant exercised reasonable care in his management and control of Georgie to ensure that Georgie did not cause the plaintiff a reasonably foreseeable injury.
2. I find that the defendant failed to exercise such reasonable care.
3. I do not accept the defendant's submission that the only reliable account of the incident is the defendant's account. Minor inconsistencies between witnesses are normal and expected and, in my view, there was consistent and supportive evidence on key issues led by the plaintiff. The plaintiff's evidence in relation to how long she was at the beach differed from that of Ms Morgan, as did Mr Morgan's evidence as to where he thought the plaintiff and Ms Morgan were located on the beach at the time of the incident, but they are not critical issues. It is understandable that they may not have clear recollections of peripheral matters. The plaintiff and Ms Morgan were immersed in their conversation and Mr Morgan was sitting and reading on the beach. It is entirely understandable that they may not remember accurately how long they were on the beach and in Mr Morgan's case, where precisely the plaintiff and Ms Morgan were positioned on the beach. Their evidence of the behaviour of Georgie however was clear.
4. I also do not consider that the plaintiff's evidence in relation to Georgie's precise movements immediately before the incident is inconsistent with that of the defendant's. The plaintiff accepted that Georgie may have been running with other dogs at some point before the incident but was adamant that she was not at the time of impact when Georgie struck her with considerable force as she was running at speed and "fully impacted" with her. The defendant's evidence in cross examination was that Georgie's attention immediately before impact was on her running ahead to meet up with other dogs. "Her attention was in running forward. Her attention was on the dogs".[60] At the moment before impact, the defendant's evidence confirms that Georgie was not running in rings but was running forward. He also accepted at that point she was running a little faster.
5. Ms Morgan also saw Georgie at the corner of her eye hurtling towards and hitting the plaintiff on her left leg. Mr Morgan said that Georgie was not focused on the plaintiff when she was running and she kept on going after the collision. I find that Georgie was not doing laps or running in an orbit around the plaintiff and Ms Morgan immediately before the incident. She may have been running laps with other dogs, including perhaps Audrey leading up to the incident, but the incident was caused as a result of Georgie's focus and attention, being on running at speed to meet up with other dogs. I also have the evidence of the defendant who described Georgie as "running forward" which is consistent with the plaintiff and other witnesses. It is likely, in my view, that Georgie was running at high speed, not conscious of her surroundings including people at the beach, and it was entirely foreseeable that if she was not called to heel, she would likely strike someone.
6. I also note the following:

(a) The evidence of the plaintiff and Mr Morgan consistently described Georgie as running rapidly up and down the beach, in an uncontrolled way and moving in a wild and erratic manner. Mr Morgan, who I would describe as an independent witness, made the prescient observation that "that dog is going to knock someone over".[61] The suggestion made by the defendant in his evidence that Mr Morgan may have been observing a different dog was not put to the plaintiff at any time during cross examination and I do not accept that he may have been referring to a different dog. Moreover, it would have been a remarkable coincidence if there were more than one dog, running up and down the beach at around the time of the incident.

(b) There was evidence from Dr Balint-Smith that Georgie was a fast runner and a young dog, and she did not dispute that Georgie "certainly ran around with other dogs".[62] She also had observed Georgie "run really fast at full pelt" in circumstances where Georgie was running after a ball.[63] Ms Foster said Georgie could be full of energy and liked running but not more than any other dog. Ms May had observed Georgie running with Rocco and playing at the water's edge as they both liked the water albeit in a different location and environment.

(c) Georgie's behaviour was observed over a period of minutes, not seconds. The defendant's evidence was that Georgie was playing around the plaintiff "but I was very close to them and Georgie as part of her circuit, would regularly come around within my orbit as well".[64] This was taking place whilst he gradually moved closer to them as the dogs played. This confirms that Georgie was running along the beach and around people on the beach. This afforded the defendant time to make the observations in relation to her behaviour and foresee that Georgie running orbits in very close proximity to the plaintiff and Ms Morgan, was likely to cause someone injury, if she were to strike one of them while she was running at speed.

(d) I agree with the plaintiff's submission that the defendant and his wife attempted to portray Georgie in the best light and viewed her behaviour with rose coloured glasses. For instance, the defendant's evidence was that Georgie:[65]

"The idea that this was training her to act in a way that's oblivious of other people I question. I've had experiences of Georgie being highly aware, when she's getting a ball, of what's around her, such, we'll say, coordination and physical skill that I've made jokes that she could field for the Australian Test team because she is able to pick up the ball but also, you know, stop short of something and - yes. So the idea that simply being focused on a ball trains a dog to ignore everything else I would question."

The fanciful suggestion that she may field for the Australian test team is clearly an insight as to how the defendant perceives Georgie's talents and behaviours. Although they described Georgie as friendly, loving, great with children and responsive to their commands, they were understandably adoring dog owners who could not find fault with her. Mr Moore gave convincing and credible evidence in relation to his encounter with the defendant and Georgie, which clearly contradicted the picture the Balint-Smith's painted of Georgie's behaviour. I would regard the Balint-Smith's descriptions as understandable given their love and bias towards Georgie. However, Mr Moore's recollections were clear that Georgie had been running rampant on the beach and not under any control when he had encountered her. I also accept his evidence that he remembers Georgie, because when he first met her, she jumped up on him fairly firmly. This event is likely to have been significant to him and therefore it stuck in his memory. I accept his evidence. He also noted that the defendant would call Georgie, but she would just keep going and that the defendant had no control of her. He specifically recalled the conversation he had with the defendant when the defendant told him he would no longer bring Georgie to the beach because he was amazed at the defendant subsequently bringing Georgie to the beach on a busy day. For that reason, the conversation had stuck with him.[66]

1. I accept that it was likely that the encounter Georgie had with Mr Moore was as described by Mr Moore. Again, he is an independent witness and only an acquaintance of the plaintiff with no interest in the outcome of the litigation and he struck me as a truthful witness.
2. I place significant weight on Mr Morgan's evidence. He gave evidence based on what he observed and made a comment spontaneously and in real-time about what would happen if Georgie was left to behave in the manner she was and not controlled. His evidence struck me as truthful and authentic. He made appropriate concessions in relation to the possibility that he was mistaken about where the plaintiff and his wife were standing on the beach and that his memory may have been impacted with the passage of time. This only enhances credibility. He was however adamant about his observations of Georgie and of the description of her behaviour. It is not surprising he had a clear recall of this given the impression Georgie's behaviour had on him, causing him to vocalise his concerns. He predicted the exact harm suffered by the plaintiff. I consider that this supports a finding that the risk was objectively foreseeable and not just with the benefit of hindsight. It supports a finding that a reasonable person could recognise the risk of injury to the plaintiff at the time of the incident. The defendant ought to have brought Georgie to heel or placed her in a harness at the point when he first saw her commence running orbits in such close proximity to the plaintiff. He should not have permitted this behaviour to continue for some minutes.
3. I accept that the defendant gave truthful evidence and that he and his family adore Georgie. Although very reluctantly, he ultimately acknowledged that he could have foreseen that Georgie could have behaved in a manner that caused the plaintiff injury. This is apparent from the following evidence which he gave in a very deliberate and controlled manner, which I put down to his reluctance to make the concession:[67]

A: I would acknowledge that there was a risk, in hindsight, given that the dogs were circling around Glenda and Michelle in particular, in the context of Michelle and Glenda - well, Glenda particularly because I heard her testimony and she admitted to not watching the dogs at all - and Michelle, from my observation - I haven't heard her testimony - I would say from paying minimal attention to the dogs because she was in conversation with Glenda. > > Q: There's a few things there. You've said in hindsight there was a risk. That risk would have been visible at the time, before Georgie collided with Michelle? > > A: Well, I'd question that in the context that when I arrived, there were two dogs already playing around Michelle and Glenda and Georgie having already played twice with Audrey on other occasions, or at least twice, on those occasions Michelle was very vigilant, let's say. Most of her attention was on the dogs at the time of those - at those plays. So to answer your question, in this context - and I don't know Glenda and I assume that the other dog playing with Audrey was Glenda's dog. I don't know whose - - -

1. Georgie was a big dog weighing 25 kg and she ran fast. Based on the evidence of independent witnesses, which evidence I accept, she had a history of erratic and uncontrolled behaviour both before the incident and on the day of the incident. The defendant, in permitting Georgie to continue to run orbits or rings around the plaintiff and Ms Morgan in such close proximity to the plaintiff for some minutes, breached his duty to have Georgie under effective control at the beach. I find that he breached his duty to manage and control Georgie and the breach caused injury to the plaintiff.

1. The incident involving Georgie has had a profound and lasting impact on the plaintiff. She felt the immediate physical effects, namely an "almighty crack" and pain causing her to fall face first into the sand.[68] The force of the impact caused a fracture to the left tibial plateau which necessitated an inpatient stay at the Beleura Private Hospital until 29 April 2022. She wore a hinged knee brace upon discharge and was unable to weight bear for six weeks. She was on significant painkillers and also required the use of a wheelchair for the first three weeks post discharge.[69] Her injury was compounded with the subsequent development of a deep vein thrombosis.
2. After the injury, the plaintiff had difficulties performing her usual household tasks such as moving firewood, shopping, and taking her bins out. She required assistance from friends, as well as having had paid help. Even when she had shopping delivered, she still needed assistance from friends to carry her shopping into the house.[70] She was unable to walk her own dog for an extended period and had to pay a dog walker. She used to have a tonne of wood delivered to her driveway or service road adjacent to the house which she was able to manually carry and stack into the wood box on the side of her property.[71] She was unable to do this following the incident. She was unable to drive for six weeks.[72]
3. She had to move house because her rented property in Mount Martha was inaccessible and unsuitable for her after her injury. It was on a steep block with a difficult approach that included a steep set of stairs and a sloped driveway.[73] Following her injury, she had difficulty managing the stairs or the slope when she was on crutches. She found it difficult to carry her groceries, moving her firewood or taking out the bins without significant help. Because of these difficulties, it was impractical for her to remain there, so she relocated to a flat, single level property in Rye, more suited to her physical restrictions in September 2022.[74]
4. Because of ongoing symptoms of instability and pain, she underwent a total knee replacement on 19 December 2022.[75] Following discharge from hospital in January 2023, she started outpatient rehabilitation. Although the total knee replacement is regarded as stable, she has been left with stiffness.
5. The plaintiff has been left with a visible, unsightly and obvious scar on her left leg which I viewed, that extends from just above the knee down to her calf.
6. Unsurprisingly, the medical opinions in relation to the plaintiff's condition are largely consistent.

1. The plaintiff was assessed by Dr Sheard for medicolegal purposes on 22 June 2023. She reported pain at that stage all over her left knee, present all the time, worse with walking and an ability to only walk for approximately 300 metres with a crutch before needing rest. She found it difficult to walk on soft surfaces such as sand, climbing stairs made her pain worse and she experienced swelling and throbbing. She also reported the knee giving way twice a week and with no warning and that was why she used a crutch for stability. She also described two episodes of locking since the injury.[76]
2. She returned to care work in February 2023 on reduced hours and found the job more difficult particularly with walking. At the time of examination, she was unable to kneel, squat, had difficulty cleaning and was unable to retrieve items from floor level.[77] She found it hard to bring in wood, used a trolley for balance when shopping and did smaller shops, and she would break up lawnmowing into a number of sections.[78] She was able to wash, shower and dress. In terms of her hobbies, her gardening was markedly reduced, and she found it hard to pull weeds as this caused her pain. She used to walk her dog regularly but had reduced the number of walks and the length and she was unable to hold onto a lead without fear of being pulled over.[79] The knee stiffened after about 20 minutes of not using it causing difficulty driving, sitting, reading and watching films.
3. Dr Sheard diagnosed a left lateral tibial plateau fracture with depression, initially treated non-operatively, then by total knee replacement, with a poor to fair result. As a result of her injuries, she required significant times off work, and upon return to her NDIS work, her hours and ability had decreased.[80] In terms of future treatment in his opinion, she would require further occasional physiotherapy and pain killers. He did not consider surgery indicated at that stage.

1. Mr Brad Crick, in his report dated 17 December 2024 detailed the plaintiff's history of her condition and the treatment and surgery he performed. He confirmed the plaintiff underwent the total knee replacement on 19 December 2022 and the surgery went well without any post-operative complications.
2. On review, Mr Crick noted steady progress, but by 28 March 2023, she was still reporting a stiff knee. When he last reviewed her on 23 January 2024, he noted that the plaintiff was ambulating with a slightly stiff knee gait, but from his point of view the knee replacement was functioning as expected.[81] The knee replacement surgery had left her with a stable knee, but with residual stiffness. X-Rays taken on that day showed that she was also "developing a mild patella baja",[82] and it had not returned to its premorbid level of function. This had impacted upon her daily activities as a casual relief teacher. The level of stiffness within the knee had stabilised and any limitations that she was experiencing in performing daily activities were likely to be permanent.
3. Mr Crick was happy for the plaintiff to undertake any form of employment that she could comfortably manage. Her condition had stabilised and he was content for her to undertake work within her known limitations in relation to duration of standing and level of physical exertion.[83] The restrictions also impacted on her ability to engage in recreational activity. He was hopeful the knee replacement would last the plaintiff's lifetime but noted in reality, patients in the plaintiff's age group had approximately a 10% chance of needing revision of the prosthesis due to component wear or other complications.[84]

1. Dr Barton examined the plaintiff on behalf of the defendant on 8 August 2024. The plaintiff complained to him that she experienced pain 24/7, had trouble walking more than half a kilometre and that she had previously been able to walk up to 5 kilometres a day. She could no longer squat or kneel and had trouble with steps and stairs. Her walking tolerance was about 10 minutes before needing to sit down.[85]
2. She had undergone physiotherapy as part of a care plan which she found helpful, and she also undertook home exercises. The medication was Tapentadol 100mg SR one or two per day. She used an elbow crutch particularly in unfamiliar areas and when walking on sand.[86] Dr Barton noted that she had returned to casual relief teaching following the injury and had struggled to stand during the lessons and felt vulnerable in the playground. Because of these difficulties she stopped work. She continued the NDIS work but did not consider she could resume casual relief teaching.[87]
3. Dr Barton drew on his significant experience as an occupational physician and noted that he had visited a number of special schools in the previous 20 years to review return to work programs for people with serious injuries. He acknowledged that the children in the schools are potentially difficult to deal with and would accept the plaintiff's concerns regarding her ability to undertake the work.[88] In his opinion, her NDIS work seemed much more appropriate, working one-on-one with children and adults. Moreover, she had reported being able to cope with working up to 30 hours of this work depending on the individual client needs and programs she is required to meet. In his opinion, the plaintiff's reported symptoms and physical restrictions were consistent with his diagnosis of persistent dysfunction of the left knee following surgical treatment with a total knee replacement.[89]

1. The plaintiff was enjoying an idyllic independent lifestyle with an extensive social life before the injury. She gave evidence that she loved to travel and had travelled extensively in the past overseas. She hasn't travelled since the injury and did not believe she could engage in the type of travel that she used to enjoy. The injury had impacted her ability to travel long distances, to exercise and ride her bike, her sleep has been affected, she requires ongoing medication to control the pain, and she had been left with a permanent partial disability in relation to the type of work she can perform, which is confirmed by Dr Barton. In all the circumstances, given the impact the injury has had on her functioning, her ability to socialise, travel and work, I assess her pain and suffering damages in the sum of $250,000.

1. The plaintiff's past medical expenses, surgical expenses, moving costs and private health costs were agreed in the sum of $60,000.[90]

1. The parties also agreed the present cost of a total knee replacement is $25,000. The plaintiff submitted that she will require this surgery in approximately 12 years. Using the deferral tables the plaintiff estimated that the present cost of a total knee replacement is $13,925.
2. The plaintiff's evidence was that she attends her general practitioner and has medication expenses of approximately $100 per month.[91] The likely future cost of medical treatment over her lifetime claimed was calculated as $31,681.
3. I accept the plaintiff's evidence in relation to the need for both past and future medical expenses. I also accept that based on the evidence of both Mr Crick and Dr Barton that she may require a second knee replacement operation in the future; I therefore allow the present value of the total knee replacement.

1. The plaintiff confirmed that her earnings for the years before and after the incident were as follows:[92]

1. The plaintiff's explanation for her higher earnings in the financial year 2017-2018 was that she withdrew from her superannuation to fund a house renovation. In the 2018-2019 financial year, she again accessed superannuation to pay for a holiday. The holiday also explained her reduced earnings from casual relief teaching in that financial year. In the financial year 2019-2020, her earnings from casual relief teaching were down due to COVID, as they were in 2020-2021. In the 2021-2022 financial year, she commenced the NDIS work in October 2021. The pay rates for NDIS work ranged from $70 per hour on weekdays to $130 per hour on Sundays. Public holidays were remunerated at $150 per hour. In addition, she was able to charge for mileage.[93]
2. The plaintiff submitted that she suffered an ongoing incapacity for work that she was able to perform before the incident. She plainly enjoyed and loved working in the school as a casual relief teacher. She was no longer able to undertake this work, and this is confirmed by Dr Barton. The plaintiff acknowledged that her employment history immediately before the incident was affected by COVID, and therefore, she commenced a second job performing NDIS work, shortly before the incident, and this made a precise calculation of economic loss difficult. Her senior counsel submitted that a global assessment was appropriate given the plaintiff's intentions and her evidence that she was likely to work beyond retirement age, her enjoyment of and commitment to her work and her demonstrated willingness to increase her work hours. A global figure was put on a Farlow[94] basis of a range between $75,000 and $100,000 with an emphasis on the higher end. The defendant submitted that the plaintiff's income before injury was highly variable due to the nature of casual relief teaching and the plaintiff acknowledged that her earnings fluctuated significantly from year to year. In contrast, her current NDIS support care work was more stable and predictable employment without the same variations previously experienced.
3. It was further submitted that the Court should have regard to her historically inconsistent earnings, even before COVID, and her retained capacity to work in NDIS employment which the plaintiff conceded could potentially increase. The defendant submitted that there ought not be an award for future economic loss.
4. Although it is difficult to assess the plaintiff's loss of earnings, her earning capacity has unquestionably been reduced and I do not accept that she is not entitled to an award for loss of earnings or impaired earning capacity. I accept her evidence that following COVID, she was keen to make up for lost time and increase her earnings which led her to supplement her casual relief teaching with NDIS support care work. The expert occupational physician evidence is that she cannot return to the specialist relief casual teaching. I also accept that there are some limitations on the type of NDIS support care work she can perform and she must choose her clients carefully. I accept that the plaintiff has suffered an ongoing impaired capacity to work. This is confirmed by Dr Barton. She no longer has the flexibility to undertake the casual relief teaching in addition to the NDIS work. I accept the plaintiff's stated intention that she was likely to continue working indefinitely. Taking a global approach and allowing $200 per week and using the multiplier for a 64-year-old to age 70 of 271.4, I calculate her future loss of earnings as $54,280. I would reduce this figure by 10% to $48,852 to take into account the vicissitudes. Given the plaintiff's age and the period involved is limited, this warrants a smaller reduction for vicissitudes than the usual 15%. I have calculated the future loss to age 70 as this is a realistic retirement age in the plaintiff's circumstances. I have allowed the amount of $200 net per week on the basis that the plaintiff can only work about 30 hours of work per week representing a reduction in approximately 25% of her normal hours.
5. In relation to the past loss of earnings, there were periods of total loss when the plaintiff was recuperating from the injury and surgery. Nevertheless, as the plaintiff approached the assessment of economic loss on a global basis, I will also approach my calculation for past loss in a similar manner. The period between the plaintiff's date of injury to the date of trial is approximately 152 weeks. Allowing $200 for loss of earning capacity for that period totals $30,400.
6. Therefore, I calculate the plaintiff's past and future loss of earnings in all the circumstances in the amount of $79,252.

1. The plaintiff's calculations for past gratuitous care totalled $15,779. This was calculated as follows:

(a) six weeks after discharge from hospital at 15 hours per week = 90 hours

(b) the following 16 weeks to September 2022 approximately 8 to 10 hours per week = 144 hours

(c) 10 weeks post the total knee replacement, approximately 10 hours per week = 100 hours.

A total of 334 hours at a rate of $45.87 = $15,779.

1. The plaintiff gave evidence that she paid for assistance from April 2022 to September 2022 between $350-$500 per week (including dog walking, and wood stacking). In the plaintiff's amended particulars of special damages, she claimed $300 per week, for a period of 20 weeks totalling $6,000. Although the plaintiff gave evidence that she had paid for assistance at a slightly higher rate, I prefer the figures contained in her amended particulars of special damages as I expect these particulars were prepared on instructions and in a considered manner rather than the plaintiff attempting to estimate the amounts whilst giving evidence.
2. In relation to past lawnmowing the plaintiff claims $950.
3. The plaintiff seeks future assistance, in the form of ongoing lawnmowing costing $90 per session and 20 times per year. She claims the value of such services at approximately $7.50 per week for a period of 10 years. The multiplier is 412.9 and she claims $3,097.
4. She also seeks additional assistance of $50 per week on the basis that she may require this in the future. Based on the multiplier of 412.9, this totals $20,645.
5. I allow the plaintiff's claim for past gratuitous care in the amounts of $15,779, $6,000 and $950 totalling $22,729. The evidence confirmed that she required the care, and I accept that she has established that she is entitled to such damages.
6. In relation to future gratuitous care, I also accept that she is likely to require the services of lawnmowing as she is unable to undertake this herself. I allow $3,097 for future lawnmowing. Given the significant restrictions that she has been left with, I accept her evidence that she will need additional assistance in the order of $50 per week. It is a modest claim particularly given she lives alone and must manage on her own. I allow $20,645.

1. For the reasons outlined in this judgment, I find the plaintiff sustained injury because of the breach occasioned by the defendant. I assess her total damages in the sum of $481,329.
2. I will hear argument with respect to costs.

[56] [2021] VCC 1397 ('Jolly')

[59] [2022] VCC 1801 ('Zycher')

[94] Victorian Stevedoring Pty Ltd v Farlow [1963] VicRp 80; [1963] VR 594

[95] [1977] HCA 45; (1977) 139 CLR 161