Saad v Fares

Background

1. Fadi and Donna owned and occupied premises at Punchbowl in south-western Sydney. Their sister, Caroline, lived with them and at all times was the owner of three dogs described as Bull Terriers (Staffordshire) breed, named Cosmo, Nigz and Fred. Fred was apparently also known as Boof. Each of those three dogs had, prior to 27 March 2010, been declared "dangerous", in accordance with s 34 of the Companion Animals Act 1998 (NSW) (the Act).
2. Six members of the Fares family visited the Saad residence on the afternoon of 27 March 2010. Jisele claimed that she was set upon and bitten by some or all of Caroline's dogs in the backyard. Her children (who were aged between 11 and 17 at the time of the trial almost four years later) claimed that they saw the attack and its immediate aftermath. Jisele's husband was in the front of the house at the time, and did not see the attack itself. There was no dispute that Jisele's injuries were serious. They were to her chin and neck, her left forearm and her left thigh. She required reconstructive surgery, and was in hospital for several days.
3. In 2012, Jisele sued Caroline as owner of the dogs, and each of Caroline, Fadi and Donna in negligence. The pleadings were less than precisely drawn. However, they were regarded by the primary judge (this was not subject to any complaint on appeal) as amounting to a claim under s 25 of the Act and in negligence. The Act imposes liability upon the owner of a dog in respect of "bodily injury to a person caused by the dog wounding or attacking that person": s 25(1). Section 25(2) excludes liability where the attack by a dog occurs on property of which the owner of the dog is an occupier or on which the dog is ordinarily kept. However, that exclusion applies only if "the person attacked was not lawfully on the property … and the dog was not a dangerous dog …". Because Cosmo, Nigz and Fred were dangerous dogs, there could be no doubt that s 25(1) applied. Thus, Caroline's liability did not depend on any breach of duty by her: Simon v Condran [2013] NSWCA 388; 85 NSWLR 768 at [28].
4. The primary judge treated the claim against Donna and Fadi, who owned the Punchbowl property, as governed by ss 5B-5E of the Civil Liability Act 2002 (NSW). Neither the pleading nor its particulars distinguished between Donna (who was present at the time Jisele was injured) and Fadi (who was not).
5. Four of the other five members of the Fares family also sued Caroline, Fadi and Donna, in four separate proceedings, seeking damages for nervous shock.
6. In light of the issues raised on appeal, a highly abbreviated summary of the trial, which occupied three days, may be given. The plaintiffs' case was that the dogs, including Cosmo, attacked Jisele when she went into the backyard. Although there were some minor discrepancies in the detail, Jisele, Monica, Justine, James and Raychel each gave evidence, to which they adhered in cross-examination, that they saw the dogs attacking Jisele, and heard Caroline say "no, Cosmo". Their evidence was that Caroline grabbed hold of the dog and pulled it away from Jisele.
7. Each of Caroline, Fadi, Donna and their mother Antoinette Saad gave evidence. So too did Ms Skye McLeish, who was a friend of the family, who had been living at the Punchbowl property for some eight years beforehand and who said she was present on 27 March 2010. Mr El Samad also gave evidence. He had been released from prison on 24 March 2010, and was in prison at the time he gave evidence in February 2014.
8. Mr El Samad was a friend of another of Antoinette's sons. He said that the Saads had given him a dog, known as Tyson, which had been looked after by his girlfriend while he was in prison. Tyson was said to have been taken from Cosmo's litter. He said the dog had "never done anything the whole time I've had him".
9. Mr El Samad gave evidence that he had a good recollection of the events of 27 March 2010, because it was three days after his release from prison. He was cross-examined about this: "Q: How do you remember it was 27 March 2010? A: Because I remember it was three days after I got out and because I remember - because I took a photo then and that - when I got out, my girlfriend, she's the one that made the photo and everything. She's the one that looked after the dog and, yes, I remember it. Q: What photo are you talking about, sorry? A: Photo of my dog. I was going to give it to them as a present for them giving me the dog. Q: So you were going to take a photo to the Saads. A: Yes, and to show them how good the dog was doing because they - Ash made me promise that I would look after it, that I would take good care of the dog." A call was made for the photograph. No document was produced.
10. Mr El Samad said that he saw only one dog, Tyson, attack Jisele. He said that he had no photograph, nor any other proof that Tyson existed: "Q. So no photo, no registration, no microchip? A. No." He also said that he had never taken Tyson to a vet.
11. Each of Antoinette, Donna and Caroline gave evidence that it was Tyson, and Tyson alone, which attacked Jisele on 27 March 2010. Antoinette said: "A. Yes, well she scream and dog come and bit her, so I don't - Q. Which dog? A. A friend. My son's friend dog. Wasim. His name Wasim."
12. Donna said, "I was right next to [Jisele]" when the attack happened. She said: "Q. Which dog was that? A. It was Omar's dog, Tyson. He attacked her. It probably went on for a few seconds, maybe five seconds. I'm not sure. It just happened so quick."
13. Caroline said that Omar's dog began to jump on Jisele and attack her, that she tried to help but her mother got in the way, and that Omar then put Tyson on his lead and "he just left".
14. Ms McLeish said that she personally let Mr El Samad in through the garage door although she did not see the attack itself. Fadi gave evidence that he was working at the time of the attack.
15. It was put squarely to each of the defence witnesses that they were lying.

The judgments of the primary judge

1. The primary judge reserved judgment and delivered five judgments on (apparently) 24 June 2014 - the copies included in the red books were not certified nor were the orders apparently made on that date reproduced. The principal judgment was in the proceeding brought by Jisele. After summarising the nature of the case and identifying s 25 of the Act and relevant provisions of the Civil Liability Act, his Honour reproduced, over 10 pages of the judgment between [17] and [39], extracts of the evidence given at trial. Most of the evidence summarised was that of the plaintiffs. On the following page, at [40]-[43], his Honour recorded the submissions made by the parties. Three of those four paragraphs recorded submissions made by the plaintiffs. They included submissions that the nature of the wounds was inconsistent with a single dog attacking Jisele, that Caroline and Donna's evidence was inconsistent, that they were evasive when they gave evidence, and that Mr El Samad and Ms McLeish were untruthful.
2. His Honour then made the following "findings of fact", at [44]-[49] (emphasis added): "44. I find the following facts established on the balance of probabilities. 45. I find that the plaintiff, her four children and her husband attended the premises of the Saad family at Punchbowl to see Antoinette and pay their respects. I find Donna greeted them at the door and opened the front door. I find that the plaintiff walked down the corridor, as shown in the diagram (exhibit 4), to the back door because she had been told by Donna that Antoinette was outside with Caroline. I find that she opened the door, went out onto the verandah and then was attacked and bitten by two dogs. I find that one of these dogs was larger than the other and it was the larger of the two that attacked her face while the other attacked her lower body. I find that more likely than not these two dogs belong to Caroline and were not in a cage at the time the plaintiff went outside the door. I reject the evidence of Omar that he was present. I am satisfied that the evidence of the Saad family, Sky and Omar has been invented for the purpose of avoiding liability. 46. Accordingly, in summary, I find that two dogs attacked the plaintiff and caused her injuries. I am satisfied that the two dogs belong to Caroline. I am satisfied that they were untethered in the backyard. I am satisfied that Donna and Caroline did not tell the plaintiff not to go out the back and indeed told her that is where Antoinette was to be found. I accept the evidence of Justine, James, Raychel [and] Monica about their recollection that they heard Caroline address Cosmo. I am satisfied that one of the dogs was Cosmo, probably the larger dog, that this dog attacked the face of the plaintiff and was eventually called off by the owner Caroline. I reject the contention that Omar was present and was responsible for removing the dog after it had attacked the plaintiff. I also reject the allegation made by the defendant that Omar helped to remove the dog from the plaintiff after the attack. The plaintiff and her children never saw Omar on the day and when Omar gave evidence the plaintiff said that she had never seen him before. 47. When Donna spoke to the Council Ranger soon after the accident she said that Omar was present with his two dogs when the attack occurred. This was different to the evidence the Saad family gave at trial when they said the plaintiff was only attacked by one dog they identified as Tyson. I am satisfied that Donna told the Council Ranger that Omar had two dogs because she well knew that two dogs had attacked the plaintiff. I find the reason she was not able to give the ranger details of Omar is because he was never there on the day of the attack. I am satisfied that Omar (who gave evidence) was never at the house on the day of the attack and had been enlisted by the Saad family to give evidence he was there as a favour to their son, Ashley. In addition, Donna did not say to the ranger that Skye McLeish was present and despite the fact that Skye was there when Donna spoke to the ranger she apparently never corrected this omission. I reject Skye's evidence that she was present on the day of the attack. The plaintiff and her children did not see her there and I come to the conclusion that she fabricated her evidence to assist Caroline, Donna and Fadi Saad, to whom she owed a substantial obligation. I should note that although the plaintiff and her children knew Skye they did not see her there on the day. 48. In the light of these findings I am satisfied on the balance of probabilities the dogs that attacked the plaintiff were owned by Caroline and that as a result she is liable in damages pursuant to section 25 of the Companion Animals Act for the injuries and disabilities caused to the plaintiff. 49. [Fadi] was not at home when the attack occurred. Donna was home. She saw a dog in the backyard. She said that she believed this was the dog owned by Omar. She said that she warned the plaintiff a dog was loose in the yard and not to go outside. I reject this evidence."
3. Nowhere else in any of the judgments was there any explanation given by the primary judge for the rejection of the evidence of all of the witnesses called by the defence. Nor did his Honour adopt any or all of the plaintiffs' submissions.
4. His Honour proceeded to determine Jisele's damages in the principal judgment, and awarded damages in favour of the other respondents in four additional judgments.

The obligation to give reasons

1. The principal ground of appeal which was advanced orally was that the primary judge had failed to give adequate reasons for the positive findings that "the evidence of the Saad family, Skye and Omar has been invented for the purpose of avoiding liability" and that Ms McLeish had "fabricated her evidence to assist Caroline, Donna and Fadi Saad, to whom she owed a substantial obligation".
2. Plainly enough, the findings made by his Honour went beyond a mere rejection of the evidence of the witnesses called by the defendants. They were positive findings that they had perjured themselves for the purpose of assisting Caroline, Fadi and Donna to avoid liability. The findings applied to each of the defendants, and to each of the witnesses called by the defendants.
3. It was necessary for the primary judge to give reasons for those findings. In some cases, very little by way of reasons is required. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 McHugh JA said: "Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary 'for him to go further and say, for example, that the reason was based on demeanour': Connell v Auckland City Council [1977] 1 NZLR 630 at 632-633 per Chilwell J."
4. But Soulemezis concerned the sufficiency of the reasons of a judge of the Compensation Court in circumstances in which an appeal was confined to a question of law or in relation to the admission or rejection of evidence. As was made clear in Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at [12], it is important that the passage in Soulemezis not be applied unthinkingly in a different context. Following a trial in the District Court, the disappointed litigant is given a right of appeal, by way of rehearing, and not confined to questions of law.
5. There is, at least on one view, a tension between the statement in Soulemezis reproduced above, and later decisions dealing with the obligation to give reasons, including Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [29]. Those decisions were considered by this Court in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [47]-[58]. It is not necessary for present purposes to consider the precise content of the obligation, or to explore the tension in the authorities.
6. It is not necessary to do so because Heydon, Crennan and Bell JJ dealt with a similar issue in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361. They said at [67] in relation to party-witnesses such as Caroline, Fadi and Donna: "It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party's claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party‑witness must have been given an opportunity to deal with the criticism."
7. The present case is even stronger: it is not that the party-witnesses were found to have deliberately withheld evidence, but that, according to his Honour, they fabricated false evidence. Although, at least in large measure, the witnesses were squarely confronted with the proposition that they were lying, this is a case, like Kuhl, where no reasons at all were given for the view formed by the primary judge.
8. It was important for the people subjected to the very serious findings made by the primary judge to know why his Honour had regarded their evidence to have been fabricated. In part, those findings may have reflected the witnesses' demeanours. In part, they may have reflected the intrinsic unlikelihood that a friend of the family, recently released from prison, was present with his dog which had apparently been returned to him three days earlier, and the existence of which was seemingly uncorroborated by any documentary evidence. In part, the findings may have been affected by the evaluation of the testimony of the plaintiffs, and a consideration of the nature of the wounds suffered by Jisele. They may easily have been informed by a combination of these and other matters. The men and women who have been subject to the adverse findings are entitled to know why the primary judge reached them, not least so that they can contend, in an appeal by way of rehearing, that they should not have been made.
9. What is more, the findings were made on a wholesale basis. They applied to "the evidence of the Saad family". No distinction was made between the different quality of the evidence given by Fadi (who could provide only limited corroboration, since he was absent) as opposed to Donna, Caroline and Antoinette.
10. Further, there is nothing to explain why positive findings of fabrication, as opposed to a rejection of the evidence, were made. Section 140(2)(c) of the Evidence Act 1995 (NSW) applied, although it was not mentioned by his Honour, nor is there anything to suggest that he attended to the Briginshaw requirement of clear and cogent proof of the findings made: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
11. An attempt was made to defend the adequacy of the reasons by reference to the statements by the primary judge that the evidence "had been invented for the purpose of avoiding liability" and that Ms McLeish had fabricated her evidence to assist Caroline, Donna and Fadi "to whom she owed a substantial obligation". The statements are explanations of a conclusion as to the motivation of the witnesses. However, they fall short of explaining why his Honour had come to prefer the evidence of the Fares' witnesses and to reject that of the Saads. The statements do not discharge the obligation to give reasons for concluding that six people were fabricating evidence.
12. For completeness, I do not regard the last sentence of [46], or the second sentence or the concluding sentence of [47], as amounting to sufficient reasons. Those sentences merely record discrepancies in the testimony of the plaintiff and the defendants. Nowhere in the judgment is there any evaluation of the evidence, so as to explain the conclusion reached.
13. A further challenge, based on non-compliance with the rule in Browne v Dunn (1893) 6 R 67, was made in relation to Ms McLeish. In light of the foregoing, it is not necessary to take that matter any further.

A retrial is required

1. This Court cannot resolve the controversy between the competing recollections of the parties and witnesses. The findings of liability on the part of Caroline must be set aside.
2. When asked, counsel for the respondents submitted that all issues relating to quantum likewise be remitted to the District Court for further hearing, as opposed merely to questions of liability. Senior Counsel for the appellant was of the same view. Given the centrality of credit in this litigation, it is appropriate to accede to that course. It follows that it is neither necessary nor desirable to deal with the grounds of appeal relating to quantum, which were not advanced orally at all.

The claim against Fadi and Donna

1. The claim against Fadi and Donna was in negligence. It was ultimately conceded by Mr Cranitch that there was evidence capable of sustaining a judgment against Donna, with the result that the claims against her should be remitted for retrial.
2. However, it was submitted that there was no case which could be made out against Fadi. It was said that Fadi had given firm evidence that he had built compliant and secure cages for Cosmo, Nigz and Fred, and that the dogs were at all times kept securely.
3. But that does not fairly characterise the evidence relating to Fadi. First, Fadi accepted in cross-examination that Cosmo, Nigz and Fred had escaped from the yard on one occasion and had attacked his neighbour's dog. A Council officer gave evidence that: "[W]hen I inspected the backyard there were palings missing from behind the garage, granny flat, and at the rear of the Saad's property where the dogs had gone through. There was track marks where they'd dug under and gone through".
4. Secondly, there was evidence from the Council officer that the three dogs had been declared dangerous because they had attacked a dog in the street. Thirdly, the same officer said that there had been delays when he had visited the premises: "The father, Mr Saad, may open the door, but he wouldn't let you in. If he did let you in you could be standing there ten minutes while things got organised. I don't know what they organised, but it took ten minutes before I was allowed through."
5. He added: "[I]f I turned up announced I'd have to wait at the verandah for ten minutes."
6. Given the evidence adduced at trial potentially calling into question the adequacy of the steps put in place by Fadi to restrain the three dangerous dogs kept on his and Donna's premises, and the centrality of credit in this litigation, I do not think that the possibility of a judgment against Fadi can safely be excluded. The retrial should extend to the claim of negligence against Fadi.

Orders

1. For those reasons, and having regard to r 51.53 of the Uniform Civil Procedure Rules 2005 (NSW), there must be a retrial, on all issues.
2. The appellants have succeeded in part on their challenge to liability. That said, they have failed to obtain judgments in their favour. There were other aspects of the appeal which were of concern. Many of the grounds of appeal were not addressed at all. There were other serious deficiencies with the preparation of the appeal books (which included substantial submissions supplied immediately prior to the hearing). There was no explanation for the delay, save that a decision had been made to brief Senior Counsel shortly before the hearing. Had those submissions occasioned an adjournment, it would have warranted a special costs order. Those considerations alone would have warranted a departure from the ordinary rule that costs of the appeal follow the event, resulting in an order less favourable to the appellants.
3. In the present case, a further consideration bears upon the discretion to order costs. It is clear that it is possible that each of the appellants, and each of the witnesses called by them, have been perjuring themselves in order to defeat the respondents' claims. Another possibility is that the same is true of the respondents. There may be other possibilities, although it would seem on the material available to this Court that they are the two most likely.
4. If it be found that the appellants have been perjuring themselves throughout this litigation, then I would regard that as relevant to the discretion as to costs of the appeal. The same is true of the respondents. However, it is not possible at present to exercise the discretion as to costs with the benefit of a finding on that issue. Accordingly, in the unusual circumstances of this appeal, I propose that the costs of the appeal be each parties' costs of the remitted proceedings at first instance. That will permit the trial judge to deal with those costs in light of the findings at trial.
5. The formal orders which I propose are: 1. Grant leave to appeal against the judgments obtained by the second, third, fourth and fifth respondents. 2. Appeal allowed. 3. The verdicts and judgments entered on 24 June 2014 in favour of each of the respondents, and any orders as to costs, be set aside. 4. Each proceeding be remitted to the District Court for retrial. 5. The costs of the appeal be each parties' costs of the remitted proceedings at first instance.
6. To be clear, the effect of those orders is to leave to the discretion of the judge to whom the matter is remitted the question of the costs of the trial in 2014. The reasons for doing so are examined in Hatziandoniou v Ruddy (No 2) [2015] NSWCA 277.
7. EMMETT AJA: This appeal concerns a claim for damages made by members of the Fares family when Mrs Jisele Fares was attacked and injured by a dog or dogs at premises owned by the second and third appellants, Mr Fadi Saad and Ms Donna Saad. The attack occurred in the presence of the other members of the Fares family. Jisele Fares, her husband, Mr Raymond Fares, and their four children, Monica, Justine, James and Raychel Fares, claimed that Jisele Fares was attacked by two or three dogs owned by the first appellant, Ms Caroline Saad. Each member of the Fares family, apart from Raychel Fares, was a plaintiff in a separate proceeding brought in the District Court.
8. A judge of the District Court (the primary judge) accepted the claims of the Fares family and entered verdicts for damages in favour of Jisele Fares, for the physical injuries she suffered, and in favour of Raymond, Monica, Justine and James Fares, for nervous shock. The appellants have appealed or seek leave to appeal to this Court from the verdicts entered by the primary judge. Curiously, however, there is but one appeal in which each of the former plaintiffs has been joined as a respondent.
9. There was no dispute that Jisele Fares was injured when attacked by a dog or dogs at the premises owned by Fadi Saad and Donna Saad and that Caroline Saad owned three dangerous dogs, which were located at the premises on the day in question. However, the defendants denied that the attack was carried out by dogs owned by Caroline, which, they said, were caged at the time. Rather, they asserted, Jisele Fares was injured when attacked by a dog owned by Mr Wassim Omar El Samad, who was visiting the premises on the day in question. The primary judge rejected the evidence of the Saad family and two other witnesses called by them. His Honour was satisfied that their evidence had been invented for the purpose of avoiding liability.
10. The principal complaint by the appellants is that the primary judge failed to give adequate reasons for accepting the evidence of the Fares family and for rejecting the evidence called on behalf of the Saad family. There were also separate grounds raised on behalf of Donna and Fadi Saad, who were held liable in their capacity as joint owners of the premises where the injuries took place. His Honour found each of them liable in negligence.
11. I have had the advantage of reading in draft form the proposed reasons of Leeming JA. I agree with his Honour, for those reasons, that the appeal should be allowed and that there should be a retrial. I agree with the orders proposed by his Honour.

Amendments 07 December 2015 - [34] - "owned" replaced with "owed" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 December 2015