CITATION:      Fuge v Magdalinski & Ors t/a Purrs and Paws Pet Resort

                       [2010] NTMC 029

 

PARTIES:                                          PAUL FUGE & CONNIE FUGE

                                                        

                                                         v

 

                                                                                              ROBERT GEORGE MAGDALINSKI & GAIL MICHELLE ANDERSON T/A PURRS AND PAWS PET RESORT

                                                        

 

TITLE OF COURT:                             Local Court

 

JURISDICTION:                                 Small Claims

 

FILE NO(s):                                       20936407

 

DELIVERED ON:                               15 April 2010

 

DELIVERED AT:                                Darwin

 

HEARING DATE(s):                           13 April 2010

 

JUDGMENT OF:                                 J Johnson A/JR

 

CATCHWORDS:

 

NEGLIGENCE – STANDARD OF CARE. CONTRIBUTION – LAW REFORM (MISCELLANEOUS PROVISIONS) ACT, SECTION 16(1).

 

REPRESENTATION:

 

Counsel:

    Plaintiff:                                         In person

    Defendant:                                      In person

 

Solicitors:

    Plaintiff:                                         N/A

    Defendant:                                      N/A

 

Judgment category classification:           C

Judgment ID number:                           [2010] NTMC 029

Number of paragraphs:                         26

 

 

IN THE small claims court

AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

 

No. 20936407

 

 

                                                     BETWEEN:

                                                    

                                                  PAUL FUGE & CONNIE FUGE

                                                         Plaintiffs

 

                                                     AND:

 

MAGDALINSKI & ORS T/AS PURRS AND PAWS PET RESORT

                                                         Defendants

 

 

REASONS FOR JUDGMENT

 

(Delivered 15 April 2010)

 

Mr j johnson a/jr

The Issue Stated

1.         During the year 2009, the plaintiffs entrusted the care of their dogs to the defendant boarding kennel owner/operators for 2 separate periods of time, initially in July (“the first occasion”) and again between 27 August and 14 September (“the second occasion”). On the second occasion, one of those dogs was fed bones by the defendants, contrary, the plaintiffs say, to their specific instructions that the dog was not to be fed bones (“the instructions”). It is not in dispute that, as a result of the dog being fed bones it became ill, and the plaintiffs claim the costs of remedial veterinary treatment in the amount of $1,693.30 which they thereby incurred, plus Court costs of this application in the amount of $206.30.

2.         The defendants deny that any such instructions were given and that, in any event, they were of such obvious importance to the dogs’ well-being they should have been given in writing. There is no dispute that the instructions were not given in writing.

Cause of Action

3.         The cause of action is in negligence, and the plaintiffs will need to prove that a duty of care existed, that such duty was breached, and that damage has been suffered as a result.

4.               In Gala v Preston [1991] HCA 18, the High Court accepted that a relevant duty of care will arise under the common law of negligence where the requirement of a relationship of proximity between the parties has been satisfied. In my view, the relationship of the plaintiffs and defendants is sufficiently proximate to give rise to a relevant duty of care under the common law of negligence.

5.               The standard of care required by the duty is that which is reasonable in the circumstances of a reasonably competent boarding kennel owner/operator. In that regard it may be relevant to consider appropriate industry Codes of Practice. Further, because the standard is that which is reasonable, not every error will necessarily be evidence of negligence. The defendant will only be in breach of the duty if it fell below the standard of a reasonably competent boarding kennel owner/operator.

Evidence

6.         The plaintiffs’ evidence is that explicit oral instructions were given to the defendants during the course of a telephone conversation in May 2009 when they booked their dogs into the kennels for the first occasion in July 2009. To bolster that evidence, they rely upon a statement by their daughter that she was privy to that telephone conversation and heard her mother instructing the boarding kennel owner/operator that her “dogs were not to have any bones or hard treats during the stay at the kennel”.

7.         Whilst I accepted that statement into evidence, I am reluctant to give it much, if any, weight. The writer was not available for cross-examination and the hand written statement was not sworn or otherwise in a form required by Rule 16.01 of the Small Claims Rules. The defendants claim that the undated statement is recent invention.

8.         The plaintiffs admit that, on the dogs being booked in on the second occasion, no such instructions were given. As to that lack of instructions on the second occasion, the plaintiffs say that they were not told, as they were on the first occasion, to provide evidence of appropriate vaccination of the dogs as the defendants “remembered” that their vaccinations were valid and they therefore assumed the defendants had kept their records from the previous occasion. Those records, it was said, must have included the dogs’ special dietary requirements as there had been no apparent issue with failure to observe those requirements on the first occasion.

9.         For their part, the defendants strenuously deny that any such instructions were given in the subject telephone conversation in May 2009. They say that any such instructions would have been recorded as a matter of consistent practice onto the relevant client record and thereafter onto a whiteboard in the kennel kitchen as a constant reminder of the client’s particular dietary requirement. Curiously, whilst other sample client records were produced by the defendants at hearing, the subject client record was not.

10.       The plaintiffs also put into evidence a letter addressed to them from the defendants insurer denying liability for the plaintiffs’ loss arising from the veterinary expenses the subject of their claim. In that letter the insurer appears to accept the fact that the defendants were given verbal instructions to the effect asserted by the plaintiffs “3 months prior to this incident”; that is, in May 2009. Whether that statement is based on instructions from the defendants or tacit acceptance of assertions made to them in correspondence from the plaintiffs is not clear to me and I make no finding about it.

11.       Cross-examined about this the defendants said, as I understood their evidence, that the only time such instruction may have been given to them was on the occasion when they picked up the plaintiffs’ dogs to transport them to the kennels on the first occasion, although they assert no such recollection.

12.       There was other evidence given, both written and oral, by the parties but I will not analyse it all here as most was either not in contention or did not impinge upon my views as to the nub of the dispute.

Findings

13.       I find, on the balance of probabilities, that on the first occasion when the plaintiffs’ dogs were given into the care of the defendants, instructions were given as to the special dietary requirements of the dogs. I find that those instructions were, more likely than not, given by the plaintiffs to the defendant on the occasion of the telephone conversation between the parties in May 2009. Clearly, in my view, they were of sufficient importance to the welfare of the plaintiffs’ dog that she would have made them known at the time of first contact when considering whether the dogs would be provided with a sufficient standard of care to warrant the use of the defendants boarding kennels. Whether or not those instructions were written into the relevant client record, I cannot ascertain as those records were not produced at hearing; a deficiency that is a matter of concern. It was a deficiency not adequately addressed by the defendants in their evidence and leaves it open to me to draw an adverse inference.

14.       In the event, no issue arises as to the care of the dogs during that first occasion in July 2009, so it is reasonably safe to conclude that dietary instructions were followed, although I should note that no evidence was adduced about that at hearing.

15.       On the second occasion it is common ground between the parties that no instructions were given, the plaintiffs relying, they say, on the fact that such instructions were already known to the defendants from the client record of the dogs’ previous stay on the first occasion.

16.       That obviously did not turn out to be the case. The defendants admit that the dogs were fed bones on at least 2 occasions, the second of which was on Monday, 14 September 2009, with immediate deleterious effect.

17.            Thus, it falls to be considered whether in those circumstances the defendants breached the duty of care owed to the plaintiffs under the common law of negligence. As outlined in paragraph 5 above, the standard of care required by the duty is that which is reasonable in the circumstances of a reasonably competent boarding kennel owner/operator.

18.       There is an array of competing factors at play. A review of the relevant Codes of Practice leaves little doubt that appropriate records must be kept, including those relating to dietary requirements and I did not understand the defendants to deny the need for such records; they having produced sample records into evidence. The fact that the records for the plaintiffs’ dogs were not produced is, as I have said above, a matter of concern. Having found (paragraph 13 above) that relevant instructions were given, I can only conclude either that those instructions were not written into the client record or, if they were, that a fresh record was opened on the second occasion without reference to the first record. Alternatively, given that the dogs remained well for the initial 2 weeks of their stay, it is reasonable to conclude they were not being fed bones in the normal course of events. Thus, it may have been a simple matter of forgetfulness. In either event, I find a breach of the relevant standard of care owed to the plaintiffs by the defendants.

19.       It is no answer to say the instructions should have been in writing. There was no evidence of that being industry practice and, whilst I can understand such a requirement in the context of proof of vaccination, I do not think it a reasonable standard to rigorously apply in the context of a relatively straight forward dietary restriction in the boarding kennel industry. I do however recommend to the defendants that they have a simple standard form for clients to complete on each occasion their pets are given into the defendants’ care, which would include provision, inter alia, for any special dietary requirement.

20.       Notwithstanding my findings in paragraph 18 above, in my view that is not the end of the matter. Section 16(1) of the Law Reform (Miscellaneous Provisions) Act provides:

16 Apportionment of liability

(1) If a person suffers damage as the result partly of the person's failure to take reasonable care and partly of the wrong of another person or other persons –

(a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the person suffering the damage; and

(b) the damages recoverable in respect of the wrong are to be reduced to the extent the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.

 

21.            The onus of proof with respect to contributory negligence is borne by the defendants. It is for them to prove, on the balance of probabilities, that the plaintiff should have foreseen the need to provide specific oral or written instructions in relation to their dog’s special dietary requirements on the second occasion and that not to do so exposed them to the risk of pecuniary loss.

22.       In a busy enterprise like that of the defendants, I cannot but observe that in circumstances where the plaintiffs’ dogs had special dietary requirements they should not rely entirely upon an assumption that, oral instructions having been given on a prior occasion, they will automatically be followed on a subsequent occasion. Special requirements can, and do, change. If such requirements were of the importance which I attach to them in my findings at paragraph 13 above, the plaintiffs had a responsibility to reiterate or refresh those instructions on the second occasion. They did not do so and it is not enough, in my opinion, to rely on the fact that they were not required to produce vaccination certificates as evidence that, likewise, they should not be required to republish important instructions relating to dietary requirements.

23.        I therefore find that the plaintiffs and the defendants are equally responsible for the pecuniary loss suffered by the plaintiffs. My view is that it is “just and equitable having regard to the [plaintiffs] share in the responsibility for the damage” (section 16(1)(b) of the Law Reform (Miscellaneous Provisions) Act) for the damages recoverable by them to be reduced by 50 per cent by reason of contributory negligence.

Summary

24.            In summary, I find that the defendants, for the reasons outlined in paragraph 18 above, breached the relevant standard of care which they owed to the plaintiffs. I also find that the plaintiffs, in failing to republish the special dietary requirements of their dogs on the second occasion, did not act as a reasonable and prudent person would have, and thereby share equally, that is say to the extent of 50 per cent, in the responsibility for the damage.

25.            Finally, the parties having each been partially successful in the claim, Court costs should likewise be equally apportioned between them.

Orders:

26.1        The plaintiffs and the defendants are equally responsible for the pecuniary loss suffered by the plaintiffs.

26.2        The defendants are to pay to the plaintiffs the sum of $949.80, comprised 50% of the total loss ($846.65) and 50% of Court costs ($103.15), within 30 days.

 

Dated this 15th day of April 2010

 

                                                                               _________________________

                                                                                           Julian Johnson

        Acting Judicial Registrar