Allanson v Toncich - [2001] WADC 272

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ALLANSON -v- TONCICH [2001] WADC 272

CORAM: WISBEY DCJ

HEARD: 29, 30 OCTOBER 2001

DELIVERED : 3 DECEMBER 2001

FILE NO/S: CIV 2374 of 2000

BETWEEN: GEOFFREY EDWARD ALLANSON
Plaintiff
AND
CHRISTINE ELIZABETH TONCICH
Defendant

Catchwords:

Animals - Liability of owner for injury caused by dog - Liability in negligence; alternatively pursuant to provisions of Dog Act (1976) WA - Whether plaintiff guilty of contributory negligence - Salesman bitten by dog whilst in customer's house

Damages - Assessment of damages for hand injury and psychological consequences

Legislation:

Dog Act (1976) s 46

Result:

Judgment for plaintiff for $1,954.23

Representation:

Counsel:

Plaintiff: Mr T N Cullity
Defendant: Mr I L K Marshall

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Bostock & Ryan

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

WISBEY DCJ: The plaintiff, a 41 year old consultant born 20 November 1949, was at all material times employed by Westral Home Improvements (Westral) selling inter alia window blinds on a commission basis. He was in the course of that employment on 18 March 1999 when he was bitten by a St Bernard dog owned by the defendant. He brings this action seeking damages for the injury suffered by him, and the residual consequences thereof. The injury is particularised in par 6 of the statement of claim as "puncture wound on the dorsal aspect of the first webbed space and the index finger of the right hand". The pleading alleges sequela of hand pain, anxiety, and stress. Both liability and quantum are in issue.
In the statement of claim in its amended form it is alleged that at approximately 8.45 am on the material date the plaintiff attended the defendant’s house at 31 Howell Street, Marmion, to provide a quotation for the supply and installation of vertical blinds, and was attacked by the dog due to the defendant's negligence in failing to control it.
Although not specifically referred to in the statement of claim, the Dog Act 1976 s 46(2) provides that the owner of any dog shall be liable in damages, subject to any contributory negligence, for injury caused to any person in the course of an attack by the dog. Subsection (3) provides that it is not necessary in any damages proceedings for the plaintiff to show a previous mischievous propensity in the dog, or that the owner had knowledge of that propensity.
In her defence the defendant admits ownership of the dog, but denies that it attacked the plaintiff. Essentially she pleads that contrary to her request and stipulation that the plaintiff not enter the property save as instructed by her, he knowing of the presence of the dog and of its disposition, entered upon the property and into the dwelling house whilst the dog was unsecured, and once inside the house struck out at it causing his right hand to come into contact with its teeth, and was thus the author of his own misfortune.
The defendant further pleads that the plaintiff willingly assumed risk of injury by the dog by entering the house, or alternatively was guilty of negligence in failing to heed the defendant's warnings and follow her instructions, thus contributing to the attack.
In evidence the plaintiff stated that on 18 March 1999 he had an early morning appointment noted on the Westral consultants visit schedule (Exhibit P1.1) which he received when he arrived at his office at approximately 6.30 am. The defendant was the lead potential customer, and the instruction in respect to her was "AM call, RWTB49, have very large dog, must restrain B 4 you go, please ring". That information also appears on the customer callout to assist form (Exhibit P1.2). The plaintiff stated that he checked with the office two‑way operator, Holly Swan, to confirm that the defendant was aware of his impending visit, and was informed that everything was okay. He arrived at the defendant’s property at about 8.45 am and believing that Holly Swan had advised the defendant of his call, went up to the double wrought iron gates at the entrance to the property and called out to the defendant several times. There being no response he opened the gate and approached the open front door of the house. He again tried unsuccessfully to attract the defendant’s attention and then hurried off the property to his car and radioed Holly Swan requesting her to ring the defendant and advise of his presence. Shortly thereafter the defendant appeared at her front door and beckoned him to approach the house. Before entering, the plaintiff asked as to the whereabouts of the dog, and was assured by the defendant that he would be alright. Once inside the house he was taken to the lounge/family room and again enquired as to the dog's whereabouts. The defendant told him that she did not know, but that he would be alright. He mentioned to the defendant that he had come to the door on the earlier occasion, and she responded that he had been game in so doing. The plaintiff stated that the defendant again looked around for the dog which appeared to be in a little room off the main area, and she advised him that it was asleep. They then began discussing her requirements, and were in the process of so doing when the dog entered the room and lunged at the plaintiff clasping its jaws over his right hand between the thumb and first finger. The defendant managed to get the dog to release its grip on the plaintiff’s bleeding hand. Not surprisingly, after cleaning up his hand, the plaintiff left the premises and drove to the Marmion Medical Centre where the wound was cleaned, and a steri-strip applied, and he was given a tetanus injection and a prescription for antibiotics which he purchased from a nearby chemist.
The plaintiff was unable to continue his day's activities or to go to work the following day which was Friday. As his hand appeared to be infected he sought medical treatment on Saturday and was given a further prescription for antibiotics. He claimed that he worked with difficulty over the next few weeks and because of his general state of anxiety was referred to a clinical psychologist, Elizabeth Clarkson, who saw him initially on 3 and 10 June 1999, and later on 16 March and 4 September 2000. The plaintiff stated that Ms Clarkson prescribed some behavioural modification techniques which assisted him - he subsequently attended another psychologist, Val Kostic, on 3 May 2001.
The substance of the plaintiff's evidence was that as a consequence of the attack he suffered from anxiety symptoms and a phobia about dogs, which had an adverse effect upon his earning capacity. In particular in the month following the attack, his commissions decreased. His evidence suggested that there was an ongoing adverse effect upon his earnings. The plaintiff identified the economic loss in further and better particulars in which document he asserted that he was totally unfit for work for a period of approximately one week post‑attack, and that upon returning to work he was partially incapacitated because of the effect that anxiety and stress had upon him. He asserted that he was required to take time away from work between 26 June 1999 to 8 August 1999 in order to allow his symptoms to stabilise, but he did not so state in evidence. He quantified the past loss at $4,691.20.
I found the plaintiff's evidence as to the effect that the attack had upon him, and in particular on his earning capacity, imprecise and unconvincing. The financial documentation submitted in support of the claimed reduction in earning capacity was also unconvincing. The commission summary statements for the years ended 30 June 1998, 1999 and 2000 (Exhibit P2) suggest that there was a reduction in commission earnings for a short period of time post‑accident, although there have been similar fluctuations over the period covered by the statements. There was no evidence from the employer suggesting that the plaintiff was not able to respond to jobs allocated to him. In the result it is not possible to make any arithmetical calculation of economic loss. I am prepared to accept that there would have been a small reduction in the plaintiff's earning capacity for a few days, and that thereafter he might have been a little less enthusiastic then previously. Doing the best I can I would allow $650 for past loss. I am not satisfied that there is any ongoing adverse effect on earning capacity.
In cross‑examination the plaintiff denied that he sustained his injury in the circumstances pleaded by the defendant.
Ms Holly Swan gave evidence that at the material time she was the two‑way radio operator for Westral with the duty of receiving telephone requests from prospective customers, advising sales consultants of the leads allocated to them, and generally liasing between prospective customers and sales consultants. She confirmed that the defendant rang requesting a visit from a sales consultant, and that she returned the defendant's call to advise the approximate time the plaintiff would be attending. Subsequently she received a radio call from the plaintiff asking her to telephone and advise the defendant of his presence at her house, which she did. Although the record of the booking is not to that effect, she had confidence in her recollection that the defendant advised her that she owned a dog with an aggressive propensity.
The plaintiff's wife, Jennifer Ann Allanson, gave evidence which was essentially that as a result of the attack the plaintiff had become nervous and apprehensive in his work activities.
The general practitioner, Dr Christopher James Jacklyn, gave evidence that he saw the plaintiff on 20 March 1999 when the plaintiff claimed that his wound had become increasingly infected. As a result he put the plaintiff on a further course of antibiotics.
Elizabeth Louise Clarkson, a clinical psychologist, gave evidence that the plaintiff consulted her on two occasions in 1999 and on two more occasions in 2000. His presenting symptom was of anxiety subsequent to an attack by a dog. Ms Clarkson’s reports dated 20 August 1999, 29 June 2000 and 18 September 2000 were received in evidence (Exhibits P5.1 – 3). They indicated that as a result of the plaintiff's complaints she prescribed treatment including monitoring of physiological arousal associated with anxiety, instruction in basic relaxation, controlled breathing techniques, and techniques to overcome negative thinking. It appears from the first report that the treatment was beneficial. She saw the plaintiff on 16 March 2000 because of anxiety symptoms following an encounter with an aggressive German Shepherd dog, and the final appointment on 4 September 2000 seemed to be similarly based. Ms Clarkson’s evidence, including her reports, does not suggest that the plaintiff's problems were of a high order, and make it clear that his response to psychological assistance was positive.
Swee Tan, a Telstra officer, gave evidence that Telstra records demonstrated that on 18 March 1999 two calls were made from the Westral service to the plaintiff's service, the first at 7.46 am lasting 21 seconds and the second at 8.43 am lasting 15 seconds. She was not able to say whether the calls were received in person, or by an answering machine.
Valma Joy Kostic, a clinical psychologist, saw the plaintiff on 3 May 2001 in what appears to have been a para medical pre‑trial assessment, and her report of 22 May 2001 was received in evidence (Exhibit 6). Essentially she came to the conclusion that the plaintiff had sustained a moderate post‑traumatic stress disorder. Ms Kostic was subjected to vigorous cross‑examination concerning her capacity to make such a diagnosis, and maintained that she possessed appropriate expertise.
There has been some controversy over the years as to the capacity of psychologists to embark upon such diagnostic activity, the argument being that it amounts to a medical assessment within the discipline of psychiatry. I do not propose to engage upon a detailed examination of that issue. My understanding is that psychiatry involves diagnosis and treatment of disorders of the mind, and psychology involves assessment and modification of behaviour characteristics. I am inclined to the view that a psychologist is not equipped to diagnose post‑traumatic stress disorder. Resolution of the controversy, however, is neither necessary nor desirable in this case because the psychologists seem to be saying no more than that because he was attacked by a dog, the plaintiff has a continuing fear of dogs; exercises more than the usual degree of caution when in their presence; and has a heightened fear of them. I am prepared to accept that the plaintiff is so positioned, a situation which he undoubtedly shares with numerous others in the community. I also note that some of the information upon which the psychological assessments were made, was not supported by the plaintiff's evidence.
The defendant, Christine Elizabeth Toncich, gave evidence that in March 1999 she lived at 31 Howell Street, Marmion, with her 20 year old daughter Carly and her 18 year old son Louis. The property was a large two storied Cape Cod home, the main bedroom being upstairs, and the children's rooms on the ground floor. The telephone was downstairs in the kitchen. There was a "Beware of Dog" warning sign on the front gate.
The defendant confirmed that on 18 March 1999 she had made an appointment for the plaintiff to call at her home. She claimed that she first became aware of his presence when the dog began barking whilst she was upstairs in her en suite. She went to the bedroom window and looked out to see the plaintiff "up against the gates and the dog was barking at him". She called out to the plaintiff to stay where he was and then ran downstairs, took the dog by the collar, and guided it into the house. She claimed that she told the plaintiff to stay where he was whilst she secured the dog. In the result she took the dog into the dining area and blocked its entry to the rest of the house with a modular lounge suite. She claimed that the plaintiff followed her into the house and was telling the dog to be quiet, eventually striking out with his hand in a gesture towards it such that his hand struck it's teeth. She denied receiving any telephone calls that morning prior to the plaintiff's arrival, or that the incident happened as recounted by the plaintiff, and she asserted firmly that the plaintiff was the author of his own misfortune.

Liability

I am satisfied on the balance of probabilities that the incident happened as outlined by the plaintiff. His evidence as to the circumstances of the attack upon him by the dog was cogent, convincing, and accords with commonsense. The account given by the defendant on the other hand has an air of improbability about it. I accept the evidence of Ms Swan that the defendant advised her that the dog possessed an unsociable disposition. I am confident that the plaintiff was aware of that fact, and it is unlikely that had he been baled up by the dog at the front gate he would have followed the defendant into the house, having been told to remain where he was until the dog had been secured. The suggestion that he would strike out towards the dog and impale his hand on its teeth is unrealistic.
I have no doubt on the evidence that the defendant received the phone calls referred to by Ms Swan.
The plaintiff's injury resulted from being attacked by the dog in the circumstances outlined by him, and on the basis of s 46(2) of the Dog Act 1976, and I might add general negligence principles, the defendant is responsible for the injury.

Quantum

I formed a clear impression from the evidence that the plaintiff received a relatively insignificant injury to the dorsal aspect of the first webbed space and index finger of the right hand and has made a quick and satisfactory recovery. There have been some mild residual psychological consequences, but in my view they are not disabling, nor presently of consequence.
In my view the appropriate award for the injury and loss of amenities is $750.
I have already indicated that I would allow $650 by way of loss of earning capacity. Interest thereon at 3 per cent from 1 July 1999 to 3 December 2001 amounts to $47.33.
The schedule of special damages indicates that the various accounts have been agreed as to quantum in the sum of $692.50. I would deduct therefrom Ms Kostic's account in the sum of $220 since in my view the consultation was legally generated, and cannot appropriately be described as treatment. In the result the figure for special damages is $472.50. I would allow interest on special damages at 3 per cent from 1 July 1999 to 3 December 2001, a total of $34.40.
I do not make any allowance for further psychological intervention, since I do not consider it is necessary.
In the result the plaintiff is entitled to judgment for:
General damages   $ 750.00
Loss of earnings   $ 650.00
Interest on loss of earnings                  $    47.33
Special damages   $ 472.50
Interest on special damages                 $    34.40
Total   $1,954.23