Annette Helen Dryden v Katrina Bowditch
[2008] ACTSC 131
•19 November 2008
ANNETTE HELEN DRYDEN v KATRINA BOWDITCH
[2008] ACTSC 131 (19 November 2008)
EX TEMPORE JUDGMENT
DAMAGES – personal injury – attack by dog – laceration to right eyelid – injury to tear duct – laceration to right forearm causing scarring – no issue of principle
Domestic Animals Act 2000 (ACT)
No. SC 185 of 2007
Judge: Master Harper
Supreme Court of the ACT
Date: 19 November 2008
IN THE SUPREME COURT OF THE )
) No. SC 185 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:ANNETTE HELEN DRYDEN
Plaintiff
AND:KATRINA BOWDITCH
Defendant
ORDER
Judge: Master Harper
Date: 19 November 2008
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $60,238.83.
The defendant pay the plaintiff’s costs.
This is an action for damages for personal injury arising out of a dog attack. The claim is framed in negligence, but, as presented, also relies on a breach of the provisions of the Domestic Animals Act 2000. I was informed by counsel for the defendant during the course of the hearing that liability was no longer in issue and the hearing proceeded as an assessment of damages.
The plaintiff is sixty years old, a divorced woman who grew up in Canberra and has worked for many years as a Commonwealth public servant. During the 1960s she was a driver of a car which was involved in a head‑on collision and was quite seriously injured. Some occupants of both cars were killed. That was a very serious incident in her life, but it was more than forty years ago and it is not suggested that it is of anything other than background significance today.
The plaintiff joined the Defence Department as a public servant in 1964. Apart from a period of about five years in the late 1990s, when she left the public service and worked at the ANZ Bank as a teller, she has worked for the Commonwealth ever since. She is presently an administrative officer with duties which largely involve data processing for an instrumentality associated with the Attorney-General’s Department. In addition to her work as a public servant, she has for many years worked as a strapper and bookkeeper at the Canberra Racecourse. Her former husband is a trainer. She and her former husband, although they have been separated for many years and are now divorced, maintain an amicable business relationship and are both directors of a company which operates training stables.
The injuries asserted on behalf of the plaintiff, according to the statement of claim, were lacerations, abrasions and bruising to the right eye and face; lacerations, puncturing and bruising of the right arm; an injury to the right tear duct; abrasions to the right cornea; onset of headaches; and shock and psychological injury. The alleged disabilities were anxiety, blurred vision, a photo‑sensitive eye, headaches, requirement to undergo two surgical procedures to the eye, scarring of the right arm, numbness in the face and post traumatic stress. I was informed by counsel at the conclusion of the hearing that treatment expenses and travelling expenses were agreed, as was the past Griffiths v Kerkemeyer component.
The amount claimed for past loss of earnings or of earning capacity was not agreed, but the defendant conceded that an award of $750.00 in that regard would be appropriate. I was not satisfied on the evidence that there was any actual loss of earnings, because the time the plaintiff took off from work was covered by her accumulated sick leave entitlements. I am satisfied that she has suffered some loss of sick leave credits and that she may lose some income in the future if, whether for reasons associated with these injuries or for other reasons, she needs to take sick leave which exhausts her credits. In all of the circumstances I am not persuaded that she has established an entitlement to any more than the amount which the defendant concedes is reasonable.
The dog attack happened on 28 May 2005 at the Canberra Racing Stables at the racecourse. It was early in the morning, some time between 7.00 and 8.00 am. The plaintiff, as was her usual practice, was carrying out some tasks at the racecourse prior to going to work in her job in the public service. She was acquainted with the defendant, who worked at that time at an adjoining set of training stables, and she knew that the defendant owned a female red heeler. She was unaware that the dog had any dangerous propensity.
She observed on this morning that the dog was wearing a new coat. She said something to the dog. The dog came over to her, a distance perhaps the length of this courtroom from the defendant. The plaintiff greeted the dog, said something to the dog about the coat, and leant down and patted the dog on the back through the coat. The dog reacted unexpectedly by attacking her. The attack included a bite into the right forearm and a sharp contact with the inner corner of the plaintiff’s right eye. It is unclear whether that contact was made by one of the dog’s teeth or by one of its front paws, but that does not seem to me to matter. I am satisfied that contact was made with the plaintiff’s eye in the course of the attack.
The plaintiff’s evidence in chief was that she immediately experienced excruciating pain, both in the right arm and in the right eye. She was taken to a general practice at Ainslie where she was seen by a doctor, who advised her to go immediately to hospital. She went to Calvary Hospital and then to Royal Canberra Hospital, where she was told that she required surgery to the right eye. The necessary surgical equipment was not available in Canberra. I have the impression that it was also a consideration that the surgical skills available in Sydney were regarded as rather better.
At all events, the plaintiff was taken by car to Sydney by a friend, Cheryl Cassar, who later gave evidence. She was treated by Dr Raf Ghabrial, an oculoplastic surgeon in Macquarie Street in Sydney. Dr Ghabrial operated under local anaesthetic in an operating theatre which was a part of his rooms. He repaired a laceration to the right upper eyelid and also the damaged tear duct in the right eye, by inserting a drainage stent. He gave the plaintiff a certificate for some days off work, about a week. The plaintiff said that her eye continued to weep and water continually and that she suffered from blurred vision. She went back to work, but found that she needed to take breaks and to rearrange her working hours, which she was able to do using the available flextime arrangements.
She experienced a feeling of the presence of a foreign body in the eye. She went back to her Canberra doctors who assumed that the stent had come out. In fact, what had happened was that the stent had worked its way in behind the eyeball. In September 2005 the plaintiff went back to Sydney, taken by her friend again, and saw Dr Ghabrial, who operated again under local anaesthetic. He located and removed the stent. The stent had only ever been intended to be a temporary expedient. Dr Ghabrial took the view that by that time there was no necessity for the insertion of a further stent.
The plaintiff’s evidence was that her eye was again very painful after the second operation, although the pain diminished over time. She found that her vision was affected by glare. The symptoms were relieved by eyedrops which were prescribed for her and which she still uses. She took non‑prescription analgesics at times for pain relief, although at no time were any analgesics prescribed by her doctors.
Physically, she said that she often was aware of a black eye, that is darkening of the skin around the right eye, and also reddening of the white area of the right eye. She complains that she still has something in the nature of an irregularity which she described as like a pimple in the inner corner of the right eye, which she can feel and see, and is conscious of. It was originally very irritable, although apparently that is no longer such a problem.
She is conscious of the fact that her right eyelid tends to close a little, giving the impression that her right eye is more closed than the left eye, a condition known as ptosis.
I viewed the scar on her right forearm. She gave evidence that this causes her some embarrassment, particularly in warm weather when she wears a sleeveless top or shirt, although most of the time she is able to cover it with clothing. The scar is not raised, but it is clearly visible. It is U-shaped, covering an area about 3 or 4 centimetres in diameter, as I assessed it, and with the scar tissue being lighter in colour than the surrounding skin of the arm.
The plaintiff’s evidence is that the injuries have had and continue to have a significant effect on her social life, her confidence and her self-esteem. She said that she declines social invitations and that sometimes she finds herself inadvertently becoming aggressive: I do not mean physically aggressive, but verbally attacking members of her family and close friends. She has developed a fear of aggressive dogs, and no longer takes her own small dog for walks in public areas as she used to. She relives the incident sometimes in bed at night. She had seen, not long before the hearing, a psychologist, Mr Greg Aldridge, in Canberra. He suggested a course of therapy and she said that she would like to undertake such a course.
In cross-examination she said that her marriage broke up in 1989 after twenty years. There were no children of the marriage. During the early 1990s she was involved in a second relationship which lasted about four years, but had broken up by the middle of that decade. She then entered a third relationship with a man named Philip, who worked for the family company at the racecourse. The relationship lasted for eight years. It was a very close one. It came to an end just before Christmas in 2002 when she found out that he had become involved with another woman who also worked at the racecourse. The plaintiff was particularly upset about this because that relationship had developed while Philip was still living with her at her home.
That incident had a severe effect on her psychologically. She was referred by her general practitioner, Dr Jamieson, to Dr Katherine Lubbe, psychiatrist, in Canberra. Dr Lubbe treated her for eight months for severe depression, one of the manifestations of which was a suicide attempt. It emerged also during cross‑examination of the plaintiff that at the end of 2005 she discovered that Philip, who was still working for her family company at the racecourse, had become involved in a relationship with the defendant. She did not volunteer that in chief, nor did she tell any of the doctors who saw her for treatment purposes or for the purposes of this case about it.
The impression I have from the evidence is that Philip’s relationship with the defendant had probably been going on for some time, possibly since before the dog attack. She found out about it shortly before she instructed solicitors to bring the present action. She found the situation very upsetting. She had to see both of them regularly. She said in evidence that Philip had lied to her, and that she was very upset about that. She also said that she felt that the defendant was complicit, by which I gather she meant that she thought that the defendant was complicit in the relationship being kept from her.
Although Philip continues to work for the family company, she said that at that time she was very angry with both him and the defendant, and that at times she found the situation unbearable. She agreed that she was aware of the relationship when she instructed her solicitors. I infer that she did not tell her solicitors about that aspect of the matter.
She was then cross‑examined about seeing Mr Aldridge in June this year. She agreed that the appointment had been arranged by her solicitors, although she said that she had been referred for treatment rather than solely for the purposes of the case. She agreed that she had not made any mention to her general practitioner of any need for psychiatric or psychological help since the dog attack, and she agreed that she did not tell Mr Aldridge about the relationship between Philip and the defendant.
Her friend Ms Cassar gave oral evidence. They have been friends for about thirteen years. They met originally when both were working at the ANZ Bank. Ms Cassar gave evidence of a change in the plaintiff’s presentation after the dog attack. Ms Cassar seemed to be aware of other events in the plaintiff’s life, such as her breakup with Philip in 2002, although she was rather vague about events and periods of time. She had taken the plaintiff to Sydney for her surgery on the two occasions in May and September 2005.
She said that the plaintiff was a different person after the dog bite. She had been a dog lover previously, but there had been an incident at Ms Cassar’s home where the plaintiff was obviously terrified to be faced with Ms Cassar’s Jack Russell cattledog cross some time after the attack. She said that she did not see the plaintiff as often socially as she had before the attack, that she observed that the plaintiff’s eye wept a lot and that the plaintiff was always dabbing it with a tissue. Although Ms Cassar was vague about the sequence of events, I thought that she was an honest witness doing her best to remember events and to answer the questions which were asked of her. I generally accept her evidence as to her impression of the effect of the dog attack on the plaintiff.
There was no oral medical evidence, though a number of reports were tendered in the plaintiff’s case, including a report and clinical notes of her general practitioner of some twenty years, Dr Stephen Jamieson of Dickson; reports of Dr Martin Duncan, the Canberra ophthalmologist who was originally involved in her treatment and who referred her to Dr Ghabrial; reports and notes of Dr Ghabrial; a medico‑legal report obtained by the plaintiff’s solicitors from Dr Michael Delaney, a Sydney ophthalmic surgeon; the medico‑legal report I have mentioned by Mr Greg Aldridge, the Canberra clinical psychologist who, as I have observed, was given an incomplete history; and a brief medico‑legal report by Dr Chandra Patel, a Canberra plastic surgeon dealing with the scar. Dr Patel’s opinion was that plastic surgery was not called for, but that the appearance of the scar could be improved by a tattooing process. Also in evidence were the records, including copies of letters to general practitioners, of Dr Lubbe, the psychiatrist who had treated the plaintiff during her depressive episode in 2003.
Counsel for the defendant acknowledged that the defendant’s solicitors had had the plaintiff examined in Sydney in June 2008 by Dr Peter Duke, who I assume to be an ophthalmic surgeon. No report by Dr Duke was served. I draw the inference that Dr Duke reported to the defendant’s solicitors, and that his evidence would not have assisted the defendant’s case.
I accept the plaintiff as an honest person who was doing her best in the witness box, although, like so many plaintiffs, I thought that she was putting her best foot forward on the day. I find this unsurprising when a person comes to court probably for the first time in that person’s life, to tell the court about matters very much focused upon herself. I accept that the dog attack was a frightening and painful incident. It is clear that the plaintiff was a psychologically vulnerable person, having regard to her previous treatment for depression.
I accept that the eye injuries and treatment caused her pain and concern and continue to cause inconvenience and probably some pain at times. I accept that the bite to the arm was a very painful episode and I accept that the scar, which I would assess as disfiguring to a mild to moderate degree, causes the plaintiff some embarrassment. I accept that there has been some psychological effect of the incident on the plaintiff, though not as severe as the plaintiff believes. The condition of the eye I accept is still of considerable and continuing nuisance value.
I invited counsel, in the course of closing submissions, to put figures as to appropriate awards for general damages. In the course of that process the plaintiff put a range of $60,000.00 to $80,000.00, whereas counsel for the defendant put a figure of $25,000.00. That is reflective of the gap between counsel as to how I should assess the plaintiff’s credibility and the severity of the injuries and continuing disabilities.
It seems to me, having heard the evidence and given the matter some consideration, that an appropriate figure by way of general damages for the past for pain and suffering and interference with enjoyment of life and for disfigurement is $30,000.00, and that a figure for general damages for the future which would be appropriate is $15,000.00. That is a total for general damages of $45,000.00. The past component attracts interest for three and a half years, apportioned over that period but weighted slightly more heavily to the early period immediately after the attack. For interest on general damages I award $2,500.00. The treatment expenses are agreed at $6,400.25 and travelling expenses are agreed at $2,154.58. For past expenses I award that total, $8,554.83.
The evidence was a little imprecise about payment of the expenses, but I accept that most if not all were paid by the plaintiff. I have no evidence of dates of payment. Nevertheless to the extent that they have been paid, the plaintiff is entitled to interest at the prescribed rate of 9% per annum. For interest on the past out‑of‑pocket expenses I allow $1,000.00.
The Griffiths v Kerkemeyer component, as I said, is agreed at $374.00. That also attracts interest at the prescribed rate of 9%, for which I allow $60.00. I allow the amount conceded by the defendant in respect of past loss of earning capacity, $750.00. As there has been no actual financial loss to date, that amount does not carry interest. I am not satisfied that any impairment of the plaintiff’s earning capacity is likely to be reflected in actual loss of income in the future and I make no allowance for future economic loss.
In respect of future treatment, the evidence is that the plaintiff is continuing to spend a relatively small amount on eyedrops and analgesics, of the order of $2.00 to $3.00 a week. The plaintiff is now sixty and has a life expectancy of about another twenty-five years. The multiplier for that period is 922. It is necessary to deduct the conventional 15% from the resulting figure to reflect the vicissitudes of life. For future treatment expenses I allow $2,000.00.
The individual components of the award are thus:
General damages $ 45,000.00 - interest thereon $ 2,500.00 Past out-of-pocket expenses $ 8,554.83 - interest thereon $ 1,000.00 Future treatment $ 2,000.00 Past economic loss $ 750.00 Griffiths v Kerkemeyer $ 374.00 - interest thereon $ 60.00 Total $60,238.83
There will be the judgment for the plaintiff for $60,238.83
I order that the defendant pay the plaintiff’s costs.
I certify that the preceding thirty-four (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 19 November 2008
Counsel for the plaintiff: Mr ID Bradfield
Solicitors for the plaintiff: Ken Cush & Associates
Counsel for the defendant: Mr PS Braham
Solicitors for the defendant: DLA Phillips Fox
Date of hearing: 12, 13 November 2008
Date of judgment: 19 November 2008
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