Bouali v Rangihuna

[2020] NSWDC 720

District Court

New South Wales

Medium Neutral Citation:

Bouali v Rangihuna [2020] NSWDC 720

Hearing dates:

11 November 2020

Date of orders:

20 November 2020

Decision date:

20 November 2020

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the sum of $49,500;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – plaintiff attacked in public park by defendant’s unleashed bulldog – liability established pursuant to s 25 of the Companion Animals Act 1998 (NSW) – aggravation of pre-existing physical and psychological symptoms; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2005 (NSW), s 5D, s 5E, s 16

Companion Animals Act 1998 (NSW), s 25

Evidence Act 1995 (NSW), s 60

Cases Cited:

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60

Category:

Principal judgment

Parties:

Souad Bouali (Plaintiff)
Mathew Rangihuna (Defendant)

Representation:

Counsel:
Mr R Brown (Plaintiff)
Mr H Halligan (Defendant)

Solicitors:
Wyatts Lawyers (Plaintiff)
Young & Muggleton (Defendant)

File Number(s):

2019/64921

Publication restriction:

None

Judgment

Nature of case and background

1. The plaintiff, Mrs Souad Bouali, seeks damages from the defendant, Mr Mathew Rangihuna, for physical and psychological injuries she sustained in a public park on Saturday, 27 February 2016. At that time she was forced to fend off the defendant’s unleashed bulldog which was attacking her 2 year old daughter at Tillman Park, in Sydenham, NSW. In that attack the plaintiff’s daughter received severe facial injuries that required surgery. The proceedings are governed by the Companion Animals Act 1998 (NSW) and the Civil Liability Act 2005 (NSW) (“CL Act”)

Issues to be determined

2. The defendant did not dispute his liability to the plaintiff for damages. The only issues requiring determination in these proceedings concern the nature and extent of the plaintiff’s injuries and the assessment of the plaintiff’s entitlement to damages for such injuries.

Evidence overview

3. The plaintiff was the only witness called to give oral evidence. The plaintiff adopted the factual content of a chronology that was prepared on her behalf: Exhibit “A”. The parties produced a Court Book containing relevant medical records, reports and documents: Exhibit “B”, pp 1 – 420.

Facts

4. In the paragraphs that follow I set out findings as to the plaintiff’s background circumstances, her previous health, the bulldog attack, the plaintiff’s injuries, her treatment and related medical assessments, and her remaining disabilities.

Plaintiff’s background

5. The plaintiff was born in Morocco. She is presently aged 33 years. She is married and has five children. She and her husband arrived in Australia in 2013 to seek a better life. The bulldog attack occurred when she was aged 29 years. She has never been in employment. She has not had any schooling. She is illiterate both in English and in her own language. She gave her evidence with the assistance of an Arabic interpreter who was familiar with her Moroccan dialect.

Plaintiff’s pre-existing health issues

6. The plaintiff had consulted her general practitioner on many occasions before the attack in question. She has also done so on many occasions since that attack. Those consultations covered a range of unrelated health issues which do not all need to be catalogued in these reasons.

7. Before the bulldog attack the plaintiff had some significant pre-existing adverse health issues. These have been documented in relatively sparse detail in the evidence. Some details have emerged from Exhibit “B”, as follows:

1. In 2005, in Morocco, the plaintiff fell about 12m from a balcony. As a result she required back surgery which involved a fusion of her spine between the levels T11 and L1 with fixation screws. Imaging reveals that some of those screws traverse the plaintiff’s central spinal canal. An historical medical record dated July 2017 described that underlying event in the following terms:

“- Pain History -

Lower thoracic/lumbar back pain since 2006 (sic), precipitated by fall off a balcony in Morocco. Attended hospital and is uncertain of the precise injuries she sustained. Recalls being transferred to a military hospital and having a back operation after which she had weakness in the legs for 1 month which then resolved. Pain improved for a couple of years and then has been more recently worsened despite no further injuries/accidents...”

[Exhibit “B”, p 411]

2. Between 2013 and 2014, in Australia, the plaintiff’s medical records documented various hospital attendances, including for childbirth and respiratory problems: Exhibit “B”, pp 258 – 262; pp 303 – 351. The plaintiff’s medical records also contain notes relating to childbirth and medical investigations carried out on various dates which do not require analysis;

3. On 22 April 2014, the plaintiff attended the emergency department at Royal Prince Alfred Hospital (RPAH). That attendance followed a recent trip to Morocco. At that attendance she was treated for chronic sinusitis. At that time a four month history of headaches was also noted: Exhibit “B”, pp 258 – 263;

4. On 3 February 2015, the plaintiff had x-rays of her lumbo-sacral spine, her pelvis, her right hip and her right knee. The previous spinal fusion at T11-L1 was noted, with bilateral inter-perdiculate screws: Exhibit “B”, p 51;

5. On 23 October 2015, the plaintiff underwent an abdominal ultrasound for investigation of her gall-bladder and other intra-abdominal organs: Exhibit “B”, p 105;

6. On 31 October 2015, the plaintiff underwent an image guided peri-neural S1 infiltration of local anaesthetic and cortisone for treatment of right hip and gluteal pain. In that procedure the S1 nerve root was targeted: Exhibit “B”, p 125;

7. Since 16 November 2015, the plaintiff’s medical records also show that some three months before the bulldog attack, she had commenced seeing a psychologist, Mr Muhamad Ziedni, for ongoing psychological treatment in relation to difficulties in dealing with depression that have been complicated by chronic pain syndromes which were not specified, but which from their context, preceded the events which have led to this litigation: Exhibit “B”, p 373;

8. On 11 December 2015, the plaintiff underwent a bone scan of L2-L3 facet joints for facet joint arthritic changes. The result was reported to be mild bilateral sacro-ilitis and a thoraco-lumbar kyphosis in keeping with the previous surgery: Exhibit “B”, p 83;

9. On 14 January 2016, the plaintiff underwent an L2-L3 facet joint infiltration injection of local anaesthetic and steroid treatment of back symptoms: Exhibit “B”, p 86;

10. On 27 February 2016, at 2.22pm on the same day of the bulldog attack, the plaintiff saw her general practitioner for anxiety related breathing troubles, for which she was prescribed Aropax, an anxiolytic medication. The next consultation was recorded as having taken place on 8 March 2019, 9 days after the bulldog attack. The latter consultation related to a “pain threshold assessment”. At that consultation no note was made of the bulldog attack having occurred in the interim: Exhibit “B”, p 36.

8. In the period between 19 March 2013 and 28 January 2016, and preceding the bulldog attack, the plaintiff’s medical records show that she had consulted her general practitioner on 35 separate occasions for a range of conditions and maladies including pregnancy, infections, rhinitis, gynaecological issues, gastrointestinal problems, knee, hip and episodic back pain, and weight control: Exhibit “B”, pp 30 – 50. In that period, the plaintiff’s general practitioner arranged numerous medical referrals, investigations and tests: Exhibit “B”, pp 50 – 125.

Bulldog attack

9. The circumstances of the 27 February 2016 bulldog attack are not in dispute. The occasion was undoubtedly horrendous to the plaintiff. Plainly, she had been put in considerable fear at the sight and sound of her young child being mauled by the defendant’s bulldog. It must have been a shocking experience for her to have endured. In this case there can be no legal defence in relation to those circumstances of strict liability: s 25 of the Companion Animals Act 1998. I will defer identifying my findings concerning the plaintiff’s injuries from that attack until the completion of my review of the medical records and reports that have been tendered: Exhibit “B”.

10. Following the attack the plaintiff accompanied her daughter to the Children’s Hospital at Randwick where her daughter was admitted for treatment as an in-patient. She stayed there for three nights. Whilst the plaintiff was at that hospital she was apparently provided with a bandage and some creams for her own injuries to a leg. There were no medical records tendered in relation to those events as they related to the plaintiff, and there was no contemporaneous documentation of the plaintiff’s injuries. This may have been because the primary focus at the time was the treatment of her daughter’s injuries, at a children’s hospital.

11. The first historical mention made in the plaintiff’s medical records of injury from the dog attack was on 21 March 2019. That was three years after the event and a month after the plaintiff’s statement of claim was filed. The general practitioner’s note of that consultation was as follows:

“History

rv x-rays of feet and ankles, she says when the dog attacked her daughter Sarah, her left ankle twisted when getting her daughter away from the dog, 3 years ago. X-ray shows soft tissue swelling”.

[Exhibit “B”, p 30]

12. The nature and extent of the plaintiff’s physical injuries is a matter that must be assessed on the basis of her oral evidence and a review of the specific matters of detail that emerges from the medical evidence. That review now follows.

Treatment and medical assessments

13. The plaintiff has had extensive contact with the practice of her treating general practitioner. The evidence is that her general practitioner does not speak the plaintiff’s language. In those circumstances, and given the plaintiff’s limited grasp of English, it is not clear as to the extent to which the plaintiff managed to communicate with her doctor.

14. The first historical date on which the subject dog attack was mentioned in the general practitioner’s clinical notes was 21 March 2019 when it was recorded that the plaintiff’s left ankle twisted when she was getting her daughter away from the dog: Exhibit “B”, p 30. No medical report was available from the practice of the treating general practitioner, although her clinical records were tendered: Exhibit “B”, pp 28 to 127.

15. In 2015, it was recorded that the plaintiff and her husband completed a course of behavioural treatment for a “traumatic event” involving their daughter Sarah: Exhibit “B”, p 374. That reference may well have been a typographical error as to the date wrongly referring to a 2015 event rather than a 2016 event, or alternatively there could have been some other traumatic event. This was not clarified in the evidence.

16. The paragraphs that follow set out in chronological sequence some relevant factual details extracted from my reading of the tendered clinical records of the RPAH Pain Clinic and the available medical reports within Exhibit “B”:

1. On 30 March 2016, the plaintiff underwent a low dose CT scan of her abdomen and pelvis for investigation of left-sided iliac fossa pain. A hiatus hernia was noted to be present: Exhibit “B”, p 124;

2. On 30 July 2016, five months after the bulldog attack, the plaintiff underwent a Mood Assessment survey by the Black Dog Institute: Exhibit “B”, p 375. At that time it was noted that the plaintiff’s English comprehension was very poor and that she needed considerable assistance with the process of that assessment. At that time a diagnosis of probable melancholic depression was made, with severe post-traumatic stress disorder. That assessment included reference to high descriptor scores for significant impacts. These included injury to a close family member; involvement in a serious dispute; unemployment for 3 months or more; major financial crisis; serious injury; other stressful events; and to a lesser extent, the death of a close family member. The details of those descriptors were not explained in the survey report;

3. On 6 August 2016, Professor Helen Christensen, the Executive Director of Black Dog Institute sent to the plaintiff’s psychologist, Mr Ziedni, the Mood Assessment Programme report on the plaintiff as identified above, in order to assist with his clinical management of the plaintiff as a patient: Exhibit “B”, p 375 – 385;

4. On 13 January 2017, the plaintiff obtained some medical treatment from Dr Ismail Elhabri, at a laboratory and clinic in Rabat, in Morocco. The documentation for that treatment was in the French and Arabic languages without translation into English. That said, it appears from some of the anglicised words in the text, that the plaintiff underwent some form of haematological, biochemistry and urological testing at that centre: Exhibit “B”, pp 174 – 175;

5. On 8 February 2017, the plaintiff’s general practitioner referred her to RPAH with a history of worsening back pain and associated depression: Exhibit “B”, pp 46 – 147;

6. On 24 February 2017, the plaintiff underwent a chest x-ray and an ultrasound of her thyroid. No abnormality was detected: Exhibit “B”, p 114;

7. On 27 July 2017, the plaintiff had an out-patient attendance at RPAH Pain Clinic. The focus of that consultation was for lower back pain, pain in the buttocks, exacerbated by sitting or walking. It was noted that the plaintiff had difficulty describing the details: Exhibit “B”, pp 411 – 413;

8. On 21 November 2017, the plaintiff’s general practitioner referred her to RPAH Pain Clinic. The Pain Clinic radiology questionnaire indicated that no interpreter was required: Exhibit “B”, pp 151 – 152. This could have been an error in light of earlier entries in the hospital notes indicating the plaintiff had difficulty understanding and a telephone interpreter was engaged as a result: Exhibit “B”, p 203;

9. On 27 November 2017, Mr Ziedni wrote a letter to whom it may concern identifying the fact that since 16 November 2015, that is, before the bulldog attack, he had been providing the plaintiff with psychological treatment, as already referred to at paragraph [7] above: Exhibit “B”, p 373;

10. On 4 December 2017, Mr Ziedni wrote a report to the plaintiff’s treating general practitioner in the following terms:

“I am writing in support of Souad to report on her progresses since your initial referral on 16 November 2015. She completed her first course of treatment during the period of 2015-2016. I have confirmed with Medicare Australia that Souad needs to return to her original referring GP for a new mental health plan should she intends (sic) to resume treatment under the same plan.

As you are aware, psychological intervention in the past was provided to assist her in dealing with an incident of dog attach (sic) to her daughter, Sarah aged-3, in 2015. Souad and Omar were very proactive to assist Sarah to recover from the traumatic event. They completed behavioral (sic) treatment at the Psychology Clinic: at the University of Technology Sydney. Although, Souad reported that she remains hypervigilance (sic) when exposed to dog (sic). During the time of treatment, psychological intervention have Included psychoeducation and cognitive behavioral (sic) strategies to reduce avoidance and to increase her functioning as mother and carer. I provided Souad in dealing with Immigration and Centerlink (sic) in regard to her visa status and her eligibility to apply to become carer for her husband, Omar. I believe her health and mental health literacy have improved as Souad has always been very proactive in seeking help.

Souad contacted me again and this time she requires ongoing assistance in dealing with her intention to access pain management clinic as well as in dealing with Centerlink (sic). I have asked her to return to you to get her new mental health plan. If you agree, I am happy to provide her treatment /consultation on (sic) need basis. I fully support her to attend pain management program as she will learn from another (sic) patients as well, on how to cope with pain difficulties.

I will keep you updated of her progress and thank you once again for your kind referral.”

[Exhibit “B”, p 374];

11. On 21 January 2018, the plaintiff was reviewed at the RPAH Pain Clinic with a history of worsening thoraco-lumbar back pain and a previous T11-L1 spinal fusion. A review of CT scans for the period 2015 to 2017 showed some of the fusion screws from her spinal surgery in Morocco were traversing the central spinal canal. As the plaintiff was 7 months pregnant at the time, repeat CT scans were planned to be undertaken after that pregnancy: Exhibit “B”, p 268;

12. On 17 May 2018, the plaintiff was reviewed at the RPAH Pain Clinic two months post-partum. A CT scan was reviewed and reported to have shown one fixation screw traversing through the plaintiff’s spinal canal. Absent neurological features, no urgent neurosurgical review was planned. Painful lumbar facet joints and the right sacro-iliac joint were noted, with reduced movement in all directions due to muscle tightness: Exhibit “B”, p 267;

13. On 30 August 2018, the plaintiff was assessed at the RPAH Pain Clinic with a presenting history of worsening thoraco-lumbar back pain in the context of the fall in Morocco in 2005 which was followed by fusion surgery to the T11-L1 levels of her spine;

14. On 26 November 2018, the plaintiff was reviewed at the RPAH Pain Clinic. At that review there were no complaints made of pain in the lower limbs or any neurological deficit. The site of the previous spinal surgery was noted as requiring pain relief. A new complaint of De Quervain’s Tenosynovitis of the right thumb was noted: Exhibit “B”, p 266;

15. On 18 March 2019, the plaintiff underwent an x-ray of both feet. Mild pes planus was identified, along with developing bilateral bunion formation in each great toe: Exhibit “B”, p 96;

16. On 21 March 2019 the plaintiff’s general practitioner queried a diagnosis of sprained soft tissue injury. A diagnostic ultrasound was requested. There is no follow-up record: Exhibit “B”, pp 28 and 30. The x-rays referred to in the above note had been requested by the general practitioner on 13 March 2019: Exhibit “B”, p 30. The notes also indicate that the plaintiff had been referred to a psychologist on 6 March 2019: Exhibit “B”, p 30;

17. On 20 May 2019, the plaintiff was reviewed at the RPAH Pain Clinic. At that time she reported high levels of pain (8/10), presumably back pain, and a concern was noted in relation to a complaint of radiation of pain going into the left leg. The plaintiff’s pain medication was not increased at that time due to breastfeeding. A review was planned to take place in 8 months’ time (January 2020), with repeat imaging planned if there was no improvement: Exhibit “B”, pp 264 – 265;

18. On 19 June 2019, at the request of her solicitor, the plaintiff was examined by Dr E Gehr, a consultant orthopaedic surgeon. That examination was assisted by an interpreter. Dr Gehr had the benefit of the clinical records of the plaintiff’s general practitioner and the RPAH pain clinic records, and the other reports and imaging that he listed in his report. Dr Gehr concluded, based on the history obtained, that on 27 February 2016 the plaintiff had injured her left foot and ankle and her lumbo-sacral spine, with resultant radiculopathy and reproducible sensory loss on the left side, with left calf muscle wasting, and dysfunction of a tendon of the left foot. He noted a kyphotic deformity of the thoracic spine. He considered that given the history of prior spinal surgery she would have had periods of “reasonable pain levels alternating with more significant pain”. In that regard, he noted that a month before the subject incident, on 28 January 2016, the plaintiff’s medical records contained the notation “feeling much better”. In view of that analysis, Dr Gehr expressed the opinion that the subject incident would have contributed to her current symptoms, and that factor needed to be apportioned. Clearly, he was not in a position to undertake that apportionment and he did not seek to do so. He predicted further deterioration in the plaintiff’s back symptoms and kyphosis deformity. That prognosis, and the prognosis for the left foot and ankle, was stated by him to be poor: Exhibit “B”, pp 352 – 364;

11. On 25 November 2019, at the request of her solicitor, the plaintiff was assessed by Dr Glen Smith, a consultant psychiatrist. That consultation was aided by an interpreter. Dr Smith identified the sources of his information as being the interview with the plaintiff, the solicitor’s letter of instruction, and identified medical records. Dr Smith noted the plaintiff had longstanding back pain and that in 2015 she saw Mr Ziedni for treatment of depressive symptoms which had developed in the context of that back pain. Since the incident involving the defendant’s bulldog she reported symptoms of anxiety, avoidance, a reduction in her ability to cope with domestic duties, and her back pain, worsened depressive symptoms, and a report of having developed persistent pain in her back, and in a foot and a leg, with limitation in functioning. Dr Smith summarised his opinion as follows (Exhibit “B”, pp 386 – 402):

“Ms Bouali is a 32-year-old woman living with her family in suburban Sydney. She reported a pre-existing history of depressive symptoms occurring in the context of longstanding back pain and she had received psychological therapy in 2015. Ms Bouali described a frightening incident in 2016 in which her daughter was attacked by a bulldog resulting in severe facial injuries requiring emergency surgery. In the aftermath of that incident, Ms Bouali experienced posttraumatic anxiety with fear of being attacked by dogs, intrusive memories of the incident, nightmares and avoidance, particularly of the park where the incident occurred. As a result of the incident, Ms Bouali reported an aggravation of her pre-existing back pain and worsening of mood in the context of restriction in functioning.

In my opinion, Ms Bouali presented with symptoms consistent with the diagnosis of Persistent Depressive Disorder, with intermittent major depressive episodes, without current episode. She also reported significant posttraumatic anxiety with specific fear of dogs. There were some symptoms consistent with a specific phobia to large dogs and subclinical posttraumatic stress disorder, particularly avoidance of the park where the incident occurred, intrusive memories of the incident and nightmares.”

[Exhibit “B”, p 396];

20. On 3 April 2020, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Frank Machart, a consultant orthopaedic surgeon. That consultation was aided by an interpreter. Dr Machart identified the mechanism of the plaintiff’s injury as being a twisting injury for the left ankle, following which she bent and twisted, and then experienced lumbar pain, which gradually increased in severity. He recorded that she had been referred to a pain clinic about 12 months post-injury. Dr Machart recorded the plaintiff’s current symptoms as low back pain, radiating to the left leg, left ankle pain and swelling, and left leg pain radiating to the quadriceps and left foot. Noting the plaintiff had a prior symptomatic spinal condition, his opinion was that the plaintiff had sustained a soft tissue injury to her left ankle and he “did not see any evidence of disability arising from the injury on 27 February 2016”. In expressing that opinion he seems not to have taken into account the plaintiff’s complaints of pain: Exhibit “B”, pp 405 – 409;

21. On 5 May 2020, Dr Machart provided a requested supplementary report to the defendant’s solicitor commenting upon some medical records provided to him for that purpose. His comments were that the records he reviewed indicated the plaintiff had substantial symptomatic pathology in her spine prior to 27 February 2016, and that no additional structural pathology had been caused by the incident in question. He considered that there may have been some temporary sprain but there was no evidence of a long lasting injury: Exhibit “B”, pp 418 – 420.

17. The plaintiff’s interactions with the RPAH Pain Clinic staff were assisted by an Arabic speaking nurse: Exhibit “B”, p 301. On 27 July 2017, her psychological assessment at that Clinic was hampered by interpreting issues and the plaintiff being distracted by descriptions on account of her infant daughter being present. Her husband at times translated and provided an account of her problems in English. The physical and psychological assessments of the plaintiff at the Pain Clinic made no mention of a history of a bulldog attack as a factor in the plaintiff’s complaints of pain or depression: Exhibit “B”, pp 301 – 303.

Injuries

18. Whilst it is possible that the plaintiff’s complaints of post-bulldog attack problems were not contemporaneously recorded because her daughter was the primary focus of the initial treatment, I consider that possibility must be discounted as being speculative. The state of the evidence does not permit a reasoned concluded view on the likelihood of that possibility being applicable.

19. The plaintiff’s physical injuries were ill-defined in her oral evidence and they were defined only to a limited degree in the documentary evidence. It is entirely understandable that the plaintiff had a shockingly upsetting visual and aural experience when her child was mauled by the defendant’s bulldog. The traumatic nature of those events is beyond dispute.

20. The plaintiff’s oral evidence was to the effect that when the bulldog attacked her daughter she had wrestled the dog on the ground but she lacked the strength to stop him from continuing to grab and bite her daughter. In those events she managed to lift her daughter to shoulder height to keep the dog from further attacking and in those events she sought to kick the dog away. At that time she sustained an ankle injury. She did not identify which ankle had been injured but it may, from the overall context, be reasonably assumed to be the left ankle.

21. Her injured foot became swollen. In the ensuing days her pre-existing back pain worsened and her foot pain also became worse. A follow-up examination revealed that it was the left foot which was painful. The plaintiff claimed she never experienced any pain in her left foot or ankle before the bulldog attack. She stated that she later developed pain, along with walking and standing difficulties, relating to her left foot and ankle. She said her standing and walking tolerance has declined from 10 minutes to 5 minutes, following which time she would experience extreme pain.

22. Although the plaintiff agreed she had pre-existing bunion deformities in both feet before the incident in question, she said that the pain in her left foot only started after the bulldog attack. She also stated that her pre-injury level of back pain was worsened by the effect of the bulldog attack. She said that since that attack she has been scared.

23. None of the plaintiff’s evidence seemed inherently improbable. I accept the general thrust of her evidence. As her credit was not materially impugned I consider that the nature of her ongoing disabilities may be reasonably discerned from the historical accounts recorded by the respective medical examiners as those examinations were adequately assisted by appropriate interpreters: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995 (NSW).

24. The mechanism of her physical injuries as recorded in the various medical reports is as follows:

1. In his report dated 25 November 2019, Dr Smith recorded the following history

“HISTORY OF INJURY

Ms Bouali stated that on 27 February 2016 at around 4:00pm she was at the park near her home with her husband and three children. She stated that she was enjoying playing with the children in the park when a bulldog suddenly attacked her two-year-old daughter biting her around the left eye. She stated that she tried to grab her daughter away from the dog and in doing so twisted her left ankle and fell injuring her back. She stated that while her daughter was in her arms, the dog again bit her daughter on the back. Ms Bouali herself was not bitten. She stated that the owner of the dog came to take the dog away and her husband contacted an ambulance that took around 20 minutes to arrive. The ambulance took her daughter to the Sydney Children's Hospital in Randwick where she had surgery for eye injuries and she was admitted for around three days. Ms Bouali felt extremely distressed due to the significant injuries of her daughter.”

[Exhibit “B”, p 388]

2. In his report dated 3 April 2020, Dr Machart recorded the following history:

“Ms Bouali was injured on 27 February 2016. A dog attacked her child. She tried to protect her child. In doing so she twisted her left ankle, bent and twisted, experienced lumbar pain.”

[Exhibit “B”, p 406]

25. Having reviewed the plaintiff’s evidence and the medical evidence I am satisfied that the plaintiff suffered soft tissue injuries to her already affected lower back, and to her left foot, as well as incurring significant psychological distress on realising her infant child had been attacked by the defendant’s bulldog.

Disabilities that remain

26. In circumstances where the plaintiff had pre-existing conditions that were symptomatic, in this case being psychological difficulties, back problems and bunions, the defendant must accept and take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at p 406.

27. In this case the plaintiff carries the burden of proof in establishing that her ongoing complaints have been caused by the bulldog attack: s 5D and s 5E of the CL Act.

28. In cases where there is an underlying condition that has been materially aggravated by an injury which is the subject of the litigation, the plaintiff carries the onus of establishing that there are relevant ongoing aggravating sequelae that cause ongoing disability.

29. Having reviewed the plaintiff’s evidence and the medical evidence and documentation as summarised above, I set out my findings concerning the plaintiff’s remaining disabilities.

30. In my assessment, there is no cogently reasoned basis that emerges from within the medical evidence to support the proposition that the pre-existing conditions affecting the plaintiff’s back, left foot, ankle and leg have been significantly or permanently aggravated by the bulldog attack so as to produce lasting continuing symptoms. The uncontradicted opinion of Dr Machart is to the contrary. Given the plaintiff’s pre-existing physical problems as identified in these reasons, I do not consider the plaintiff’s own evidence on her continuing physical disabilities in those areas to be probative of an ongoing aggravation of those affected areas. The opinion of Dr Gehr did not seek to make an apportionment of the effects of the bulldog attack as being a cause for the plaintiff’s physical problems. He identified the need for the plaintiff’s left tibialis posterior tendon to be evaluated. There is no evidence that any such evaluation has taken place.

31. The position with regard to the plaintiff’s psychological problems is somewhat different. Dr Smith took a history of the plaintiff’s pre-existing depressive symptoms as well as a history of the effect the bulldog attack has had on the plaintiff. His uncontradicted diagnosis of persistent depressive disorder with intermittent depressive episodes and dog phobia, consistent with post-traumatic stress disorder, was not inherently improbable. I accept his unchallenged opinion in that regard. I also accept his opinion concerning the plaintiff’s need for treatment for those problems.

Assessment of damages

32. The plaintiff’s claim for damages was restricted to non-economic loss and future out-of-pocket expenses for treatment.

Non-economic loss

33. On behalf of the plaintiff it was submitted that pursuant to s 16 of the CL Act her claim for non-economic loss should be assessed at 27 per cent of a most extreme cast. In contrast, the defendant submitted that the assessment should be less than 15 per cent of a most extreme case. If the latter submission is accepted, this means that no damages should be awarded for non-economic loss.

34. The assessment of an appropriate percentage for non-economic loss for pain, suffering, distress and loss of the amenity of life in comparison to a most extreme case is an evaluative exercise.

35. In this case the plaintiff was already affected by the limiting effects of her prior physical problems which were temporarily made worse by the incident, and her pre-existing depressive symptoms have been significantly eclipsed and overtaken by her persistent depressive disorder and post-traumatic stress disorder.

36. I therefore assess the plaintiff’s non-economic loss at 25 per cent of a most extreme case. This is the monetary equivalent of $44,500.

Future treatment expenses

37. The plaintiff claimed an amount of $47,629.68 for future treatment expenses: MFI “1”. This related to general practitioner consultations, orthopaedic consultations, foot surgery, psychological and psychiatric consultations, as well as analgesic and anti-depressant medication. The defendant submitted that the indication for such damages has not been established on the evidence.

38. In light of my findings as to the plaintiff’s injuries as identified at paragraph [25] above, I am not persuaded that the plaintiff’s ongoing complaints of a physical nature are all caused by the bulldog attack. I therefore make no allowance for the future treatment of those problems.

39. However, I am satisfied that notwithstanding the plaintiff’s pre-incident problems with depression, the effect of the subject attack has given rise to a need for psychological if not psychiatric treatment. Dr Smith recommended treatment from the general practitioner, a psychologist and a psychiatrist, including medication. The estimated cost of that treatment is uncertain because much depends upon the plaintiff’s response to treatment. In those circumstances, a buffer sum is the most appropriate method to compensate the plaintiff for this head of damage. I consider that a buffer amount of $5000 would be fair to both parties as an allowance to meet the cost of the plaintiff’s need for future psychological treatment. I therefore assess the plaintiff’s damages for future treatment expenses in the buffer amount of $5000.

Disposition

40. The plaintiff has established her entitlement to a damages award for $49,500 and she should have a judgment for that amount.

Costs

41. As the plaintiff has succeeded in obtaining a judgment in her favour, she should have an order that the defendant should pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

42. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $49,500;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 20 November 2020