Brown v Stergiou No. DCCIV-96-1283 Judgment No. D3654

[1997] SADC 3654

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Bright

Hearing

Catchwords

Plaintiff - 61 year old male - charity collector.Attacked by dog on entering premises.Bitten on left thigh and buttock.Severe bruising with induration.Past non economic loss $6,500, future $1,000, specials $845.01. Economic loss (all past) $2,800.Judgment for plaintiff in the sum of $11,145.01; 59 year old male charity collector

Representation

Plaintiff DESMOND LEO BROWN:
Counsel: MR. G. HARLEY - Solicitors: HARLEY &; CO.

Defendant SOPHIA STERGIOU:
Counsel: MR. S. COLE - Solicitors: FINLAYSONS

DCCIV-96-1283

Judgment No. D3654

13 August 1997

(Civil)

BROWNVSTERGIOU

Civil

Judge Bright

The plaintiff claims damages for injury sustained when bitten by a dog owned by the defendant.It is a curious case, in that there is considerable dispute about the circumstances, with each side adamant about certain matters which seem to have no bearing on liability, and in respect of which it is hard to see a motive to lie.

For example, the plaintiff says that he entered the property on which he was bitten and saw a man playing with a child on the front lawn.The defendant denies that anyone was on the front lawn, and, with her witnesses, denies that any child was anywhere on the premises, and says that no such child is associated with her family.Whether or not a child was present is virtually irrelevant.Possibly the plaintiff might have claimed to have been lulled into a false sense of security by the presence of such a child, but he did not make that claim.This is only one of a number of apparently pointless disputes.

In respect of these disputes, there is no external evidence to resolve them. I am therefore constrained to be cautious in my fact finding, and to restrict my findings to the minimum necessary.

Section 52 of the Dog Control Act, as amended, provides as follows:-

"52.(1) A person responsible for the control of a dog is liable in damages for any injury or loss resulting from the actions of the dog.

(2)It is not necessary in any proceedings where a party seeking damages in respect of injury or loss resulting from the actions of a dog to show a previous mischievous propensity in the dog or knowledge of any such propensity or that the injury or loss was attributable to any neglect on the part of the person responsible for the control of the dog."

It is not in dispute that the defendant was a person responsible for the control of a dog which bit the plaintiff, causing injury and loss.

Section 52 was considered in, amongst other cases, Keeffe vMcLean (1992/3) 169 LSJS 74 and DownsvSecker(1985) 152 LSJS 107.Thesecases confirm the absolute nature of the liability.In Keeffe there was a reservation as to whether it might be possible that a trespasser could not take advantage of the section.In this case the facts do not suggest that the plaintiff was a trespasser.

On the day in question the plaintiff was working as a collector for charities. He went from house to house, soliciting donations.The property at which he was attacked was an ordinary suburban house in an ordinary suburban street. There are a number of persons, including charity collectors, who make calls on houses.The law implies a limited licence to these persons to enter private property for the purposes of their calling.Such a person might easily become a trespasser if, for example, he or she decided not to leave when asked to do so.No suggestions of that nature arise in this case.There is no evidence which satisfies me of a specific prohibition directed to the plaintiff. It is not necessary for me to further consider the question whether as a trespasser, there might be a bar to the plaintiff, because the facts do not suggest that he was a trespasser.

The cases I have referred to also make it plain that any judgment is not to be reduced on account of any contributory negligence of the victim.On the facts of this case, I do not think I would have found that there was contributory negligence, but it does not matter.He is to recover 100 per cent of his damages to be assessed.

It is still necessary to consider the facts surrounding the bite.The attack occurred on 28 February 1995.There were obvious puncture marks caused by the dog's teeth, with associated soft tissue swelling and bleeding.On 7 June 1995, the plaintiff's left knee locked in an episode of acute pain, which proved to be the result of a torn medial meniscus.It is his case that the torn meniscus was caused by the dog attack.That is the principle dispute between the parties.

Before considering this question, I can note that there was a bite to the upper left thigh.It was a very nasty bite.It caused such severe swelling and haematoma that the area became indurated,with some hardness persisting to the present day.Medical evidence suggests that, by about the end of June 1995, the persisting disability attributable to the soft tissue injuries and swelling would have been fairly slight.Nevertheless, significant damages are called for to account for the pain and suffering and other entitlements of the plaintiff, even on that scenario.

Without going into great detail, the menisci are pads of cartilaginous material in the knee joint between the thigh bone and the bones of the lower leg.They provide part of the surface over which the joint slides as it works. They provide a cushion to alleviate the shock of impact in the joint as a person walks, runs and moves.

Like other parts of the body, menisci degenerate with age.When they are young and strong, they are hard to damage.At the other extreme, they can damage very easily.Some force mustalways be applied, but the amount of force necessary depends on the state of the meniscus.In a degenerate meniscus, the force may be supplied by the ordinary movements of the knee joint in everyday activity.

In this case, arthroscopy revealed that there were two radial splits in the meniscus.The splits were close together, creating a small flap.The episode of acute pain on 7 June 1995 was probably caused by that flap becoming caught and jammed by the movement of the knee joint.It is quite likely that the splits pre-dated the jamming of the knee.

I think it is fair to say that all of the relevant doctors concede that it is possible that a movement associated with the dog attack caused the splits to the meniscus.One view is that it is the probable cause, the other that it is not.A consideration in coming to their respective conclusions is the nature of the movement of the plaintiff at the time of the attack.In particular, those who associate the attack with damage to the meniscus, at least to some extent, rely on an assumption that the plaintiff, either by the impact of the dog itself, or as a result of evasive action, sharply twisted his left leg.

I have noted that I have some reservations about the facts.I did not come to any conclusion that the plaintiff was dishonest:quite the contrary.I have greater reservations about the defendant and her brother.Fortunately, on the aspects I am now examining, there is not much difference between them.I think that both sides are guilty ofreconstruction in relation to a sudden and unexpected incident.

As the plaintiff crossed a lawn, the defendant's Alsatian came around the side of the house, ran behind the plaintiff and bit him.The plaintiff says that he pivoted to his right, on his right foot, thoughabout 90 degrees.His left foot came off the ground.It is not clear whether that movement was simply a result of the impact of the dog, or whether from voluntary or involuntary evasive action.There may have been a bit of both. The plaintiff did not fall over.He was able to hobble a few steps to the house, where he was given some first aid.

It appears that most of his weight must have been on his right leg as he pivoted.It appears that his left leg flexed at the knee.I expect that he moved his left leg very quickly when it was bitten, quite apart from any movement caused by the force applied by the dog.It does not appear obvious that the knee joint was subjected to much strain.

The plaintiff immediately consulted his general practitioner, Dr. Peters, who took a photograph of the bite, which showed what a nasty bite it was.A few days later, because the swelling was so intense,the plaintiff was referred to a specialist to see if anything could be done to drain it.Conservative treatment and the passage of time were decided upon.The plaintiff continued to visit Dr. Peters regularly.The plaintiff says that, from the very first, he was aware of a pain in his knee, quite distinct and separate from that associated with the bite wound on his thigh.He says that he regularly complained of this to Dr. Peters.Dr. Peters says that he recalls no such complaint.His notes do not record one.He believes he would have noted such a complaint.

On 20 May, the plaintiff was referred to Miss Bell a physiotherapist, for treatment to the thigh.She confirms that he complained to her of pain deep down in the knee.She contacted Dr. Peters suggesting that this be investigated.

The plaintiff saw Dr. Peters on 2 June, complaining of pain in the knee.That is Dr. Peters first note of pain distinct from that to the thigh.On 7 June, the plaintiff was pushing a supermarket trolley when he had a sudden experience ofexcruciating pain.It seems that this was either the actual occurrence of splits to the meniscus, with instant entrapment of a flap of meniscus in the knee joint, or, as I have explained, entrapment of a flap which had been present for some time.

Mr. Teague, orthopaedic surgeon, was immediately consulted and he operated that evening.Arthroscopically, he trimmed the edge of the meniscus and freed the joint.He made notes of what he saw.He made a sketch.He kept certain photographs of the internal surfaces of the knee.He believes, on balance, that the meniscus damage resulted from the dog attack.Mr. Fry, orthopaedic surgeon, is of the contrary view.Mr. Cohen, general surgeon, supports the plaintiff.I shall first consider Mr. Cohen.

Mr. Cohen agreed that the dog attack was a possible cause of the meniscus damage.He understood that the plaintiff had pivotted sharply on his left leg, with that leg taking his weight.He assumed a rotational stress to the knee joint.He understood and accepted that there had been complaints of pain in the joint right from the outset.His descriptions of the precise mechanics that he envisaged were hypothetical reconstructions of what he thought must have happened, but the evidence does not, in my view, establish what actually happened.It certainly does not establish the movements he thought the plaintiff made.

Mr. Teague was less concerned about the precise mechanics assumed by Mr. Cohen.He started from the view that the plaintiff had been symptom free before the attack.He understood that there had been complaints of pain since then.He said that his view at operation of the meniscus showed him that it was in good condition for a man the plaintiff's age.It was not one which he expected would split with only minimal force.He noted that the plaintiff's right knee was still symptomfree.He said that the precise nature of the splits was that they were somewhat ragged at the edges, suggesting that they had been in existence for some time, but he was unable to say for how long. He was aware of the different view held by Mr. Fry, but thought that Mr. Fry would change his view on seeing the photographs of the internal surfaces taken at operation.

He was wrong in that.Mr. Fry asserted that the photographs showed a meniscus which was fairly degenerate and splits which were not ragged, hence of recent origin.It was Mr. Fry's view that the complaints of pain over the previous week or ten days were indications that the meniscus was beginning to "go".He said that the moment when a meniscus split would normally be associated with marked pain.The pain would be such that it would be readily perceived as being different from that in the thigh and would not be masked by symptoms from the thigh. He would have expected the pain to be such that complaint would have been made to Dr. Peters.

In his oral evidence, he asserted that radial splits are, characteristically, what occur in degenerate menisci.Accordingly, on balance, he concluded that the dog attack was unlikely to have been the cause.It was apparent that his comment about radial splits being characteristic of degenerate menisci had not been anticipated by counsel.That point had not been put to Mr. Teague. Further medical reports on this aspect of the case were obtained from both specialists.Mr. Teague asserts that radial tears are uncommon, but that they occur in both young and old patients.They are not only associated with degeneration.After describing certain details, he maintains his belief that the tear in this case is much more consistent with a traumatic tear.By that I think he means trauma resulting from a significant incident, rather than from some trivial stress.

Mr. Fry has not continued his assertion that a radial tear is characteristically caused by minor stress to a degenerate meniscus.Henow asserts that "more commonly radial tears occur in older knees".This is a less definite proposition.Nevertheless, he maintains there is no need for him to modify the general tenor of his evidence, which was that there is no proof on balance of association between the attack and the tears.

While I have looked at the photographs, it is quite beyond my competence to distinguish between the conclusions drawn by two orthopaedic specialists who have come to different views on the same photographs.I can see the features referred to and relied on by Mr. Fry, but I cannot assess their importance.

I note that both Mr. Teague and Mr. Fry are eminent and well qualified orthopaedic surgeons.Neither gave evidence of training or experience so different from the other as to permit me to prefer one over the other on that ground.It was suggested that Mr. Teague had an advantage through having been the operating surgeon.Had the evidence related to an operation conducted quite recently, there might be strength in that.In this case it was of an operation conducted two years earlier.Mr. Teague did not claim independent recall of this particular knee.No doubt he has examined a great number of knees since then.His evidence was mainly based on his notes and his photos. That material was available to Mr. Fry.In the circumstances of this case, I do not think that the operating surgeon was ina position of great advantage, though his acceptance, at the time of operation, of a link to some extent reinforces his present stance.

I have mentioned that the first independent note of specific knee problems was that of a physiotherapist on 20 May.On Mr. Teague's evidence, that would be long enough before 7 June to give the slightly aged appearance he noted.

The signs which lead Mr. Teague and Mr. Fry to diverge are not great and neither sees the matter as free from doubt.Either may be correct.It is for the plaintiff to prove the version on which he relies.Having regard to the doubt about the precise movement of the knee joint at the time of the attack,to how violent that movement was, to the absence of notes of complaints of knee pain to Dr. Peters, and to the differing interpretations of the arthroscopic photographs, I am unable to say that the plaintiff's case is more probable than the defendant's.

The descriptions (including the plaintiff's own description) of movement at the moment of attack do not suggest significant stress.Perhaps that is because everything happened so quickly that people do not really know.The absence of notes of complaint to Dr. Peters may have resulted from misunderstanding on his part, but it does not add weight to the plaintiff's case.The time that elapsed was not so long as to disprove the plaintiff's case, but less time would be more usual.

In my mind there is a slight preference for the defence case, but it is only slight.I conclude that the plaintiff has not proved his case on this issue.

It follows that I will assess damages for a nasty, painful bite to the back of the thigh with about six months of significant, but diminishing disability. Thereafter, the significant disability has been in the knee rather than the thigh.There is still some slight disability in the thigh, but it is minimal. It is not enough to significantly interfere with the plaintiff's everyday life and has not been so for some eighteen months.

I assess pain and suffering in the sum of $7,500, of which I attribute $6,500 to the past and $1,000 to the future.

Special damages in respect of treatment other than to the knee appear to total $845.01.There is nothing to suggest a need for future medication for the thigh.

I have noted that the disability attributable to the thigh gradually diminished over six months.The plaintiff did some work during that period. The tear of the meniscus supervened and is responsible for lost income after 7 June.The plaintiff prepared a schedule of lost income (P18) from which I conclude that, over the period 28 February 1995 to 7 June 1995, he lost about $4,250, gross.The Workcover Corporation (P15) reimbursed the plaintiff's employer a total of $3,040 for wages, of which I conclude that just under $1,400 related to the period I am considering.That will be the amount recoverable by Workcover - so I allow it gross.The balance of $1,640 would have been subject to tax.To allow for that, I round it down to $1,400.

On this basis, I allow $2,800 for lost income.

I summarise:

1)Non economic loss

Past $6,500.00

Future $1,000.00

2) Special Damages 845.01

3) Economic Loss

(all past) $2,800.00

$11,145.01

The wage loss was all incurred before proceedings were commenced in 1996, as was almost all the pain and suffering.I allow interest for 1.5 years on the past lost income not met by Workcover - $1,400, and the past suffering - $6,500.($7,900 x 5% x 1.5 years=$592.50).I allow a lump sum of $600.

Accordingly there will be judgment for $11,145.01.

I will hear the parties on costs.

WEDNESDAY 13 AUGUST, 1997

Judgment for the plaintiff in the sum of $11,145.01.I give liberty to apply to apply within 48 hours, in relation to the matter of disbursements.