Frazer v Romeo

[2020] NSWDC 415

District Court

New South Wales

Medium Neutral Citation:

Frazer v Romeo [2020] NSWDC 415

Hearing dates:

7 May; 11 June 2020

Date of orders:

12 June 2020

Decision date:

12 June 2020

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1)   Judgment for the plaintiff against the defendants in the sum of $200,425.60.

(2)   Defendants to pay the plaintiff’s costs.

Catchwords:

DAMAGES – assessment – dog attack – physical and psychological injuries – arm and leg – non-economic loss - past and future medical expenses - past and future economic loss - past and future domestic care

Legislation Cited:

Civil Liability Act 2002, s 16

Category:

Principal judgment

Parties:

Jasmin Frazer (plaintiff)
Bruno Romeo (first defendant)
Doris Harb (second defendant)

Representation:

Counsel:
Mr G Hickey (plaintiff)

Solicitors:
Law Advice Compensation Lawyers (plaintiff)

File Number(s):

2019/329370

Publication restriction:

None

Judgment

1. Introduction

1. On 17 August 2017 the plaintiff, Jasmin Frazer, was bitten by two dogs. She sues the dogs’ owners, Bruno Romeo and Doris Harb, for damages.

2. The defendants have never participated in the proceedings and default judgment was given on 16 April 2020 with damages to be assessed. The assessment hearing proceeded with no appearance or representation by the defendants.

2. Background

3. On 17 August 2017, at about 7pm, Ms Frazer went to visit her friends, Mr Romeo and Ms Harb, at their residence in Guildford, New South Wales. Ms Frazer entered the backyard of the property where the defendants kept about 17 Bullmastiff dogs. Ms Harb said to her, “All the dogs have broken out of the pen”. [1] Two of the dogs then attacked Ms Frazer, one bit her on her left arm and another bit her right leg. She was “dragged” to the ground. [2] She received five bite marks on her left arm, the “largest [is] 2 cm wound full thickness, exposed adipose tissue”, and four bite marks to her upper right thigh. [3] The two dogs then started fighting other dogs. Ms Frazer jumped up and ran inside the house. She said, “There was blood everywhere and I felt like I was on fire”. [4] Ms Frazer was given morphine and taken by ambulance to Westmead Hospital.

   1. Geoffrey O’Hare affidavit, 10/6/20, Annexure B at [34].

   2. Exhibit A, p 13.

   3. Exhibit A p 13.

   4. Geoffrey O’Hare affidavit, 10/6/20, Annexure B at [39].

4. At the hospital, Ms Frazer’s left arm was x-rayed. The hospital records stated:

“Patient reports being at friends house when dog became aggressive and attacked her.

Reports injury to right thigh and left upper arm…

Nil other injuries

Minimal blood loss at scene

…

O/E:

2x small puncture sites to right lateral thigh.

…

2x puncture sites to left upper arm over medial edge of biceps.

Puncture through muscle, no soft tissue loss obvious

Palpable crepitus/subcut emphysema over medial upper arm

…

2x puncture sites to left upper arm over lateral aspect of triceps

Through muscle. No obvious tissues loss

Difficulty with elbow extension due to pain”. [5]

5. Exhibit A, p 56-57.

5. Ms Frazer received 18 stiches, antibiotics and Endone. On 20 August she was discharged from Westmead Hospital. Thereafter, on 21, 22, 24, 26, 29 August and 1 September 2017 she attended a medical centre under the care of Dr Graeme Scarr, where she had her wounds cleaned and the dressings on the wounds changed.

6. Dr Scarr reported that she complained of the wounds being sore and itchy, but the “wound looks good, clean, nil redness, nil signs of infection”, [6] and that Ms Frazer continued on analgesics (initially, Endone and by 12 September, Paracetamol) and antibiotics.

   6. Exhibit A, p 98.

7. On 12 September 2017 Ms Frazer visited Dr Scarr whose notes recorded “Poor muscle use” in her left arm, that Ms Frazer was having trouble sleeping, with “some flashbacks” and “features of Post traumatic stress disorder” and that she was “having trouble extending at the elbow of the left arm”. [7] Ms Frazer resisted advice for physiotherapy “as she is not privately insured”. [8]

   7. Exhibit A, p 100-101.

   8. Exhibit A, p 101.

8. On the same day, Ms Frazer gave a statement to a Cumberland Council officer who was investigating the dog attack. In that statement, Ms Frazer described how, at Ms Harb’s instruction, she tried to call Mr Romeo when a dog “latched onto my left arm” and another dog “latched onto my right thigh”, which caused her to fall to the ground. [9] There she remained for “what felt like a one (1) minute” until the dogs suddenly released hold of her, and she was able to get up and run into the house. [10] She stated that she was bleeding badly from her left arm and applied pressure to slow the bleeding, that she was eventually taken by ambulance to Westmead Hospital, and that the ambulance officer attended to the wounds and gave her medication for the pain.

   9. Exhibit A, p 152 at [12], [14].

   10. Exhibit A, p 153.

9. Ms Frazer, in the statement, said she had four deep puncture wounds to her right thigh, and the bite to her left arm damaged her bicep muscle and at the outer arm “was so deep it was open to the bone”. [11]

   11. Exhibit A, p 154 at [25].

10. Ms Frazer said her doctors said the wounds would take three to six months to be fully healed. Her statement on 12 September 2017 continues:

“35.   The wounds are still very painful and I am unable to sleep properly without pain killers, I am unable to basic tasks with my left arm from cleaning the house to doing my hair without being in pain.

36.   The injuries have had a massive impact on my business and have lost many clients and a major contract as I am unable to do many of the tasks that I used to do prior to the attack.

37.   I am still pretty shaken up from the attack which was evident when I went to the dog park with my own dog and was very wary of other dogs when they came near me. I think about the attack often like what if I done this or that.

38. I am still unable to return to full time work due to the injuries and have lost the majority of my income through my business.” [12]

12. Exhibit A, p 155.

3. Ongoing problems

11. In July 2018 Ms Frazer reported to Dr Endrey-Walder, her expert General and Trauma Surgeon, that:

“Right leg

‘The pain depends on what I am doing. For example, if I go down to pick something and push myself, I get discomfort, stiffness in the muscles of my thigh’.

‘If I sit down more than a few hours, like driving up to my Dad in the country, the scars itch, are irritable. Even crossing my legs I can feel the stretching’.

‘The scars…I am conscious of them, I am embarrassed in intimate situations, on the beach, I don’t wear short skirts anymore’.” [13]

13. Exhibit A, p 3.

12. Of her left arm Ms Frazer reported:

“Left arm

‘It’s weak, it makes me feel so useless.’

‘I can’t sleep on that side, even lying on my back I need a pillow under it’.

‘When I bend the arm, like I can’t use the phone with it, the arm tends to go numb’.

‘Using the arm it goes stiff, numb, sometimes pins and needles’.

‘Touching along the scars it’s like a Velcro feeling’.” [14]

14. Exhibit A, pp 3-4.

13. In his report of 4 July 2018, [15] Dr Endrey-Walder stated:

“She has remained with a lot of irritation at the scars residual from the bites, was particularly troubled by a sensation of weakness of the left upper limb, some non-specific paraesthesia in the right leg, again a lot of irritation at the scars.

She expressed her dismay about the embarrassing scars”.

“Over and beyond the physical trauma, there can be little doubt about the psychological aftermath, and one would much recommend at this stage for her to have attention from a clinical psychologist on account of this.”

“She has remained, quite apart from the psychological trauma, with significant bodily disfigurement on account of the multiple scars”.

15. Exhibit A, p 5.

14. Ms Frazer gave evidence orally and by affidavit. A recent statement of hers was read as part of an affidavit. That statement records:

“50.   When I was discharged from hospital, I returned to my unit at 'Silver Square' 87-97 Beaconsfield Street, Silverwater. My mum came over every day and was doing the chores around the home, and she was doing all the cleaning. She did the grocery shopping, cooked me meats and dinner, did the shopping and took me to medical appointments. Mum assisted me with undressing me, showering and dressing me.

51.   In the weeks following the incident, I had ongoing pain in my left arm and right thigh, but more so in my left arm.

52.   I had difficulties with washing my hair, brushing my hair, getting undressed and getting dressed. I was not able to lift my arm up or down. I had stopped being able to use it. Even to this day I have problems using my left arm, like holding a phone to my ear, it will start to tingle and go numb.

53. With my right leg, just walking was painful and a struggle. If trying to put on shoes and bend down, it was painful.

54.   I was having trouble sleeping and having nightmares of the dog jumping up towards my face and I would wake up in a sweat.

55.   I returned to see a Doctor on 12 September 2017 and advised the doctor of my lack of sleep and nightmares. I was not referred for any treatment or medication at that time,

56.   For the next 12 months, I had ongoing assistance from my parents. My mother in particular, was coming to see me every day.” [16]

16. Geoffrey O’Hare affidavit, 10/6/20, Annexure B at [50]-[56].

15. Ms Frazer gave evidence that initially her mother gave her assistance every day for five to six hours and that the assistance continued for six to eight months. Thereafter, she said her mother spent one and a half hours per week doing domestic tasks for her. Her mother is 64 years old.

16. Ms Frazer, in her oral evidence, described her problems in her arm as numbness from texting, getting a tearing sensation in her arm on movement, and also aching from her leg injury when sitting. She is still troubled by the scars.

17. Older photographs of Ms Frazer’s scars were tendered, and were evidenced to reflect their current appearance. The scars remain noticeable, both because of the unevenness of her skin and the discolouration on both the front and back of her left arm and her upper right leg. She said she has problems with heavy lifting, extending her left arm above her head, such as for hanging clothes and other domestic tasks. She was unable to work for about three months, but now has full-time employment.

18. Ms Frazer said she feels the effects of her attack every day. She had ADHD as a child and was prescribed dexamphetamine, which she ceased taking after completing high school. However, she recommenced taking this medication soon after the dog attack. She said she is upset daily with what she sees in the mirror, that she feels unable to go horse-riding, camping, swimming at the beach and on a motorbike with her cousins as she previously did. She ended a relationship before the attack and has not dated anyone since, she says, because it would involve her recounting the incident to explain her scars, which she does not “want to relive”. She says she feels troubled that the likelihood of her having children is diminishing, although she still hopes to have children.

19. Ms Frazer referred to her passion for horse-riding and working at the track, which she now does not do, and also made reference to her nightmares and limited physical interaction with her family because of her left arm disability.

4. Damages

20. Ms Frazer claims damage for non-economic loss, past and future medical expenses and past and future economic loss. She also applied, during submissions, for leave to amend her particulars to claim past and future domestic care on the basis of the evidence she gave, and leave was granted.

(a) Non-economic loss

21. Ms Frazer initially served a statement claiming non-economic loss calculated as 28% of a most extreme case. During final submissions, her counsel submitted that 30 or 31% was a more appropriate figure.

22. The task of assigning a percentage of a most extreme case is a difficult one, particularly in an ex parte hearing where no contrary view is presented. This does not diminish the credit of Ms Frazer. I accept her evidence, both of the seriousness, pain and trauma of the injuries and its aftermath, and also the ongoing difficulties of certain tasks and the psychological discomfort she daily faces when viewing and feeling the consequences of the traumatic incident.

23. Ms Frazer is 37 years old. Prior to the attack, she was engaged in growing her own cleaning business, but that business was abandoned as a result of her injuries. I have recounted earlier the changes that have affected her lifestyle and outlook. I take into account both the initial trauma and pain of the dog attack and its immediate aftermath, as well as the longer term effects upon her.

24. Doing the best I can, and recognising the somewhat arbitrary or unnatural task of reducing a qualitative event quantitatively, to a number, which, on any view, does not seek fully to compensate Ms Frazer because of the inbuilt discount to the calculation, I determine her injury to be 28% of a most extreme case. In the result, she is to be awarded the sum of $92,000 for non-economic loss under s 16 of the Civil Liability Act 2002.

(b) Past and future medical expenses

25. Ms Frazer claims for past medical expenses only $425.60 for the ambulance. Apparently all other expenses were met by the public hospital and medical system. She gave evidence of being prescribed dexamphetamine by her psychiatrist at a cost of $208 per visit every three months and $38 per bottle which, deducing from her evidence, seemed to last about three weeks. Whether this claim was not pursued because it related, in part, to a pre-existing condition, or because the expense was met otherwise than from her own pocket, or for other reasons, was not explained. No report or document from any treating mental health professional was in evidence.

26. For the future, Ms Frazer initially claimed four consultations annually at $110 plus $10 per week for medicine. Based on her evidence, the cost of the three-monthly consultation would average $16 per week. Her pre-injury usage of the dexamphetamine medication would be of limited relevance because of the significant period that elapsed since she had last used the medication in high school, well before the attack, and so should not diminish her damages.

27. A report dated 5 September 2018 by her expert psychiatrist, Dr Ben Teoh, referred to her having “recommenced the [dexamphetamine] medication in the last two months”. [17] The report made no reference to it being a continuing need or to its cost. As the medication is to be prescribed by a psychiatrist, it seems that it would be double counting to allow both psychiatric counselling, and a consultation for the script. Whilst there is no challenge to her evidence, due to this being an ex parte hearing, the absence of evidence from any treating doctor about the present need for this medicine, and its anticipated duration and the lateness of the increased claim, has led me to conclude that the claim should be discounted.

    17. Exhibit A, p 9.

28. In these circumstances, I would allow the sum of $4,000 for future medication and consultations apart from psychiatric counselling.

29. Dr Teoh also recommended counselling at $250 per hour “fortnightly to monthly for six months”. [18] I would allow eight sessions at $250, being $2,000.

    18. Exhibit A, p 10.

30. I would also allow the physical rehabilitation program recommended by Dr Endrey-Walder, [19] but not costed by him. I would allow the amount of $2,000 claimed, in part because I anticipate that the expense would be increased by Ms Frazer’s apparent aversion to normal gym membership due to her anxiety over her scars.

    19. Exhibit A, p 5.

31. Thus, I allow $425.60 for past out of pocket expenses, the amount claimed, and a total of $8,000 for future medical and counselling expenses.

(c) Economic loss

32. In the years up to 2015, Ms Frazer worked as a stable hand, a job that, on her evidence, may have resulted more from her passion for the track and horses than from the remuneration she received, which was about $24,000 per annum.

33. In 2015, Ms Frazer commenced a cleaning company. In 2016, the first full financial year, she received about $15,000 income. She received almost $18,000 the following year, indicating the growth of the business of which she testified. This growth is more pronounced when the details of this income are examined. In 2016, she received governmental assistance so that in round figures, her cleaning business produced $11,000 revenue but only $3,500 in income, whereas in 2017, her income was wholly derived from her business with over $27,000 revenue. The attack occurred early in the following financial year.

34. Doing the best I can with the limited figures available, I accept that Ms Frazer’s business may, on balance, have produced a total of $50,000 revenue in 2018 and netted her an income of about $35,000, and similarly grown again in the following year to have produced an income of $50,000 in 2019. This assessment of the income she would have received in 2018 and 2019 in her business, $35,000 in 2018 and $50,000 in 2019, is largely based on the growth in the business that is indicated by the first two years of the business.

35. Ms Frazer’s anticipated income must be compared with what she actually earned in those two years of 2018 and 2019. In 2018 she received only $17,634 in income, so that compared to $35,000 she lost income of $17,366 as a result of the dog attack. At a marginal tax rate of 19%, this equates to a loss, after tax, of about $14,000. Similarly, income of $50,000 in 2019 would produce an after tax income of a little over $42,000. As Ms Frazer earned $15,692 in 2019, she has suffered lost earnings in 2019 of $26,000. To calculate the net income I have ignored the Medicare Levy, but rounded down the figures. Thus, Ms Frazer suffered a total of $40,000 past loss of earnings over the past two completed years, being the financial years 2018 and 2019.

36. Ms Frazer obtained employment in the cleaning industry in April 2019 in an administration role, apparently at $65,000 per annum. I would not allow any loss for the current tax year because of this employment, as I am unable to be satisfied that even with growth in her cleaning business, her income would have exceeded this figure.

37. As to her future loss of earnings, I am likewise not persuaded that Ms Frazer’s cleaning business would, on the balance of probabilities, have produced a greater income than she receives from her current job in Customer Relations for a cleaning company. She does appear to have the business acumen and talent to succeed in her own business, but for the Court to continue to extrapolate, for more than two years, the initial growth rate (not merely the earnings) seen only in the first two years, seems to me to be speculative and likely to produce an excessive figure of loss.

38. Ms Frazer’s abilities may mean that she will do as well as an employee with wage rises in the future as she would have done in her new cleaning business. At least, this seems the most probable outcome. In addition, her previous employment suggests that she was prepared, in some cases, to sacrifice remuneration to follow her passion, and while she manifested a passion for her own cleaning company, I think it was too early to say whether that passion would have continued and prevailed over other passions, such as the one she had for the horses and the track.

39. That Ms Frazer now earns more than she ever has, and as much as I am persuaded she would have earned in her cleaning business, does not mean she is not entitled to something for a loss of earning capacity. She has lost the opportunity to build her business, she has lost the opportunity to make a living on the track and she has lost some physical robustness and psychological equanimity that may have allowed her many alternative forms of employment going forward, in the event that her current employment does not continue.

32. I think it is appropriate that a buffer be allowed, and I would allow the sum of $40,000 as a buffer against the possible loss of her current employment and the challenges she may face obtaining employment that she would not have faced had she not been attacked by the dogs.

33. I would also allow 11% on the past loss, that is, $4,400, and 14% on the future loss, that is, $5,600, in respect of lost superannuation, a total of $10,000.

(d) Domestic assistance

42. Ms Frazer’s belated claims for domestic assistance are not without some problems. Dr Teoh reported in September 2018 that Ms Frazer “does not require domestic assistance from a psychiatric perspective”, [20] and Dr Endrey-Walder, in July 2011, made no reference to any inability to do domestic tasks. He noted that in November 2017 she was working part-time and needing painkillers at the end of the day.

    20. Exhibit A, p 11.

43. In order to obtain compensation for past gratuitous domestic assistance supplied by her mother, Ms Frazer must meet the threshold for six hours per week for six months. Ms Frazer gave evidence that her mother did visit her daily for six to eight months. The extent of care supplied by her mother in the days and weeks following the attack cannot be doubted. However, I am unable to be satisfied that she required a minimum of six hours per week assistance for all of that six-month period, especially in circumstances when she was back at work, doing part-time cleaning, in the period November 2017 to July 2018, as Dr Endrey-Walder reported, a period that commenced some two months after the attack. This is not to say either that Ms Frazer’s mother did not provide significant domestic assistance, which Ms Frazer needed. Rather, I am not satisfied that the six hours per week threshold is satisfied for each week for the whole of that six-month period.

44. Going forward, Ms Frazer claims one and a half hours per week. I accept this is a fair calculation of her needs based on her psychological challenges and the physical restrictions with her left arm. But this care is currently provided by her mother and does not meet the threshold for gratuitous care. Were it to be wholly provided on a commercial basis, it would calculate to $64,119 based on 1.5 hours per week multiplied by $44 per hour multiplied by a multiplier of 971.5 because of her age. But Ms Frazer has at no stage engaged commercial cleaning.

45. The age of Ms Frazer’s mother suggests she will not always provide the assistance. Further, the evidence indicates that questions remain about whether the assistance will be required for the remainder of Ms Frazer’s life, and because of the attack.

46. Taking all these matters into account, I would allow the sum of $10,000 as a buffer against future commercial care.

(e) Conclusion

47. Accordingly, damages are as follows:

($)
Non-economic loss	92,000.00
Ambulance	425.60
Future medical and counselling expenses	8,000.00
Past economic loss	40,000.00
Future economic loss	40,000.00
Past and future superannuation	10,000.00
Future care	10,000.00
Total	200,425.60

5. Orders

1. Judgment for the plaintiff against the defendants in the sum of $200,425.60.

2. Defendants to pay the plaintiff’s costs.

**********

Endnotes

Decision last updated: 04 August 2020