Hage-Fairbrother v West

[2016] NSWDC 334

District Court

New South Wales

Medium Neutral Citation:	Hage-Fairbrother v West [2016] NSWDC 334
Hearing dates:	24, 25 and 28 November 2016
Date of orders:	29 November 2016
Decision date:	29 November 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Judgment for the plaintiff in the sum of $33,604.04. (2)   Reserve the question of costs for further hearing on Wednesday, 7 December 2016 at 10am before P Taylor SC DCJ (estimate of one hour).
Catchwords:	DAMAGES – assessment – dog attack – physical and psychological injuries – hands – little finger – scrotum – dog phobia – lost overtime
Cases Cited:	Graham v Baker (1961) 106 CLR 340
Category:	Principal judgment
Parties:	Dael Hage-Fairbrother (plaintiff) David James West (first defendant) Kathryn Leanne West (second defendant)
Representation:	Counsel: Mr S Brennan (plaintiff) Mr B Wilson (defendants)   Solicitors: Gerard Malouf & Partners (plaintiff) Hall & Wilcox (defendants)
File Number(s):	2015/124814
Publication restriction:	None

Judgment

INTRODUCTION

1. On 28 April 2012 the plaintiff, Dael Hage‑Fairbrother, was walking his blue American Staffordshire Bull Terrier named "Mack". Jay Dobbico, "one of [the plaintiff’s] really good friends", was with him (T20/16-21; T22/1-3). A Rottweiler dog belonging to the defendants, David West and Kathryn Bowman, came towards Mr Hage‑Fairbrother and attacked him and his dog, Mack. 

2. Mr Hage‑Fairbrother commenced proceedings. The defendants admit a breach of duty, so the hearing concerned the assessment of Mr Hage‑Fairbrother's damages.  This involved a consideration of the physical and psychological injuries and disabilities of Mr Hage‑Fairbrother, and the appropriate monetary award for them.

INJURIES

3. Mr Hage‑Fairbrother sustained dog bite injuries to both hands and to his scrotum.  Each of his hands and his scrotum required cleaning and surgery in the form of the insertion and removal of stitches.  His little finger on his left hand was the worst affected, as it was fractured.  Mr Hage‑Fairbrother described its condition immediately after the incident as being "like in a weird shape and it was sort of dangling off my hand".  Treatment of his left hand required the insertion of wires to hold the bones in his little finger in place, and the wearing of a splint.  Mr Hage‑Fairbrother remained in hospital for two nights, and did not return to work for ten weeks or more.

DISABILITIES

4. The physical injuries have substantially healed. Mr Hage‑Fairbrother has scars at the base of his right thumb ‑ "barely visible and is not tender" (Dr Truskett, Exhibit 7, p 4) ‑ but has full hand function, and according to his surgery expert, Associate Professor W Bruce Connolly, "There is no loss of movement or sensation from the right hand and there is no assessable permanent impairment" (Exhibit A, p 15). 

5. Mr Hage‑Fairbrother suffers no physical discomfort from the scrotum injury, but has a residual scar, which Dr Philip Truskett, the expert surgeon retained by the defendants, reported as causing Mr Hage‑Fairbrother some mental anguish, although no oral evidence was given of this by Mr Hage‑Fairbrother. 

6. The primary physical problem remaining is Mr Hage‑Fairbrother's left hand and, in particular, his left little finger.  He gets pain in cold weather and "experiences episodic pins and needles" (Dr Truskett, Exhibit 7, p 3).  The scarring on the left hand was reported not to be obvious or disabling, but Dr Connolly assessed the loss of movement and sensation in his left hand at 3% whole person impairment, an assessment with which Dr Truskett agreed.  Dr Truskett noted a minor reduction in grip strength.  Mr Hage‑Fairbrother's initial limited ability to bend his little finger was improved by six visits to a physiotherapist in 2012.

7. The primary impact of the left hand disability was reported to be sporting activities involving Mr Hage‑Fairbrother's left hand, and it did not otherwise impact on acts of daily living (Dr Truskett, Exhibit 7, p 7).

8. Mr Hage‑Fairbrother gave evidence that vibration through a drill or jackhammer, when held with his left hand, "ended up hurting my hand", and on one occasion, he felt diminished in the workplace from his declining to use a jackhammer and a comment made about it.  He said that there were other similar incidents, although none of these incidents caused him to lose his job or lose any income in that job.  This particular disability, arising from vibrating machines, was not specifically mentioned in his particulars of damage, but was referred to in some of the expert medical reports.

9. Mr Hage‑Fairbrother also reported psychological challenges.  Dr Klaas Akkerman, the psychiatrist retained by Mr Hage‑Fairbrother, reported a diagnosis of "Post Traumatic Stress Disorder, Major Depression and Specific Phobia (Dogs)" (Exhibit A, p 5).  Dr Alex Apler, retained by the defendants, accepted the diagnosis that Mr Hage‑Fairbrother had "developed Post-Traumatic Stress Disorder after this incident" (Exhibit 7, p 14), the symptoms of which he described as "mild".  He did not diagnose major depression or a specific phobia of dogs.  He did, however, refer to Mr Hage‑Fairbrother presenting "as sad, with reduced reactivity in his mood" (Exhibit 7, p 14).  He also noted that Mr Hage‑Fairbrother was wary of dogs, and recorded that Mr Hage‑Fairbrother avoids contact with dogs, or "taking his dog for a walk" (Exhibit 7, p 15). The reference to "his dog" was not explained.

10. Mr Hage‑Fairbrother's credit, including some of the history given to the psychiatrists and Mr Hage‑Fairbrother's evidence, was challenged in cross‑examination.  His evidence was largely, although not wholly, given in a restrained, sombre, unemotional way, which might support the references by the psychiatrists to "reduced reactivity", or "restricted affect", although there were some occasions when he smiled or seemed a little more light hearted. 

11. On the other hand, Mr Hage‑Fairbrother was reluctant, on occasion, to make any concessions, and sometimes tended to magnify the effect of the incident.  He gave evidence that his grandfather had moved to the United Kingdom and that he believed his grandfather was no longer keeping dogs. But subsequently he attributed his grandfather's "getting out of dogs" to the Rottweiler incident. He was unable satisfactorily to explain why his grandfather, when he left Australia, would provide another blue American Staffordshire Bull Terrier named “Madison” to Mr Hage‑Fairbrother's mother, which was kept in the backyard of his mother's house where Mr Hage‑Fairbrother continued to live until recently, when Mr Hage-Fairbrother had a phobia of dogs or avoided contact with them. 

12. Mr Hage‑Fairbrother signed a form for chiropractic treatment in December 2013. The form indicated that his "major complaint" was "back" and that it had a significant effect on his work, a moderate effect on his personal, social and recreational life and that he had treated it with medication and heat.  But Mr Hage‑Fairbrother was unwilling to accept that he had attended the chiropractor for back pain. 

13. Mr Hage‑Fairbrother said he started going to the gym after his physiotherapist told him in 2012 that he should try to strengthen his hand.  However, he told Dr Apler that he used to go to the gym before the incident, "I couldn't use my arms at the gym and I lost interest" (Exhibit 7, p 11). It is accepted that Mr Hage‑Fairbrother still goes to the gym three to four times a week using free weights, exercise machines and the treadmill, at least partly for purposes unconnected with his left hand. He was also reluctant to admit the truth of statements in his resume, that he rode a bike whilst on an overseas holiday, that he regularly played poker and that he trained and managed others at work (although he supervised an apprentice). 

14. Mr Hage‑Fairbrother also started a business in which he worked for a month or more after his employment with Cherrybrook Electrical (his first employer with whom he had initially been an apprentice) ended in 2013.  But he did not disclose anything of that business when recounting his work experience until he was asked directly about it. 

15. Mr Hage‑Fairbrother gave evidence that his lifestyle was principally one of getting home from work, sleeping, having dinner and then going back to sleep, although in cross‑examination he conceded going to the gym three to four times a week after work, entering poker tournaments weekly and attending music festivals and birthday celebrations with friends on occasion.

16. Mr Hage‑Fairbrother’s evidence of a dog phobia was diminished by him posting photographs separately of both Mack and Madison on Facebook, including one photograph of him relaxed and smiling with his arm around Madison.  He attributed this conduct to advice from his psychologist to interact with dogs.  The need for a photograph to be posted on Facebook was not explained, nor was the circumstance that the photo was apparently posted a year before he commenced seeing the psychologist.  The circumstance that he would live with his mother for most of the four and a half years since the incident and that for apparently the whole or most of that time, also with the dog, Madison, who was left by his grandfather to his mother’s care, notwithstanding that Mr Hage‑Fairbrother had a dog phobia was also not satisfactorily explained.

17. Some of these concessions are not directly relevant to issues in the proceedings; perhaps some are not even particularly significant. The impression gained of Mr Hage‑Fairbrother's unwillingness to concede matters was perhaps inaccurately increased by Mr Hage‑Fairbrother's delays prior to answering the questions.  Nevertheless, all these matters cause me to be cautious in accepting Mr Hage‑Fairbrother's evidence on controversial matters. 

18. The account given by Mr Hage‑Fairbrother was not assisted by corroborative evidence.  Apart from a reference to a reason why his former step‑father could not attend on the first day of the hearing, no explanation for any absence of witnesses was provided. Those potential witnesses included his mother, with whom he lived before the Rottweiler incident and for most of the time since. She was not called. Nor was any other witness called such as his very good friend, Jay (also apparently referred to in the evidence as “Jay Dobbico” and “Mr Dobbico”), who was with him on the occasion of the incident; his friend, James, with whom he travelled around Europe for several months; his friend who was a housemate before he went overseas; and his other friend and current housemate, Ben.  So the evidence as to Mr Hage-Fairbrother’s psychiatric condition largely comprised of his own oral evidence and the reports from the two medico‑legal experts.

19. Further, the particulars of Mr Hage‑Fairbrother's claim did not fully support his psychological disabilities.  The particulars refer to shock, anxiety, depression, phobia towards dogs, sleeplessness and nightmares, yet his history given to Dr Akkerman referred also to avoidance of walking, hyper vigilance, insomnia, diminished short‑term memory, energy, interest, concentration and libido, and that he is irritable, tearful and feels different.  Yet the difficulty of reconciling “[h]e avoids going walking if he can” with his European trip including walking tours, or reconciling "insomnia" in him sleeping before dinner and retiring early to sleep, or of Dr Akkerman's conclusion that he was not tearful or Mr Hage‑Fairbrother's failure to give evidence of his diminished libido all were unexplained.

20. I am not persuaded that Mr Hage‑Fairbrother was deliberately dishonest.  I accept, as his counsel submitted, that some of these unexplained matters might indirectly result from his psychological condition.  But the reliability of his evidence is adversely affected by inconsistencies between the particulars, his evidence, the history he provided to the doctors, and the documentary evidence.  This has also caused me to be cautious about his evidence.

DAMAGES

21. Mr Hage‑Fairbrother claims damages for past and future medical expenses, past and future economic loss and non‑economic loss.

MEDICAL EXPENSES

22. Past medical expenses are agreed to be $1,613.30.  As for future medical expenses, Mr Hage‑Fairbrother claims future medical costs of "$400.00/month for 2 years, psychologist and antidepressants" (the plaintiff's schedule of damages).  The basis of this claim is found in the report of Dr Akkerman, who stated (Exhibit A, p 6), "He would benefit from seeing a Psychiatrist and taking antidepressant medication.  This would cost $400.00 per month.  He will need this for 2 years."  However, Dr Akkerman does not provide any reason or basis for this treatment, or its duration, does not suggest it would have some rehabilitative function and states, "There is no need for rehabilitation." 

23. Dr Apler accepted the reasonableness and necessity of the past psychological counselling in 2015, but states (Exhibit 7, p 15), "No further treatment is required as his emotional symptoms are now mild and will continue to improve over time."  Neither doctor gave oral evidence.

24. Of the two psychiatric reports, Dr Apler's is much more detailed and his reasoning is disclosed.  His conclusions are expressed with clarity.  For these reasons, I prefer it. Apart from Dr Apler's report I note that Mr Hage‑Fairbrother has not yet taken any antidepressant medication in the four and a half years since the incident and has not sought the assistance of a psychiatrist even though both were recommended by his medico‑legal expert, Dr Akkerman, some 15 months ago in August 2015.  Nor has he sought any further treatment since his visit to a psychologist in 2015. 

25. For these reasons, I do not accept that Mr Hage‑Fairbrother will likely visit a psychiatrist or utilise antidepressants. Nor am I persuaded that any further psychiatric treatment is necessary.

26. Accordingly, I am inclined to award no amount under this head of damage for future medical costs, although a small buffer might be appropriate for the possibility of some future psychological counselling. 

27. I note that no claim is made for any future treatment expenses arising out of Mr Hage‑Fairbrother's residual physical disability, his left hand.  Dr Truskett reported that (Exhibit 7, p 7), "No further treatment is advised," as did Dr Connolly (Exhibit A, p 12).

ECONOMIC LOSS

28. Mr Hage‑Fairbrother particularised a claim for a loss of $600 a week for ten weeks.  He gave evidence that it was "[r]oughly about three months” before he got back to work.  No records of the period Mr Hage‑Fairbrother was away from work were tendered.  The defendants tendered material produced on subpoena by Cherrybrook Electrical (Exhibit 9), the business with whom Mr Hage‑Fairbrother worked before and after the incident.  The subpoena sought all the records relating to Mr Hage‑Fairbrother during his employment with Cherrybrook Electrical.  The exhibit included records of weekly payments, which showed that in the nine weeks prior to the incident Mr Hage‑Fairbrother was paid $484.70 each week.  In the weekly payments made in the three weeks after the injury, he was paid the sums of $594.67, $554.06 and $500.58 respectively. He was then not paid for five weeks, after which his payments recommenced on 27 June 2012 in the amounts of $568.48, $576.48, $581.62 and $562.06, and continued thereafter weekly at exactly, or approximately, $562.06 for several weeks.  The exhibit also included the medical certificate for Friday, 17 August 2012.

29. In these circumstances, it is apparent that Mr Hage‑Fairbrother has lost five weeks' wages.  I conclude that his net wages were $562.06 for that period, so his lost wages were $2,810.30. 

30. Lost wages for another five weeks are claimed.  It appeared to be conceded that these five weeks involved Mr Hage‑Fairbrother (either before or after the five weeks of no pay) taking holiday pay or sick pay whilst recovering from his injuries. No evidence indicated the extent to which each of these items was applicable.  In submissions, the defendants did not resist the suggestion that holiday pay taken to cover the period of absence should be recoverable but submitted that there was no evidence of this amount.  Mr Hage‑Fairbrother gave evidence that, "I used up all the sick leave and holidays that I ended up having", and, "There was some sick pay, yes".  So on this limited evidence, it is apparent that there was some sick pay and some holiday pay.

31. In reply submissions, counsel for Mr Hage‑Fairbrother sought to tender further records relating to the period prior to the incident, which contained more details of work each week. The records indicated that Mr Hage‑Fairbrother had worked about 14 hours of overtime in the previous ten months, but could not assist on the amount of income lost after the incident. The absence of the documents after the accident and the failure to tender these documents earlier was not explained.  The tender was objected to on the basis of its lateness and the absence of counsel for the defendants at the time of the tender (he having been excused during reply submissions).  In view of its limited relevance, and these other matters, the document was rejected. 

32. I accept that lost sick pay, because it was used up by the incident, has some value. That value must depend upon whether it could be carried forward, whether it would be paid out on termination, and whether Mr Hage‑Fairbrother in fact exhausted his sick pay before he left the employment of Cherrybrook Electrical in 2013.  There was no evidence of any of these matters. 

33. On the other hand, there was evidence that some of the paid weeks involved holiday pay.  Indeed, it seemed to be common ground in cross-examination that some portion of seven weeks (T147/29-31) was taken as holiday pay, and the residue as sick pay. 

34. In the circumstances, I propose to allow three weeks at $562.02 as being recoverable, principally as lost holiday pay, thus making eight weeks at $562.02 totalling the sum of $4,496.16.  Together with superannuation at 11%, the total amount of past economic loss is $4,990.74.

35. There was also some evidence from the plaintiff that he more readily forewent overtime opportunities after the incident.  However, his resume indicated that he did work overtime after the incident, a matter he reluctantly conceded, at least in relation to some extended work on weekdays. And in the absence of other records, and the absence of any such claim in the particulars, and in circumstances where counsel for the plaintiff declined to press a claim for lost overtime, I was not persuaded that any past lost overtime was due to the incident.

36. A claim for future economic loss is made in the amount of 10% of income until retirement.  This claim lacks a proper foundation.  The plaintiff must prove that the disability is productive of financial loss: Graham v Baker (1961) 106 CLR 340. Although Mr Hage‑Fairbrother gave evidence of an inability, or a lessened ability, to work with vibrating tools, such as a jackhammer and drill, no particular past loss from that limitation was identified or evidenced.

37. Dr Connolly's report (which answers questions in a letter of instruction sent to him, but that letter was not in evidence) does not identify any restriction in employment due to the plaintiff’s left hand injury (see Exhibit A, p 11). Nor does Dr Truskett. 

38. So far as the impact on earning capacity of Mr Hage‑Fairbrother's post-traumatic stress disorder, Dr Akkerman states that he "struggles" with his fulltime employment as an electrician, but that "[h]e should be able to work until the age of 65" (Exhibit A, p 6).  Dr Apler concluded that, "His ability to work has not been affected by his psychiatric disorder" (Exhibit 7, p 15).

39. As to lost future overtime, the absence of records showing the amounts of overtime that were undertaken both before and after the incident, the fact that Mr Hage‑Fairbrother was able, commonly, three to four times a week to go to the gym after work, and the concession by Mr Hage‑Fairbrother that he did some overtime after the incident, diminished the strength of any claim for lost overtime. In addition, Mr Hage‑Fairbrother, in his evidence, indicated a desire to wind down after work which caused me to conclude that any foregoing by him of overtime was principally due to a desire in Mr Hage‑Fairbrother to do other things than work. I was left unpersuaded that there is any financial loss occasioned by an inability to do future overtime as a consequence of the incident. 

28. In these circumstances, I am not persuaded that either the physical or psychological condition of Mr Hage‑Fairbrother will have any impact on his future earning capacity, and I decline to award any amount for future economic loss, save for a small buffer for the possibility that the mild post-traumatic stress disorder condition may yet require some time off for counselling.

NON‑ECONOMIC LOSS

41. Mr Hage‑Fairbrother is a 25‑year‑old man, who four and a half years ago had a traumatic encounter with a vicious dog.  He sustained significant injuries to both hands and his scrotum requiring surgical intervention.  His injuries healed over the subsequent two to three months, but he was left with reduced feeling and movement in his left little finger and a post‑traumatic stress disorder with mild symptoms.  So far as coping with life and his disability is concerned, he has moved out of his mother's home and now lives with two friends.  He has taken an extended holiday to Europe.  He looks after himself.  He goes to the gym regularly, even often.  He has friends and a reasonable level of social interaction with them and occasionally through dating.

42. Mr Hage‑Fairbrother submits that his condition is 30% of a most extreme case, whereas the defendants submit it is 18% to 20%.  I am not persuaded that the disabilities and injuries suffered by Mr Hage‑Fairbrother are greater than 20% of a most extreme case.  Although 20% of the amount ordered in a most extreme case is $121,000, the statute provides that at this level of percentage only $21,000 can be awarded.  Whatever one may think of that statutory provision and the method it provides for adjusting the non‑economic loss damages awarded, and in this particular instance whether it represents a windfall to the defendants at the expense of the plaintiff, is immaterial.  It was not suggested and cannot be the case that the reduced award is to be ameliorated by adjusting the percentage of a most extreme case.

CONCLUSION

43. Accordingly, Mr Hage‑Fairbrother is entitled to judgment including the sums of $21,000 for non‑economic loss, $4,990.74 for past economic loss and superannuation, $1,613.30 for past medical expenses and I also propose to include a modest buffer of $6,000 for potential future counselling and lost earnings as a result. 

COSTS

44. The parties have asked that I reserve the question of costs for further submissions.

ORDERS

45. Accordingly, the orders of the Court are:

1. Judgment for the plaintiff in the sum of $33,604.04.

2. Reserve the question of costs for further hearing on Wednesday, 7 December 2016 at 10am before P Taylor SC DCJ (estimate of one hour).

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Decision last updated: 06 December 2016