Ioannidis v Carretero

[2025] NSWDC 258

District Court

New South Wales

Medium Neutral Citation:

Ioannidis v Carretero [2025] NSWDC 258

Hearing dates:

24 – 25 March 2025

Date of orders:

15 July 2025

Decision date:

15 July 2025

Jurisdiction:

Civil

Before:

Catsanos SC DCJ

Decision:

(1)   Judgment for the plaintiff in the sum of $101,788.63.

(2)   The defendant is to pay the plaintiff’s costs.

(3)   The exhibits are to be returned.

Catchwords:

STATUTORY INTERPRETATION – Companion Animals Act 1998 (NSW) – whether bodily injury within the meaning of s 25(1)(a) includes psychological injury caused by trauma of witnessing attack on the plaintiff’s dog at the time of the attack on the plaintiff – damages for psychological injuries limited to the sequelae of physical injuries suffered by the plaintiff and the trauma of the attack on her

ASSESSMENT OF DAMAGES – approach to be applied to an interrelated but not compensable causal factor – evidentiary onus to disentangle contributing causes – unrealistic on the evidence to dissect components of a psychiatric injury suffered in one event – quantification of buffer for economic loss

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5D, 15

Companion Animals Act 1998 (NSW), ss 25, 26, 28

Cases Cited:

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22

Category:

Principal judgment

Parties:

Maria Ioannidis (Plaintiff)
Melissa Carretero (Defendant)

Representation:

Counsel:
Mr L Robison (Plaintiff)
Mr M Short (Solicitor Advocate) (Defendant)

Solicitors:
Shine Lawyers (Plaintiff)
Veritas Law Firm (Defendant)

File Number(s):

2023/131315

Publication restriction:

Nil

JUDGMENT

The Nature of the Claim

1. The plaintiff brings a claim for damages pursuant to s 25 of the Companion Animals Act 1998 (NSW) (CAA) arising out of events which occurred on 24 April 2020.

2. On that day, the plaintiff was walking her dog Lexi, an 11-year-old shih tzu, along a suburban street in Mortdale. Lexi was on a retractable lead at the time.

3. It is not controversial that the defendant’s dog, a large greyhound staffordshire bull terrier cross ran down the street unrestrained and viciously attacked the plaintiff’s dog. The plaintiff described graphically how the defendant’s dog grabbed Lexi and was throwing her from side to side as the plaintiff tried desperately to pick her up. When she finally was able to get Lexi, the defendant’s dog continued to attack. In the plaintiff’s words:

“… he kept running back and launching at me and he just kept attacking, and he just didn’t stop. He didn’t stop, and I was falling over and trying to get on my feet”.

4. The plaintiff described how whilst she was holding Lexi the defendant’s dog ripped Lexi’s whole paw off at the joint. She recounted how the dog bit the plaintiff across the neck, her face around the chin, her arm and her legs. The plaintiff described fingernails being completely ripped off in the chaos of the attack as she was falling over and tripping on the lead, all the time trying not to let go of Lexi.

5. Photographs taken immediately following the attack show that Lexi’s front left leg was completely severed at around the elbow joint and the plaintiff had various lacerations and abrasions, including to her neck, chin and hands.

6. By any measure, this was a violent and terrifying attack.

7. Fortunately, there was a vet nearby and following emergency treatment, which included amputation of the leg at the shoulder, Lexi survived.

8. The defendant admits she was the owner of the dog in question. She admits that her dog attacked the plaintiff’s dog. She does not admit her dog attacked the plaintiff but admits the plaintiff was wounded in the course of the attack upon Lexi. That distinction did not figure as a real issue in the running of the case. In any event, I am comfortably satisfied that as well as being wounded, the plaintiff was attacked by the defendant’s dog.

9. There is no dispute that s 25 of the CAA is engaged, making the defendant, to use the words of the section, “liable in damages in respect of bodily injury” to the plaintiff caused by the defendant’s dog wounding or attacking her.

10. The contest really centres around the nature and extent of the damages recoverable by the plaintiff. In short, the defendant argues that the plaintiff is entitled to recover damages in respect of physical injury sustained during the attack as well as any psychiatric injury suffered as a result of the attack on her and/or the physical injuries she suffered. The defendant says, however, that the plaintiff is not entitled to recover damages for psychiatric injury suffered as a result of what happened to Lexi. Beyond that, the defendant disputes the quantum of the plaintiff’s claim.

11. The plaintiff contends that she is entitled to damages for all of the physical and psychiatric trauma suffered as a result of the attack, including trauma associated with the attack on Lexi.

12. While the issues in the case are reasonably confined, as will be seen, they are not without some factual and legal complexity.

Overview of the Evidence

The Plaintiff

13. The plaintiff described how as she ran to the nearby vet holding Lexi, she could see her dog’s injuries.

14. An ambulance was called and the plaintiff was attended to. However, she refused to go to hospital because she needed to be with Lexi.

15. The plaintiff was asked about her emotional state at the time of the attack. She described herself as “traumatised” and a “mess” having seen the defendant’s dog rip Lexi apart. She said she was scared and described herself as being in a “state of shock”. She was in a lot of pain. Her face and her neck were sore. She said she couldn’t move because the dog had injured a muscle in her neck. The plaintiff’s arms felt like she had been in a fight and her whole body was aching. The plaintiff said fingernails had been ripped off and there were cuts everywhere. In describing the emotional trauma she said, “I just kept thinking about what happened and how it just didn’t stop”.

16. In the aftermath of the incident the plaintiff said she was feeling very sore. This probably lasted a few months. The plaintiff acknowledged she has no ongoing physical problems and “maybe very minor” scarring.

17. Asked about her present emotional state, the plaintiff said she struggles to walk outside with dogs, though she has a new puppy as Lexi recently passed away.

18. The plaintiff described ongoing anxiety associated with being outside and not wanting to deal with people.

19. In terms of her employment background, the plaintiff said she has run her own business since 1993 designing and manufacturing high-end bridal and evening wear. The business is operated out of shopfront premises about a 45 minute drive from where the plaintiff lives.

20. At the time of the events in question, Sydney was in the grip of a Covid lockdown. The plaintiff explained how pre-Covid she would work from Tuesday to Saturday whereas now she struggles to go in two half-days per week. She said she now requires her partner to assist her with driving and shopping.

21. Before the events in question, the plaintiff said she and her partner shared the domestic and cooking duties, though the majority was done by the plaintiff. Now, the plaintiff’s partner does the cooking, the cleaning up, and all the washing. When asked why she no longer assists with these things the plaintiff said, “mentally, I don’t cope with very much at the moment or since”.

22. The plaintiff said she is eating less now because she doesn’t have much of an appetite and has lost around 10 kilograms. She has no social life, whereas prior to these events the plaintiff said she would be out most nights. On her account, the only activity the plaintiff now appears to do regularly is going to the gym in the mornings. This is because she finds it very difficult to leave the house. She said, “I don’t do anything. I don’t want to go anywhere”.

23. The plaintiff gave evidence that apart from going into work for about eight hours each week, she mostly spends the rest of her time at home where she tries to do some work on the computer. This allows her to avoid seeing people.

24. The plaintiff said she literally thinks about the dog attack all the time, “it doesn’t leave my head. I can’t sleep. If I go for a walk, it has to be with someone, and I’m constantly looking over my shoulder”. The plaintiff also described problems with low energy and sleep disturbance.

25. In cross-examination the plaintiff confirmed that prior to the events in question she experienced some mental health issues and had a history of anxiety, for which she had seen her local doctor. The plaintiff also acknowledged that prior to the attack she had suffered from migraines. She accepted that in the month before this incident she had attended a medical centre with complaints of dizziness and disturbed sleep. That anxiety and stress, she said, was very different to what she suffered after the dog attack. In particular, before these events she did not have apprehension when leaving the house. She would socialise and went to work every day.

26. The plaintiff was asked about a statement she signed on 4 May 2021 in which she said she had been unable to be in paid employment or work in her business for a period of four-weeks from the time of the dog attack as a result of her injuries. The plaintiff said that, essentially, she was referring to her physical and not her psychiatric injuries in that statement.

27. Following on from that, the plaintiff was shown some internet records and accepted that in 2022 a celebrity had been photographed wearing one of her dresses at the Logie Awards, the suggestion being that the plaintiff’s business was far more active than she had said. The plaintiff agreed that her business is still active, but maintained she is not working to the extent she had previously.

28. The plaintiff was challenged about her evidence that she had lost weight because of her psychological problems. She was taken to clinical records of her general practitioner in October 2021 recording the fact that she could not lose weight. It was put to her that the eventual weight loss involved that which was gained during Covid.

29. The plaintiff was also tested on her evidence that her business had suffered as a result of these events. It was put to her that the business has in fact improved and she had not suffered any economic loss by reason of psychological injury. The plaintiff was firm that she now only works two days a week, if that, whereas were she able to work five days a week, her income would be greater. In a similar vein, the plaintiff was challenged on her evidence of inability to undertake domestic tasks previously performed.

30. A direct attack was made on the plaintiff’s bona fides in terms of malingering and exaggerating and it was put to her that there were Instagram posts of her at weddings. The plaintiff accepted that she had attended family weddings but said this was very different to working and she nonetheless had difficulties in attending family functions. She recounted how on one occasion she had to write a letter to the wedding venue to be able to bring Lexi with her.

Matthew Child

31. The plaintiff’s partner, Matthew Child, gave evidence that since the dog attack there has been a dramatic change in the plaintiff’s personality. He described increased anxiety and a reluctance to leave the house. Whereas prior to the incident the plaintiff did have some anxiety, according to Mr Child, she lived a normal life. Since the events in question the plaintiff’s anxiety has been, as Mr Child described it, “through the roof” and she no longer lives a normal life. He said the plaintiff locks herself in the house and it is very hard to persuade her to leave. He does 90% of the driving now and in particular drives the plaintiff to work. The plaintiff no longer does the household shopping or the various domestic tasks she did previously.

32. In cross-examination, Mr Child was accused of exaggeration both in terms of his evidence as to the amount of domestic work he did before the attack and his assessment of time spent undertaking domestic tasks since.

The Medical Evidence

33. Given the attack made on the plaintiff’s bona fides, the available expert medical evidence and treating records come into sharp focus.

34. A report of Dr Gulati, a consultant psychiatrist who the plaintiff saw for treatment in February 2023, described the plaintiff as having ongoing flashbacks and frequent nightmares. The plaintiff told Dr Gulati that she avoided leaving the house and described having extreme anxiety when she thought about leaving Lexi. Dr Gulati considered the plaintiff had significant symptoms of post-traumatic stress disorder (PTSD).

35. On the medico-legal front, the plaintiff saw Dr Chow, psychiatrist, at the request of her solicitors in February 2023. The complaints recorded by Dr Chow were generally consistent with the evidence the plaintiff gave in Court. Dr Chow concluded that, notwithstanding treatment by way of anti-depressant medication for 18 months, the plaintiff continued to suffer significant psychological symptoms justifying a diagnosis of PTSD.

36. The defendant relies upon a report of consultant psychiatrist Dr Leonard Lee, dated 29 April 2024. Dr Lee conducted a raft of symptom validity and other testing aimed at assessing the reliability of the plaintiff’s complaints. He came to the conclusion that, although self-reporting shows the plaintiff to suffer an extremely severe depression and anxiety, his testing indicated marked exaggeration. Invoking something of a double negative, Dr Lee concluded that malingering appeared to be a complicating factor saying, “it is impossible to reject the possibility of malingering which affects my ability to provide diagnosis and prognosis”. Dr Lee considered that, as the general practitioner’s records did not reveal traumatic stress immediately after the subject incident, “it was difficult to reject the proposition that the index incident has not had a direct effect on her mental health”.

37. Dr Lee focussed predominantly on three particular factors in rejecting the plaintiff’s claim. Firstly, he placed significant emphasis upon the plaintiff’s pre-existing psychological history. Secondly, he referred to an absence of traumatic stress recorded in the general practitioner’s records just after the incident, and thirdly, he emphasised the feigning and malingering he perceived from his testing of the plaintiff.

38. The available clinical notes establish that on 25 April 2020, the day following the attack, the plaintiff sought treatment from the MedFirst Medical Centre at Hurstville, when Dr Rehan recorded a history of the attack and noted the reason for the visit to be “Depression/Anxiety”. That consultation is noted by Dr Lee however he provides no insight into why it wouldn’t be consistent with contemporaneous signs of traumatic stress.

39. The plaintiff also attended the Hurstville Highpoint Medical Centre on 30 April 2020 where Dr Habashi records the scene of the attack to have been “very traumatic” and recommended the plaintiff see a psychologist. Dr Lee does not reference that consultation. However, it appears to involve the very type of complaint Dr Lee says was not evidenced.

40. Dr Lee emphasises the fact that in September 2020 the plaintiff sought medical treatment for an ant bite, considering it remarkable the plaintiff did not appear to be traumatised five months after the incident and observing that delayed onset of PTSD is implausible.

41. However, it is to be noted that the clinical notes show the plaintiff consulted with Dr Habashi by telephone on 9 July 2020. At that time, Dr Habashi observed the plaintiff had been seeing a psychologist to good effect and she was given a prescription for Pristiq (psychotropic medication). Again, Dr Lee does not refer to that consultation which, on the face of it, also tends to undermine his conclusions that there was a lack of contemporaneous evidence of traumatic stress.

42. Notably on 27 October 2021, Dr Liu of the Hurstville Highpoint Medical Centre records the plaintiff to be suffering from anxiety in the following terms:

“was apparent that she has chronic anxiety which has been worse in the past 2 years since a dog attack in early 2020 on her dog.

Seems to have PTSD like symptoms too…”

43. The nature of the attack, the contemporaneous complaints of psychological trauma, the prescription of psychotropic medication, the referral to a psychologist early on, and the treating histories referencing psychological problems following on from the attack all lead me to the conclusion that the plaintiff did suffer a genuine psychiatric condition as a result of the attack. Dr Lee’s reference to consultations not involving complaints of psychological problems at different times during 2020 in my view, does not mean there was no related psychological sequalae, but rather is consistent with the fact that from time to time the plaintiff also saw the doctors for other things.

44. There is a conspicuous absence of any real clinical observations of the plaintiff by Dr Lee, whose conclusions are firmly rooted in the results of the testing he undertook.

45. I find the opinion of Dr Chow more consistent with the treating clinical records and to share a symmetry with the opinions expressed by the treating psychiatrist, Dr Gulati.

46. Neither Dr Chow nor Dr Gulati considered the plaintiff to be ingenuine, nor did I gain that impression from her presentation before me. On balance, I do not accept the opinion of Dr Lee that the plaintiff was feigning. That opinion was based predominantly, if not entirely, on symptom validity and other testing which, as Dr Lee’s report acknowledges, is not definitive. The clinical observations of Dr Chow and Dr Gulati supporting the plaintiff as having a genuine psychological injury are more consistent with the impressions I gained of her in the witness box, supported as she was by Mr Child.

47. Having said that, I did nonetheless gain the impression that, whilst not feigning, the plaintiff’s complaints are in some respects potentially unreliable. This will be discussed in more detail when I come to consider the assessment of the plaintiff’s damages.

48. Otherwise, consistent with the concessions made by the plaintiff, it is apparent that her pre-existing psychological problems were not insignificant. The records of the Mulga Road General Practice and Dr Wong show that the plaintiff experienced symptoms of anxiety and depression prior to the attack, and Dr Liu of the Hurstville Highpoint Medical Centre notes on 27 October 2021 that the plaintiff had experienced chronic anxiety, although worse in the two years since the dog attack. In his referral to the psychologist on that day, Dr Liu refers to PTSD following the dog attack and a history of chronic anxiety since the plaintiff was in her teens.

49. Dr Gulati in his report dated 14 February 2023 refers to the plaintiff being a worrier pre-morbidly, with her anxiety symptoms increasing since the dog attack.

50. Dr Chow describes a past history of anxiety and depression which had resulted in a need for anti-depressant medication on three occasions.

51. On balance, I find that the dog attack caused the plaintiff to suffer psychiatric injury in the form of PTSD, against the background of a prior history of anxiety and depression.

Application of the Companion Animals Act

52. There was, in the course of argument, some focus on the application of s 25(1) of the CAA which provides:

25   Liability for injury to person or damage to personal property

(1)  The owner of a dog is liable in damages in respect of—

(a)  bodily injury to a person caused by the dog wounding or attacking that person, and

(b)  damage to the personal property of a person (including clothing) caused by the dog in the course of attacking that person.

53. The issue of construction engaged by the defendant centres around the interpretation of the words “bodily injury” in s 25(1)(a). As indicated earlier, the defendant takes the position that the section accommodates damages in respect of physical injury and psychiatric injury arising out of both the attack on the plaintiff and her physical injuries. It does not, in the defendant’s submission, extend to psychiatric injury suffered as a result of the trauma associated with the attack on Lexi. The defendant contends that Lexi was, for relevant purposes, “personal property”. As such, damages in relation to Lexi’s injuries would be limited to costs associated with treating those injuries (which is not part of this claim) but would not include the broader effects of Lexi’s injuries upon the plaintiff.

53. In the circumstances, it is unnecessary to delve into whether s 25 of the CAA is more restrictive in respect of the damages recoverable for psychiatric injury.

54. The plaintiff contends that bodily injury caused by the attack includes mental harm consequent upon all aspects of the attack, which encompasses the attack on Lexi.

55. The plaintiff argues that, consistent with earlier authorities of this Court, s 25 CAA regulates the liability of the parties while damages are to be assessed in accordance with the Civil Liability Act 2002 (NSW) (CLA).

56. On that basis, the plaintiff submits that s 5D of the CLA, which regulates causation, is not engaged because it is a liability provision and applies only to causes of action grounded in negligence. [1]

    1. Negligence relevantly involving some fault-based conduct (see Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [40]).

57. There is force in the submission that the liability provisions of the CLA which apply to negligence-based claims do not apply to an action under s 25 of the CAA, which imposes strict liability irrespective of fault on the part of the defendant. This construction is strengthened somewhat, in my view, by ss 26 and 28 of the CAA which, in the limited circumstances covered by those sections, [2] allow for liability to be treated as arising from fault on the part of the owner of the animal.

    2. Namely, actions under the Compensation to Relatives Act 1897 (NSW) and the defence of contributory negligence.

58. On balance, I consider the better view is that s 5D of the CLA has no application to the present case, which does not involve fault-based conduct on the part of the defendant. However, in practical terms, if I am wrong about that, I consider it is of little moment. That is because I do not consider the common law test of causation, namely whether there has been a “material contribution”, [3] would yield a different outcome to the “but for” test of causation under s 5D CLA on the facts of this case. In either event, for the reasons outlined and those which follow, I am satisfied that the plaintiff’s injuries were caused by the wounding and attack perpetrated by the defendant’s dog.

    3. See generally Allianz Australia Ltd v Sim; WorkCover Authority (NSW) v Sim; Wallaby Grip (BAE) Pty Ltd (In Liq) v Sim [2012] NSWCA 68 and the authorities discussed, especially at [37] – [52].

59. As to the nature of the damages recoverable by the plaintiff, I consider that s 25 of the CAA has no wider operation than that which has been conceded by the defendant. In my view, whatever be the parameters of “bodily injury” in s 25, the plaintiff’s damages for psychological injury do not extend beyond the defendant’s concession, namely the sequelae of physical injuries she suffered and the trauma of the attack upon her. Specifically, I do not consider, properly construed, that s 25 of the CAA extends to the plaintiff recovering damages for the psychological trauma of witnessing the attack on Lexi. Consistent with its terms, in my view, the strict liability provided for in s 25 CAA ought be limited to injury to the plaintiff caused by the defendant’s dog wounding or attacking her, not Lexi.

Disentangling

61. On that construct, the difficulty to be navigated when assessing damages, in terms of causation, lies in how one deals with the contribution made to the plaintiff’s psychological state by the trauma suffered as a result of the injury to Lexi.

62. On the interpretation of s 25 of the CAA which I have adopted, the plaintiff argues it is incumbent upon the defendant to disentangle any component of the plaintiff’s psychological condition related to the trauma associated with the injuries suffered by Lexi.

63. The defendant’s position is that the predominant, if not the only, cause of the plaintiff’s psychiatric injury is the attack upon, and injury suffered by Lexi. If there was a component of psychiatric injury related to the injury to, and attack upon the plaintiff, the defendant argues it eventually dissipated to the point where the entirety of the plaintiff’s ongoing psychiatric condition is related to the attack on Lexi.

64. As I perceive it, the defendant argues in the alternative that, if the plaintiff’s ongoing problems are a composite of trauma related to the attack on her and the attack on Lexi, the main cause of her ongoing problems relates to the attack on Lexi.

65. The starting point here is to consider the opinions expressed by the respective psychiatrists on the question of causation.

66. Dr Lee, as I understand his opinion, accepts that the plaintiff suffers from some psychological problems in the nature of anxiety and depression, although he attributes this to her “pre-existing condition… magnified by litigation” heavily infected with exaggeration and malingering. For the reasons already canvassed, I consider Dr Lee’s views on causation to be out of step with the evidence.

67. Apart from completely exculpating the attack as being causative of any ongoing problems, Dr Lee does not engage in any attempt at disentangling.

68. Dr Chow does not engage in any detailed analysis of this issue. In the context of a history of the plaintiff being attacked and physically injured, he appears to consider the entire event was causative, saying:

“I do consider Ms Ioannidis psychiatric injury has been caused by the trauma from the dog attack on 24 April 2020.”

69. Dr Gulati talks of the plaintiff “vividly” recalling when “she and Lexi were attacked by another dog”.

70. Dr Gulati described flashbacks of the traumatic event and frequent nightmares, with the plaintiff having anxiety around leaving Lexi alone.

71. In my view, it is unrealistic and contrary to the prevailing medical opinion supporting the plaintiff’s claim to suggest, as does the defendant, that the traumatic effects of the event only concerned the injury to Lexi. The plaintiff was injured, she was bitten around the throat, neck and face, and as she described in evidence, she was fearful of an obviously vicious dog repeatedly launching itself at her and her dog. Whilst the attack on Lexi was graphic and obviously extremely upsetting for the plaintiff, on my reading of the medical evidence, the attack upon the plaintiff herself is embedded in the PTSD she suffers.

72. The evidence, both factual and expert, satisfies me that the attack upon the plaintiff and the attack upon Lexi are inextricably linked.

73. The plaintiff’s submissions as to the onus resting on the defendant to disentangle causation and extract that component of the plaintiff’s psychiatric problems which is related to the trauma associated with the attack on Lexi, has its roots in what was said by the High Court in Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 and Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34.

74. This must be considered in light of exposition in more recent authority such as Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, where the Court of Appeal made it clear that the evidentiary onus resting on the defendant does not require precise empirical evidence of the relevant contribution and effects of a competing unrelated cause. Rather, as Ipp JA said at [104] – [105]:

“104 What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec [Malec v JC Hutton Pty Ltd (1990) 169 CLR 638] has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.

105 Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.”

75. Applying that reasoning to the facts of the present case, given that the plaintiff has established she suffers PTSD caused by the attack on her, it is for the defendant to provide evidence which would enable a reasoned evaluation of the psychological effects of the trauma associated with the attack on Lexi, independently of the attack on the plaintiff.

76. There is no such evidence, nor is there any evidence which would enable me to reliably weigh the contribution of one causal factor over the other.

77. It may well be that, as discussed in Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 at [54] (in a different but nonetheless relevant context), this is a case where it is unrealistic to attempt to dissect the components of a psychiatric injury suffered in one traumatic event.

78. In any event, ultimately, I have no reliable evidence to dilute the causal link between the attack on the plaintiff and the PTSD I am satisfied she suffered as a result. Accordingly, I do not propose to apply any discount in respect of trauma associated with the attack on Lexi.

79. I turn then to the assessment of damages.

Damages

Non-Economic Loss

80. The plaintiff was born in 1970. She was 49 at the time of her injury and is presently 54. As described, she was subjected to a frightening attack which has left her with the ongoing effects of PTSD. On the plaintiff’s case, the effects of that condition have been pervasive, reducing her capacity for work, her contribution to domestic tasks, and eroding her quality of life. Otherwise, her physical injuries have recovered, and she has very minor scaring.

81. The plaintiff does however continue to work, albeit at a reduced level and does socialise, again to a restricted extent.

82. The plaintiff also attends the gym six days per week which involves an element of social interaction and presumably enjoyment. Although her partner does the majority of the driving, the plaintiff still drives a vehicle. As will be seen in the assessment of other heads of damage, I consider some of the plaintiff’s complaints are not entirely reliable. Those conclusions are not based on any adverse view of the plaintiff’s credit, who I have accepted suffered a genuine psychiatric injury as a result of the attack. However, I consider some of the plaintiff’s evidence is coloured by preoccupation with the attack and the emotional turmoil it has caused her. I think it likely the plaintiff’s focus on her problems, influenced by this litigation, has meant that she has in some respects overstated the effects of the injury she suffered. I also consider, given the fairly limited treatment the plaintiff has had to date, there is cause to expect some improvement with the intervention of counselling and the assistance of medication as well as the passage of time generally.

83. In undertaking the evaluative task involved, I consider the plaintiff to be 25% of a most extreme case and allow non-economic loss in the sum of $49,500.

Past Out of Pocket Expenses

84. The defendant submits that the plaintiff is entitled to out of pocket expenses for the “first few months following the incident” but otherwise argues that the plaintiff’s injury was fairly minor, and any ongoing expenses thereafter are not compensable.

85. Without conceding liability, the defendant has mathematically agreed a sum of $2,288.63 for past out of pocket expenses, however, the component parts of that amount are in dispute.

86. Within the agreed sum is an amount of $256.88 claimed for medication. The defendant argues that medication was not required because the injury was minor, or alternatively, there would have been a need for medication in any event because of the plaintiff’s pre-existing psychological problems. I reject that submission. Based on the evidence before me, there was a contemporaneous need for medication prescribed in the aftermath of the attack. Given my finding that the plaintiff suffered PTSD arising out of that attack, there is no evidence to gainsay her need for medication as a result of that. There is no evidence that the plaintiff would have needed medication for other reasons in the time which has passed since the attack.

87. Otherwise, the defendant disputes the amount of $600 being the treatment costs of the psychiatrist, Dr Gulati. I have accepted Dr Gulati’s opinion, I accept that his intervention was reasonable, and I accept that it was causally related to the attack upon the plaintiff. Accordingly, I allow the amount claimed.

88. The balance of the agreed figure reflects the costs of attendances with general practitioners. The defendant argues there is not a reasonable correlation between those expenses and any injury arising out of the attack, again as I perceive it, largely because the defendant argues that any psychological injury arising from the attack on the plaintiff was minor. My findings are to the contrary. In the absence of any evidence or structured submission as to why the amounts claimed ought not be allowed, I am satisfied on the material before me that there is a reasonable correlation between the treatment disclosed in the clinical records which have been tendered and the amounts claimed.

89. Accordingly, I allow the mathematically agreed amount for past out of pocket expenses of $2,288.63.

90. Additionally, the plaintiff claims what is effectively a buffer of $2,000 said to be for Medicare transactions. It was put to me that there was no direct documentary evidence supporting that claim because the material available only covers three years. It is suggested I should nonetheless infer that there was treatment and allow $2,000 against that contingency. There is no evidence supporting that allowance and no basis for such an inference. Accordingly, I do not infer liability for any additional past out of pocket expenses.

Future Out of Pocket Expenses

91. The plaintiff’s schedule claims an amount of $77,378.38 for future treatment expenses. The defendant again submits that the condition has resolved and does not advance a submission in relation to the quantum of the amounts claimed if one assumes, as I have found, that the plaintiff suffers a genuine psychiatric condition as a result of the attack.

92. The only evidence in the plaintiff’s case quantifying future out of pocket expenses is that of Dr Chow who expresses the opinion that the plaintiff should engage with a psychologist on a fortnightly basis and a psychiatrist monthly for at least two-three years, and she should continue with medications for at least five years. Dr Chow values the cost of a psychologist at $250 per session and a psychiatrist at $450 per session. He expresses the view that medications would cost between $100 and $200 per month. It is that opinion which broadly forms the basis of the plaintiff’s schedule, together with a claim, unsupported by evidence, for ongoing conservative medical management of $1,500 per annum for the balance of the plaintiff’s life expectancy.

93. In the plaintiff’s final written submissions, the plaintiff acknowledges that the lack of active treatment to date lends itself to a buffer to accommodate the potential for future psychiatric intervention and/or counselling, rather than a precise figure.

94. The evidence suggests that the plaintiff has had little in the way of active treatment and in particular it appears that the plaintiff has not been the subject of any structured mental health care plan, despite Dr Gulati recommending the plaintiff see a psychologist when he consulted with her in February 2023. Although the plaintiff gave evidence that she wants to get better and knows she needs treatment, she said that she can’t deal with rehashing the whole thing over and over again. I expect that counselling and psychological intervention would not in fact focus on reliving the traumatic event, but would provide strategies for dealing with the plaintiff’s problems.

95. The plaintiff told me she could not recall when she last saw a psychiatrist or psychologist. So far as I can tell, the last time the plaintiff had any specialised treatment was when she saw Dr Gulati back in February 2023.

96. It seems to me, given the florid symptoms of which she complains, the plaintiff would have been expected to avail herself of treatment, particularly when this was recommended by the treating psychiatrist.

97. Whilst this might potentially count against the extent and severity of the plaintiff’s problems, it also impacts directly on the claim for future treatment. In light of the history to date I consider it unlikely the plaintiff will undertake treatment to the extent recommended by Dr Chow. It is more likely she will take medication in the future, as she has done in the past. In any event, on the preponderance of evidence there is a case for some treatment and with that, scope for the plaintiff to ameliorate the effects of her injuries and achieve some improvement.

98. Another factor which must be borne in mind when considering future out of pocket expenses is the plaintiff’s history of past psychological problems, for which she has, at times, taken medication.

99. Bearing in mind the costings provided by Dr Chow and balancing the other factors at play, I allow a buffer for future out of pocket expenses in the sum of $15,000.

Economic Loss

100. As discussed earlier, the plaintiff prior to the dog attack had for many years worked in her own high-end bridal and evening wear business. The plaintiff said that before the events in question (and the intervention of Covid) she would work most days from Tuesday through Saturday. Although she did not have set trading hours, the plaintiff would generally see clients by appointment on weekdays between 10am and 6pm and on Saturdays between 9am and 3pm. The plaintiff said she would, as part of her business operations, consult with the machinists who worked for her.

101. Since the attack on Lexi, the plaintiff says she now tries to get into work for maybe eight hours a week and that is because she finds it difficult to leave the house due to her anxiety. As she described it:

“Just my anxiety, being outside, having to run into any, like, dogs. My anxiety just - I didn’t want to have to deal with any people.”

102. In cross-examination the plaintiff agreed that at the time of the attack there were no weddings because of the Covid pandemic and in due course her business was completely shut down. The plaintiff’s evidence was that following Covid she did not go back to work when she could have because of her psychological problems.

103. In the course of cross-examination, the plaintiff was taken to the statement mentioned earlier in which in May 2021, she said she was “unable to be in paid employment or to work in my own business for a period of 4 weeks from the time of the attack as a result of my own injuries”.

104. As mentioned earlier, it was put to the plaintiff that this was inconsistent with her account of ongoing incapacity of the type she described to me. The plaintiff however, said that the statement referred to her physical injuries only.

105. I do not see the statement as necessarily being inconsistent with the plaintiff’s evidence because it appears to speak of her being totally incapacitated for a period of four weeks, whereas her case on economic loss beyond that is a partial incapacity reflected by her inability to work full-time hours. The omission of any reference to that ongoing partial incapacity might be seen as potentially significant, though without knowing the context and purpose of the statement, I do not draw any adverse conclusions from it.

106. Nonetheless, as I have indicated, I have formed the view there is an element of unreliability in some of the plaintiff’s evidence. Although I do not think that is a product of a conscious attempt to mislead, it does lead me to exercise some caution in considering the claim for economic loss.

102. I understand the plaintiff’s limitation to be an inability to work the hours she used to because she finds it difficult to leave the house. However, the fact is the plaintiff does leave the house most days to go to the gym. On the face of it, that is not something Dr Gulati noted or reconciled. Dr Gulati appears to have understood the plaintiff’s restrictions in leaving the home to be associated with the fact she did not wish to leave Lexi.

103. Dr Chow observed that the plaintiff was working part-time hours and again focuses on the plaintiff not wishing to leave Lexi alone for too long. Dr Chow does observe that the plaintiff still tries to go to the gym in the morning, which is close by, and notes that the plaintiff had been trying to work three days per week.

104. As mentioned earlier, the plaintiff gave evidence that apart from eight hours or so going to work each week, she spends the rest of her time at home. On her evidence, she does virtually nothing around the house. When asked what she does, the plaintiff said she will do anything she can on the computer, that doesn’t involve having to see too many people.

105. The plaintiff’s description as to the extent of her restrictions sits uncomfortably, in my view, with the plaintiff going to the gym six days a week and on occasion driving herself there. It is also not easily compatible with the plaintiff not availing herself of treatment. Whilst the defendant did not advance a mitigation defence, these matters do impact upon the objective assessment of the nature and extent of the plaintiff’s problems.

106. Limited financial records were tendered in the plaintiff’s case. I have the plaintiff’s individual tax records only for the period from 30 June 2014 to 30 June 2019. Otherwise, I have the company taxation records for the corporate vehicle which operates the business for the period from 30 June 2014 to 30 June 2023. I also have a Profit and Loss Statement from 30 June 2019 to 30 June 2023 and Business Activity Statements from July 2017 to March 2024.

107. The plaintiff told me that she was the only person who generates income in the business, that the business suffered a decline during Covid but was functioning normally before that. She engaged contractors before Covid, but the number would fluctuate depending on how busy it was. It appears the plaintiff may engage only one contractor now. The plaintiff told me that pre-Covid the business always fluctuated, it would go up and down, and the number of contractors she would engage depended on how busy she was.

108. The plaintiff gave evidence that the gross receipts and the business turnover was the gauge for how busy things were. She said she still tries to do the buying and designing but engages her partner, Mr Child, to assist her, although she does not pay him for that work. Nonetheless, the plaintiff continues to do as much of that work as she can over the phone. The plaintiff said that she has one-on-one clients and that when consultations are needed, she goes into the business premises. Otherwise, things are done on the computer from home, with some help from her partner.

109. The plaintiff was cross-examined on Business Activity Statements, and it was put to her that the business had increased gross receipts in the post-Covid period to the point where it exceeded the pre-Covid sales made in 2019, such that there had been no reduction in income generated as a result of the incident in question. The plaintiff said she didn’t know what she earned, I infer that is because she relied upon her accountant to prepare her tax records. However, the plaintiff accepted the proposition that in the first three months of 2025, on a pro-rata basis, she was earning more than she had in 2019. Whilst the plaintiff said that was fair enough, she considered she would be making more if she could go into work five or six days a week as she had done beforehand.

110. The financial records which were tendered are of limited assistance. As I read them, those records do not provide a foundational basis for all the propositions put to the plaintiff in cross-examination in respect of pre-injury and post-injury earnings. However, they do show that post-Covid there has been a steady rise in income generated by the company.

111. The available records tell me that the plaintiff’s taxable income in the pre-Covid years was modest, being generally around $35,000.

112. It is not for me to speculate on how I should interpret incomplete and unexplained financial records, given the complexities at play. Ultimately, it is impossible for me to know what the true financial position is on the evidence before me, and how I should factor in the effects of the pandemic.

113. Whether, and to what extent, the plaintiff has suffered economic loss post-Covid, having regard to the documents available and the concessions made by the plaintiff, is a matter of uncertainty.

114. The argument that the plaintiff would earn more income if she worked five days per week is superficially attractive. However, it is clear the plaintiff has been working from home, and the extent to which that defrays income loss is again a matter of speculation. Nonetheless, on the face of it, the income which has been generated since Covid is substantial, and in my view, is not easily reconciled with the plaintiff working only eight hours per week.

115. One answer is that the plaintiff has attended work more often than she says. Another is that she has accommodated her problems and her earning capacity by the way she has adjusted her work practices.

116. In exploring that question, I have some disquiet from the clinical note of Dr Wong dated 24 August 2023 which records, “goes to gym, work without trouble”. Although this was not cross-examined on and must be treated with caution, it is consistent with the plaintiff having more capacity than her evidence suggests.

117. Although perhaps not independent, Mr Child’s evidence cannot be ignored on this issue. He corroborates driving the plaintiff to work and otherwise providing her with assistance with some work tasks. However, Mr Child did say he would take the plaintiff to work on a Saturday and wait for her for five or six hours and drive her home. This does not fit easily with the plaintiff’s evidence of working a total of only eight hours over two half days per week.

118. On balance, I have concluded that the plaintiff probably does more work than her evidence suggests.

119. Whilst I cannot comfortably determine whether, and to what extent, the plaintiff has lost income, I am nonetheless satisfied that the plaintiff has suffered some loss of earning capacity as a result of the psychological injury caused by the dog attack. In valuing that loss, I must also factor into my considerations the potential for improvement with treatment and time, as well as the potential for the plaintiff’s pre-existing psychological problems to have come against her in any event.

120. Inevitably any allowance for economic loss can only be by an impressionistic buffer. In all the circumstances, for the reasons foreshadowed, I allow a buffer of $35,000 for past and future economic loss.

Domestic Assistance

126. The plaintiff mounts a claim for past and future gratuitous attendant care services provided to date by Mr Child.

127. The evidence of the plaintiff and Mr Child is that the plaintiff has done virtually nothing domestically since the attack.

128. It is acknowledged that the plaintiff has no physical impediment on her capacity to perform domestic tasks. However, I accept that psychological factors can certainly operate to affect a person’s capacity to do these things.

129. Mr Child estimates he spends eight hours per week performing those tasks the plaintiff performed prior to the attack.

130. The plaintiff’s explanation for no longer performing domestic tasks is that she can’t manage mentally. She says for example, Mr Child cooks seven nights per week, does all the cleaning up afterwards, does all the laundry, mops and vacuums the floors, and does all the shopping. Additionally, Mr Child does most of the driving. The plaintiff’s estimates of the additional time now spent on domestic tasks by Mr Child well exceeds Mr Child’s estimate.

131. Again there are anomalies which give me pause for thought. For example, the plaintiff gave evidence that she was mainly responsible for meal preparation prior to the dog attack. This is seemingly inconsistent with evidence the plaintiff gave in another context when describing the effects of her injuries on her social life. In that account the plaintiff described how before the events in question she would go out for dinner most nights.

132. The profound restrictions described by the plaintiff were largely corroborated by Mr Child, although rather than cooking seven nights per week as contended by the plaintiff, he says he will now usually cook five meals per week and get take away on the other nights.

133. Dr Chow supports the plaintiff needing at least four to six hours a week of domestic assistance but provides no reasoning as to what that would involve or why it would be needed from a psychological perspective.

134. Nothing in the psychiatric evidence I have seen supports what might be considered to be a total inability to function domestically. Moreover, the plaintiff’s ability to perform some work and go to the gym on an almost daily basis, in my view, does not support the far-reaching restrictions alleged. Again, I have concerns as to the reliability of the plaintiff’s evidence in this regard. Even assuming Mr Child’s corroboration is accurate, it does not establish the assistance provided by him was reasonably necessary.

135. Notwithstanding the absence of a break-down, it is apparent that Dr Chow does not consider the extent of the plaintiff’s domestic restrictions to be as extensive as suggested by her and Mr Child.

136. On balance, I accept that the plaintiff may need some assistance around the house from time to time and that Mr Child drives more than he did previously, however on all the evidence, I do not accept there has been, or will in the future, be any causally related need for gratuitous domestic assistance meeting the prevailing threshold under s 15(3) of the CLA. [4]

     4. At least six hours per week for a period of at least six months.

137. Accordingly, I make no allowance under that head of damage.

Summary

138. For those reasons, I allow total damages of $101,788.63 made up as follows:

Non-Economic Loss	$49,500
Past Out of Pocket Expenses	$2,288.63
Future Out of Pocket Expenses	$15,000
Economic Loss	$35,000
Total	$101,788.63

Orders

139. Accordingly, I make the following orders:

1. Judgment for the plaintiff in the sum of $101,788.63.

2. The defendant is to pay the plaintiff’s costs.

3. The exhibits are to be returned.

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Endnotes

Decision last updated: 15 July 2025