Kovacevic v State of South Australia No. Cicd-99-771
[2000] SADC 55
•9 May 2000
KOVACEVIC V STATE OF SOUTH AUSTRALIA
[2000] SADC 55
Judge Herriman
Criminal Injuries Compensation
In this matter, the plaintiff has sought an order for compensation under section 7 of the Criminal Injuries Compensation Act 1978, as amended, arising out of injuries allegedly sustained by her on 18 June 1998 at Collins Parade, Hackham.
The plaintiff says that at about 3.40 p.m. on that day she was attacked by a dog and, in consequence, fell to the ground. She was carrying shopping in both hands at the time and although the dog did not bite her, it rushed at her and, in attempting to avoid it, she lost balance and fell. As a result, she suffered various physical injuries and later developed a psychiatric condition.
The application for compensation was supported by the plaintiff’s affidavit and some medical reports which were later tendered. It did not purport to identify the “offence” of which she asserted she had been a victim, nor did it spell out the type of relief sought by her.
At trial, I called upon her counsel to identify the alleged offence, whereupon she referred me to section 43 of the Dog and Cat Management Act 1995, saying that the circumstances of her client’s injury disclosed the commission of an offence under that section.
It was the plaintiff’s case that the dog was unaccompanied at the time of the attack and that there were no witnesses to it. Further, it appears that no person has ever been brought to trial charged with any offence in connection with the incident.
THE PLAINTIFF’S EVIDENCE
The plaintiff’s account of what occurred on 18 June 1998 was a relatively brief one. She had gone shopping to the Colonnades Shopping Centre and had left there at about 3.20 p.m. to return home by bus. She had alighted from the bus at Stop 56B, Collins Parade, Hackham, intending to walk to her home from that point. She crossed one roadway and was about to enter an alleyway that led towards her home, when she saw a dog coming towards her. It was barking and, as she described it, “it went for my legs”. At that time she was carrying shopping in both hands. She avoided the dog’s rush by moving to one side, but it persisted. At some point it made contact with her legs, but it did not actually bite her. Finally, it rushed at her, she attempted to get out of the way, but in doing so, fell over. She fell with her arms outstretched in front of her and thumbs inverted. She still had hold of her shopping bags. Her head made contact with the concrete footpath at a point just above the hairline and she took some of the weight of the fall on her hands.
She thought she may have lost consciousness for a few moments, but was not sure. At all events, the dog apparently then left and she did not see it after that. She was obliged to get up and make her way home. So far as she was aware, nobody witnessed the incident.
Upon her arrival at home, she was seen, by her husband and son, to be bleeding on top of her head and scratched and bleeding on the backs of both hands. She was upset and at first was unable to talk about the incident, but eventually gave them an account of what had happened. Her son then took her to Noarlunga Hospital. Her wounds were cleaned there and she was released after about an hour. She said she still had a headache and her left thumb was aching.
On the following day, the plaintiff contacted the local council by telephone and reported the incident to them. She was then told they would investigate the matter, but that she should obtain and submit a report form.
She said that she later obtained such a form, had it filled out with the assistance of a neighbour and returned it to the council. She identified that form, a report dated 21 July 1998 (P3) and, on all the evidence, that would appear to be about the date when she submitted it to the council. At the time she submitted it, she took with her a library book and showed the council officer a picture of a dog that appeared to her to be similar in appearance to the one responsible for her fall. The officer then informed her that that dog was a kelpie. The report form itself described the breed of the dog concerned as “small kelpie X?”. Its colour was given as brown and its sex was unknown. I understood, from what was put to me, that the “X” in that description, referred to a cross-bred dog.
The plaintiff said that when she had heard nothing further from the council about her complaint of 21 July 1998, she put in a second written complaint, a document which became exhibit P4. That form appears to be dated 31 August 1998 and there the dog is described as a “kelpie cross”.
There was then a later incident at the Colonnades Centre when the plaintiff saw another dog at large and became very apprehensive. She also reported that incident to the council.
In support of her case, the plaintiff’s husband and son were called and they simply described her appearance, her apparent injuries and her level of distress when she arrived home after the fall.
The plaintiff’s Noarlunga Hospital records were tendered by consent and they disclosed an attendance by her there on 18 June 1998, relevantly as follows;
“Fell over dog on foot path, ?KO’d ?How long. Hit top of head, now has painful neck and grazes to back of (left) hand.”
There are further entries, but none that would take the identification of the dog further than the plaintiff’s evidence otherwise did.
THE DEFENDANT’S EVIDENCE
Leslie John Fielke, the Registrar of Dogs for the City of Onkaparinga at the instant time, was called by the defendant. He produced the council’s file relating to the plaintiff’s reports. It did not record her original telephone call to the council after the incident of 18 June 1998, but Mr Fielke recalled that he had himself taken the call and he remembered some of what was said. He said that a record of the phone call might actually have existed at some point, but because of changes in the council’s computerised recording system, many older reports had become inaccessible.
He remembered that in consequence of the plaintiff’s call, the council had sent an officer to the area in which the incident had allegedly occurred to see whether there was a dog there of a description similar to that given by the plaintiff. Although he could not now say what the given description was, he said he had passed on to his investigator the description provided to him by the plaintiff. I should add here that the plaintiff did not herself say, in evidence, what description she had given in that phone call. At all events, the search for the dog proved fruitless.
Mr Fielke was then shown the report forms P3 and P4. He explained that, at that time and due to recent council amalgamations, there were different pro forma documents in use and that this accounted for the difference in format between each of those forms. Upon receipt of a written complaint, a council officer was habitually assigned to investigate and the normal task of that person would be to call upon and interview the dog owner. In this particular case, Mr Fielke did not believe that the council had conducted any further enquiries in the matter after receiving the written report on 21 July 1998 (P3). He had himself noted the council copy of P3 with the words “Were unable to locate”. He inferred from that that, having sent out an officer to investigate the matter after receiving the original verbal report, having not then located a dog, and having unsuccessfully searched the register for a local dog meeting the description provided after receiving P3, there being “no alleged dog owner the investigation basically comes to a standstill” (p.82): in short, he said that after unsuccessfully conducting a registration search on about 21 July 1998, there was no further line of enquiry open to the council.
He was asked whether the delay between the time of the incident and 21 July 1998 might have made it more difficult for the council to investigate the matter, but in his view that was unlikely; he could not see that, in the particular circumstances, the council had been further prejudiced by the lateness of the written complaint.
He said that in ordinary circumstances and given an accurate description of a dog, the council computer can be accessed to identify dogs having that description and registered in a particular area and thus any search can be narrowed down, but in this particular case, there was no information as to whether the dog was, or had been at any time, registered and the registration search he had conducted after receiving P3 had not otherwise identified any local dog.
It was plain from his evidence, and I find, that the delay between June 1998 and the plaintiff’s submission of a written report of the attack on 21 July made no difference to the capacity of the council to locate the dog or any owner or person responsible for it.
Mr Fielke then produced yet another council document, apparently signed by the plaintiff (D1). It was undated and was in format similar to the exhibit P4. In it, the dog was described as a “small terrier (brown)”. Mr Fielke thought that that document had been stapled together with the document P4, but he was unable to say any more about its provenance. The plaintiff herself had not spoken about it, nor was it put to her. Its origins remained a mystery. On all the evidence and having considered the documents P3, P4 and D1 and the evidence given about them, I can only infer that it probably contained the description of the dog prepared by the plaintiff before she consulted the library book or took it to the council, at which time the breed description was changed. Clearly, by then and afterwards, the plaintiff purported to describe the dog as a Kelpie cross. The likely origins of that document do not otherwise assist my findings.
THE PLAINTIFF’S CASE
As I have already noted, the plaintiff’s claim was founded upon section 7 of the Criminal Injuries Compensation Act 1978, as amended.
The claim was not formally pleaded, but introduced by way of affidavit. It did not plead or set out the alleged offence on which the claim was based, nor spell out the precise relief sought.
It was in her closing address that the plaintiff’s counsel contended that the relevant “offence” for the purposes of that Act was a breach of section 43 of the Dog and Cat Management Act 1995.
Relevantly, that section provides as follows:
43(1).... Any person who owns or is responsible for the control of a dog is guilty of an offence in any of the circumstances set out in column 1 of the table below (subject to the defences set out in that column).
(2) ......... ...
(3)...
Offence Maximum Fine Expiation Fee
1. If the dog is wandering at large.
...
...
2. If the dog attacks, harasses or chases or otherwise endangers the health of a person or an animal or bird owned by or in the charge of some other person (whether or not actual injury is caused).
Defence
It is a defence to a charge of an offence in these circumstances if it is proved that the dog was being genuinely used in the reasonable defence of a person or property.
...
...
3. - 12. ...
...
...
.........
Although that section was cited by plaintiff’s counsel, she did not elect to rely upon any particular one of the offences numbered 1 to 12 in the table. It is nevertheless readily apparent from all the circumstances that she was not seeking to rely on those offences numbered 3 to 12 inclusive - there was simply no evidentiary basis for any of them.
Clearly, on the plaintiff’s case, the dog which approached her was wandering at large (potentially offence number 1) and/or attacked, harassed, chased or otherwise endangered her health (potentially offence number 2).
Her counsel contended that, prima facie, the dog had an owner or someone responsible for its control and that the circumstances here were no different from those applying in an ordinary criminal matter where an unknown offender might be shown to have been involved. She thus contended that some unidentified person had committed an offence under section 43 of the Dog and Cat Management Act 1995, and that her client was thereby entitled to compensation under the Criminal Injuries Compensation Act.
Under the latter enactment, the word “offence” is defined in section 4 as follows:
“‘offence’ means an offence, whether indictable or not, committed by one or more persons and includes conduct on the part of a person that would constitute an offence if it were not for that person’s age, or the existence of a defence of insanity;”
and, further, an:
“‘offender’ in relation to an offence, means the person who committed the offence;”
Thus, the plaintiff said, a section 43 offence under the Dog and Cat Management Act fell within the definition of an offence under the Criminal Injuries Compensation Act.
The defendant did not seek to challenge the latter proposition and I am satisfied that proof of the commission of an offence under section 43 (cited above), with consequential injury to a victim, would ordinarily entitle a claimant to an award of compensation. In saying that, I bear in mind section 8(1a) of the Criminal Injuries Compensation Act, which provides that an order for compensation may not be made unless the commission of that offence has been proved beyond reasonable doubt, albeit that any causal connection between the offence and the injury, and, indeed, any other matters, need only be established on the balance of probabilities.
It is also pertinent to note that section 8(1b) of the same Act provides:
“Where an order for compensation is sought in respect of an offence, and no person has been brought to trial charged with the offence, the evidence of the claimant as to the commission of the offence, unless supported in a material particular by corroborative evidence, is not sufficient to establish the commission of the offence.”
As, in this case, there is no person charged with any relevant offence, the plaintiff’s case necessarily has to be considered in the context of that requirement, as well.
As to the question of corroboration, the plaintiff relied upon these matters:
(1)... the evidence of Dr Burvill to the effect that the plaintiff now had a dog phobia;
the unchallenged fact that the plaintiff was injured and in a manner that might be consistent with being attacked by a dog;
the apparent distress of the plaintiff soon after the incident, as observed by her husband and son;
the fact that the plaintiff afterwards complained of the attack to her husband and son, and later to the hospital and to the council.
Finally, the plaintiff addressed on damages and I will return to that issue in a moment.
THE DEFENDANT’S RESPONSE
The defendant first contended that the plaintiff had not proved beyond reasonable doubt that any offence under section 43 of the Act had been committed. It said there was no proof that any person was at any relevant time the owner of or responsible for the control of the dog: there was no proof that the dog was or ever had been registered and hence no statutory presumption assisted the plaintiff in proving ownership or control.
It further contended that there was no evidence corroborating the commission of the offence:
(1)... the injuries and distress suffered by the plaintiff were equally consistent, it said, with a simple fall not involving a dog;
the diagnosed phobia and her complaint themselves fell into the same category of evidence. Each was evidence of a complaint, whether to her family, the hospital or the council or, in the case of the phobia, to her doctor (a complaint leading to the diagnosis of a dog phobia). Neither was capable of being corroborative.
In support of the first contention, the defence cited the case of Field & State of SA v Gent, unreported, Full Court of the Supreme Court of South Australia, Judgment No. S5594.1, 8/5/96 and, in support of the latter, the case of R v Job Whitehead (1929) 1 KB 99.
Finally, the defence sought to rely upon section 7(9a) of the Criminal Injuries Compensation Act. Here, it was common ground that the plaintiff had never reported the matter to the police, but the defence, quite properly, conceded that neither was that an appropriate course in the particular circumstances of this alleged offence. The more appropriate course was to report the matter to the council, the body responsible for registration and animal control.
Here, the defence said, the plaintiff had at first made an oral report to Onkaparinga Council, but she had then delayed over one month before submitting a written report and then a considerably longer period than that, in submitting her second written report. It argued that she had not complied with section 7(9a)(d), in that she had “failed to cooperate properly in the investigation or prosecution of the offence ... and in consequence investigation or prosecution of the offence was not commenced or was terminated or hindered to a significant extent”. Therefore, it said, the delay between the oral report and the first written report was such as to hinder the investigation and prosecution of the alleged offence to a significant extent.
That contention was not supported by the evidence of its own witness, Mr Fielke. Mr Fielke felt unable to say that the additional written information he had received from Mrs Kovacevic after her initial oral report would have contributed to council enquiries, even had it been supplied at or soon after the time of the oral report. The council’s principal investigation had been its search for the dog. That had occurred very soon after the oral report and the later written information provided by the plaintiff had told the council nothing that would have augmented its first search. All it had done was to prompt the council to conduct a registration search, but that had been unsuccessful, anyway, and had always been so destined. There was otherwise simply not enough additional information to justify any further enquiries.
I am thus not satisfied that the defence has established that the plaintiff failed to comply with section 7(9a) of the Criminal Injuries Compensation Act. I return, however, to the remaining issues. Has the plaintiff proved beyond reasonable doubt the commission of a section 43 offence? Has the communication of such an offence been corroborated?
LIABILITY - DISCUSSION AND FINDINGS
Section 4 of the Dog and Cat Management Act 1995 defines a “public place” as “a place to which the public has access ...”. Section 5 of the same Act deals with ownership and provides as follows:
“5(1).... In proceedings for an offence against this Act, if it appears from a register under this Act that a dog was registered at or before the time of the alleged offence, the person in whose name the dog was last registered in that register will be taken to have owned the dog at the time of the alleged offence unless it is proved that the dog was subsequently (but before that time) registered in the name of another person in another register under this Act.
(2)In proceedings for an offence against this Act, if a dog (whether registered or unregistered) is shown to have been habitually in the apparent ownership of a person, that person will, in the absence of proof to the contrary, be taken to have owned and to continue to own the dog.” (The emphasis is mine.)
Section 6 deals with control and provides:
“6(1).... For the purposes of this Act, a person is responsible for the control of a dog while the person has possession or control of the dog.
(2)... In proceedings for an offence against this Act, if it is proved that immediately before the alleged offence the dog was in company with or had been seen continuously and closely following a person, the person will, in the absence of proof to the contrary, be taken to have had possession or control of the dog at the time of the alleged offence.
(3)... In proceedings for an offence against this Act, an occupier of premises in which a dog was kept or permitted to live at the time of the alleged offence will be taken to have had possession or control of the dog at that time unless it is proved that another person of or over 18 years of age had possession or control of the dog at that time.” (The emphasis is mine.)
Section 7(1) of the Act provides:
“7(1).... For the purposes of this Act, a dog will be taken to be wandering at large while -
(a).. the dog is in a public place or is in a private place without the consent of the occupier; and
(b).... no person is exercising effective control over the dog.
Section 8(a) of the Act provides:
“8.... For the purposes of this Act, a dog is under the effective control of a person only while -
(a) the person is exercising effective control of the dog -
(i)..... by means of a chain, cord or leash that does not exceed 2 metres in length restraining the dog; or
(ii)by command, the dog being in close proximity to the person and the person being able to see the dog at all times;”
As I have already noted, the offences prescribed in section 43 of that Act may be committed by “Any person who owns or is responsible for the control of a dog”.
If it is to be assumed that the dog attack occurred on the plaintiff in the manner described by her, then it is an incident which clearly meets with the description of events set out in offence number 2 of section 43 of the Act. On the same assumption, it is probable that a causal connection can be shown to have existed between the plaintiff’s injuries and the fact that the dog was “wandering at large”, that being the description of events giving rise to the offence number 1 of section 43 of the Act. Putting aside, for the moment, the corroboration question and accepting the plaintiff’s account of events, the animal activity required to trigger either offence number 1 or number 2 of section 43 might thus be made out.
For such an offence to be committed, however, it must also be proved, beyond reasonable doubt, that there was a person who owned or was at the relevant time responsible for the control of the dog in question. That is the point at which the plaintiff’s case gets into difficulties. I have already referred to sections 5 to 8 inclusive of the Dog and Cat Management Act and I will now deal with each in turn:
(1)... Section 5(1) provides that the last registered owner of a dog will be deemed to be the owner of the dog for the purposes of any alleged offence. It can have no application to this case because there is no evidence of any kind indicating that the dog was or ever had been registered. The plaintiff did not observe any collar or registration disc on it, nor did the registration search conducted by the Onkaparinga Council identify it.
As to section 5(2), there was simply no evidence placed before me to show that the dog had “been habitually in the apparent ownership of a person”. At the time it attacked the plaintiff, it was wandering at large and no person was seen, either before or after the incident, who apparently owned it, nor was it seen to come from or return to any premises.
As to section 6(1) of the Act, there was no evidence that any person was in possession or control of the dog at any relevant time.
As to section 6(2), there was no evidence that “immediately before the alleged offence the dog was in company with or had been seen continuously and closely following a person”.
As to section 6(3), there was no evidence that the dog was kept or permitted to live by any person in any premises at the relevant time.
Section 7 of the Act defines “wandering at large”. Clearly, the dog in question was doing that at the relevant time. Any person owning or responsible for it was thus committing an offence, but that begs the question whether there was any such person.
Section 8 defines “effective control” of a dog, but it has little relevance to this matter, because there is no suggestion that any person was in the vicinity of the dog at the relevant time.
In the face of these provisions, counsel for the plaintiff contended that since dogs are not considered to be wild animals, it could be presumed that the dog in question had or had had an owner at some time, whether it was registered or not. She did not seek to contend before me, nor could she, that at the relevant time some person was responsible for the control of the dog. There was simply no evidence on that point, but she argued that it could be inferred that someone owned the dog. She said it was a situation little different from that of an unknown perpetrator of a crime.
I cannot accept that submission and for these reasons:
(1)... The Dog and Cat Management Act holds that the last registered owner of the dog remains the owner for relevant purposes, but here there is no evidence that the dog was ever registered.
There was no proof of apparent ownership. It might, perhaps, be inferred that the dog had an owner, although I am even unsure of that. Even so, if that inference were valid, it could only be so concluded on the balance of probabilities; I could not be satisfied of it beyond reasonable doubt. Indeed, there are several reasonable possibilities which, on the face of the Act, might lead to the conclusion that there was no offence committed by any person:
......... that the dog was, and always had been, a stray dog and had never been owned by anybody. The fact that the council officers could not find it in that particular vicinity on the following day is hardly conclusive. Further, I note that at one point, the plaintiff described it as a “small” dog. Perhaps it was a pup, and had not previously been owned or controlled by any person;
.it is reasonably possible that the dog had, briefly, been in the apparent ownership of a person without being registered, but had then strayed or been abandoned and had been at large for a considerable time. In such circumstances, I would not be disposed to find it proved beyond reasonable doubt that that person was the apparent owner for the purposes of section 5(2) of the Act or otherwise, at the relevant time, in control of it for the purposes of section 6.
For all these reasons, I find I have not been satisfied beyond reasonable doubt that an offence has been committed by any person under section 43 of the Dog and Cat Management Act 1995.
That conclusion is fortified when I have regard to the provisions of section 8(1b) of the Criminal Injuries Compensation Act. This, too, is a case where no person has been brought to trial charged with a relevant offence and the evidence of the plaintiff is, I find, not “supported in a material particular by corroborative evidence”.
The corroborating factors relied upon by the plaintiff were:
(1)... the facts of her injuries and distress soon after it occurred. There can be no doubt that in certain circumstances, injuries may of themselves be sufficient corroboration for the purposes of the Act. By way of example, if there were medical evidence showing the presence of dog bites on the plaintiff’s person, then it would be evidence capable of corroborating the alleged attack. Here, however, the injuries and distress of the plaintiff were equally consistent with simply having fallen, without any offence or circumstances potentially amounting to an offence having occurred. A similar conclusion was reached in Field & State of SA v Gent (supra);
otherwise, the plaintiff referred to her complaints of the dog attack made variously to her husband, to her son, to the council and to the hospital soon after it occurred. Mullighan J observed in Field & State of SA v Gent (supra) that such matter could not be evidence of the truth of what had occurred and went only to credibility. In short, the plaintiff cannot corroborate herself (see also R v Job Whitehead (supra));
finally, the plaintiff contended that Dr Burvill’s diagnosis that she suffered from a dog phobia was itself corroborative of her claims relating to the attack. Clearly, there are circumstances in which a medical diagnosis will afford such corroboration (see R v Henderson (1983) 37 SASR 288), but, again, they must depend on the nature of that diagnosis. Here, Dr Burvill’s report (P5) and the evidence he gave in court did not reveal that his diagnosis that the plaintiff suffered from a canine phobia was one concluded independently of complaints made to him by the claimant about the attack. There was no evidence that he undertook any testing to independently establish the existence of such a phobia and, on all that was before me, I can only infer that his conclusion was based on her account of the incident and her assertion that, since then, she had experienced anxiety in any contact with dogs. In short, his diagnosis appeared to be based on self-corroborative complaints made by the plaintiff herself. He saw her on only one occasion and I am thus not satisfied that his diagnosis is corroborative of her being attacked by a dog.
In summary, then, I am not satisfied that the commission of any section 43 offence has been proved beyond reasonable doubt, nor that the plaintiff’s account of the circumstances potentially amounting to an offence is corroborated in any material particular.
The plaintiff’s application for compensation under section 7 of the Criminal Injuries Compensation Act 1978 is thus refused.
QUANTUM
As the matter of quantum is discrete, it is appropriate that I should proceed to assess the amount I would have awarded by way of compensation, had the plaintiff been successful in her claim.
After her visit to Noarlunga Hospital, the plaintiff continued to have trouble with her left thumb. She eventually went to see her general practitioner on 6 July. He sent her for x‑rays of her left thumb; they, at first, proved inconclusive, but further x-rays were then taken and she was referred to a specialist, Dr A Munyard. According to his report, which was tendered by consent (P1), she first saw him on 13 July. He believed she had suffered “an occult fracture/bone bruising” of the left thumb and he considered that immobilisation was the preferred treatment for it. The thumb was then encased in plaster, which remained until 26 August, when it was removed and her thumb strapped. She continued her consultations with Dr Munyard, and with medication and injections, until 31 March 1999. Even then, she reported to Dr Munyard that although the condition of her thumb had improved, it was continuing to worry her as her level of activity increased. He was of the opinion that her injury had led to arthritic change in the thumb and that she was “going to have an ongoing problem with her thumb. I feel she has a 10 per cent disability in her hand as a result of her injuries”.
In addition to those injuries, the plaintiff complained of an increased frequency of migraine headaches. She had suffered from them prior to the fall, but had felt they had then been managed, particularly with her habit of donating blood. She said that she considered they had largely abated by the time of the fall, but since then they have been recurring on as many as three or four occasions a week. She has been unable to give blood because of her medication, so she treats her migraines by medication or by seeing her doctor.
In addition, she said that since the time of the fall she had been taking antidepressants. She found she was irritable at home and easily upset by her husband or children.
In consequence of the latter problems, she had been referred by her solicitor to a Dr Burvill, psychiatrist, who had seen her on one occasion, in May 1999. In consequence of that visit, her general practitioner Dr Fitzgerald had prescribed the antidepressant medication, which she continued to take.
She said that since the incident, she suffers nervous problems if she sees or even thinks about a dog.
She spoke, in particular, of a later incident where she went to Colonnades Shopping Centre and saw a stray dog there and was very apprehensive.
Otherwise, she said little more about the psychological/psychiatric consequences of her fall.
Dr Burvill was called to give evidence. His report of 1 June 1999 was identified and tendered and became P5. He had taken an extensive history from her and noted, inter alia:
“She had a past history of migraine and this was reactivated by the fall on her head and the migraine has been a continuing problem since that time. She has resorted to the unfortunate use of opiates given intramuscularly, for the treatment of her migraine.
In terms of psychiatric disorder, she has developed symptoms of agitation and anxiety and fear of dogs and some apprehension about leaving her home, and this could be classified as anxiety disorder with specific features of canine phobia and mild agoraphobia.”
Dr Burvill considered the anxiety disorder was likely to be permanent and noted that she “was not working at the time of the attack, but her anxiety disorder and mild agoraphobia would, in my opinion interfere with her capacity for work should she decide to enter the workplace, due to diminution in her confidence”. He assessed her percentage of permanent disability at 15 per cent.
As to the migraine problem, the evidence disclosed that the plaintiff had previously suffered from migraines for many years and had apparently seen Dr Fitzgerald frequently for their treatment. That doctor was not, however, called and I had to rely on her description of that history given to the court and to Dr Burvill, augmented by a brief reference the latter was able to make, in the witness box, to Dr Fitzgerald’s notes. All in all, the evidence on this issue was not particularly satisfactory. Apparently, Dr Fitzgerald had prescribed medication for this problem and, whilst it had afforded her some relief, she said she had found that frequent blood-letting in the form of blood donations to the Red Cross had been most effective in relieving symptoms. Since her fall, she said, symptoms had returned and, due to her psychiatric medication, she could no longer give blood and relieve them. There was no medical evidence dealing with her assertion as to the relief obtained by giving blood. Dr Burvill found himself unable to comment on it and, as I have noted, Dr Fitzgerald was not called.
I was left, therefore, with the plaintiff’s evidence at first apparently denying she had suffered migraines before the fall, then saying she had, but, further, that in consequence of the fall and the medication, she is unable to give blood and the frequency of her migraines has resumed. In the event, she has resorted to injections, including morphine, to relieve her symptoms, albeit that, once again, there was no evidence as to the frequency of those injections or the need for them in the future.
On this topic and doing the best I can, I take account of the plaintiff’s longstanding condition of migraine susceptibility. I accept that, for reasons unexplained, she was less troubled by that condition in the period before her fall and I accept that since the time of the fall and her consequent use of medication, she has not been able to give blood and she has more frequent problems with migraines. On her account, they come as often as three to four times a week. It was not, however, clear how often they had occurred before the incident. I will make some allowance, however, for their increase in frequency since the fall and the reduced opportunity for her to obtain relief. There was no evidence assisting me with her prognosis in this respect and the best I can do is to make some allowance for future problems with this condition.
Otherwise, I have referred to Dr Burvill’s diagnosis of her anxiety disorder and mild agoraphobia associated with a canine phobia, all arising in consequence of the incident. Although Dr Burvill had the benefit of seeing the plaintiff on only one occasion and for approximately 45 minutes, there was no evidence contradicting what he said and his evidence was not substantially altered by cross‑examination. His opinion that she was disabled to the extent of 15% was not challenged. In accepting that diagnosis, I am, of course, making the assumption that the dog attack did, indeed, occur, a matter which was not proved for the purposes of the Act.
The plaintiff gave no evidence whatsoever about her past work history, nor generally concerning her earning capacity, albeit that Dr Burvill suggested that it was reduced because of her anxiety disorder, her mild agoraphobia and a consequent diminution in her confidence. He said, however, that her psychiatric condition would wax and wane and there would be some occasions when she would be better able to attend to work and other matters. As I have said, the originating proceeding did not spell out a claim for financial loss, but as the application was in affidavit form and her counsel at trial sought some allowance under this head, without strong objection from the defendant, I am minded to make some allowance for it.
For the purposes of the Criminal Injuries Compensation Act, had the plaintiff been successful in proving entitlement to compensation, I would have assessed her non-financial loss at a numerical value of 4.
As to financial loss, due to the lack of any good evidence as to the plaintiff’s previous work history, her experience and her training and, indeed, as to what might have been her work future had the fall not occurred, I can do no more than attempt to fix some lump sum which will reflect her age, the period she would likely have worked and the extent to which the accident has inhibited her earning capacity.
The primary figure must be a very broad one, indeed, and I fix it at $6,000. I then apply the provisions of section 7(8)(a)(i) and that figure then recalculates to $5,000.
But for my other findings, I would therefore have assessed the plaintiff’s claim at $9,000.
The formal order will, however, be that the plaintiff’s claim is dismissed.
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