Mark Phillip Hatch v Morris Wood-Davies and Kerry Wood-Davies
[2006] NSWDC 96
•05/11/2006
CITATION: Mark Phillip Hatch v Morris Wood-Davies and Kerry Wood-Davies [2006] NSWDC 96 HEARING DATE(S): 08/05/2006-11/05/2006 EX TEMPORE JUDGMENT DATE: 05/11/2006 JURISDICTION: Civil JUDGMENT OF: Neilson DCJ at 1 DECISION: Verdict and judgment for the plaintiff against the first defendant; Verdict and judgment for the second defendant against the plaintiff; First defendant to pay the plaintiff's costs on a party-party basis until 13 February 2006 and thereafter on an indemnity basis; Plaintiff's costs include fees for Senior Counsel; Stay of execution until 26 June 2006 CATCHWORDS: Motorcyclist injured when falls from motorcycle whilst trying to avoid attack by a dog - Companion Animals Act 1998 - Whether defendant "owner" of dog - Whether defendant is person by whom the dog "is ordinarily kept" - Consideration of legislative history - Whether defendant discharged onus of proving that the plaintiff's driving contributed to his injury - Failure of defendant personally to give evidence - Zappia v Allsop (Court of Appeal, unreported, 17 March 1994) - Jones v Dunkel (1959) 101 CLR 298 LEGISLATION CITED: Companion Animals Act 1998
Dog Act 1966
Dog and Goat Act 1898
Civil Liability Act 2002CASES CITED: Zappia v Allsop (Court of Appeal, unreported, 17 March 1994)
Jones v Dunkel (1959) 101 CLR 298PARTIES: Mark Phillip Hatch (Plaintiff)
Morris Wood-Davies (First Defendant)
Kerry Wood-Davies (Second Defendant)FILE NUMBER(S): 21/04 (Wagga Wagga) COUNSEL: Mr I Roberts SC and Mr R Foord (Plaintiff)
Mr D Miller (First defendant)SOLICITORS: Denniston & Day (Plaintiff)
Moray & Agnew (First defendant)
JUDGMENT
1 HIS HONOUR: The plaintiff, Mr Mark Phillip Hatch of Bomaderry sustained personal injury on 29 May 2003 when he came off the motorcycle he was riding along Berrima Road at Moss Vale.
2 The plaintiff brings an action against Mr Morris Wood-Davies and his wife Kerry Ruth Wood-Davies who are alleged to have been the owners and occupiers of lot 101 Berrima Road, Moss Vale.
3 The plaintiff pleads three causes of action. The first cause of action alleged is under s 25 of the Companion Animals Act 1998. The second cause of action is in the tort of negligence and the third cause of action is in the tort of nuisance. The claim in nuisance has not been pressed.
4 The defendants did not admit the fact that they were the owners and occupiers of lot 101 Berrima Road, Moss Vale. However the evidence establishes that they were the registered proprietors of that parcel of land, and therefore the owners of it.
5 The evidence establishes that from lot 101 Berrima Road, Moss Vale, the defendant Morris Wood-Davies carried on certain businesses. Those businesses have been described as a wrecker’s yard, mechanical repairs and the provision of drinking water. There is no evidence to establish that Mrs Wood-Davies was an occupier of the lot, or any evidence to establish that she was an owner of any business carried on from that place, nor is there any evidence before me that she was ever at lot 101 Berrima Road at any material time.
6 It is conceded, as I understand it, by learned leading counsel for the plaintiff, that he cannot succeed against Mrs Kerry Ruth Wood-Davies.
7 The accident in which the plaintiff was injured is described in this fashion in the COPS entry made by members of the New South Wales Police Force:
“About 4.55pm on Thursday 29 May 2003, a motorcycle, registration YM-247 (Vic), was ridden by Mark Hatch in a southerly direction along Berrima Road. When at a point approximately 50 metres north of Parkes Road, a dog, not further described, ran out in front of him, causing him to lose control of the bike and collide with the roadway”.
8 It is alleged by the plaintiff that the defendant kept the dog, which the plaintiff sought to avoid on 29 May 2003, on the defendant’s premises at lot 101 Berrima Road. When I refer to the defendant hereafter I am of course referring to Mr Morris Wood-Davies.
9 At the time of the accident the plaintiff was living at 27 Suttor Road, Moss Vale. The plaintiff is originally from Junee, but moved, as I understand it, to the southern highlands in approximately 1998.
10 The police described the direction in which the plaintiff was travelling as in a southerly direction, although the witnesses before me seem to indicate that they thought it was a northerly direction, however the witnesses were generally unsure as to the compass points. When I give a compass direction in these reasons I shall use the compass directions provided in the COPS entry rather than those given in evidence which are the reverse of those given in the COPS entry.
11 Lot 101 Berrima Road fronts Berrima Road and on one side runs Gibbons Road. On the opposite side of Berrima Road there is a road which appears to be on the same alignment as Gibbons Road, but is known as Lytton Road.
12 After the intersection of Berrima Road and Gibbons Road, Berrima Road sweeps to the right as it heads towards Moss Vale. Shortly after the last main intersection there is a sign indicating that one is now entering Moss Vale. It would appear that lot 101 Berrima Road, Moss Vale, may in fact be in the township or locality of Berrima, but nothing turns on that.
13 Shortly past the sign welcoming the motorist, south towards Moss Vale is a crest, and Berrima Road then goes downhill for some distance before it reaches a level area before then again starting to rise and to sweep to the left.
14 The property on the left hand side of Berrima Road as one heads south towards Moss Vale, is the local council depot. It is surrounded by a chain and barbwire fence well over 6 feet high. Immediately after the council depot is the local bushfire brigade headquarters building, and then there is a residential property, and then there is turning off to the left, Parkes Road.
15 The place where the plaintiff encountered the dog on the afternoon of the 29 May 2003 was some 300 to 400 metres distant from the defendant’s premises. The plaintiff describes the dog, to which he attributes the accident, as a predominantly black, mainly Kelpie dog with brown markings or patches. It was of medium height.
16 The plaintiff says that this is not the first time on which he had encountered this dog. Lot 101 Berrima Road has at its front an office built of brick. Behind that is a large “shed” made of green metal. Behind that large green shed is and was a yard.
17 Recent photographs suggest that in part of the yard there has been subsequently built another shed which is white. Exhibit M discloses that behind the defendant’s yard was a “scrap metal yard”. Between the defendant’s yard and the scrap metal yard was a fence which had a gate.
18 On the right hand side of the office building and the defendant’s shed there was a 6 foot fence with a gate closing off the defendant’s yard and also the scrap metal yard to members of the public. Out the front of the lot was a large industrial dumper bin that would be like the back of a truck that could be lifted up onto a prime mover and carted away. It would appear that scrap metal was dumped in the dumper bin.
19 The plaintiff told me that on two or three occasions he attended at lot 101 in order to dump 44 gallon drums into the large dumper bin at the front of the lot. Immediately prior to the accident in question, the plaintiff had two businesses. One was landscaping, and the evidence suggests that that predominantly involved the laying of turf. The other was a driveway business, and the inference to be drawn from the evidence is that it largely involved the spraying of bitumen.
20 Mr Hatch had 44 gallon drums that had been full of bitumen or tar. On two or three occasions he took those 44 gallon drums to place them in the dumper bin at the front of lot 101. As Mr Hatch gave his evidence I formed the distinct impression that it was more probable than not that he visited this lot on three occasions in order to deliver 44 gallon drums to the dumper bin.
21 On each of these occasions the plaintiff visited lot 101 sometime between 5.30pm and 6pm. At that time the defendant’s premises had been closed up. On the first of the three occasions that the plaintiff went there he noticed a dark Kelpie cross dog, predominantly black with tan markings.
22 On the first occasion that the plaintiff went to dump the drums the dog ran from near the office area of the defendant’s premises towards the bin into which the plaintiff was dumping the drums. Mr Hatch thought that the dog was going to bite him and he ran and jumped onto the back of his truck. He then dumped the drums from the back of his truck directly into the bin. He did so without getting off the back of the truck so that he could keep away from the dog.
23 In cross-examination the plaintiff mentioned that the dog was jumping up around the back of his truck. This was a small truck that he used in the driveway or bitumen spraying business.
24 On the other two occasions that the plaintiff dumped drums into the bin at lot 101 Berrima Road the dog was again present and was again excited such that the plaintiff did not get out of his vehicle, but rather climbed through a window at the back of the cabin of his truck onto the tray and then dumped the drums directly from the tray of his truck into the dumper bin and then returned to the cabin of his vehicle through the window. Again they were occasions when the dog was jumping up at the back of his truck.
25 The plaintiff told me that on the occasions that he visited, the dog was sitting at the front of the office at lot 101. The plaintiff told me that the dog he identified immediately before the accident was the dog he had seen at the wrecker’s yard, and when he first saw the dog it was some fifty to 70 metres from him and it was running straight towards him.
26 The plaintiff said that on 29 May 2003 he noticed the dog out of the corner of his left eye. He looked again down the roadway and saw a vehicle coming towards him from the opposite direction, but it was some distance off. He then returned his gaze to the dog and sought to avoid it.
27 In seeking to avoid the dog, he swerved to the left and touched the gravel shoulder of the road. The road surface and/or gravel were wet. The plaintiff lost control of the motorcycle and came off it and was thrown forward and hit a pipe or culvert at the side of the road. He sustained, when he struck the pipe or culvert, an injury to his right shoulder.
28 He sustained other injuries as well, however the clear tenor of the plaintiff’s evidence was that this was the same dog he had previously encountered at lot 101 Berrima Road, and that it had the same propensity as the dog he had seen at lot 101 Berrima Road in that it went to attack the plaintiff.
29 On one other occasion prior to the accident the plaintiff said that he also encountered the same dog. Next to lot 101 Berrima Road are other premises, half of which are occupied by an organisation known as Pirtek. The plaintiff told me that he had called into Pirtek to purchase something for one of his vehicles, and then he drove south along Berrima Road. The dog that he had encountered at the defendant’s premises ran beside his car. The plaintiff told me that that occurred “weeks” before 29 May 2003.
30 Prior to the plaintiff’s encounters with the Kelpie dog, the plaintiff had encountered another dog at the defendant’s premises. On one occasion he entered the defendant’s premises during trading hours in order to buy a blinker for one of his vehicles. When he did that he saw near the front office step a silver-looking bowl containing water which he believed to have been placed there for a dog to drink from.
31 Inside the door of the defendant’s office there was lying, perhaps sleeping, a black Rottweiler dog. That dog did not make any protest at the plaintiff’s entry into the defendant’s premises. The dog was just inside the doorway of the office, and one might infer, justifiably in my view, that the drinking bowl had been placed outside the office door of the premises so that the dog could drink from it.
32 There was no suggestion from the plaintiff that the dog was tied up or chained up. That was put to the plaintiff and denied. In any event, for reasons to which I shall come in due course, the evidence called on behalf of the defendant suggested that the dog was chained up elsewhere than in the front office of the defendant’s premises.
33 Evidence was given in the plaintiff’s case by Mr Stephen Jones of Moss Vale. Mr Jones and members of his family operate the Pirtek franchise in the southern highlands, and obviously from the premises next door to the defendant’s premises. He had been so employed in the early part of 2003, and indeed I infer is still so employed, as he wore a Pirtek uniform in the witness box when giving evidence.
34 Mr Jones confirmed that the Pirtek business premises were next door to the wrecking yard operated by the defendant whom Mr Jones identified as being an observer in this Courtroom. Mr Jones said that the defendant had a number of employees in the middle of 2003, and that one of them was a Mr Rucker, who was a man who had a pronounced limp.
35 Mr Jones told me that on 3 February 2003 he was fined for some driving offence. Two months later, on approximately 3 April 2003, his licence was either cancelled or suspended because he had incurred too many demerit points. From that time onwards he had to go from his place of abode to his place of employment by using a pushbike.
36 Initially he had no problem riding his pushbike to work. After a while a problem developed. Mr Jones told me that a dog came and commenced to chase him. He thought that was at least a month before the plaintiff’s motorcycle accident. Mr Jones had a good recollection of that accident because he had come upon the scene of it as he was riding home from work.
37 He said he went around the corner and noticed an ambulance, a “heap” of people standing around and a very damaged motorcycle in a driveway on the left hand side of Berrima Road. He was able to date the advent of the dog which chased him when he was driving his pushbike to at least a month prior to the plaintiff’s motorcycle accident on 29 May 2003.
38 Mr Jones’ first encounter with the dog, which he described as a black medium sized Kelpie dog, was when he was riding out the front of the defendant’s yard and the dog came from that yard and chased him. Mr Jones said that this happened more than once. To avoid being chased by the dog he picked up speed as he was passing the defendant’s yard in order that he could outride the dog’s pace.
39 He said that this happened on every occasion between the advent of the dog and the plaintiff’s motorcycle accident.
40 Mr Jones said that he normally started working at 7am. His evidence, and it appears to be uncontradicted, is that the defendant’s premises opened at either 8 or 8.30am. On one morning Mr Jones was late going to work. As he was passing the defendant’s premises he saw the dog in the yard of the defendant’s premises and when it started to run towards him he heard somebody from within the yard call out, “Oi”.
41 Mr Jones was also able to tell me that the dog slept in the sun curled up outside the office in the afternoons, and in the afternoons did not chase him as he was cycling from his place of employment to his place of abode. On occasions Mr Jones saw the same dog chasing other people on bicycles and chasing cars. He said that the dog, when it chased bicycles and cars, was also barking.
42 Mr Jones, in cross-examination, told me that there was also a Rottweiler on the defendant’s premises. It was put to him that it was chained up, but that was denied. It was put to him that the dog was a “guard dog”, which drew from Mr Jones the response that it was a friendly dog, and indeed he used to go to feed to the Rottweiler biscuits. However, he said that on no occasion did he ever see anybody on the defendant’s premises, either feeding or watering any dog.
43 Evidence was also given in the plaintiff’s case by Mr Vincent James Murray, an automotive engineer. Mr Murray at material times, that is in April/May of 2003, and currently conducts his business and lives at premises on Berrima Road, Moss Vale, about 200 metres north of the defendant’s premises.
44 Prior to moving to those premises Mr Murray had conducted his business from one-half of the building, the other half of which it was then and still is occupied by Pirtek. In other words, at one time Mr Murray was effectively a neighbour of the defendant’s premises.
45 He told me that he used to go to the defendant’s yard to purchase parts for vehicles that he was repairing for his customers. On the day of the plaintiff’s injury the plaintiff had been to Mr Murray’s business in order to make some arrangements for Mr Murray to work on one of Mr Hatch’s motorcycles.
46 Mr Hatch was at Mr Murray’s premises for only a short period of time, ten to 15 minutes. Mr Murray recalls that on the day of the accident he went to the accident scene and picked up Mr Hatch’s badly damaged motorcycle. Mr Murray said that in the defendant’s yard there had originally been a German Shepherd dog, but that dog had died. That was then replaced by a “little Rottweiler cross” which Mr Murray thought was still there at material times. However, like Mr Jones, Mr Murray described that dog as being a friendly dog.
47 Mr Murray said that he used to see another dog quite regularly for “easily” a month, but maybe longer prior to the plaintiff’s motorbike accident. That estimate of time is very similar to the estimate of time given by Mr Jones. Mr Murray told me that he would still go into the defendant’s yard from time to time to do business. The inference to be drawn is that he would not go behind the high 6 feet fence, but rather merely into the car park at the front of the premises.
48 Mr Murray told me that on one occasion that new dog tried to bite him on the leg as he was riding his motorcycle. Mr Murray dealt with that attack by giving a blow with his steel capped toes to the jaw of the dog. Mr Murray told me that he would pass in his vehicle on numerous occasions the front of lot 101 Berrima Road. He told me that he sometimes drove past three or four times per day.
49 He told me that he saw the dog quite a lot and that it would chase the car that he was driving. He said it was sitting on the nature strip out the front of the defendant’s premises. He went on to say that most of the time he drove past the defendant’s premises, which is on numerous occasions daily, the dog “came out” and chased the car.
50 Such is the evidence called by the plaintiff to identify the dog. I have no hesitation in finding that the dog described by the plaintiff and the dog described by Mr Jones and the dog described by Mr Murray are one and the same dog. I have no hesitation in finding on the evidence that that dog was on or about the defendant’s premises for at least four weeks prior to the plaintiff’s motorcycle accident.
51 I have no hesitation in finding that the dog, during that period of at least four weeks, was habitually present at the premises from early in the morning, 7am, at least until 6pm in the evening, and then when not attempting to bite visitors to the car park at the front of the premises, or chasing passing motorists and motorcyclists, it was curled up in the sun resting at the front of the office on the defendant’s premises.
52 I now turn to the evidence adduced on behalf of the defendant. That evidence came from Mr Patrick Daley who currently resides nearby at Marrar. Formerly he lived in the southern highlands. He was formerly employed by the defendant. Mr Daley resigned his employment with the defendant in order to come down to the Wagga district.
53 Mr Daley could not recall when it was that he left the southern highlands and came to the Wagga district. He thought it was “getting on to three years ago” then he recalled that it was in March. He did not quite know whether he came to the Wagga district in March 2003 or March 2004. He did not know whether he had been here for only two years, or for three years. Mr Daley was extremely vague on detail.
54 Indeed, much of Mr Daley’s evidence suffered from the same failing, that is, a lack of detail and a lack of specific recollection. I formed the view that Mr Daley was not particularly well educated and not gifted with a good memory.
55 He told me that he had worked for fifteen years with the defendant, but that period was either shortened by or interrupted by a period of a few years when he worked elsewhere. When that period was he was unable to tell me. Whether it included April/May 2003, he was not able to tell me. He told me that in May of 2003 there was one other employee of the defendant, Mr Adam Ismay. He referred to Mr Morris Wood-Davies as his boss.
56 He told me that there had been an employee by the name of Rucker, but Mr Rucker had left the defendant’s employment before Mr Daley did, and Mr Rucker moved to Queensland. If Mr Daley left the defendant’s employment in March 2004, Mr Rucker may have left at any time before then, and might have been employed at the defendant’s premises in April and May of 2003. One just does not know.
57 It seems to me to be more probable than not that Mr Daley ceased his employment with the defendant in March 2004. That is because he had a next door neighbour known as Kevin Foodey who probably fortuitously is the plaintiff’s father-in-law. Mr Daley told me that the plaintiff’s father-in-law told him about the plaintiff’s accident about a week after it occurred. He confirmed that when he received the information about the plaintiff’s accident, Mr Foodey was still his neighbour.
58 It is highly unlikely that Mr Foodey and Mr Daley would have moved to live side by side at Marrar. The only inference to be drawn is that the conversation occurred in the southern highlands, and that that conversation clearly was after the plaintiff’s accident, and clearly Mr Daley must still have been employed by the defendant at the time. Therefore it seems more probable than not that the witness was employed by the defendant until March of 2004.
59 Mr Daley told me that there was at the defendant’s premises a black Rottweiler type dog which was known as Sasha. He told me that that dog was kept as a guard dog, and that when the premises were opened up the dog was chained to initially a bus which was kept on the Moss Vale side of the Wood-Davies’ yard, and that after the bus was removed it was tied up to a vehicle trailer.
60 Mr Daley said that when the premises were shut up the dog would be unchained and left to wander in the shed and office area as a guard dog. He said that the dog was watered at the place where it was chained up, and water was also given to the dog in the shed. He thought the dog was also fed in the shed, and the shed is to be differentiated from the office.
61 The witness had no knowledge of a predominantly black Kelpie dog with brown markings present at the yard in April or May of 2003, or indeed, at any time. He described dogs who would be “routinely hanging around” the yard as being a little “Foxie” by which I infer he was referring to a Fox Terrier that he thought was black and white in colour, to a Staffordshire dog and to a “Collie type dog” although it became clear that the witness did not know that that famous dog of the screen, Lassie, was a Collie dog.
62 He said that two of the dogs which he noticed routinely hanging around had collars, but one did not. He also denied seeing a dog dish out the front of the office door of the defendant’s premises. He confirmed that the lunch room of the defendant’s business was in the office building on the Moss Vale side of it, and that there was a view from there to the road, but he did not have any recollection of seeing a predominantly black Kelpie type dog with brown markings, either sleeping at the premises or being nearby or chasing cars and bicycles.
63 Mr Daley told me that there was a “brown dog” wandering around the yard, but he did not further describe it and he was sure that it was brown and not predominantly black. He said that the brown dog was around the premises for a couple of weeks, but confirmed that it was not black and it had no collar.
64 In cross-examination, Mr Daley conceded that the Rottweiler guard dog is not vicious and that it was “big and fat”. Really that ties in with the evidence given by Mr Jones and Mr Murray that this Rottweiler “guard dog” was friendly and unlikely to perform adequately the role of a guard dog. It was an old, lazy dog which liked to sleep in the office if it could.
65 That was the only evidence concerning liability called by the defendant. It should be clear from what I have earlier said that the defendant was present at court and identified by at least two witnesses, and preferred the well of the Court to the witness box. No attempt was made to give any explanation for why the defendant was not called to give evidence.
66 No attempt was made to explain the absence from the witness box of Mr Adam Ismay. No attempt was made to explain the absence from the witness box of Mr Rucker. Indeed no attempt was made to establish who was working in the defendant’s premises in April and May of 2003. That could have been done by the tendering, for example, of a wages book or employment records or bundy cards or something of that nature.
67 They might prove, for example, that Mr Daley was actually working in May 2003 at the defendant’s premises. They might prove that Mr Ismay was or was not working at the defendant’s premises at the time. They might prove whether or not Mr Rucker was working for the defendant in May of 2003.
68 The evidence, to me, of Mr Daley was completely unsatisfactory and unreliable in the sense that it was unlikely to be accurate, not that it was likely to have been deliberately false evidence.
69 The evidence of Mr Jones, Mr Murray and of the plaintiff himself appears to me to be much more reliable on the issue of the dog than was the evidence of Mr Daley. As I have said, the evidence suggests, and I have no hesitation accepting that this dog was on the premises from at least 7am; it was on or about the premises from 7am in the morning to 6pm at night. It was there for at least four weeks.
70 If this was a stray who could move about at will, why would it stay there for four weeks, sitting out the front of the office? All animals need food and drink and shelter. A dog needs to be fed its meat, provided with water and at times shelter. This dog was on premises in the southern highlands of New South Wales which, in May, can be very cold and sometimes very wet, although it has to be conceded that 2003 was one of the many drought years we have recently encountered.
71 Why would this dog stay at the defendant’s premises for at least four weeks? If it was not being fed, if it was not being watered, if it was not being given any shelter, why would it not seek food, water and shelter from another source, from a house where there might be children keen to befriend an animal, from an indulgent householder who is prepared to give a starving dog a meal or a bowl of water?
72 The inference that I naturally draw is that something must have been provided by the defendant to keep the dog on or near its premises. Certainly the evidence does not suggest that the dog was being discouraged to leave the premises of the defendant or its environs.
73 As has been submitted by the plaintiff’s learned senior counsel, it would be a remarkable coincidence if the same dog was at the defendant’s premises, or near it on the occasions that the plaintiff encountered it, on the occasions that Mr Jones encountered it and on the occasions that Mr Murray encountered it if something had been done to rid the defendant’s yard of a dog that might be causing trouble.
74 The next inference to be drawn is that the defendant wanted to have a guard dog. The next inference to be drawn is the dog assigned to that task, the Rottweiler, was no longer up to it. If this Kelpie dog was a stray and came to the defendant’s premises and showed that it had the capacity to act effectively as a guard dog, why would it not be taken on to do so?
75 Such an inference can be drawn from the evidence adduced by the plaintiff, and I draw it in light of the absence of any evidence of any credible nature, any evidence from the defendant himself, or any credible evidence on his behalf.
76 Jones v Dunkel (1959) 101 CLR 298 was a claim for damages under the Compensation to Relatives Act 1897. It involved a collision between two trucks. One truck driver was killed. The plaintiff was the widow of that truck driver. The defendants were the owner and driver of the other truck. That driver’s name was Hegedus. Mr Hegedus survived the accident. He was not called to give evidence.
77 At the end of the summing up, as the jury was about to retire, a juryman asked the trial judge this question:
“Rightly or wrongly I have it in my mind that the defendant could have come here today and given evidence. Am I entitled to regard that in my mind as a weakness in the case of the defendants, that he did not?”
78 At the foot of page 317, Sir Victor Windeyer remarked that the question could have been answered with one word, “yes”.
79 Commencing at the foot of 320 his Honour said this:
“Then, I think, his Honour should, when the juryman asked his question, have given an answer in accordance with the general principles as stated in Wigmore on Evidence, third edition (1940) volume 2, section 285, page 162 as follows:
‘The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the parties fear of exposure. But the propriety of such an inference in general is not doubted.’”
80 His Honour then went on to remark of that statement of Wigmore that it was “plain commonsense”. He used citations from R v Burdett (1820) 106 ER 873 to support that proposition. His Honour continued at 321:
“As Wigmore points out … exactly the same principles apply when a party, who is capable of testifying, fails to give evidence as in a case where any other available witness is not called. Unless a party’s failure to give evidence be explained, it may lead rationally to inferences that his evidence would not help his case. These considerations have been discussed or applied in the following among other Australian courts …”.
81 His Honour then gives a list of authorities in which the same principle was considered.
82 In the same case Menzies J said at 312:
“In my opinion a proper direction in the circumstances should have made three things clear:
(i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence;
(ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence;
(iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstances that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference”.
83 It is in the circumstances of the failure of the defendant to give evidence that I have drawn the inferences to which I have referred. Those inferences leave me only to one conclusion: that the dog was in some way being kept on the defendant’s premises for the purposes of the defendant’s business.
84 The evidence called on behalf of the defendant, Mr Daley, is evidence from an employee of whom I formed the view that he was poorly educated and not particularly intelligent. One would expect his employer, a person who carried on a number of businesses from these premises at Berrima, to be gifted with greater intelligence, a better memory and records. However, he was not called to give evidence.
85 One would have thought that the evidence of Mr Daley would have been the weakest card in any pack of cards the defendant could use in order to trump the plaintiff’s case. That the evidence of Mr Daley was unsatisfactory can be shown in a number of ways.
86 For example, it is clear from the evidence of both the plaintiff and the other witnesses that the dog was not kept chained at the side of the premises during operating or working hours, but was in fact free to roam and sleep wherever it liked. The dog I am referring to of course is the Rottweiler. Mr Daley would not admit to that.
87 If the dog was free to roam and sleep where it would, if it was more of a pet than a guard dog, then one could accept that a bowl of water might be placed outside for it to refresh itself on a hot day. According to Mr Daley that did not occur, but I accept that it did.
88 Furthermore, once someone was prepared to put a dish of water outside a door to feed a dog, the bowl of water becomes available for any passing dog that might need refreshment, and could, one would think, entice a dog to stay or remain at that place. Again, what caused the Kelpie dog to stay, or remain at the defendant’s premises for some four weeks or more, is coincidence I can only assume from the way the defendant has conducted the case.
89 It was submitted on behalf of the defendant that it was not necessary to call the defendant because the plaintiff had not discharged the requisite onus of proof. Of course the plaintiff must establish at least a prima facie case in order to succeed, however the evidence persuades me that this dog was kept habitually at the defendant’s premises for some four weeks, and acted in a role of a guard dog. To stay there that long it must have been enticed to do so.
90 In my view that establishes a prima facie case that this dog was kept on the premises. In those circumstances the defendant must explain if he can the presence of the dog, or dispute the inferences to be drawn from the evidence adduced by the plaintiff.
91 There is much force, however, in the submission put to my by learned leading counsel for the plaintiff that if the plaintiff had failed to discharge the onus of proof of establishing at least a prima facie case, why would the defendant call Mr Daley? There is much force in that submission. The calling of Mr Daley in effect is a concession that the plaintiff had made out a prima facie case.
92 There was no application, for example, for a non-suit or a verdict by direction, whatever the modern equivalent of those ancient remedies is, which ancient remedies of course were considered in the judgment of Sir Victor Windeyer in Jones v Dunkel.
93 The next issue raised is whether the dog, which the plaintiff encountered on the Berrima Road on 29 May 2003 was this dog which had been encountered at the front of lot 101 Berrima Road by the plaintiff on three earlier occasions, and one other occasion when it chased his car when he was leaving the Pirtek yard.
94 To an extent that largely rests on whether I can accept the plaintiff as a witness of truth, and a witness who was reliable and accurate. I have no hesitation in so accepting him. It was submitted that there was but a short time in which to identify the dog. That is so.
95 If the plaintiff saw the dog at some distance fifty to 70 metres from him on the day of the accident, and he was travelling at 50 kilometres per hour, there would be some four to four and a half seconds before he reached the dog.
96 If he was travelling at 60 kilometres per hour, that time reduces to four seconds. If he was travelling at seventy or 80 kilometres per hour, that time reduces to about three seconds. The dog was running towards the plaintiff presumably to attack him on his cycle, as the dog had attempted to attack Mr Murray before, and as the dog ran towards the plaintiff the time between the two would be further attenuated. Therefore there could only have been a few seconds in which Mr Hatch would have been able to identify this dog.
97 However, it is easier to identify something known than something unknown. The fact that Mr Hatch was able to identify the dog as the dog that he had previously encountered is made easier by the fact of the earlier encountering.
98 Furthermore, there is evidence of the dog’s being in a similar place on an earlier occasion attempting a similar feat. Mr Murray told me that on one occasion he saw the dog now in question further down Berrima Road chasing a lady riding a bicycle. That lady was accompanied by a male who was also riding a bicycle.
99 They were riding towards Moss Vale and this attack was at the entrance to the council yard which is a driveway before the driveway into the bushfire brigade along the Berrima Road before one reaches Parkes Road.
100 Mr Murray told me that the woman was screaming and that led him to assume that the dog was attacking her. He confirmed the dog was a black and brown “bitser Kelpie”. That of course is the description of the dog given by all of the three witnesses on liability called in the plaintiff’s case.
101 It would be a remarkable coincidence that there were two dogs fitting that description with the same propensity in the same area of the same town in a limited period of time. The inference to be drawn is the dog that attacked the lady on the bicycle near the entrance to the council yard is the same dog that attacked the plaintiff as he was riding his motorcycle in the same section of Berrima Road, and is the same dog that the plaintiff had previously encountered at the defendant’s yard.
102 I therefore have no hesitation in finding that it was the dog, the Kelpie or part-Kelpie dog being kept at the defendant’s premises that ran towards the plaintiff in an attacking fashion on 29 May 2003 which caused the plaintiff to come off his motorcycle and sustain personal injury.
103 The defendant submits that the plaintiff is not entitled to relief under the Companion Animals Act 1998. A short excursion to legal history is again required. Under the Dog and Goat Act 1898 there was a special provision in making the owner of a dog liable in damages for injury committed by a dog. Section 19 provided this:
“The owner of every dog shall be liable in damages for injury done to any person, property or animal by his dog, and it shall not be necessary for the party seeking such damages to show a previous mischievous propensity in such dog, or the owner’s knowledge of such previous propensity, or that the injury was attributable to the neglect on the part of such owner”.
104 The Act clearly imposed upon the owner of every dog strict liability in damages for injury done by the dog, and it was not necessary for the plaintiff seeking damages to prove either negligence or the ancient scienter action. Section 15 had a heading, “As to proof of ownership”. It was cross-referenced to an earlier statute, 6 William IV No 4, s 10. Section 15 provided as follows:
“In any prosecution under this Part every dog shall be taken to be kept by the person who is in the actual occupation of the house or premises upon which such a dog is found, unless reasonable proof to the contrary is adduced by the defendant, and the person by whom any such dog is ordinarily kept shall be liable to the several provisions of this Act as the keeper of such dog, whether kept for his own use or that of another; provided that with respect to any dog kept or used by a servant the same shall be deemed to be kept by his master or employer for the time being”.
105 It would appear that the scheme of this Act was to have a prima facie deeming provision whereby the occupier of the house or premises upon which the dog was found was deemed to be its keeper or owner, but it was open to the defendant to prove to the contrary.
106 This it would appear applied not only to criminal proceedings, but to civil proceedings. For example, s 22 of that Act was clearly referring to civil proceedings. It said this:
“If any action is brought against any person for anything done in pursuance of this Part the defendant may plead the general issue and give the special matter in evidence thereupon, and if the verdict be for the defendant or the plaintiff be non suited or discontinue his action, or if upon demurrer, judgment be given against the plaintiff, the defendant shall have treble costs, and the like remedy for the same the defendant has in any case to recover costs by law”.
107 Treble costs is certainly a powerful deterrent to making spurious claims one might think; a relief which is no longer to my knowledge available in any circumstances.
108 The Dog and Goat Act 1898 was replaced by the Dog Act 1966. That Act contained a definition of “owner” in section 4. That definition is this:
“Owner”, in relation to a dog, means (whether or not the dog is a registered dog), the person by whom the dog is ordinarily kept and includes (a) where the dog (whether or not it is a registered dog), is, at any particular time, ordinarily kept on any land or on any premises, the person who is the occupier of that land or those premises at the time; and (b) where the dog is, at any particular time, a registered dog, the person recorded under section 16 as the registered owner of the dog at that time”.
109 It is to be noted that “owner” “means” the person by whom the dog is ordinarily kept, but then there are two paragraphs which are not exclusive, but inclusive. In other words, a dog might be kept in ways other than provided in paras (a) and (b) of the definition.
110 Section 20 of the Dog Act 1966 provided this:
“(1)Subject to subsection (2) the owner of a dog shall be liable in damages in respect of;
(a) bodily injury to a person caused by the dog wounding that person; and
(b) damage to the clothing of a person caused by the dog, in the course of attacking that person.
(2) Subsection (1) does not apply in the case of:
(a) an attack by a dog occurring on any land, vehicle or premises:
(i) of which the owner of the dog is an occupier; or
(ii) on which the dog is ordinarily kept, but only if the dog is not a dog declared to be dangerous under this Act; or
(b) an attack by a dog which is in immediate response to, and is wholly induced by, intentional provocation of a dog by a person other than the owner of the dog or the owner’s servants or agents.
(3) This section does not affect the liability apart from this section of any person for damage caused by a dog”.
111 That permitted an owner of a dog still to be sued in negligence, or in the scienter action if it were still available.
112 I ought to have mentioned when discussing the definition of “owner” the provisions of subs (2), (2A), (2B), (3) and (4) of s 4. Subsection (2) provided that a reference in the Act to the owner of a dog included a person who was an owner of a dog. Subsection (2A) made provisions which enabled the occupier of land on which the dog was ordinarily kept to prove that the dog was ordinarily kept by someone other than him, who was of or over the age of eighteen years.
113 The same subsection also permitted a person who was an owner because he was the registered owner of the dog to prove that some other person was in fact the true owner of the dog.
114 Subsection (2B) essentially provided that in prosecutions the double jeopardy rule is preserved that no two persons could be convicted of the one offence. Subsection (3) provided where a dog was ordinarily kept by an employee on behalf of his employer the employer would be deemed to be the owner of the dog.
115 Subsection (4) provided that a reference to the occupier of land was to be construed as a reference to any person entitled to occupy the land either by way of having a legal or equitable estate in the land or under a lease, licence or permit.
116 The scheme of the Dog Act 1966 appears to be similar to the scheme of the Dog and Goat Act 1898 in that the occupier of the land on which the dog was kept was deemed to be the owner, but that person could prove otherwise. It is submitted on behalf of the defendant that the Companion Animals Act 1998 which repealed the Dog Act 1966 has a different scheme.
117 I had always thought I knew what a dog was, but the Companion Animals Act 1998 tells me that dog “means an animal (of either sex, or de-sexed) of the species canis familiaris, whether or not domesticated”. A companion animal is defined to mean a dog, a cat or any other animal prescribed by the regulations as a companion animal.
118 The meaning of owner is given in s 7. That is in the following terms:
(1) Each of the following persons is the owner of a companion animal for the purposes of this Act:
(a) the owner of the animal (in the sense of being the owner of the animal as personal property),
(b) the person by whom the animal is ordinarily kept,
(c) the registered owner of the animal.
(2) A reference in this Act to the owner of a companion animal is a reference to each and all owners of the animal.
(3) (Repealed)
(4) (Repealed)
(5) When an animal is ordinarily kept by an employee on behalf of his or her employer, the animal is for the purpose of this Act taken to be ordinarily kept by the employer and not the employee. This subsection does not prevent an employee being the registered owner of an animal, and does not prevent the employee being an owner if the employee is the registered owner”.
119 I do not need to quote subs (6) which relates to criminal prosecutions and is again a provision to prevent double jeopardy.
120 It is clear that the relevant section of the Companion Animals Act 1998 was poorly drafted. For example, it appears from the original printing of the bill that the word “animal” in s 7 subs (1) para (a) was originally printed as “dog” and it had to be cleaned up by the statute law amendment.
121 The repealed subss (3) and (4) were in the following terms:
"(3) For the purposes of any criminal or civil proceedings under this Act, a person who would otherwise be an owner of the animal as a result of being the occupier of property where the animal is for the time being ordinarily kept is taken not to be the owner of the animal if the person satisfies the Court that the animal was at the relevant time ordinarily kept by some other person of or above the age of eighteen years.
(4) For the purposes of any criminal or civil proceedings under this Act, a person who would otherwise be the owner of the animal is taken not to be the owner of the animal if a person satisfies the Court that some other person was in charge of the animal at the relevant time and was at least eighteen years of age at that time. The relevant time is the time of the incident that is alleged to give rise to the criminal or civil liability with which the proceedings are concerned”.
122 Subsection (3) was omitted by Act number 23 of 2001, and subs (4) was omitted by Act number 120 of 1998.
123 It would appear to me, and it has been submitted by counsel for the defendant, that subs (3) had been taken up from the Dog Act 1966 but was omitted because the Companion Animals Act no longer contained any deeming type provision specifying that the owner of a dog was the occupier of land upon which the dog was ordinarily kept, or to use the terminology of the 1898 statute, upon which the dog was found.
124 Section 25 subs (1) of the Companion Animals Act 1998 provides that the owner of a dog is liable in damages in respect of bodily injury to a person caused by the dog wounding or attacking that person as well as damage to the personal property of the person including clothing caused by the dog in the course of attacking that person.
125 I must construe, I believe, the words “caused by the dog wounding or attacking that person” as meaning “caused by the dog’s wounding or attacking that person”. Misusing English appears to be common amongst parliamentary draftsmen, and they ought to have realised that “wounding” being a gerund takes the possessive case and not some other case, and furthermore the word dog is not an adjective.
126 The question for my consideration is whether the plaintiff has established that the defendant was the “owner” of the Kelpie dog in question as being either the owner of the animal as personal property, or as the person by whom the animal was ordinarily kept. As I have stated, I accept that the dog was ordinarily kept at the defendant’s premises. Was the keeper of the dog the defendant?
127 The evidence only discloses that the persons at the defendant’s premises at lot 101 Berrima Road were the defendant himself and two employees. One of those employees is Mr Daley. Mr Daley did not know of the dog, so he could hardly be its keeper.
128 The identity of the other employee is not clear, but no doubt if the other employee was the keeper of the dog the defendant could have told me that. Furthermore subs (5) of s 7 clearly says that where a companion animal is ordinarily kept by an employee on behalf of his or her employer, the animal is for the purposes of the Act taken to be ordinarily kept by the employer and not the employee.
129 Here the evidence suggests that the dog was present at the defendant’s premises outside working hours acting as a guard dog ought and if it were, and if it be the fact that the dog was kept by the other employee, the only inference to be drawn is that it was kept on behalf of the employer because the dog was effectively guarding the employer’s premises. I have therefore no hesitation in finding that the defendant was the person by whom the animal was ordinarily kept.
130 Again, in drawing those inferences, I rely on what fell from their Honours, Sir Victor Windeyer and Mr Justice Menzies in Jones v Dunkel.
131 The remaining issue is whether the plaintiff is entitled to succeed in negligence. I accept that the defendant was keeping the dog on its premises for the defendant’s own purposes namely as a form of guard dog. It defies belief, or at least beggars belief, that the defendant did not know when this dog was at his premises during working hours for four weeks, that the dog was not attacking those entering his car yard, or his yard, or chasing cars and bicycles that were passing by.
132 It is true that no complaint was made to the defendant by the plaintiff or by Mr Jones or by Mr Murray, but one might think that someone at some time might have complained, but again the defendant did not enter the witness box to tell me that.
133 As I said, it beggars belief that the defendant did not know of the propensity of this dog to attack others. If he chose to keep the dog or to use its services, then he owed a duty of care to those attending his premises, or passing in close proximity thereto to guard them from any potential danger or injury.
134 That could easily be done by keeping the dog on a chain and locking it inside the premises overnight as was supposed to be the routine with the old Rottweiler. Another way would have been to keep the dog within the gated yard, and away from the front of the office and the car parking area.
135 Failing to keep the dog on a chain is a particular of negligence numbered (b) in the statement of claim and a particular of negligence numbered (a) is failing to fence the premises adequately or at all to prevent the dog from escaping from the premises. The premises were fenced, or part of the premises were fenced. The fact is the defendant did not keep the dog within the fenced areas. In my view the plaintiff is also entitled to succeed in his allegation of negligence.
136 One of the reasons that I discussed the legislative history of the Companion Animals Act 1998 and its predecessors, was to try to ascertain whether there was any particular learning on the meaning of the phrase, to keep a dog. A reference to the copy of Stroud’s Judicial Dictionary available in the Wagga Wagga Courthouse, which is the edition of 1952, merely refers me to the English statutory provision which is not available to me.
137 I have been unable to find any particular explanation of the meaning of the words “to keep a dog”. It is clear that the 1898 Act speaks of the dog “being found” on premises. That is it only extends to the actual physical placement of the dog on the property.
138 Of course “keep” can be used in many ways. It does not mean to have, but to hold onto something. One could always use the word to keep a dog or to keep a cat as meaning to care for it, to provide it with sustenance, shelter, food and drink, but in my view it should not be given too narrow a meaning in the Companion Animals Act 1998, bearing in mind previous legislative history.
139 It appears to me that the phraseology “keeping” a dog extends merely to maintaining its physical presence in a place or under that person’s custody or power. It cannot extend as far as possession because the possessor of an animal is prima facie the owner of it, and therefore that person would fall within the provision of s 7(1)(a).
140 If para (b) required actual possession of the dog, para (a) would be otiose as has been submitted by learned counsel for the plaintiff.
141 A person in my view can keep a dog merely by permitting it to stay or rest upon his or her property, by feeding it, by providing it with water, by providing it with a place of shelter. If an animal comes to my house and I permit it to stay in it, one might be forgiven for thinking that I was keeping it. If someone asked me whether I had just acquired a new cat and I said, “No, it is a stray which has entered into my house and I have no intention of keeping it,” one might be forgiven for thinking that my visitor was correct in thinking that I was stupid not to eject the cat from my house.
142 Again, I accept therefore that permitting an animal to stay on one’s premises, to use it as a place of shelter or repose habitually, amounts to keeping it. It is now 6.15. I shall continue these reasons at 9.30 in the morning.
MATTER ADJOURNED TO 12 MAY 2006 AT 9.30AM
WAGGA WAGGA: FRIDAY 12 MAY 2006
143 HIS HONOUR: This is the continuation of the judgment in Hatch v Wood-Davies. I commenced giving reasons for judgment yesterday at 3.45. I adjourned at 6.15 having thought that I had said sufficient about liability, so that today I could give judgment on the question of the plaintiff’s damages. On reflection, I have not wholly canvassed questions of liability so I return to that subject.
144 It is necessary for me to consider in greater detail the circumstances in which the plaintiff came off his motorcycle. Exhibit L5 shows a speed restriction sign indicating a maximum speed of 50 kilometres per hour out the front of the premises formerly occupied by the defendant. Exhibit L5 is a recent photograph. According to the plaintiff, and he was not challenged in this regard, the speed restriction sign was at the time of the accident further around the corner shown on exhibit L5, the sweep to the right as one was driving towards Moss Vale.
145 However, it is clear from the COPS report that the area where the accident occurred had a maximum speed of 50 kilometres per hour. As the plaintiff was heading along Berrima Road he saw the dog, as I said, some distance from him in front of him on his left hand side some fifty to 70 metres distant. The dog was running towards him.
146 The plaintiff noticed the dog, looked along the carriageway and saw a vehicle approaching from the opposite direction and the plaintiff identified that position of the vehicle with a cross on exhibit L6. The plaintiff, having noted the oncoming vehicle on its correct side of the carriageway, chose to seek to avoid the dog which was running towards him.
147 He veered to the left, hit the gravel, lost control of his motorcycle, came off it and slid to the left of the carriageway, eventually striking the culvert or pipe near the telegraph pole shown on exhibit L7 out the front of the bushfire brigade building which telegraph pole has near it some white painted rocks.
148 The plaintiff told me, and I accept, that had he not swerved to avoid the dog he would have struck the dog and probably have been thrown off his motorcycle in any event causing damage, not only to himself and his motorcycle but also to the dog.
149 There must also have been a prospect that if he struck the dog he may have been thrown towards the right onto the incorrect side of the carriageway, so that his body may have landed in the path of the oncoming vehicle.
150 The defendant maintains that the plaintiff was guilty of contributory negligence in two ways. The first of those ways was that the plaintiff swerved to the left, hitting the gravel and losing control of his motorcycle, when he could have swerved to the right. I am unable to accede to the defendant’s submission in that regard.
151 The basic road rule is that one must keep to the left. Veering to the right may have caused the plaintiff to come off his bicycle on the incorrect side of the carriageway, putting him into the path of the oncoming vehicle.
152 Drivers in this country are trained to keep to the left and one would think, as the plaintiff himself said, that the natural reaction was, in order to avoid a collision, to go left rather than right. Furthermore, when one considers exhibits L6 and L7, there was less obstruction on the left hand side of the carriageway than there was on the right hand side of the carriageway.
153 True it is that there were telegraph poles on the left hand side of the carriageway, but it is clear, especially from exhibit L7, that there were also telegraph poles on the right hand side of the carriageway. Furthermore, there were trees on the right hand side of the carriageway which were much closer to the carriageway than any foliage on the left hand side of the carriageway.
154 The foliage on the left hand side of the carriageway was behind the fence surrounding the council depot and not as close to the carriageway as the trees and foliage on the right hand side of the carriageway.
155 The other allegation of contributory negligence made by the defendant is the plaintiff was driving at excessive speed. The speed for that section of Berrima Road was, as I said, 50 kilometres per hour. The COPS entry shows the plaintiff as travelling at 50 kilometres per hour. The only source of that information gathered by the police must have been the plaintiff himself. In other words, he told police that he was travelling at the maximum permissible speed for that section of Berrima Road.
156 To me it is unsurprising that any motorist or any motorcyclist would tell the police that he was driving at or within the maximum permissible speed. In dealing with police officers, members of the public are generally circumspect, and hardly likely to make admissions of committing a criminal offence.
157 The plaintiff was transported by ambulance from the scene of the accident to the Bowral & District Hospital. As any experienced personal injury practitioner would know, there are three histories recorded in the present circumstances in the hospital records.
158 The first is a history recorded in the casualty department, now known as the emergency department. The second is the history recorded by a specialist under whose care the plaintiff was placed, and the third history is the history recorded by the nurse or nurses who cared for the plaintiff when he was admitted to the ward.
159 The history recorded in the emergency department notes is this:
“Motor bike accident. Skidded while avoiding a dog. Going 80 kilometres per hour. Landed in creek bed, unsure of loss of consciousness, take own helmet off. Initially complained of right shoulder pain”.
160 The history recorded by the orthopaedic specialist, Dr Leicester, and that I infer is the signature on the page recording the history, under the heading “Orthopaedics” is this:
“Motorbike accident injury approximately 80 kilometres per hour avoiding dog, skidded to culvert”.
161 The history recorded by the nursing staff is this:
“Twenty-nine year old man, presents with fracture right scapula, displaced. Injury sustained from motorbike accident/Mark swerved to miss hitting a dog coming off bike”.
162 Clearly, part of the emergency department records is erroneous. The plaintiff did not land in a creek bed. One must wonder therefore how accurate the recording of “80 kilometres per hour” is.
163 The history recorded by Dr Leicester of skidding to a culvert is correct, but the glyph or mark preceding 80 kilometres per hour appears to indicate an approximation, and I do not know whether that is the actual history recorded from the plaintiff by Dr Leicester, or whether he took it from the emergency department notes.
164 The plaintiff himself said that he may have told the hospital that he was travelling at 80 kilometres per hour, although his evidence in chief to me was that he was travelling at 50 kilometres per hour. I believe there to be much force in the submission, which I accept, of Mr Roberts SC, leading counsel for the plaintiff, that the plaintiff really did not know the speed he was travelling, but he would have been reducing his speed from 80 kilometres per hour to 50 kilometres per hour to comply with the regulatory sign.
165 Yesterday I pointed out the times for various speeds between the plaintiff’s seeing the dog and colliding with it. They were between four and a half seconds and three seconds, the former representing a speed of 50 kilometres per hour, the latter representing a speed of 80 kilometres per hour, assuming that the plaintiff saw the dog as he said he did fifty to 70 metres distant from him when the dog was first sighted on that day.
166 Yesterday I also pointed out that the time would have been attenuated by the fact that the dog was running towards the plaintiff. It appears to me that the proper finding was that the plaintiff was travelling somewhere between sixty and 70 kilometres per hour, and that there was some three seconds between his seeing the dog and the estimated time of striking it, assuming the dog had remained stationary.
167 In other words I accept that it was more probable than not that the plaintiff was exceeding the speed limit. However, for that to constitute contributory negligence, there must be evidence that it contributed to the plaintiff’s injury. There is no such evidence, and furthermore, the plaintiff was not cross-examined to suggest that had he been going at a slower speed, his injury could have been either avoided or lessened.
168 There was no cross-examination of the plaintiff, for example, that if he had been travelling more slowly he could have pulled up, that is come to a standstill and avoided the accident. He was not cross-examined to suggest that if he was travelling more slowly he could have swerved and avoided hitting the gravel and therefore avoided coming off his bike. There was no cross-examination to that effect at all.
169 Furthermore, there was no medical evidence adduced by the defendant to establish that if the plaintiff had come off his motorcycle at a lesser speed he would not have sustained the injuries he did.
170 Nor was there any expert evidence adduced by the defendant to show that if the plaintiff had been travelling at a lesser speed he would not have skidded as far as he may have, and may not have come into collision with the culvert or water pipe which led to the plaintiff’s major injury, an injury to his right shoulder.
171 In other words, there was just no evidence of any causal relationship between the plaintiff’s riding at a speed above the speed limit and his sustaining the injuries which he did. Therefore the allegation of contributory negligence must fail.
172 There are two further issues concerning liability which I should consider. The plaintiff made much stress on the evidence relating to what could be described as a sudden disappearance of the dog. The plaintiff’s accident occurred at approximately 4.45pm. I realise that the COPS entry has a later time, but the ambulance records indicate that the ambulance was booked at 4.55pm and arrived at the scene at 5.05pm, and the ambulance officers themselves estimated that the accident occurred at 4.45pm.
173 If the accident happened at 4.55pm it is unlikely that there was an instantaneous call to the emergency services. I accept therefore that the time estimated by the ambulance officers to be the more likely time of the plaintiff’s accident.
174 The evidence is that the defendant’s yard was opened until 5.30pm. The ambulance did not leave the scene of the accident until 5.11pm. As the evidence, which I recited yesterday, establishes, the accident scene was attended by the police, the ambulance and a crowd of onlookers. It seems to me likely that part of the carriageway of Berrima Road would have been closed as the plaintiff was attended to, before being taken by ambulance to the hospital.
175 This accident was, as I said yesterday, some 300 to 400 metres from the defendant’s premises, but, in popular terms, was just around the corner. It seems to me highly unlikely that the occupants of the defendant’s yard would have been totally oblivious to the occurrence of the accident.
176 For example, Mr Jones came upon the scene of the accident as he was riding his bicycle home, and Mr Murray became aware of it as well, and his premises were 200 metres further distant from the scene than was the defendant’s yard.
177 The plaintiff told me, and I accept, that he told the police what had happened to him. The police left him and headed in the direction of the defendant’s yard and later returned, prior to the plaintiff’s being taken from the scene by the ambulance, and told him something which he could not give in evidence. I am asked to infer that the police attended on the defendant’s premises and made inquiries about the dog with which we are concerned.
178 I am unable to draw that inference. It is just too long a bow to draw. The evidence is from Mr Jones and Mr Murray that the dog, the Kelpie dog, was not seen after the accident. Clearly, relatives of the plaintiff sought to identify the dog in the days following the accident, but were unable to do so.
179 The plaintiff suggests that this sudden disappearance of the dog would lead me to draw an inference that the defendant having, to use the terms of the criminal law, some knowledge of guilt, had managed to have the dog removed from its premises.
180 Again, I am unable to draw such inference because there are many reasons why the dog could suddenly disappear. If there were some real owner, for example someone who had legal property and the dog turned up, it may have kept the dog away.
181 For all I know the council dog catcher may have taken the dog away. There was no evidence called from the council dog catcher, or any council records put into evidence. The dog may have suddenly died of the canine equivalent of myocardial infarction resulting from the trauma of being involved in this near collision.
182 The dog may have been run over by a motorist on Gibbons Road or Lytton Road or Berrima Road shortly after the time of the plaintiff’s accident.
183 The submission put by the plaintiff is that I should draw a certain inference, but I cannot draw that inference because it would be mere speculation. However, I do accept that the dog did disappear, and that impeded the plaintiff in seeking to identify its owner, such that the plaintiff has given the only evidence he could do to identify the dog.
184 It is well established law that a plaintiff can only bring forward the best evidence that he can. I accept that the plaintiff has done so, and in the circumstances to which I referred yesterday, the evidentiary onus was thrown upon the defendant, and the defendant has failed to discharge that evidentiary onus.
185 Finally, I should comment on the only relevant binding authority to which I have been referred; the decision of the Court of Appeal in Zappia v Allsop (unreported, 17 March 1994, number 40192 of 1993, BC9402327). That decision concerned the Dog Act 1966.
186 The bench was comprised of Kirby P, as he then was, and Clarke and Handley JJA. The appeal was by an unsuccessful defendant in this Court. Kirby P was the dissentient, and would have allowed the appeal and set aside the verdict in favour of the plaintiff.
187 With unfeigned respect to the learned judges who comprised the bench of the Court of Appeal in this case, I was bemused by the decision. Kirby P accepted a very narrow and conservative view as to the construction of the Dog Act, a narrow and conservative view which one might think his Honour would not normally adopt.
188 Indeed his Honour thought that an earlier decision of the Court of Appeal, Eadie v Groombridge, was not binding upon him and his Honour did not consider he was bound by the leading judgment of Meargher JA who adopted a more liberal approach to the construction of the Dog Act than his Honour Kirby P did adopt. In other words, a judge who was thought to be a notorious conservative, Meargher JA, was thought by Kirby P to be far too liberal.
189 The defendant in the current case distinguished Zappia on the basis that the plaintiff in that case was successful because of the provision in the Dog Act that made the occupier of land or premises upon which the dog was ordinarily kept, the deemed owner of the dog.
190 The plaintiff has submitted that the case assists the plaintiff in the current matter. The leading judgment was given by Clarke JA with whom Handley JA concurred. His Honour said this:
“The respondent has said in his evidence that he lived about one and a half kilometres from the scene of the accident, and that he used to ride along that street two to three times per week prior to the accident, either with or without his son. He said he was invariably chased by the dog which came out of the appellant’s property. The dog was difficult to see because of the foliage, and he said, ‘It barked when it saw you, and you then had less than ten seconds to get past the gate’.
Sometimes, he said, he would catch a glimpse of the dog on the side of the house. The respondent said that this happened about three to four months prior to the accident and during this period he must have been pursued by the dog, which ran from the appellant’s property, about 30 times.
He added, as his Honour observed, ‘We used to try to sneak past the property so that the dog wouldn’t hear us or see us’.
This evidence was obviously accepted by his Honour, and was the first matter upon which he relied. Without more, it is powerful evidence that the dog was ordinarily kept at the appellant’s premises and may in itself have been sufficient to establish the necessary ownership”.
191 Unclear to me to what his Honour was referring when he referred to the “necessary ownership”. I do not know if he was referring to ownership simpliciter of the dog, or whether he was referring to any specific deeming provision of the Dog Act.
192 However, it is clear that his Honour accepted that evidence, showing that the dog ordinarily came out of a person’s property and was powerful evidence that the dog was “ordinarily kept” at the premises.
193 Here the Kelpie dog was on the premises and came from those premises to attack passing motorists and cyclists, or was out the front of the premises and carried on those attacks.
194 Clarke JA accepted that evidence of such nature would be strong evidence of the dog being ordinarily kept at premises, and this is exactly what occurred in the current matter, although clearly the case is distinguishable because it was based on a now repealed legislation. It does assist, in my view, the submissions put on behalf of the plaintiff that the plaintiff is entitled to succeed.
195 The final matter on which I should comment on liability is to refer to the submission made to me by Mr Roberts SC that it is unlikely that there was some attacking dog living at or near the scene of the attack upon the plaintiff on the day of the accident.
196 As I have sought to point out yesterday, the area to the left of Berrima Road from which the dog came, was occupied by the council depot and the bushfire brigade, and at least the council depot is surrounded by a high chain wire fence topped with barbwire which would not permit an animal to enter and cross the council depot. There is no evidence of any animal being kept on the council depot or the bushfire brigade, and one would think that was unlikely.
197 In those circumstances it seems to me more probable than it might otherwise be that the dog which attacked the plaintiff was the Kelpie dog the plaintiff had previously seen in the defendant’s car park area, the same dog identified by Mr Jones and Mr Murray.
198 Accordingly, in my view, the plaintiff is entitled to succeed in his action, both under the Companion Animals Act 1998 and in the tort of negligence against the defendant, without any reduction for contributory negligence.
199 I turn now to the question of damages. The plaintiff was born on 24 August 1973 at Junee. He was twenty-nine years of age at the time of the accident. He is now thirty-two. He married in 1996 and is the father of three children, Brooke who is aged twelve, Matthew who is eight years of age and Jacob who is twenty-two months old.
200 He left Junee High School having obtained the school certificate in 1988. He then served an apprenticeship as a retail butcher, both in Junee and in his final year at Oatley, and would have qualified as a butcher in approximately the end of 1992.
201 The plaintiff then performed work as a beef boner in an abattoir which he described as Cargill Foods, according to my note, or it may have been Cargill Meats. He left Cargills in 1997 to work at another abattoir, Rockdale Beef at Leeton. He left Rockdale Beef in about 1998 and then went to work for Fine Meats at the Goulburn Abattoirs which led to his move from his native town of Junee to the southern highlands.
202 The plaintiff’s evidence is that working as a boner at an abattoir earned him greater remuneration than working as a retail butcher, and had other advantages. The plaintiff referred to the camaraderie, the shorter hours and also the increased salary.
203 Once upon a time I could have taken judicial notice of the fact that those working as boners or slicers in an abattoir earned far in excess of what a retail butcher would earn, but I can no longer do so. However the evidence certainly persuades me to the same effect in the current matter.
204 The plaintiff gave up working for Fine Meats at Goulburn where he had been working on a mutton line because he became tired of travelling between the Moss Vale area and Goulburn. Commuter fatigue is, sadly, a phenomenon of which this Court is aware.
205 The plaintiff obtained casual work, working for Williams Quality Meats at Mittagong, and then subsequently obtained casual work for Kelston Pty Ltd. That company had boarding kennels for dogs and similar facilities for cats. The plaintiff was employed to use his boning skills to cut up meat to feed the cats and dogs cared for by his employer. In addition, Kelston Pty Ltd did some other business of painting, and the plaintiff was also involved in that aspect of its work.
206 After that the plaintiff set up his own businesses to which I referred yesterday, of landscape gardening and of driveway construction. As I said yesterday, the landscaping involved mainly the laying of turf, and the driveway construction involved essentially the spraying of bitumen. It was whilst the plaintiff was conducting those businesses that he sustained his injuries.
207 The plaintiff told me that he was advised by Dr Leicester after the accident to give away those businesses, and the plaintiff did so immediately following the accident. On 1 August 2003, just two months after the accident, the plaintiff, with the assistance of his parents-in-law, purchased a butchery business at Shoalhaven Heads which the evidence refers to as the Shoalhaven Village Butchery.
208 The plaintiff told me that he purchased the business for $90,000 and he borrowed $110,000 from his parents-in-law to buy the business and to provide him with ongoing funds to fund the business. What exactly the plaintiff bought is not clear. I do not know whether the purchase involved the purchase in fee simple of realty, or the purchase of a lease, however I can infer that the purchase included the fixtures and fittings of a butcher’s business, and the goodwill of the business.
209 I would hesitate to accept that a purchase price of $90,000 would include the purchase of real property in fee simple because coastal land in New South Wales comes at a high price. The business is at Shoalhaven Heads, which is at the mouth of the Shoalhaven River and downstream from Nowra. It appears that the plaintiff lived in Shoalhaven Heads until relatively recent times when he bought a property in Bomaderry, which is ten minutes drive from Shoalhaven Heads. Bomaderry is on the northern bank of the Shoalhaven River opposite Nowra which is on the southern bank of the Shoalhaven River.
210 The plaintiff told me that he was the purchaser, I assume with his wife, in fee simple of the property at Bomaderry, but again money was borrowed from his parents-in-law and he has no equity in the property at Bomaderry.
211 I will discuss the plaintiff’s current business later in these reasons.
212 As I have already said, the plaintiff was taken by ambulance to the Bowral & District Hospital. He was admitted on the day of the accident, 29 May 2003, and was discharged on 1 June 2003. As I have earlier said, he came under the care of an orthopaedic surgeon, Dr Leicester.
213 The plaintiff’s major injury was an injury to his right clavicle. There had been an old healed fracture of the middle third of the shaft of the clavicle of which the plaintiff told me, and that injury is not relevant. A plain x-ray on 29 May 2003 suggests that the plaintiff had a fracture through the base of the glenoid process of the scapula, extending through the base of the coracoid process with medial displacement of the glenoid process.
214 A CT scan performed on the following day indicated that the fracture did not pass through the base of the glenoid process, however there was some comminution of the fracture with anteromedial displacement at the fracture site with a 2 centimetres overlap of the displaced pieces of the clavicle at the fracture site.
215 The plaintiff was discharged from the Bowral & District Hospital after being treated with analgesia and “early mobilisation”. When the plaintiff was discharged he was asked to see Dr Leicester’s locum, Dr Tan, in four to six weeks after discharge with a repeat CT scan.
216 The plaintiff was also referred to his general practitioner, Dr Kwong. Dr Kwong referred his patient to Dr Greggory Burrow, an orthopaedic surgeon, it would appear, specialising in the shoulder joint. The plaintiff first saw Dr Burrow on 13 June 2003.
217 Dr Burrow records the plaintiff’s injuries as being right chest wall costochondral strain, a comminuted fracture of the right scapula, a contusion to the C7T1 spinous process area and acromio-clavicular joint injury on the right hand side.
218 The plaintiff told me of pain in his neck and ribs; the rib pain appears to have settled fairly quickly. The neck pain appears to have only settled about six months ago, in relatively recent times. The only diagnosis of the problems with the chest wall and with the neck is of a soft tissue strain.
219 When the plaintiff first saw Dr Burrow, Dr Burrow was concerned about neurological complaints made by the plaintiff. It appears that Dr Burrow wanted such problems to either settle or be adequately diagnosed before he provided further treatment.
220 At a consultation on 9 July 2003, Dr Burrow was concerned about a slight subluxation of the acromio-clavicular joint on the right hand side, which might require surgery. There was a further consultation on 3 September 2003 at which Dr Burrow recommended that the surgery be performed.
221 The plaintiff was admitted to the Castlecrag Private Hospital in Sydney on 13 November 2003 where Dr Burrow performed a reconstruction of the right acromio-clavicular joint.
222 In his medico-legal report Dr Burrow sums up the surgery in this fashion:
“The acromio-clavicular joint was reconstructed by way of distal clavicle resection and attempted Weaver-Dunne coracoid-acromial ligament transfer (this was deficient and had to be augmented by coracoclavicular screw and Mersilene tapes around the coracoid and clavicle)”.
223 However, one of the screws used in that procedure became loose and that was surgically removed under general anaesthetic on 22 January 2004. By 23 March 2004 the plaintiff was able to return to normal retail butcher’s work, including being able to lift weights up to 60 kilograms, but only by using certain methods of lifting; that is, keeping his arm in a neutral position.
224 It would appear that the plaintiff’s final consultation with Dr Burrow was on 8 October 2004. Following upon that consultation Dr Burrow dictated a letter with a rosy prognosis to the plaintiff’s general practitioner on 11 October 2004. That letter was tendered by the defendant.
225 In a medico-legal report of 21 October 2004, signed by him, Dr Burrow did not have such a rosy or positive view as to the effects of the surgery which he had practiced. Dr Burrow expressed this prognosis as far as the shoulder injury was concerned:
“The acromio-clavicular joint reconstruction is unlikely to deteriorate with time, nor is arthritis likely to develop. There can be a new injury in the future which would disrupt the repair, occasionally this can be revised. It is unlikely that he will require significant future surgery, however occasional (weather) related ache may require simple analgesia or anti-inflammatories on an intermittent, but permanent basis. Currently he requires no medications or pain killers”.
226 Under the heading “fitness for work” Dr Burrow said that he asked the plaintiff to be mindful of repeated overhead use of his right arm, or heavy lifting above shoulder height and those restrictions were permanent. Dr Burrow also expressed the view that it would not surprise him if the plaintiff had some difficulty with occasional intermittent pain with those sorts of activities.
227 In the supplementary opinion he expressed the view that the plaintiff was suffering from a “9 per cent whole person impairment”. Such may be relevant for the purposes of the Motor Accidents Compensation Act and the Workers Compensation Act but is not relevant to a claim under Civil Liability Act which the plaintiff concedes governs the current matter.
228 The picture painted by the plaintiff is not as rosy as that painted by Dr Burrow. The plaintiff told me of continued dull ache in his right shoulder made worse on a daily basis by certain activities. I had no hesitation in accepting the plaintiff as an honest and truthful person who did his best to give an accurate account of what had happened to him, and of the ongoing problems which he experienced.
229 His ongoing experience is not exactly that painted by Dr Burrow, however the plaintiff’s complaints are very accurately, in my view, and meticulously explained by Dr John Voss who was qualified by the plaintiff’s solicitors. Dr Voss is a specialist physician and a specialist in rehabilitation medicine.
230 Dr Voss has a history consistent with the plaintiff’s complaints to me. That history is as follows:
“There is a continual ache in the whole of the right shoulder, which has not improved since initial recovery from the operation performed there.
This pain is there all the time, but should he use the shoulder (certain movements, rather than lifting from below, tend to cause it) he develops a more severe pain (when asked to indicate where it was felt he indicated the supraspinatus region).
It would affect him in such tasks as washing the car or in particular any task where it is necessary to raise the right arm above the head. It affects him less with lifting provided he keeps both arms straight, hanging down”.
231 Under the history “present complaints” the doctor goes on to refer to two other specific complaints which I need not recite.
232 On examination the doctor noted wasting of the right deltoid musculature, wasting in the supraspinatus region, wasting of the right upper and lower arm and an obvious bony prominence consistent with mal-union of an overlapping fracture of the right clavicle.
233 In commenting that the doctor noticed wasting of the right upper and lower arm, I have glossed the doctor’s opinion. What he said is this:
“To measurement, the circumference of the right upper arm equalled of that of the left, and that of the right forearm was 1 centimetre less than the left”.
234 However, one would expect that the dominant arm would have greater girth in both its upper and lower sections than the non-dominant arm. If the right upper arm has the same girth as the left upper arm, one can consider that the right upper arm is wasted. Where, as here, the right forearm is less in girth than the left forearm, that would indicate gross wasting of the right forearm in a right hand dominant person. The plaintiff has right hand dominance.
235 All of those findings are objective signs of organic disability. On manipulation of the right shoulder, Dr Voss found a positive sign of impingement, again an objective sign of organic disability.
236 Under the heading “opinion” Dr Voss said this:
“The overlapping (mal-united) fracture of the right clavicle existed prior to the accident under consideration. On the history given (pain, associated with a clicking sensation, related to the right acromio-clavicular joint) dislocation of the right acromio-clavicular joint was not in evidence until after the accident under consideration.
Trauma of sufficient violence to cause the fractures which were demonstrated in the scapula (shoulder blade) would certainly have been sufficient to cause a dislocation of the right acromio-clavicular joint. To relieve pain associated with the latter, Dr Burrow performed the operation to stabilise the dislocating joint. This was obviously (for technical reasons) a difficult procedure, with subsequent x-rays suggesting (to me) that the bone graft may well have been associated with sufficient scarring (soft tissue reaction) to compromise the space adjacent to, and just below the acromion process, through which the supraspinatus tendon passes”.
237 Further, under that heading the doctor went on to say this:
“Current clinical examination reveals signs characteristic of pain arising from the supraspinatus tendon (pain with forced abduction entering the middle arc, and signs of impingement). This tendon may have been injured initially during the accident under consideration. On the other hand, I suspect that reaction around the repair of the acromio-clavicular joint had considerably narrowed the (sub-acromial) passage through which the supraspinatus tendon passes, thus aggravating the situation by impingement.
The subject’s constant “dull” pain may well be subject related to adhesions about the fractures to the shoulder blade (scapula), and possibly from the supraspinatus area as well. The more acute pain results from impingement of the supraspinatus tendon as abduction of the shoulder enters the middle arc”.
238 Dr Voss has done something quite unusual. Dr Voss has done what an expert ought do as described by Lord President Cooper in Davie v The Edinburgh Magistrates [1953] SC34. I accept the view of Dr Voss which adequately and completely explains the plaintiff’s pain to me. Furthermore, the explanation is such as to make it extremely implausible that the plaintiff could invent such an atomically explicable symptom complex.
239 The only disagreement, if I may use such a word, that I would have with the opinion expressed by Dr Voss, is that it appears to me from reading the medical evidence available, that the mal-united fracture of the right clavicle was not old, but rather due to the accident now in question. That is my reading of the initial radiological reports, however nothing turns on that.
240 In describing the plaintiff’s ongoing problems, Dr Voss said this:
- “His real problem will be ongoing pain with forceful use, particularly when attempting to abduct or forward elevate the right arm.
- The latter will exclude him from carrying out the work of a landscape gardener (such as he pursued prior to the accident under consideration). It will prevent him carrying out any really heavy work, even lifting below shoulder level. It will prevent occupations entailing lifting more than minimal weights above bench height, and occupations requiring him to work above shoulder height”.
241 The other medico-legal specialist who examined the plaintiff are Dr David Wilcox, a surgeon, for the defendant, and Dr John Harrison, an orthopaedic surgeon qualified by the plaintiff’s solicitors. There is also a medico-legal report from Dr Patricia Jungfer, a psychiatrist qualified by the plaintiff’s solicitors, and a report from Ms Jocelyn White, an occupational therapist, also qualified by the plaintiff’s solicitors.
242 Dr Wilcox and Dr Harrison support some of the plaintiff’s complaints, but the best explanation for those complaints is in the evidence, in my view, of Dr Voss. The plaintiff told me of being affected at one time by psychiatric symptoms. They are commented upon by Dr Jungfer and certainly the plaintiff had those symptoms at the time Dr Jungfer examined him.
243 Fortunately the plaintiff has recovered to an extent from his psychiatric problems. He told me that he had been very upset. He was concerned by financial pressures, that his being upset and his being concerned caused strain with his wife and children. He had become short tempered and withdrawn, and he had separated from his wife for one period of three weeks.
244 He had ameliorated his psychiatric problems by ceasing to drink alcohol, but the plaintiff told me that he still had some ongoing moodiness and concern about the future. I have no hesitation in accepting the plaintiff in that regard.
245 He is a relatively young man, who since leaving school at would have been the age of sixteen, has essentially pursued manual callings. His ability to do work with his dominant right arm has been curtailed to a large extent.
246 He is a young man with a wife and three young children to support, a man who has borrowed money from his parents-in-law to set himself up in business; a man who has borrowed money again from his parents-in-law to establish a matrimonial home for his wife and children; a man who is obviously concerned to earn his livelihood, and to provide for his wife and children.
247 The effects of this accident, the effects in particular of the injury to his right shoulder, have clearly affected his ability to earn his livelihood, affected his ability to earn good money and have thrown upon him a weight of financial concerns. All of that to me is quite acceptable and the natural probable consequence of the injury which the plaintiff sustained. Equally, one can accept the plaintiff’s mood would be affected from time to time by his concerns.
248 The first item to consider under the heading of damages is damages for non economic loss; that is damages for pain and suffering, the loss of enjoyment and the loss of the amenity of life.
249 I am required by the Civil Liability Act to place the current plaintiff’s experience of pain and suffering et cetera against a most extreme case of non economic loss. A most extreme case of course includes quadriplegia, and paraplegia and forms of organic brain damage, and I have held it include a young man, who, because of organic brain damage had an intellectual deficit, social dysfunction and a hemiparesis.
250 Clearly the plaintiff is not such a case. However, as I have said, he is a relatively young man, twenty-nine at the time of injury and now thirty-two years of age. If he has a normal life expectancy, and there is nothing to say otherwise, and leaving aside the plaintiff’s occasional taking of large amounts of alcohol, something not uncommon with native born Australians who are male, the plaintiff is otherwise in good health. He has a normal life expectancy, in my view, a life expectancy of forty-seven years.
251 He has been left with an orthopaedic condition which causes him a continuous dull pain in his right shoulder, and sharper pain due to impingement. The medical evidence persuades me that it is liable to persist throughout the plaintiff’s life. Forty-seven years into the future is a very lengthy period of time in which to suffer such symptoms.
252 The plaintiff has fortunately recovered from his soft tissue issues, although the recovery from the neck pain was only in the last six months or so. The plaintiff has developed over a short period of time symptoms in his left shoulder. The inference to be drawn from the plaintiff’s own evidence is that is because of over using the left arm because of symptoms in the right shoulder.
253 The plaintiff is supported in that regard by the opinion of Dr John Harrison, a well respected orthopaedic surgeon. One can accept that intermittently in the future the plaintiff will also be affected by left upper arm symptoms if he over uses his left arm to compensate for the disability in his right upper arm.
254 The defendant suggested that this was, if anything, a somewhat “nuisance” case where the plaintiff might be lucky to reach the “threshold” of 15 per cent of a most extreme case. I did not form that impression at all. Learned leading counsel for the plaintiff submitted that this was 30 per cent of a most extreme case, a view I had formed antecedent to Mr Roberts’ making that submission.
255 I do accept that this case stands in proportion to a most extreme case in the ratio of three to ten. That entitles the plaintiff to a lump sum of 30 per cent of a most extreme case, which, I am told, amounts to the sum of $95,500.
256 Past out of pocket expenses are agreed to be $7175. Mr Roberts SC asked me to award a cushion to the plaintiff of $5000 for future out of pocket expenses. I have no hesitation in doing so. The sum is modest; the demands for future out of pocket expenses could be much greater. For example, one can easily accept that there might be visits to a general practitioner, say four per annum, a visit to an orthopaedic surgeon once a year perhaps, radiological investigations every five years or so and the plaintiff takes two Neurofen Plus per day in the evening to control his pain, which would indicate two packets of thirty per month, which may or may not amount to anywhere from $25 to $50 a week. No-one bothered to prove the exact cost of the Neurofen Plus.
257 However, the evidence also suggests the plaintiff may need from time to time assistance with home maintenance for doing overhead work, such as cleaning out gutters and painting and may need to have his car washed at a car wash, rather than doing it himself because that is one task that he finds difficult to do. Those demands could persist for forty-seven years in the future. I therefore have no hesitation accepting a buffer of $5000 for future out of pocket expenses.
258 The remaining claims are for past and future economic loss. The plaintiff when he was working at an abattoir as a boner earned good money. For example, the financial year ending 30 June 1999 whilst working for Fine Meats Pty Ltd at Goulburn the plaintiff earned $695 per week net.
259 The evidence from the plaintiff is that when he was working for Rockdale Beef he was earning over $1000 per week. In the summary of the plaintiff’s tax returns prepared by senior counsel for the defendant, Mr Roberts calculated in an acceptable mathematical fashion that as a boner the plaintiff would be earning $1299 per week gross at the moment or $978 per week net at the moment.
260 The summary prepared by Mr Roberts I will have marked MFI 3 and it will be left with the papers.
261 Casual work for Williams Quality Meats and Kelston Pty Ltd, the plaintiff was earning firstly $360 per week and secondly, $390 per week. Those earnings are greatly reduced from the earnings he had as a boner at an abattoir. One can accept therefore the plaintiff’s decision to try to set himself up in business.
262 During the financial year ending 30 June 2002, from earnings both with Kelston Pty Ltd and from self employment, the plaintiff increased his net weekly income to $413 per week. During the year ending 30 June 2003, which includes almost 11 months prior to the motorbike accident with which I am concerned, and a month after that accident, the plaintiff’s net weekly earning were only $20.
263 That indicates the plaintiff was working at an economic loss in business. One can therefore accept his ready acceptance of Dr Leicester’s advice that he give up his business as a landscaper and as a driveway maker. It was not a profitable business in any event.
264 In the financial year ending 30 June 2004, which takes in the period from 1 August 2003 when the plaintiff commenced his work at the Shoalhaven Village Butchery, the plaintiff’s earnings increased to $393 per week, and the financial year ending 30 June 2005 were $283 per week. Those earnings are not exactly those shown in the plaintiff’s income tax returns.
265 In a very proper and pertinent concession learned counsel for the plaintiff has added to the plaintiff’s share of the partnership distribution, half the share attributed to his wife, such that the plaintiff accepts that three-quarters of the earnings of the partnership are attributable to his labour, and only one-quarter to the labour of his wife. The plaintiff’s wife does the bookwork for the partnership in the business, and also assists in serving behind the counter from time to time.
266 The evidence also discloses that the plaintiff has in very recent times, since approximately October 2005, developed another side to his business. The plaintiff has acquired a refrigerated van which he drives to Shellharbour where he purchases seafood on a wholesale basis.
267 Part of that seafood he sells on a retail basis from his own butcher shop, and he drives the van once per week to Boorowa and Harden where he sells on a retail basis from the rear of the van, and then on his return to his home drops off a certain part of his purchase to a retail outlet in Gunning, which retail outlet on-sells the fish presumably at a marked up rate to customers.
268 This aspect of the plaintiff’s work is bringing in a net profit before tax of $400 per week. One can see therefore that if one adds $400 per week net pre-tax profit to $283 per week net income from the butchery business, the plaintiff’s net income at the moment might be considered to be $576 a week.
269 At the current time the difference between the net earnings of a boner on a weekly basis and on what one could see as the net earnings of the plaintiff on a weekly basis, are $402 per week. However, again in a very proper manner, Mr Roberts SC does not claim the whole of that loss either for the past or for the future.
270 For the period from 1 August 2003 and 20 March 2004, a period of thirty-three weeks, the plaintiff claims $500 per week. During that period at best the plaintiff’s earnings could be seen as $393 per week and one must compare that with the plaintiff’s earning capacity to work as a boner in an abattoir which was far in excess of that sum.
271 One must also consider the extent of the plaintiff’s incapacity for work, bearing in mind that this was a period when he was awaiting and undergoing surgery or recovering therefrom. I have no hesitation in allowing the plaintiff $500 per week for those thirty-three weeks. That amounts to $16,500.
272 From 21 March 2004 to date is a period of 110 weeks. The plaintiff asked me to award him during that period $300 per week. Such is justifiable easily on the difference between his actual earnings and his earnings if he had stayed as an abattoir worker, as a boner, pursuing his profession.
273 I suppose the real question is would the plaintiff have worked as a boner in an abattoir had this injury not occurred? The first thing to say is that I wholly accept that he no longer has the capacity to work as a boner which requires him to work using a knife on eight, twelve and sometimes thirteen hour shifts at head height. That would be beyond the capacity of his injured dominant right arm.
274 The next thing is, would the plaintiff have done that work anyway? Clearly his businesses in the southern highlands were not successful. The plaintiff had to bite the bullet, to use the vernacular, at some time. He had to acquire a matrimonial home in which to house himself, his wife and his children, and he had to find adequate resources to support a wife and what were then two children, shortly to be three children.
275 The plaintiff had to, at some stage, face economic reality and give up his businesses and earn decent money to support himself and his family. The plaintiff spoke to me of enjoying work at the abattoir, enjoying the camaraderie, the short hours and the good income. I accept the plaintiff would have returned to work at an abattoir - may have returned to the abattoirs at Goulburn; may have, as he said, gone to work at the abattoirs in the Milton-Ulladulla area.
276 Therefore I believe it valid to compare the plaintiff’s actual income with income that he might have earned had he returned to the abattoir. To me that is a pertinent measure of both economic loss and loss of earning capacity.
277 In those circumstances I accept for the 110 weeks since 21 March 2004, the plaintiff has lost $300 per week, and that entitles him to a further sum of $33,000 for past economic loss. The total for past economic loss is accordingly $49,500.
278 As to the future, the plaintiff asked me to award him $300 per week till he attains his sixty-fifth anniversary less 15 per cent for the vicissitudes of life. That sum amounts to $218,200.
279 I was initially inclined to award a smaller sum. My disinclination was based on my perception that the plaintiff may be successful in his current aims of building up the business now based at Shoalhaven Heads; the business which includes not only the selling of ordinary butcher’s meat, but also delicatessen meat and seafood, to the extent that he could perform many managerial duties and perhaps retail duties; that is, serving behind the counter, and leave to employees the heavy task of butchery such as cutting up sides of beef, lamb and mutton carcasses, pig carcasses, lifting tubs of meat into the mincing machine and slicing beef steaks which the plaintiff tells me he finds particularly difficult.
280 If the plaintiff can develop his business to the extent that he can do merely managerial work, one might think he would have a decent income. It initially occurred to me that I should limit the claim for future economic loss to some finite period into the future such as ten or fifteen years.
281 However, there are countervailing factors. The plaintiff has only education to what is now called Year 10 standards. He has a school certificate, but no higher school certificate. There is nothing to suggest that he has any financial or managerial skills of any great moment. His wife does the bookwork.
282 The plaintiff, although I formed a favourable view of him, did not appear to me to be a particularly sophisticated man. He did not present with the aspects one would expect of an entrepreneur. He appeared to be a little shy, if anything.
283 Such considerations lead me to the view that the plaintiff may succeed in his aim, but not in any spectacular fashion so that he becomes the tycoon of the Shoalhaven or the Illawarra area. Furthermore, the claim advanced by the plaintiff is modest. He would be justified in making a submission that he is entitled to $400 per week in futuro indefinitely rather than $300 per week which he is seeking.
284 Equally, there is no claim for superannuation payments. If the plaintiff were employed at an abattoir earning approximately $1300 per week gross, he would be entitled to 9 per cent of such sum on a weekly basis on account of superannuation benefits which could be turned into ahead of damage; however such is not pressed.
285 In other words, the claim itself is sufficiently modest and there are competing considerations which to my mind indicate that I should admit the whole of the claim made by the plaintiff for future economic loss. Accordingly, I allow the sum of $218,200 as claimed.
286 The total of the sums I have allowed is, if my mathematics be correct, I am assured by Mr Roberts SC that it is correct, the plaintiff is entitled to judgment for $375,375. For those reasons I give verdict in judgment for the plaintiff against the first named defendant for $375,375. I give verdict in judgment for the second named defendant against the plaintiff.
287 I order the defendant to pay plaintiff’s costs on a party-party basis until 13 February 2006 and thereafter on an indemnity basis.
288 I recommend the plaintiff’s costs include fees for senior counsel.
289 On application of the defendant, opposed, I grant stay of execution until Monday 26 June 2006, for mention before me in Sydney on Monday 26 June 2006.