Mckay v Claringbould No. DCCIV-99-444

McKAY v CLARINGBOULD
[2000] SADC 46

His Honour Judge Kitchen
Civil

The plaintiff claims damages from the defendant for injuries she suffered on 2nd June, 1995 when she was bitten about the face by a dog named Bronson owned by the defendant.
The plaintiff was born on 14th December 1983 so she was 11 years old at the date of the incident. She sues by her next friend her mother. Her claim is made pursuant to section 52 of the Dog Control Act (the Act) which provides:
“52. (1) A person responsible for the control of a dog is liable in damages for any injury or loss resulting from the actions of the dog.
52. (2) It is not necessary in any proceedings for a party seeking damages in respect of injury or loss resulting from the actions of a dog to show a previous mischievous propensity in the dog or knowledge of any such propensity or that the injury or loss was attributable to any neglect on the part of the person responsible for the control of the dog”
By his defence the defendant admitted he was the owner of the dog and that on the date alleged by the plaintiff the dog bit the plaintiff on the face but pleaded the plaintiff provoked the dog. He denied he was liable to the plaintiff pursuant to the Act.
At trial the defendant admitted his liability to the plaintiff under the Act and the defendant neither elicited nor led any evidence upon the issue of his plea of provocation of the dog on the part of the plaintiff - effectively that claim was abandoned. The action proceeded as an assessment of damages.
In 1995 the plaintiff was a student at the Hallett Cove School. On 2nd June 1995 she was taken by her parents to the Hallett Cove Sports Club where she was to have dinner and then later go to stay at the home of her friend Deborah.
At about 9 pm the plaintiff and her friend were outside the Sports Club building. She saw Nathan Claringbould with the dog, a Rottweiler, which the plaintiff had not seen before and which she described as a large dog. The dog was not on a leash. Nathan was also a student at the Hallett Cove School and, as I understand, is the defendant’s son. The plaintiff said that Nathan was straddling the dog’s hind-quarters bearing down on it as though to make it sit. The plaintiff had approached the dog and, crouching or kneeling in front of it, she was patting it. The dog then “jumped” on her knocking her to the ground on her back and it bit her face; the plaintiff said she thinks the dog “bit and hung on”. The plaintiff’s brother Michael, who was then about 16 years old, intervened by kicking at the dog which released its grip on the plaintiff’s face and then Nathan and the dog ran off.
The plaintiff said she was in pain and bleeding. The Manager of the Sports Club came to her, an ambulance was summoned and the plaintiff was taken to the Flinders Medical Centre where she was admitted, operated on to suture lacerations to her face and detained for four days. The operation was performed by Mr Peter J Menz a plastic and reconstructive surgeon. In his report dated 4th August 1995 (Exhibit P1) Mr Menz wrote:
“(The plaintiff) was apparently bitten by a dog on 2/6/95. She was admitted late in the day and she was scheduled for theatre early in the morning of 3/6/95. She had a deep full thickness laceration on the right cheek. The extensive laceration was vertically orientated. She had other lacerations to her left lower eyelid in two areas and also her left side of nose. In the operating theatre the wounds were cleaned and repaired with both deep and superficial stitches as required. She was discharged from hospital on 5/6/95 and regularly seen in the outpatient clinic.”
While the plaintiff was in hospital photographs were taken of her facial injuries. They are Exhibit P6. They were taken on Sunday 4th June 1995 after the plaintiff had undergone treatment by Mr Menz. They assist in locating the sites of the lacerations described by Mr Menz in his report Exhibit P1 and his subsequent reports.
Mr Menz reviewed the plaintiff on 22nd June 1995. He noted that the wounds were well healed but the scars were quite prominent. He expected the scars would thicken during the following six weeks and then resolve. He suggested he examine the scars again in mid 1996 to assess their then state. He examined the plaintiff on 13th May 1996 and reported upon that in Exhibit P2 dated 9th September 1996;-
“I noted then the scar on the left cheek had settled well and was only slightly visible and would require no secondary surgery. Her main problem was on the right cheek and upper lip. She had a slightly distorted smile due to the scarring. The main problem was tethering of the scar in the nasolabial crease. This area of scarring could be revised surgically and I will outline the likely costs below. The curved portion of the scar inferiorly could not be improved.”
He outlined the arrangements he could make for the surgical revision of scarring and the cost of it. The surgery on the right cheek scar was carried out in November 1996 under general anaesthetic. Mr Menz reviewed the plaintiff again in September 1997 following which he reported (Exhibit P3 dated 15th September 1997)
“Since the surgery there has been some improvement, but she is still left with noticeable scarring. The scars have now reached a stable state.
There are three visible areas of scarring:
(1)... Left upper nose. There is a 1cm long slightly depressed and barely visible scar transversely located across the medial nose at the level of the canthus. This does not require revision and is of minor concern.
(2)Left cheek. There is a 2.5 centimetre scar. This scar has spread and is slightly depressed. This would not likely benefit with revisional scar treatment and will be permanent. Unfortunately the spreading nature of the scar is inherent with her skin type. This is moderately noticeable.
(3)... Right cheek. There is a 3.5 centimetre scar extending in the right nasolabial fold and curving to just below the lateral corner of the mouth. The scar has spread in its upper portion and is noticeable at rest. It is exaggerated when she smiles. The scar revision surgery has slightly improved this, but it is still quite noticeable. I do not think more revision can be done to the scar. Unfortunately the nature of the position of this scar and her skin type has left her with a poor long term result.
She has clearly had a nasty facial injury. The other minor scars and abrasions have settled and are barely visible. She is still very self-conscious about the appearance of these scars which were the result of a rottweiler attack. No more scar revision surgery is required.”
Before opening the plaintiff’s case her counsel Mr Boucaut adverted to an additional claim the plaintiff made namely that as a result of the injury she suffered to her face the plaintiff has been left with “a tic to the left cheek”, a phenomenon which the plaintiff and her mother, in the evidence they respectively gave, said had first manifested itself soon after the initial surgical treatment the plaintiff had at the Flinders Medical Centre. There was no reference to such a tic in the report of Mr Menz. A further report was obtained from Mr Menz; it is Exhibit P8 dated 21st December 1999. After hearing submissions by Mr Boucaut, and Mr H Abbott who appeared for the defendant, I granted the plaintiff leave to amend her statement of claim to allege that a consequence of the injuries of her face has been a tic to the left cheek concerning which in his report Exhibit P8 Mr Menz set out the symptoms the plaintiff reported to him when he examined her on 21st December 1999; he sketched a facial diagram showing the position of the tic and although stating that he “could not elicit the tic by percussion i.e. no obvious trigger point” explained
“It is not unusual to suffer a nervous twitch, tic or spasm after a deep injury to the cheek, which involves facial muscles and the terminal branches of the facial nerve. In the healing process the nerves get “mixed up” and innervate different muscle fibres than pre-injury. This seems to make the neuro-muscular connections more prone to sporadic “triggering”. Often the tic is a “flutter” which is felt but not seen and is uncomfortable and annoying.”

He went on to opine that as the plaintiff claimed the symptoms had occurred only since the injury to her face they are likely a consequence of it, noting however that occasionally a tic can occur without injury and the scar on the plaintiff’s left cheek is “slightly medial and below the site of the main tic”. In his opinion as the tic has been said by the plaintiff to have been constant for several years it will be permanent, in his view it will not deteriorate in the future, and it is not curable by surgery although occasional medications such as Tegrotol may help. Mr Menz judges that no further investigations of the tic are warranted, but if it is seen (by the plaintiff as I infer) as a major issue then an opinion could be sought from a neurologist. No such opinion has been sought and an adjournment was not applied for to permit that to be done. In cross- examination the plaintiff described that the tic, a “flutter”, occurs two or three times a week and, although it can persist for up to ten minutes, most frequently it lasts for about one minute. I am satisfied that this tic is a consequence of the injuries the plaintiff suffered to her face.

The plaintiff impressed me as a frank and honest witness and I have no hesitation in relying on her account of the circumstances in which she was injured and that her perceptions, feelings and responses to that event and its aftermath to the date of trial and beyond which she related in her evidence are truthful and substantially accurate. The plaintiff in my assessment of her is a well adjusted young person for her age.
The surgery the plaintiff underwent at Flinders Medical Centre on 3rd June 1995 was performed under a general anaesthetic. She awoke with her face swollen and feeling sore and she was unable to speak properly - there were sutures to the inside of her mouth the scarring from which still protrudes somewhat and which she occasionally bites into when chewing. The swelling around the facial injuries reduced over a period of some weeks and the external sutures were removed at an outpatient visit.
The plaintiff did not attend school for two months after she was injured by the dog; she was embarrassed and upset by her appearance and fearful of permanent scarring to her face so much so that, as I understand her evidence, she avoided using mirrors and she returned to school only at her mother’s insistence. Her mother had stayed home from her casual work to care for the plaintiff initially renewing the plaintiff’s medical dressings on her face and assisting the plaintiff with other personal tasks which the plaintiff was unable (without using a mirror) or too despondent to carry out herself. The plaintiff was visited at home by her friends but she (her mother described) was uncomfortable and terse with them; the plaintiff perceived from her friends’ reactions that her face appeared “bad”.
When the plaintiff did return to school and although many of her peers including her own friends were supportive and sympathetic other pupils of the school, mainly Nathan and his friends, were not - she said they teased her with taunts that she had tried to kiss Bronson. She said that this sort of thing, but with reducing frequency, went on for more than a year then virtually ceasing when Nathan and his friends who were older and in classes ahead of the plaintiff left school, although there are still occasions when the plaintiff is subjected to teasing of that kind.
The plaintiff said and I accept that she found the period of frequent teasing very upsetting. In my view it added to her concerns about her appearance by reason of her facial scarring and her efforts to cope with her other reactions to the incident in June 1995 which she described to be recurrent nightmares and a heightened nervous awareness and apprehension for the presence of big dogs. She said that in 1995 the nightmares were occurring four or five times each week. Her general practitioner referred her to Mr Steven Thorn a clinical psychologist whom the plaintiff consulted for the first time on 13th June 1996. Before that date the plaintiff had been receiving counselling for about six months by a Dr Rathjen for her fears and anxieties following the dog attack and for her nightmares concerning that event, for the latter of which a medication Zoloft an anti-depressant had been prescribed for the plaintiff for about six months which she said aided in relieving her nightmares. The plaintiff first saw Mr Thorn about five months before she underwent the revision surgery on her right cheek scar by Mr Menz.
The plaintiff said she saw Mr Thorn on eight or nine occasions in the course of a year (she said his services helped her) and subsequently on Mr Thorn’s recommendation she consulted a Mr Shinners, whom she described as a psychologist and whom she saw on some seven occasions and who assisted her to try to come to terms with her facial scarring.
The plaintiff said that her nightmares ceased about a year after she was bitten by the dog but she continues to feel uncomfortable in, and tries to avoid being in, the presence of large dogs and “scared” when she hears barking dogs. There is a dog at the house where she now lives with her mother but that is described as a small dog, a toy poodle.
The plaintiff endeavours to disguise the scarring on her face by the liberal application of make-up which as I understand she always wears except when she goes to the beach; she did not wear make-up when she gave evidence. I will describe the appearance to my eye of her scarring in a moment. The plaintiff said that she obtained from a beauty therapist advice and tuition in applying a special kind of make-up but not only was it very expensive she also judged it to be not very good. She said the make-up she does use does not satisfactorily disguise the scar on the right side of her face.
The plaintiff to her credit is adjusting to her appearance - she obtained part-time after-school-hours casual work on three days a week as a waitress in a Barnacle Bill franchise, but she perceives that sometimes customers “look” at her scars and that affects her. She has formed an attachment with a boyfriend which I assess has to an extent calmed her fears about her ability, because of her scarring, to form relationships with males of her own age - she said that her boyfriend is understanding and accepting of what the plaintiff still sees to be the impact of her scarring upon her attractiveness. Her own perception is that the scar which extends to the corner of her mouth on the right side and is exaggerated when she smiles and the scar on the left cheek detract from her attractiveness and she is very conscious of them. The plaintiff says that her scars “redden” when she is hot or when she is out in the sun.
The plaintiff came close to the bench and pointed to her scarring. There is a scar forming an approximate right angle on the right cheek which is about one inch long in a horizontal plane and about half an inch long in a vertical plane where it terminates at the right corner of her mouth - that is what Mr Menz described as the site of the deep full thickness laceration and as to which the plaintiff says the inside of her mouth at the site of that scar hurts about once a month. There is a scar about three quarters of an inch long under the left eye which “dimples” when the plaintiff smiles and which she is conscious of when she speaks. There is a small lump or node on the bridge of the plaintiff’s nose just out from the corner of the left eye. To describe scars is difficult. The position of each of the two larger scars is shown in the sketch included in Mr Menz report Exhibit P8. Without make-up those scars can be seen. My own assessment is that in any young woman of otherwise regular and attractive facial features it is understandable that the plaintiff is very conscious of them but I do think that they are not immediately apparent to a casual observer whose attention is not specifically drawn to them; nevertheless although they could not be described as markedly disfiguring they are apparent and when the plaintiff smiles the sites of the two major scars are more noticeable.
The left of the plaintiff’s face is where she experiences a tic which she says occurs two or three times a week. To Mr Menz the plaintiff described the tic as a pulsing in her left cheek lasting for one to two minutes and occurring once or twice a week; in recent weeks she has seen a “flickering” at the location of the tic.
Mrs Karen McKay, the plaintiff’s mother, gave evidence. About five weeks before the plaintiff was attacked by the dog Mrs McKay had taken up employment as a clerical assistant for three months; she gave up that work to care for the plaintiff. She related that the external stitches to the plaintiff’s face were removed after about two weeks and, for a period of six months, the wounds to the plaintiff’s face had to be dressed each day with Micropore, a tape dressing, which Mrs McKay initially attended to until the plaintiff “after a time” (in cross examination she said it was three or four months) undertook it herself. The same kind of dressing and over the same period of time was applied after the plaintiff underwent the scar revision procedure by Mr Menz in November 1996.
Mrs McKay said that for a period of about two months after the incident with the dog the plaintiff was tearful and upset and returned to school at the end of that period only at her (Mrs McKay’s) insistence.
Mrs McKay related her own observation that the plaintiff was initially wary about the family dog and, although that receded, the plaintiff has continued to be fearful of large dogs, that she refuses to be photographed, that she wears make-up whenever she goes out, and (without objection) she expressed the view the plaintiff perceives herself to be less attractive because of the facial scarring caused by the dog’s attack and, notwithstanding Mrs McKay’s reassurances on that topic, continues to do so.
Mrs McKay said that in her assessment the plaintiff’s preoccupation with her scarring and her fearful apprehension of large dogs did not appear to improve during the period the plaintiff consulted Mr Thorn, and so she obtained from Mr Thorn a referral to Mr Shinners, whom she knew to be a clinical nurse and had helped Mrs McKay’s son with a condition diagnosed by a psychiatrist as post traumatic stress disorder; Mr Thorn, as appears in his report dated 12th May 1997 (Exhibit P4) stated that “(the plaintiff’s) presentation twelve months after the dog attack was consistent with that of someone diagnosed with a post traumatic stress disorder”. Mrs McKay explained that until a date some eighteen months before trial the plaintiff saw Mr Shinners on ten or twelve occasions following which she noticed some change for the better in the plaintiff. Mr Shinners has not rendered an account to Mrs McKay and, although asked by Mrs McKay, neither has he provided a report. He has sent a letter to the plaintiff’s solicitors seeking payment of $1,040, which I will refer to again later.
Mr Thorn gave evidence which included his reports dated 12th May 1997 and 18th November 1999 (Exhibits P4 and P5). In his report (Exhibit P4) Mr Thorn recorded the plaintiff’s complaints to him, referred to what he called “inventories” that the plaintiff completed at his request and which were designed to measure, among other things, her self esteem, her anxiety level and the existence or extent of any depression which might be affecting her adjustment. He concluded that the plaintiff was suffering from distressing, intrusive thoughts about the dog attack, was easily startled and upset by stimuli which reminded her of that event and avoided speaking of the incident or coming into contact with dogs she perceived to be dangerous. As I recorded earlier, he identified the plaintiff’s presentation to be consistent with that of a person diagnosed with post traumatic stress disorder.

Following his treatment and consultations with the plaintiff until March 1997 Mr Thorn’s opinion was that the plaintiff “remains debilitated by a specific phobia of dogs”, that in her developing relationships with boys of her age she was more self conscious of her appearance “than she probably would have been had the attack not occurred” and he envisaged “during times of stress or disappointment (e.g. a relationship break up) (she) may doubt her attractiveness and her ability to cope with her circumstances”. He wrote of additional therapeutic support of upwards of ten sessions which may prevent those things and help her to overcome her phobia.
Mr Thorn reviewed the plaintiff in September 1999. In his report Exhibit P5 he wrote that although the plaintiff still had some anxiety in relation to dogs, he considered Mr Shinners had helped the plaintiff to overcome her fear of dogs “to a large extent” and she had developed strategies to resist intrusive thoughts about the dog’s attack upon her. He concluded his own clinical interview and the plaintiff’s responses to psychological “inventories” did not indicate the plaintiff to have any major adjustment disorder as a result of her traumatic experience in the dog attack. His questioning of the plaintiff elicited she judged herself to be less attractive because of her facial scarring and that she lacked self confidence in meeting strangers.
In his evidence Mr Thorn said that the condition of post traumatic stress disorder he had adverted to in his first report concerning the plaintiff, had resolved by the time he saw her in September 1999. He was questioned about his qualifications and expertise to express an opinion as to a diagnosis of post traumatic stress disorder. He referred to DSM-IV and said that the plaintiff’s symptoms, when he saw her, were consistent with such a diagnosis by reference to that criteria; he proffered that the expression he had used in his report, Exhibit P4, (“(the plaintiff’s) presentation was consistent with someone diagnosed with a post traumatic stress disorder”) was a poor choice of words and that, in his opinion, the diagnosis applied to the plaintiff. Mr Thorn was taken in some detail to the criteria upon which such a diagnosis is made and to his tertiary qualification and his experience in the field of psychology.
Upon the evidence I conclude that Mr Thorn may well be sufficiently qualified and expert to venture an opinion upon the diagnosis of post traumatic stress disorder but, in my view, it is unnecessary to decide that - it is sufficient for the purposes of the plaintiff’s case that I accept, as I do, that the plaintiff exhibited the various symptoms Mr Thorn described concerning recurring memories of the attack upon her by the dog, the distress caused by those memories, her fearful apprehension in the presence of large dogs, the reminder of those things by the physical markings on her face and the affect her experience and its aftermath have had upon her enjoyment of life.
Mr Thorn, in his last report, described the plaintiff to be a sensible, strong young person, which accords with my own assessment of her in the relatively short time she gave evidence and her own evidence, in which she spoke of obtaining part time employment and forming an attachment with a boy of her own age. Nevertheless the plaintiff is a person of very attractive appearance and the scarring to her face is of understandable and not unreasonable concern to her which affects her self-confidence; Mr Thorn expressed the view that there may be a need for the plaintiff in the future to obtain counselling about her concern - I accept his evidence on that matter in light of my acceptance of the plaintiff’s evidence about her concerns, although it appears she has been told the scars will fade as she matures.
The plaintiff suffered a frightening and traumatic experience, which caused painful and serious injuries to her face necessitating surgery and, as I find, a period of convalescence before she was able to return to school. I accept that it was reasonable for the plaintiff’s mother to forego her paid work to care for the plaintiff in that period - the plaintiff was only eleven years old at the time. The plaintiff’s embarrassment and concern about her injuries and their aftermath was, if not exacerbated, reinforced by the taunts of some of her fellow pupils which, together with intrusive and distressing recall of the attack, required counselling over an extended period of time, punctuated by the plaintiff undergoing further surgery to revise the scarring at the site of her most serious injury in her right cheek.
The plaintiff has made a good recovery from the physical injuries she received but there remains, I find

the intrusion of the inside of her mouth on the right side causing her from time to time to bite painfully into the skin at that site;

the annoying irritation of a recurring tic in her left cheek;
the feeling of “dimpling” in the left cheek when she smiles and an awareness of the site of the scar in that area when she speaks;

the greater prominence of the scarring on the right of her face when she smiles;

the noticeable reddening of the scarred area on the right cheek and the left cheek when she becomes hot or when exposed to the sun.

I accept that the plaintiff is very conscious of her facial scarring. For a young, attractive person it will continue to be a factor to which she will need to keep adjusting in her relationships with her peers as she matures toward adulthood. It is more likely than not that as she matures this consciousness of her appearance will become less, but it will be a constant reminder of the traumatic incident with the dog.
The plaintiff plans to complete Year 12 and so qualify to enrol at an academy to undertake a hairdressing course offered by that institution which she judges provides better career prospects than a differently constituted course provided by a College of TAFE, the admission qualifications for which are less rigorous than the academy.
I accept the submission of counsel for the plaintiff that the plaintiff’s facial scarring, or perhaps that and the effect of it on the plaintiff’s confidence, as a job seeker when qualified as a hair dresser, entitles the plaintiff to an award for an impairment of her economic capacity. It is not suggested that the plaintiff’s scarring will effectively shut her out of work in her chosen, or any other, field but that, in competition for available or continuing positions in work which involves not only the requisite skills, but also a pleasing appearance and confident manner, the plaintiff will, or could be, at a disadvantage in the labour market. The award must be modest - too much emphasis should not be given to what is an assessment of the subjective reactions of potential or actual employers, or indeed customers, to what to my mind is a young person of over-all attractive appearance, notwithstanding the presence of facial scarring, as I have attempted to describe it. The plaintiff impressed me as an intelligent, well balanced young lady and those attributes will, in my view, more likely than not, enable her to overcome all but the most extreme and unreasonable of reactions of others. I will allow $2,000 for future economic impairment. There is no claim for any loss under that head for the past.
There is a claim for the voluntary care services provided by Mrs McKay. As I have said, Mrs McKay gave up a short term contract of employment for three months, which she had started five weeks before the plaintiff was injured. Her earnings were at the rate of $350 per week (net after tax). Clearly the plaintiff, aged 11 years, could not care for herself. Subject to the plaintiff’s duty to mitigate her loss by employing paid professional assistance (if that would be cheaper and reasonable) where the provider of the service gives up work to care for the plaintiff the cost of doing so will generally provide the measure of damages; Veselinovic v Thorley [1988] 1 Qd.R. 191. It was submitted by counsel for the plaintiff without objection that were the plaintiff to have been provided with a baby sitter the cost would have been $10 to $12 per hour which, for eight hours each week day, would have amounted to more than the wage foregone by Mrs McKay. The period of approximately two months’ convalescence was not obviously unreasonable, however the sutures were removed about two weeks after the incident, the swelling in the plaintiff’s face reduced after about one month and the plaintiff was probably fit to return to school before she did; it is to be recalled Mrs McKay said she “insisted” the plaintiff return to school, from which I infer Mrs McKay, at least, considered a return to school at an earlier date. There was no medical evidence concerning an appropriate period of convalescence. I will allow $2,000. There will also be an award of interest in respect of that sum; Bruno v Davies (1988) 144 LSJS 226, 249.
Special damages are agreed in the sum of $2,447.95 in addition to which there is a claim for $1,040 for the fees of Mr Shinners, based upon a letter from him to the plaintiff’s solicitors dated 30th April 1999 (Exhibit P7), in which that sum is sought by Mr Shinners for “seven sessions plus report which you will receive on Tuesday 4 May 1999”. No report was provided. There is no apportionment in the letter to show what is sought for each (or any) session or what amount was sought for the promised report. Except that he is a clinical nurse, there is no satisfactory evidence of Mr Shinners’ qualifications. Mr Shinners was not called - it is said he cannot be located.
I am prepared to accept that Mr Shinners’ endeavours did assist the plaintiff “for the better” in her recovery, and that Mr Thorn’s referral of the plaintiff to Mr Shinners was appropriate, albeit perhaps it was done at the suggestion of Mrs McKay. There is no evidence as to what rate per hour, or per session, Mr Shinners was engaged on the plaintiff’s behalf. The plaintiff has incurred the expense of Mr Shinners. On balance, particularly on Mr Thorn’s and Mrs McKay’s evidence, I find his services did contribute to the plaintiff’s recovery.
It is agreed that the Workcover rate for nursing services is $100 per service. There is no evidence of what is comprehended by “nursing services” or, except that it can be inferred Mr Shinners provided trauma counselling services, precisely what Mr Shinners’ expertise is. The plaintiff submitted there should be an award of $700 in respect of Mr Shinners’ claim. The defendant submitted the evidence did not support a finding that the plaintiff reasonably obtained Mr Shinners’ services or that they were effective in her treatment and there should be no allowance; for the reasons I have given I reject that. However the quantum of the claim, and what is an appropriate rate, is also resisted by the defendant notwithstanding the agreement upon the Workcover rate for nursing services. In my opinion there must be some allowance but the plaintiff has failed to prove any precise sum. I will allow $500.
Although I have accepted there will likely be a need for the plaintiff to seek counselling in the future for the reasons given by Mr Thorn, the extent or cost of it is not, and probably could not, be identified with any precision. In my view the context in which Mr Thorn spoke of those services implied that if needed it is more likely than not they will occur in the years during which the plaintiff is maturing to adulthood. In 1997 the fee for a psychological consultation was $146 per hour (Exhibit P4). I will allow $400, which also includes an allowance for the Tegrotol which Mr Menz recommended for treatment of the plaintiff’s tic.
I assess damages as follows:-

Pain and Suffering and Loss of Amenities

Past $ 10,000.00
Future $ 15,000.00

Economic Impairment

Future $ 2,000.00

Special Damages

Agreed $ 2,447.95
For Mr Shinners $ 500.00

Voluntary Services $ 2,000.00

Future Medical Expenses $ 400.00

Of the special damages the plaintiff has paid $467.65, although the date when that was paid is not known. I fix $1,725 as a lump sum in lieu of interest upon the components of the award representing past non-economic loss, special damages paid and voluntary services.
There will be judgment for the plaintiff against the defendant in the sum of $34,072.95.

[2000] SADC 46

12 April 2000