Patricia Mary Frances Olsen v Costa Loizou No. SCGRG 96/813 Judgment No. 5961 Number of Pages 10 Damages

[1996] SASC 5961

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ, BOLLEN AND LANDER JJ

CWDS
Damages - measure and remoteness of damages in actions for tort - measure of damages - personal injuries - assessment of damages - personal injuries arising out of a dog attack - adequacy of damages - appellant must establish the extent of loss of earning capacity and that the loss was productive of loss of earnings - appellant must show error in principle or in the amount of the assessment itself by the trial judge before an appellate court can intervene.

HRNG ADELAIDE, 3 December 1996 (hearing), 20 December 1996 (decision) #DATE 20:12:1996 #ADD 29:1:1997

Counsel for appellant:     Mr D E Clayton QC

Solicitors for appellant:    Knox &; Hargrave

Counsel for respondent:     Mr M I Bell

Solicitors for respondent: Lawson Downs

ORDER
Appeal dismissed.

JUDGE1 LANDER J

1. This is an appeal by a plaintiff from an assessment of damages in the District Court in a claim for damages for personal injuries.

2. The appellant sued the defendant for damages for personal injuries arising out of an attack on her by the respondent's dog on 20 July 1992 when the appellant, who was a Sheriff's Officer employed by the Court Services Department was on the respondent's premises at 1 Ellis Avenue, Eden Hills for the purpose of serving an investigation summons on the occupants of those premises.

3. Whilst the respondent filed a defence he specifically admitted that he was responsible for the injury suffered by the appellant and the matter proceeded before the learned District Court Judge as an assessment of damages only.

4. His Honour assessed damages as follows:
    1) Pain and Suffering     $20,000
    2) Economic Loss - Past    $12,000
    3) Economic Loss - Future $15,000
    4) Special Damages         $3,592
    Total   $50,592

5. Judgment was entered for $55,092 (which included $4,500 interest). together with the costs.

6. The appellant complains that the assessment of damages by the learned Trial Judge was manifestly inadequate and specifically complains of the following errors.
    1. That the assessment of damages for past economic loss in
    the sum of $12,000 was manifestly inadequate and that the
    learned Trial Judge should have found that the plaintiff had
    suffered a gross loss of past income of in excess of
    $50,000.

2. That the assessment of damages by the learned Trial Judge of
    $15,000 for future economic loss was manifestly inadequate and that
    the learned Trial Judge ought to have found that the plaintiff will
    continue to suffer loss of income of at least $150 per week for the
    remainder of her working life.

3. That the finding by the learned Trial Judge that the appellant
    has a very significant capacity for work is contrary to the
    evidence and the learned Trial Judge ought to have found that the
    appellant suffers from a phobia of dogs and has a significant
    incapacity for work. Moreover the learned Trial Judge should have
    found that there was little likelihood of the plaintiff obtaining
    other employment.

4. The learned Trial Judge ought to have found that the respondent
    had not satisfied the onus of establishing that the appellant has
    any capacity for work.

7. The appellant was born in 1942 in England and migrated with her family to Australia in 1954. She completed her schooling at the age of fourteen and began work immediately as a telephonist remaining with the same employer until the age of about thirty when she married her husband. During the time she was employed with that employer she gained secretarial skills including typing skills.

8. She married in 1972 and she and her husband purchased a small farm near Cherry Gardens in the Adelaide Hills. They remained there for about eight to nine years and then moved to near Mount Barker where they remained for four years. They then moved to Hahndorf where they have lived ever since. Her husband was a ship's master but he left that calling in 1981 to become an assistant bailiff with the Adelaide Local Court. At the behest of the then clerk of the Adelaide Local Court, the appellant also became an assistant bailiff in the same year. The courts allocate areas to persons for bailiff duties. The area to which she was allocated was Area 15 which included Belair, Hawthorndene, Eden Hills, Blackwood and Glenalta. She continued to work that area until 20 July 1992 although she took on additional responsibilities after February 1989.

9. In February 1989, her husband suffered serious injuries as a result of a motor vehicle accident. He has not worked since that time. As a result of his unemployment she took over two of the areas which he had previously serviced being Areas 8 and 19. Area 8 was an area which required a good deal of day work because it included a number of office areas. She gave up Area 8 preferring to concentrate on the night work. At the time she gave up Area 8 she sought a position with the Mount Barker Local Court and in about 1990 she was appointed as Sheriffs Officer for Mount Barker.

10. On 20 July 1992, the appellant was attempting to serve a court process at 1 Ellis Avenue, Eden Hills. She had previously been to that address for the same purpose. On this occasion she was accompanied by her husband and she drove her car into the driveway and left her husband in the car. She knocked on the front door and the door was answered. The person who opened the door had with him two dogs, a white bull terrier and a Staffordshire bull terrier. The male dog walked towards her and suddenly without warning leapt at the appellant and took hold of her top lip biting through her top lip causing her to bleed extensively.

11. Her husband gave her a towel for the bleeding and then drove her to the Blackwood Clinic to see her general practitioner. She was advised that the wound needed stitching and possibly some form of surgery to repair what was a hole in her lip. Arrangements were made for her to go to the Blackwood Hospital where a plastic surgeon, Doctor Menz attended. He found the appellant with a ragged laceration with skin loss measuring some 2.5 x 1.5 centimetres involving skin and vermilion of the right upper lip. The underlying muscle was largely intact. Under anaesthesia on the day of injury, he debrided the wound and repaired the defect with a full thickness skin graft from behind her right ear.

12. Apart from the surgery the appellant had to submit to a number of injections as a precaution against tetanus and penicillin injections to aid in the healing process.

13. Photographs taken at the time show the extent of the laceration and the deformity apparent at that time.

14. The wound healed steadily and over time the scar gradually settled but did remain thick and hypertrophic.

15. Dr Menz performed a further scar revision on 21 June 1993 which gave her a tighter but cosmetically more acceptable upper lip.

16. She said that the lip looked ugly for the whole of the period between the first and the second surgical procedures and that she tried to disguise the deformity by putting a flesh coloured bandaid across it.

17. There is no doubt that the experience would have been a traumatic one for the appellant nor can there be any doubt that it has left her with residual scarring which is aesthetically displeasing. The learned Trial Judge assessed damages in respect of pain and suffering at $20,000 and no particular complaint is now made about that assessment. His Honour had the advantage of seeing the appellant and in those circumstances it appears to me that it would be inappropriate for this court to consider interfering with that aspect of his assessment.

18. The plaintiff was off work for six weeks immediately after the accident. No doubt at that time the injury was at its most painful and interfered with her ability to talk and caused such embarrassment that such a time off work appears eminently reasonable.

19. She resumed work after that time but developed a fear of dogs. She has a dog herself and her husband also has a dog. She has no fear of her own and her husband's dog but it is other person's dogs which she now fears.

20. Her reaction to the injury and to dogs was marked enough for Doctor Menz to suggest that she take psychiatric assistance and she was referred by him to Doctor Martyn Ewer, whom she saw for the first time on 6 August 1993.

21. She complained to him, as she did to the Court, that after the incident she became fearful of dogs and experienced panic attacks, which were characterised by tachycardia, sweating, and an increased respiratory rate, butterflies in her stomach and feelings of anxiety. She said that the fear had interfered with her ability to work because she was unable to enter homes where there was some evidence of a dog or where she could not reassure herself that the owner of the home did not have a dog. She said as a result of that she took other persons with her on her rounds for them to enter the homes that she was unable to enter.

22. I pause there to notice that if she did take others with her and if she was paying for that assistance then she must have used that assistance only rarely because the only claim in her taxation returns for any contract labour is for the period 1993/94 and then only for $280.

23. During the whole of the period from 1989 to 1995 she claimed as deduction for income tax purposes, for a guard dog and indeed by 1994 she claimed $40 per week for the guard dog, which could have only been lawfully claimed, of course, if the guard dog was for the purpose of her earning income.

24. In any event she told Doctor Ewer and the Court that the phobia of dogs had interfered with her confidence and also had caused her financial hardship which was an additional stress upon her life.

25. At that time Doctor Ewer diagnosed the appellant as suffering from a simple phobia associated with anxiety and panic attacks.

26. She underwent therapy with Doctor Ewer who reported as follows:
    "Through therapy which primarily consisted of a behavioural
    desensitisation programme, some cognitive strategies and
    relaxation, Mrs Olsen showed considerable improvement. At the end
    of therapy Mrs Olsen was able to overcome her fear of friendly
    dogs. She was able to pat and feel comfortable with dogs not known
    to be vicious. However, she still remained phobic of breeds known
    to be aggressive and was unable to approach homes in the context of
    her work where such a dog may be present. I also felt that Mrs
    Olsen had made a conscious decision that she was no longer willing
    to place herself at the very real risk of a second attack.
    Consequently she was unable to enter homes that owned vicious dogs
    both for conscious and unconscious reasons."

27. He thought at that stage that her psychological state would improve a little more but he suspected she would always be phobic of dogs known to be aggressive.

28. She was also examined by Doctor Blakemore, psychiatrist on 28 June 1995 who reported on 19 July 1995. His opinion does not differ from that of Doctor Ewer.

29. Both of the psychiatrists were of the opinion that the phobia which Mrs Olsen had developed would interfere with her capacity to carry out work as a sheriffs officer, in that the phobia would interfere with her ability to enter premises where a dog of the kind of which she was afraid might be present.

30. The medical evidence suggested she suffered no interference with any earning capacity which did not involve the possibility of contact with dogs with which she was not familiar or with dogs of dangerous breeds.

31. The appellant's evidence was that although she resumed work after the six weeks interruption to which I have already referred she felt "pretty terrible". She tried however to do her work as well as she could and she managed pretty well for six months. That would be in accordance with the details discovered in her tax returns. It would appear notwithstanding the six weeks absence from her job completely, her income did not drop very much in the year 1992/93.

32. Her gross income was $4,300 less than it had been the year before but that could mainly be accounted for by the fact that she had six weeks off immediately after the incident and would have taken a little time to get back to the working regime she previously had.

33. About six months after she resumed work, she said she was required to undertake warrants of arrest. She said that she had never done arrests before this time and she was not prepared to execute warrants of that kind, because it would necessitate her going into a persons home and if there was a dog in the home she was not prepared to take that risk. So she decided not to execute warrants of that kind and indeed has never executed a warrant of arrest but rather she passed those warrants on to colleagues to execute.

34. The appellant's case was that the phobia had interfered with her earning capacity to a significant extent such that her net earnings after claims for deductions which had previously been in the order of $12,000 to $15,000 per year had been eroded completely.

35. Further her case was that her earning capacity at her age was really limited to that which she was doing prior to the incident and by reason of the phobia consequent upon the attack she was disqualified from the exercise of her earning capacity.

36. The learned Trial Judge as I have already indicated assessed "economic loss" as to the past at $12,000 and as to the future at $15,000.

37. In his reasons the learned Trial Judge made few express findings. He merely recounted the evidence which had been given by each of the witnesses and then proceeded to assess damages. It is not clear, except by deduction and inference, whether he accepted the appellant's case that the phobia had so developed that it interfered with her capacity to carry out the work of a sheriff's officer, which on the appellant's case was the only capacity she had, or whether, as the defendant maintained, her capacity was not significantly diminished by reason of the phobia. His Honour's failure to make clear findings makes it so much more difficult for this Court to understand how His Honour arrived at the result he did and whether the result arrived at is within an appropriate range of award.

38. The respondent argued that it is implicit in His Honour's reasons that His Honour has accepted the respondent's argument. His Honour said: [AB 268]
    "Counsel for the defendant has pointed out, as is apparent, that
    with this type of job there are many uncertainties and not the
    least being that it is now based on a 12 month contract. He also
    mentioned the vagaries of the job as exemplified by the evidence of
    Mr Lyas, a police officer, who involves himself in his leisure
    hours in serving summonses. He was recently transferred from one
    busy area to another 'fairly dormant' bailiwick resulting in a
    significant drop in his income because of the lack of processes for
    service in that area. So it is apparent that this type of work has
    inherent problems.

Counsel for the defendant also pointed out, as was evident, that
    the plaintiff was a very fit lady, and, as Doctor Blakemore has
    commented, could attend to any other type of work. It was
    mentioned that the plaintiff, certainly after her marriage,
    obviously enjoyed her rural pursuits which one assumes was a way of
    life rather than a successful financial venture and did not
    actively seek any employment, but it was only after her husband
    obtained his job as a bailiff that she undertook these duties and
    it has only been since 1989 that she has earned income from this
    source."

39. It was submitted that the use of the words "as is apparent" in the first paragraph and the words "as was evident" in the second paragraph indicates that His Honour has accepted the propositions in both paragraphs. He argued in support of that submission that that must be the case having regard to the assessment of what His Honour has called "Economic Loss" and in particular His Honour's comment in relation to that assessment where he said: "Clearly, the plaintiff has a very significant work capacity."

40. The appellant accepts that it is appropriate to approach the assessment of her loss of earning capacity upon the basis that she is not handicapped from work which does not require the possibility of contact with dogs. Having accepted that proposition, the appellant argues that she is not trained to exercise any capacity to earn income apart from as a Sheriff's Officer or bailiff. She argues that she last worked as a secretary in 1972 and she could not easily return to the work force to exercise that earning capacity after twenty four years out of the work force and because of her age.

41. She argued that whilst she is only handicapped from work which might involve the possibility of contact with dogs, that in fact is the only earning capacity she had immediately before this incident and to that extent the handicap is almost a total interference with that earning capacity.

42. It would seem from the medical reports of Doctor Ewer and Doctor Blakemore that the appellant has suffered a complete loss of earning capacity as a Sheriff's Officer or as a bailiff. Having regard to the absence of any evidence of the availability of other work which would be suitable for the exercise of her earning capacity particularly because of her age; the fact that she lives at Mount Barker and her responsibilities to a severely injured husband, in the current labour market the loss of her earning capacity as a Sheriff's Officer or Bailiff the appellant argues that that really amounts to a significant impairment of her earning capacity.

43. The learned Trial Judge assessed the appellant's loss of earning capacity in total at $27,000. The appellant's submissions in this Court indicate that had the learned Trial Judge accepted the appellant's case, damages ought to have been assessed at many times the figures arrived at by the learned Trial Judge.

44. It follows that His Honour, in assessing loss of earning capacity at a figure in total of $27,000 must have rejected the appellant's case. He must have accepted the alternative contentions put by the respondent, otherwise the assessment would have been so much greater.

45. The very sum assessed, and the words of endorsement of the respondents submissions used by the learned Trial Judge, supports the respondent's submission in this Court that the learned Trial Judge rejected the appellant's case.

46. Because His Honour has implicitly rejected the appellant's case that the appellant has suffered almost a total destruction of her earning capacity, it would be appropriate to proceed in this Court upon the basis that the learned Trial Judge accepted the respondent's submissions. I have already set out the matters upon which the respondent relied.

47. The appellant contended that the respondent in advancing his argument that the appellant was left with a significant earning capacity had an evidential onus cast upon him to establish the extent of that earning capacity and that work of the kind for which the appellant was fit was available. The appellant relied upon Van Velzen v Wagener (1975) 10 SASR 549 which has been applied in Thomas v O'Shea
(1929) Aust Torts Reports 80-251 and Potter v SGIC (1990) Aust Torts Rep 81-95.

48. The respondent's case was not that the appellant had failed to mitigate her loss, which might have cast a burden upon him Watts v Rake
(1960) 108 CLR 158 per Dixon CJ at 159. The respondent accepted, inferentially, by the tender of Dr Blakemore's report that the appellant had suffered a loss of earning capacity as previously described. The respondent's case was that, notwithstanding that loss the appellant still had available to her the whole of the earning capacity she had prior to the incident with the exception of that part of the earning capacity described and her damages ought to be assessed accordingly. That was also the appellants case and she accepted that her loss of earning capacity was limited to the circumstances mentioned.

49. In those circumstances it seems to me no onus, evidential or otherwise, was cast upon the respondent to establish that the appellant had a residual earning capacity or the value of it. Indeed it was always for the appellant to establish the extent of the loss of earning capacity and that the loss was productive of loss of earnings. It is not the case that a plaintiff can simply identify a loss of earning capacity which then requires a defendant to prove a residual earning capacity and that work is available in the work place for the exercise by that plaintiff of that residual earning capacity.

50. In my opinion an appropriate assessment of damages would have proceeded upon the basis that the appellant had suffered an impairment of her earning capacity and in that assessment regard would have to be had to the fact that she was able to carry out any work except for work which might involve her in contact with dogs, with which she was not familiar or which were known to be of an aggressive kind.

51. The appellant argues that the loss of her earning capacity to trial and the loss of her future earning capacity was capable of precise assessment but that is only if the appellants case of an almost complete destruction in earning capacity is accepted. As I have already said that case was rejected by the learned Trial Judge and there is no reason to suppose that the learned Trial Judge misapprehended the evidence or erred in principle in taking that course. The value of the loss of earning capacity, upon the respondents case was not capable of precise assessment because of a number of factors. First she does have a substantial residual earning capacity which, it must be admitted because of her age and the labour market, may be difficult for her to exercise. Secondly the work in which she was involved was part time work and contract work. Thirdly she has the responsibility of a severely injured husband which might have interfered with the exercise of that earning capacity in any event. Fourthly the duties of a sheriff's officer have changed such that they now involve the requirement of the execution of warrants of arrest. Fifthly by reason of her personality, experience and to a lesser extent her age, the exercise of the earning capacity of a sheriff's officer which involve in the future the execution of warrants of arrest which would have become harder for her in any event.

52. The award is certainly not high and may even be said to be on the low side, but that is not a reason to intervene. It is not for this Court simply to substitute its views for those of the learned Trial Judge. It is necessary that the appellant show error in principle or in the amount of the assessment itself before this Court can intervene.

53. It is not possible in my opinion to say, upon the assumption that the appellants case was rejected in favour of the respondents case, that the learned Trial Judge applied a wrong principle of law by taking into account an irrelevant factor or leaving out of account a relevant factor or that the award is so inordinately low that it has to be an erroneous estimate of damages.

54. The appeal ought to be dismissed.

JUDGE2 DOYLE CJ

55. For the reasons given by Lander J, with which reasons I agree, in my opinion the appeal should be dismissed.

JUDGE3 BOLLEN J

56. I have had the advantage of reading the reasons of Lander J. I agree with his reasoning and the order which he proposes. I agree with his comments on the "onus of proof" point which was raised (see p8 of the reasons of His Honour).

57. I think that the allowance for economic loss is on the low side. But I do not think it possible to say that it was manifestly inadequate. I say this in relation both to past and future loss of earning capacity and in relation to economic loss considered as a whole.

58. The appellant has a substantial residual capacity to earn. She could do many jobs. Of course, there must be a vacancy for work. But the appellant has tried to get no other work since she was bitten. As Lander J said, at the hearing, the appellant and her husband have adjusted their way of life to suit themselves. That means that actuarial calculations are of no value here. It means, too, that compensation for the aftermath of the bite, the phobia, must be moderate. The appellant has a capacity to earn which she has not sought to exercise to her full capacity. The learned Trial Judge was entitled to take that into account. He did.

59. In all the circumstances for her partial loss of capacity to earn the allowance for economic loss as a whole is within the range of appropriate award. It is proportionate to the loss.

60. I would dismiss the appeal.