Picken v State of SA & Pugliese No. Dccic-02-303

PICKEN V STATE OF SOUTH AUSTRALIA & PUGLIESE
[2002] SADC 146
Judge Smith
Civil

This is an application for compensation pursuant to s7 of the Criminal Injuries Compensation Act, 1978 (“the 1978 Act”).
On the 14^th of August 2001 the second defendant attended the BP Service Station at Gawler. He parked his vehicle near to the entrance to the shop. He left his dog in the vehicle. The plaintiff also had business in the BP shop. As she walked to the entrance doors and passed the second defendant’s vehicle the dog bit her on the left upper arm. Though the matter was reported to police, no charges were laid against the second defendant in respect of his care of his dog. As a result of being bitten, the plaintiff suffered physical injuries, including scarring as well as some anxiety and phobic problems.
Notwithstanding that the second defendant was not charged with any offence, the plaintiff contends that her injuries resulted from the commission by him of two offences contrary to the provisions of The Dog and Cat Management Act, 1995 (“the 1995 Act”). The second defendant contends in response that he is guilty of no offence and further, that in the event that he is, the plaintiff’s injuries are so trivial that she would not be entitled to an order for compensation; (see s7(10) of the 1978 Act). There was also a hint in the second defendant’s case that the plaintiff was guilty of “conduct contributing” by walking unnecessarily close to the vehicle as she proceeded to the entrance; (see s7(9) of the 1978 Act).
Factual Circumstances – Findings
Much of what has happened is uncontentious. I will identify the areas of contention and make findings of fact as I set out what is essentially a narrative.
On the 14^th of August 2001 the second defendant drove his cream Commodore station sedan to the BP service station in Gawler in order to purchase refreshments from the BP shop. With him in the front passenger seat was a Blue Heeler Cross Staffordshire Bull Terrier. As he was not purchasing fuel, the second defendant initially parked immediately in front of the sliding entrance doors. Then he had second thoughts about leaving the vehicle right across the entrance and moved forward about a car’s length. He said that before leaving the car in this second position he fully wound up his driver’s side window and wound up the front passenger side window to within 10 centimetres of the top. He explained that the passenger side front window was previously fully down, as his dog liked to travel with his head out of the window. All other windows of the vehicle, according to the second defendant, were closed. There is considerable contention about just how far up or down the front passenger window was. I will canvass the other evidence about this before making a finding about it. The second defendant said he wound the passenger side window up to prevent the dog jumping out whilst he was away. He indicated that his dog was protective of the vehicle (75, 76).
At about the same time as the second defendant was entering the shop the plaintiff and her partner Coby-Lee Hudson arrived at the service station to hire a trailer. The plaintiff walked to the entrance to the BP shop and en route passed the passenger side of the second defendant’s vehicle.
There were various estimates given as to the space available for her to pass between the vehicle and the goods displayed outside the shop (e.g. plaintiff 1½ metres (12), Coby-Lee Hudson about 1 metre (52), second defendant 3½ metres (79); (see also Exhibit 2D1 which purports to show the location of the second defendant’s vehicle). In my view, it is sufficient for me to find that it was necessary for pedestrians, such as the plaintiff, to walk close to, but not up against, the second defendant’s vehicle on the way to the shop.
In the course of the evidence the plaintiff insisted that the second defendant’s vehicle was parked immediately outside the sliding glass entrance doors as opposed to a car’s length away (34). Again, this is not a crucial matter and a finding about it is unnecessary. If driven to a finding I see no reason to reject what the second defendant said about that. Suffice to say that the vehicle was close to the entrance.
As the plaintiff drew abreast of the passenger side of the second defendant’s vehicle she said that she felt something just grab her and pull her back quite quickly. She said she looked and saw that a dog was actually “latched onto” her arm (15). She initially said that the dog held her arm for about five seconds (15), but then she later changed that estimate to three to five seconds (23). She said that the dog’s head and neck were “right out, sort of lunged right out at me” (13). She demonstrated that the window from which the dog emerged was 27 centimetres down (27). The second defendant disagreed with that estimate by a factor of three. The plaintiff said later in her evidence that the window could have been “half way down” (35). She demonstrated that the dog emerged 50 centimetres from the vehicle to bite her (37). The second defendant said that estimate was “quite ridiculous” (75).
The defendant’s partner Coby-Lee Hudson saw the incident and generally corroborated what the plaintiff said happened (50, 51).
The second defendant said he was inside the BP shop and had selected his purchases when he heard a commotion. He went outside. He agreed with the plaintiff’s evidence that he remonstrated with the dog and wound up the window. He returned inside to pay for his purchases and he also purchased some ice for the plaintiff’s arm. He provided his phone number and recommended a tetanus shot. He then left (78).
In my view, making positive and precise findings about such matters as the space available for the plaintiff to walk by the second defendant’s vehicle, the amount by which the window was open and the extent to which the dog lunged from the vehicle is unnecessary. I find as follows in respect of these matters:
·That in order to get to the BP shop the plaintiff had to pass close to the passenger side of the second defendant’s vehicle;
·That the front passenger window was wound down sufficient to allow the dog to comfortably get its head out, not only bite, but also take firm hold of the plaintiff’s upper arm; and
·That the front passenger side window of the second defendant’s vehicle was wound down probably more than 10 centimetres.
Liability – Commission of Offence – Corroboration – Conduct Contributing
The plaintiff must establish beyond reasonable doubt the commission of an offence; (see s8(1a)(a) of the 1978 Act; see also Bartsch v McIlroy (1980) 24 SASR 506). The offence or offences must be shown to cause the injuries. The causal connection must be established on the balance of probabilities; (see s8(1a)(b) of the 1978 Act). The offence need not be a substantial cause. I would suggest that the offence or offences must be shown to cause or materially contribute to the injuries the subject of the compensation claim; (see Birkhotz v R J Gilbertson Pty Ltd (1985) 38 SASR 121 at 130; H.K. & Others v State of South Australia & Anor (1997) 190 LSJS 174).
Further, since the second defendant has not been charged with an offence which caused the injuries; evidence of the commission of the offence must not only be proved beyond reasonable doubt but also must be supported in a material particular by corroborative evidence; (see s8(1b) of the 1978 Act). As to “conduct contributing” within the meaning of s7(9) of the 1978 Act such as to reduce any entitlement to compensation the onus is upon the defendants to establish such conduct on the balance of probabilities; (see Wilson v State of South Australia & Murray (1988) 146 LSJS 362).
The plaintiff alleges that the second defendant has committed two offences against The Dog and Cat Management Act, 1995. In paragraph 2a of the Statement of Claim the plaintiff alleges the two offences in the following terms:
“2a.The Plaintiff was a victim of an offence within the meaning of the Criminal Injuries Compensation Act namely s43(3)(3) of the Dog & Cat Management Act in that the 2^nd defendant was the owner or the person responsible for the control of a dog on premises causing injury to a person lawfully entering the premises or in the alternative s43(3)(2) the second defendant was the owner or the person responsible for the dog which attacks some other person.”
I turn to consider the first offence alleged and whether it is established against the second defendant.
Section 43(1) of the 1995 Act provides as follows:
“43.(1) Any person who owns or is responsible for the control of a dog is guilty of an offence in any of the circumstances set out in column 1 of the table below (subject to the defences set out in that column).
The third segment of column 3 provides relevantly as follows:
“3.If the dog is on premises and causes injury to a person or property of a person lawfully entering those premises.”
Section 86 of the 1995 Act under the heading “General defences” provides relevantly as follows:
“86.   It is a defence to a charge of an offence against this Act it if is proved –
(a)     that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence: or
(b)    …”
It was faintly argued by counsel for the second defendant that there was no offence because a dog in a car on the premises is not a dog “on premises” as the offence requires. That argument was tantamount to saying that for the dog to be on the premises it had to have its paws actually on the tarmac of the petrol station. The definition of “premises” in s4 of the 1995 Act does not throw any helpful light on this bold contention. I reject it. The dog is plainly on the premises of the service station notwithstanding that it is in a motor vehicle.
So in my view, subject to the second defendant making out the defence the plaintiff has established the commission of the pleaded offence against Section 43(1) Column 1 Segment 3 of the 1995 Act.
I turn then to whether s86 provides the second defendant with a defence. I will assume that this defence must be established by the second defendant on the balance of probabilities. The contention of the second defendant is that to leave the window down to facilitate the circulation of air but not down so far as to allow the dog to jump out is “taking reasonable care to avoid the commission of the offence”. In my view, leaving the window of the vehicle open to such an extent that a dog can not only have air circulating in the vehicle but can also emerge even partially from the vehicle and bite a passerby is not taking reasonable care. It is therefore my view that in the circumstances of this case, the defendants, and in particular the second defendant, have not established the defence.
So it remains to decide whether “evidence of the claimant as to the commission of the offence” which I have found has been proven beyond reasonable doubt, is “supported in a material particular by corroborative evidence” as required by s8(1b).
Corroboration is some independent evidence which tends to confirm support or strengthen other evidence in the case in the sense that it renders the other evidence more probable; (see R v Kilbourne (1973) AC 729 at 758; R v Baskerville (1916) 2 KB 658 at 667). It is not necessary that the corroborative evidence by itself would establish, in this case for instance, the commission of the offence beyond reasonable doubt. The essence of corroborative evidence is that it tends to confirm or strengthen the other evidence; (see Doney v The Queen (1990) 171 CLR 207 at 211).
The evidence of Coby-Lee Hudson as to the incident, the medical report of Dr Jeffries (Exhibit P1) and the fact of the injuries themselves all plainly corroborate the plaintiff’s evidence; (see Marshall v State of South Australia & Maxwell (1987) 136 LSJS 12; R v Gallagher (1986) 41 SASR 73).
Accordingly, I find that the plaintiff has proven beyond reasonable doubt the commission of an offence. Its commission is corroborated. Further, there has been no real debate that the commission of the offence has caused the plaintiff’s injuries.
Also I indicate that if necessary I would find that the plaintiff’s alternative offence has also been proved, namely that the second defendant was the owner of a dog which attacked her. In respect of that alternative offence, the specific defence set out in Column 1 Segment 2 of s43(1) has no application and the general defence in s86 has not been established for the same reasons as are set out above in relation to the first pleaded offence.
Injuries – Findings
There was little debate about the injuries. The incident was plainly frightening for the plaintiff. The abridged medical report of Dr Peter Jeffries dated 10^th December 2001 (Exhibit P1), and the photograph (Exhibit P4), are evidence of the extent of the wound. I myself saw the residual scarring and blemishes in Court. The plaintiff was taken to the Gawler Health Service. Dr Jeffries cleaned and dressed the wound and rather than use stitches he used steri-strips to bind the wound. He also gave the plaintiff an injection to prevent tetanus. The plaintiff incurred a fee of $95.80 for this treatment. Allowing for the Medicare payment of $75.80, the plaintiff has a liability of $20.00; (see Exhibit P5). I note for the sake of the record that this account was forwarded to all the parties and the Court after the end of the trial by agreement and I have marked it as an exhibit in the absence of the parties. The plaintiff missed one day’s work at the Para Hills Private Nursing Home and so lost $94.76 gross; (see Exhibit P3). The plaintiff said that in the beginning the area of the bite was very sore “and open” (17). She said it was sore and tender to touch for about one and half months (19). She added as follows:
“It slowly healed up and now I’m left with a scar which is quite noticeable and a lot of people pick it out and that …” (17)
The scar is clearly visible.
The plaintiff said she is conscious of the scarring to the extent that she covers it with clothing as much as possible (19). The appearance of the scar has, according to the plaintiff, remained much the same now for the past ten or eleven months (19). I conclude therefore that the scar and blemishes are largely permanent.
Finally, the plaintiff said that as a result her sleep was disturbed for two and a half to three weeks and that she is now nervous around even her own dogs (20).
I find that the plaintiff’s injuries are as set out above as she asserts. I find they were caused by the commission of the offence.
Section 7(8) of the 1978 Act requires that the Court should assign a numerical value on a scale of 0 – 50 according to the seriousness of the injuries. This exercise is similar to that required for assessing damages following a motor vehicle accident under s35A of the Wrongs Act 1936.
There is no claim in this application for aggravated damages.
For the plaintiff’s injuries including the direct physical injuries, the anxiety and apprehension about dogs and for in particular the residual disabilities constituted by the scarring and blemishes I fix a numerical value of 1.5. As a result I assess the plaintiff’s compensation at $1,500.
Further I allow the loss of wages which I fix at $94.76 and $20 being the balance of the fee of Dr Jeffries’ treatment after the payment by Medicare.
Accordingly there will be an award of compensation for the plaintiff against the defendants in the sum $1,614.76.
In accordance with the requirements of s7(11) of the 1978 Act I am satisfied that the plaintiff has not received nor is likely to receive any payments in respect of these injuries. She said for instance that the fee of Dr Jeffries was not otherwise claimable. That was not challenged. As to the means of the second defendant I find that the second defendant has as follows:
·Income:  $25,000 per annum
·Payments:
Child maintenance                   $70 per month
Home loan   $220 per fortnight
·Assets:
Home  $70,000
Cars  $10,000
Money in Bank                  $1,000
I will hear the parties as to the question of costs and any other orders.

[2002] SADC 146

3 December 2002