Reed v Sretenovic & Anor - [2008] NSWDC 202

CITATION: Reed v Sretenovic & Anor [2008] NSWDC 202

HEARING DATE(S): 12; 13; 14 & 15 August 2008

JUDGMENT DATE:
10 September 2008

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Verdict and judgment for the Plaintiff in the sum of $344,723.
2. Defendant to pay the Plaintiff’s costs.

CATCHWORDS: Damages – Plaintiff repeatedly attacked and bitten by a dog – liability determined pursuant to s.25 of Companion Animals Act, 1998 - Causation – Assessment of causal connection of certain disabilities of a psychological nature to injuries where expert medical opinion is silent on a connection of those disabilities to the injuries sustained - Assessment of damages – Considerations for the assessment of future loss of earning capacity in the case of a minor – reference to average weekly earnings as a guide.

LEGISLATION CITED: Civil Liability Act 2002 (NSW) s.13, s.16
Companion Animals Act 1998 (NSW) s.25

CASES CITED: Adelaide Stevedoring Co. Ltd v Forst [1940] 64 CLR 538
Blaxter v Commonwealth of Australia [2008] NSWCA 87
Commissioner of Police v Rea [2008] NSWCA 199
Commonwealth v McLean [1996] NSWLR 389

PARTIES: James Reed by his next friend Sharlene Sullivan (Plaintiff)
Rados Sretenovic (First Defendant)
Monica Sretenovic (Second Defendant)

FILE NUMBER(S): 5558 of 2007

COUNSEL: Mr A Campbell (Plaintiff)
Ms E Bielby (Defendants)

SOLICITORS: Gerard Malouf & Partners (Plaintiff)
Sparke Helmore (Defendants)

Introduction

1. This matter involves the assessment of damages arising out of injuries received by the Plaintiff on 28 April 2005 as a consequence of a terrifying incident in which the Plaintiff, when aged 11 years, was ferociously attacked and repeatedly bitten by a domestic dog belonging to the Defendants. In this case the assessment of damages requires the consideration of the physical and psychological consequences of the incident to the Plaintiff.

The Parties

2. The Plaintiff is a minor. The proceedings were brought on his behalf by his mother, Mrs Sharlene Sullivan, as the next friend.

3. The First Defendant, Mr Rados Sretenovic and the Second Defendant, Mrs Monica Sretenovic are husband and wife. The Defendants jointly owned the dog which attacked the Plaintiff. The dog was a Jack Russell Kelpie cross breed.

Formulation of the claim

4. The case was initially listed for trial on all issues. The Statement of Claim pleaded a count under Section 25 of the Companion Animals Act, 1998.

5. By paragraph 6 of the defence filed on 21 November 2006 the Defendants claimed that the Plaintiff provoked, tormented, aggravated and abused the dog in question. The Defendants abandoned these allegations at the outset of the trial when they admitted breach of duty of care by filing an amended defence.

6. The Statement of Particulars filed included claims for exemplary and aggravated damages but the Statement of Claim made no reference to such claims. Counsel for the Plaintiff opened the case to seek an award of exemplary damages on the basis that the Defendants knew their dog had attacked someone else before the incident in question and further, during the attack on the Plaintiff, the Second Defendant, Mrs Sretenovic allegedly seemed not to intervene in the attack apart from calling out to her dog by name. It was also alleged that the dog in question had been the subject of restrictions imposed pursuant to a dangerous dog order for which the Defendants had allegedly shown a continuing disregard. Apart from some evidence relating to a previous biting incident involving the dog, these allegations were not made out on the evidence.

7. At the conclusion of the evidence and during closing addresses the Plaintiff did not seek to amend the Statement of Claim to include claims for exemplary and aggravated damages to reflect the claims made for such damages as set out in the Statement of Particulars filed in the proceedings. Accordingly, the further pursuit of those claims was formally abandoned.

8. The Plaintiff is entitled to compensatory damages which are required to be determined pursuant to the provisions of the Civil Liability Act, 2002 .

Legislation

9. The legislative basis of the claim made by the Plaintiff was for strict liability pursuant to Section 25 of the Companion Animals Act, 1998 which provides:

25 Liability for injury to person or damage to personal property

(1) The owner of a dog is liable in damages in respect of:

(b) damage to the personal property of a person (including clothing) caused by the dog in the course of attacking that person.

(b) an attack by a dog that is in immediate response to, and is wholly induced by, intentional provocation of the dog by a person other than the owner of the dog or the owner’s employees or agents.

(4) This section does not affect the liability apart from this section of any person for damage caused by a dog.”

10. The Plaintiff is entitled to the benefit of the strict liability imposed by this legislation.

Plaintiff’s pre-injury situation

11. The Plaintiff was born on 17 March 1994. He was aged 11 years at the time he was injured. Before the dog attack the Plaintiff was in good general physical health apart from some asthma, episodes of recurrent tonsillitis and chest infections for which he was under occasional medical review. He is scheduled to have a tonsillectomy in the near future. There is no medical evidence to suggest that these matters have given rise to lasting problems that could have adversely affected the Plaintiff’s general amenity of life or his future capacity to earn an income. The Plaintiff was in the sixth grade of primary school at the time of his injury. He was a goalkeeper for his soccer team. His mother described the Plaintiff’s pre-injury disposition as that of a happy, sociable, cheeky but normal child. Mr Sullivan, the Plaintiff’s estranged stepfather described the Plaintiff as a happy person before his injury. I accept the evidence of Mrs Sullivan and Mr Sullivan in this regard especially since that evidence was not the subject of challenge.

Facts

The Plaintiff’s account of the incident

12. At about 4.30pm on Thursday 28 April 2005 the Plaintiff and his friend were walking in a westerly direction along Vincent Street St Marys. As they approached the vicinity of the Defendants’ premises situated at 21 Vincent Street, an unleashed dog belonging to the Defendants escaped through an open passenger’s door of the Second Defendant’s stationary v At about 4.30pm on Thursday 28 April 2005 the Plaintiff and his friend were walking in a westerly direction along Vincent Street St Marys. As they approached the vicinity of the Defendants’ premises situated at 21 Vincent Street, an unleashed dog belonging to the Defendants escaped through an open passenger’s door of the Second Defendant’s stationary vehicle which was parked in the driveway of the Defendant’s premises.

13. The dog initially chased the Plaintiff’s companion, Dylan Anderson, who managed to avoid being attacked by the dog by climbing onto the top of a nearby wheelie bin. The Plaintiff was unable to find himself a similar place of refuge so he decided to run to his home which was situated a short distance across the road at 13 Vincent Street. The dog chased the Plaintiff and caught up to him near the driveway to his home. The dog bit the Plaintiff at least 3 times on the right forearm, once on the right leg above the knee and once on the abdomen.

14. The Plaintiff described how he had repeatedly tried to fend off the attack. The dog eventually released its grip on the Plaintiff when it was called away by the Second Defendant. The Plaintiff stated he felt scared during the attack. He said he was in physical pain. He described the bleeding from the attack and he described how he felt sick and afraid on seeing the bleeding from an open cut on his arm. In a police witness statement the Plaintiff’s companion described seeing skin coming off the Plaintiff’s wounds like diced cubes. He also described seeing the dog push the Plaintiff to the ground before continuing the attack with further episodes of biting.

15. When the dog released its grip on him the Plaintiff ran into his home. The Plaintiff’s mother wrapped his arm in a towel and called an ambulance. The Plaintiff estimated that it took about 15 minutes for the ambulance to arrive.

16. The Plaintiff described how, whilst his wounds were being attended to, the First Defendant, Mr Sretenovic arrived at the house and asserted that it was the Plaintiff’s own fault that he was attacked by the dog because, it was asserted, the Plaintiff, who was then aged 11 years, should not have been out playing in the street.

The Second Defendant’s account of the incident

17. The Second Defendant, Mrs Monica Sretenovic, stated that at some time before 5.00pm on the day in question she was in her car outside her home. Her unleashed dog was also in the car. She stated she was intending to take her dog out of her car to secure it within the front yard of her premises. She stated that her dog saw the Plaintiff and his companion who were close to her vehicle at that time. She described how she saw her dog run and start to “nip” the Plaintiff’s arm. She said she ran after the dog to try and grab it or attract its attention to control it whilst it was in the course of attacking the Plaintiff. She stated that the incident lasted a few moments but not as long as 3 minutes. After the dog released its grip on the Plaintiff she managed to secure it in her front yard.

18. Understandably, Mrs Sretenovic said that she was in a state of shock and disbelief at this occurrence involving her dog. She stated that she was concerned about the condition of the Plaintiff and tried to approach the Plaintiff’s mother. She claimed that she was not given the chance to speak because, she alleged, the Plaintiff’s mother verbally lashed out at her such that she felt threatened and so she left the property feeling very upset, distraught and started to cry. She stated that the Plaintiff’s mother had threatened to call the police. She stated that she then rang the First Defendant, her husband, who arrived shortly after 5.00pm.

19. Mrs Sretenovic described how on his arrival at the scene her husband had himself become upset on hearing her account of the preceding events. She stated that, contrary to her request of him not to do so, her husband proceeded to go to the Plaintiff’s house at that time. She denied that when her husband had gone over to the Plaintiff’s house he had verbally abused the Plaintiff and his mother whilst he was there. She claimed that when her husband got to the Plaintiff’s house he was not allowed inside.

20. Mrs Sretenovic stated that she did not see the arrival of or presence of any ambulance at the scene at any time that afternoon. She conceded that she was very upset at the time and, reasonably, proffered this as the explanation for why she could not remember or be sure about all the details of the events surrounding the incident. For example, she did not recall seeing the Plaintiff bleeding at a time when, having regard to the description and photographs of the wounds on his right forearm, such bleeding should have been obvious. The description within the subpoenaed material contained in Exhibit “E”, refers to the Plaintiff bleeding heavily from his right arm, right knee and left side. I accept that description as being correct.

21. Mrs Sretenovic agreed that after the incident a dangerous dog order had been imposed in respect of her dog but this order had subsequently been revoked so that she felt she was not obliged to keep her dog muzzled when walking it in the street in which both she and the Plaintiff resided. At the conclusion of the evidence the relevance of this issue receded somewhat after the claims for exemplary and aggravated damages were abandoned.

Attendance of ambulance personnel at the scene

22. It becomes necessary to consider the chronology associated with the attendance of the ambulance personnel at the Plaintiff’s home as this is of some relevance to the assessment of the credibility of the testimony of the witnesses.

23. The ambulance report within Exhibit “A” revealed that an ambulance had been booked at 16:50 hours and had arrived to attend at the scene at 17:12 hours at which time the Plaintiff’s wounds were given attention. The record shows that the ambulance wagon then left the scene at 17:23 hours to transport the Plaintiff to hospital. I infer from these times that the ambulance wagon was in attendance at the scene for some 12 minutes. This was in addition to the earlier arrival of ambulance personnel in a rapid response ambulance utility vehicle. This latter fact is evident from the description contained in the ambulance report within the hospital notes that were marked Exhibit “A”.

Plaintiff’s mother’s account of the incident

24. The Plaintiff’s mother Mrs Sullivan stated that she had her attention drawn to the fact that an incident had occur The Plaintiff’s mother Mrs Sullivan stated that she had her attention drawn to the fact that an incident had occurred outside whilst she was indoors. She said she heard the Plaintiff screaming. She ran outside and saw the dog on the Plaintiff. She saw the Plaintiff’s arm in the dog’s mouth and she saw the dog hanging from the Plaintiff’s arm. She stated that it was her own screaming that led to the dog letting go of the Plaintiff. She then tended to the Plaintiff’s injured arm by wrapping it in a towel and applying a packet of cold peas to it before summoning the ambulance. She described how at this time her son was crying.

25. Mrs Sullivan gave evidence that prior to the arrival of the ambulance wagon, which I find occurred at 17:12 hours, there was an earlier attendance of a rapid response utility ambulance vehicle which she said had attended within 5 to 10 minutes of the call being made to summon an ambulance.

26. Mrs Sullivan described how, whilst the rapid response ambulance officer was attending to the Plaintiff’s wounds, the First Defendant, Mr Sretenovic, walked into her home uninvited whereupon he aggressively and repeatedly remonstrated with the Plaintiff over the course of some 5 minutes.

27. Mrs Sullivan stated that during this incident Mr Sretenovic was screaming and, I infer, forcefully, suggested that the dog attack occurred as a result of the fault on the part of the Plaintiff and herself because the Plaintiff had been allowed to play or be in the street.

28. It was put to Mrs Sullivan in cross-examination that this occasion was a highly emotional time for her. Reasonably, she agreed to this proposition. It was also put to Mrs Sullivan that she told Mr Sretenovic to “fuck-off you bastard”. Mrs Sullivan said she did not know whether or not she said these words but she did not think she would have said this in front of the ambulance officer whom I infer was present at that time.

The First Defendant’s account of his involvement in the events

29. In his evidence in chief Mr Sretenovic stated that whilst he was travelling home from work he received a distressed telephone call from his wife and got the impression from the content of this call that there had been an accident of some kind.

30. When he arrived at the scene he saw that his wife was distressed, crying and initially, unable to speak. He wasn’t certain of the time he arrived home and variously said it was 4.30 to 5.00 or maybe 5.30. He also stated his wife had informed him that their dog had bitten the Plaintiff. He said he then went to the house where the Plaintiff lived, notwithstanding his wife’s request that he desist from doing so at that time.

31. Mr Sretenovic agreed that he was upset on being told what had happened in the incident involving his dog and the Plaintiff. He claimed his wife told him that she did not know which was the house where the Plaintiff lived. He claimed he ascertained the house and knocked on the door and introduced himself as the dog’s owner. He claimed he heard a female voice through the closed door tell him to “piss off”. He claimed he had asked “how’s the boy”. He claimed that the reply to his enquiry was “… None of your business, fuck-off”. He Mr Sretenovic agreed that he was upset on being told what had happened in the incident involving his dog and the Plaintiff. He claimed his wife told him that she did not know which was the house where the Plaintiff lived. He claimed he ascertained the house and knocked on the door and introduced himself as the dog’s owner. He claimed he heard a female voice through the closed door tell him to “piss off”. He claimed he had asked “how’s the boy”. He claimed that the reply to his enquiry was “… None of your business, fuck-off”. He said he then walked away after saying “… If that’s what you think, see you later, goodbye”. Mr Sretenovic stated he did not see the presence of an ambulance at the scene at any time.

32. During the cross-examination of Mr Sretenovic he made a number of intemperate and aggressive responses to questions that were asked of him by the Plaintiff’s counsel. I have set out below a number of extracts of such responses.

“Q. See that’s not true I want to suggest to you that you actually did enter that premises?
A. That’s absolutely mislead, lie, super lie.
…
Q. --and you thought it was the boy’s fault rather than the dog’s fault?
A. No, there’s no talking at all whose fault or whatever, that’s bullshit that’s not true. Let’s be fair mate.
…
Q. I want you to assume that an ambulance took James to hospital?
A. Yeah, I believe it did, yeah, of course I don’t mind saying that but I didn’t see it like I said, I didn’t see it.

Q. Sir, wasn’t it the case that it was the ambulance officer who told you to leave the premises-
A. Nobody told--

Q. --after you went there and abused the child’s mother?
A. No, that’s a lie, I mean come on lie, truly lie, that’s lie, that’s absolute lie, you know what they say in English, fat lie, I didn’t abuse nobody at all, nobody, didn’t go in the house that’s number one.
…
Q. Evidence has been given that you and Mr Sullivan, who was the man that resided in the house had a meeting in the front yard of his property which was an altercation, it was--
A. When?

HIS HONOUR: Perhaps you might use the word fight and define it perhaps as a verbal fight.

CAMPBELL

Q. It was a fight of some sorts where you said words to each other and--
A. No. This is bullshit.

Q. Never happened?
A. Totally never.

Q. Do you know who I’m talking about? Do you know Mr - sorry, sir, you just made a--
A. Nobody, nobody.

CAMPBELL: Can I just indicate for the record, your Honour, that the witness in the witness box put his index finder to his temple and rotated it.

WITNESS: Yeah, it’s a lie.

CAMPBELL

Issues for determination

33. The issues to be determined in this case are:

(a) Whether the dog attack and its immediate aftermath occurred in the manner described by the Plaintiff and his mother;

(b) The resolution of the conflict between the evidence of Mrs Sretenovic compared to that of Mrs Sullivan concerning events occurring immediately following the dog attack;

(c) The resolution of the conflict between the evidence of Mrs Sullivan and the Plaintiff on the one hand compared to that of Mr Sretenovic on the other concerning the presence and conduct of Mr Sretenovic at the Plaintiff’s home shortly after the dog attack;

(d) The nature of the Plaintiff’s injuries;

(e) The treatment obtained by the Plaintiff;

(f) The Plaintiff’s residual physical disabilities;

(g) The evolution of the Plaintiff’s psychological disabilities;

(h) Review of opinions from consultant psychiatrists;

(i) The resolution of the differing psychiatric opinions tendered by the parties concerning the Plaintiff’s psychological condition and the prognosis of that condition;

(j) The assessment of the following heads of damage claimed by the Plaintiff:

(i) Non-economic loss;

(ii) Future treatment;

(iii) Future loss of earning capacity;

Manner of occurrence of the dog attack

34. Having considered the evidence of the Plaintiff and his mother I accept without reservation their respective descriptions of the events that occurred in the lead-up to and in the aftermath of the attack by the dog belonging to the Defendants.

35. The Plaintiff gave his entire evidence in a straightforward, moderate, non-emotive and understated fashion. His version of the events of the attack was not challenged at all. I note that the material within the police records tendered as Exhibit “E” includes a statement dated 5 May 2005 from the Plaintiff’s 11 year old companion Dylan Anderson which is corroborative of the Plaintiff’s account of the attack. There was no challenge to the Plaintiff’s evidence in which he described how Mr Sretenovic entered his home and confronted the Plaintiff and sought to blame him for the attack. In the absence of cross-examination of the Plaintiff concerning the allegations raised in evidence of the Defendants to the effect that on prior occasions the Plaintiff and other boys in his company allegedly having provoked, antagonised or abused their dog, I do not accept that evidence and I disregard the evidence of the Defendants concerning such allegations as being irrelevant to the issues I am required to determine.

36. To the extent that a challenge was made to Mrs Sullivan’s evidence concerning the previously cited expletive words of despatch that it was suggested she may have directed to Mr Sretenovic, I find that such challenge is immaterial to the determination of the issues to be decided. In my assessment Mrs Sullivan gave her entire evidence in a calm, measured and non-emotive manner without the hint of exaggeration even when challenged with the offensive language she was alleged to have directed to Mr Sretenovic. Notably, Mr Sretenovic claimed the alleged interchange occurred through a closed door. He was therefore unable to say the alleged conversation was between himself and Mrs Sullivan. In my assessment Mrs Sullivan’s evidence was convincing and I accept as truthful her evidence concerning the immediate aftermath of the dog attack.

Conflict between the evidence of Mrs Sretenovic and Mrs Sullivan

37. A conflict emerged between the evidence of Mrs Sretenovic on the one hand and Mrs Sullivan on the other. Mrs Sretenovic claimed that after the dog attack she approached Mrs Sullivan’s property intending to convey an apology and to check on the condition of the Plaintiff but was rebuffed, sworn at by Mrs Sullivan and told to leave. Mrs Sullivan denied this was A conflict emerged between the evidence of Mrs Sretenovic on the one hand and Mrs Sullivan on the other. Mrs Sretenovic claimed that after the dog attack she approached Mrs Sullivan’s property intending to convey an apology and to check on the condition of the Plaintiff but was rebuffed, sworn at by Mrs Sullivan and told to leave. Mrs Sullivan denied this was the case and stated that the only woman who had approached her and with whom she had engaged in conversation was a neighbour who, by the description given, looked very different in appearance to Mrs Sretenovic.

38. In her evidence Mrs Sretenovic described how after the attack she was shocked, distraught and in a state of disbelief at seeing her dog attack the Plaintiff. Mrs Sretenovic stated that she had difficulty remembering all the details of the incident, which was understandable in the circumstances.

39. I do not accept that Mrs Sretenovic approached Mrs Sullivan and had a conversation with her as was described by Mrs Sretenovic. Mrs Sretenovic was clearly upset in the aftermath of the dog attack. I find that on account of her state of upset she has honestly but mistakenly reconstructed the events with an incorrect perception of what in fact took place. I do not accept her account of the alleged interchange with Mrs Sullivan.

40. Mrs Sretenovic stated that she had remained outside her property the whole time after the attack and had not seen the ambulance arrive. That evidence reinforces my view that Mrs Sretenovic has an imperfect and erroneous recollection of the events because, standing in a suburban street where she had previously witnessed her dog attack the Plaintiff, and having an interest in the Plaintiff’s wellbeing as she stated she had, in my view the observation of the arrival, presence and subsequent departure of the ambulance that afternoon would have been almost unavoidable, even though she was in an upset state. If her failure to notice the ambulance was due to her state of upset then I find that such state would have dulled her ability to accurately observe and take in the surrounding events. An example of this is her description of her dog having nipped the Plaintiff. That description either consciously or sub-consciously misrepresented and understated the fact of the terrifying and ferocious attack on the Plaintiff by her dog. In the circumstances I find myself unable to rely on the evidence of Mrs Sretenovic. I therefore prefer and accept the evidence of Mrs Sullivan and find that Mrs Sretenovic did not approach Mrs Sullivan nor did she converse with her on the day in question as was claimed by Mrs Sretenovic.

Conflict between Mr Sretenovic and Mrs Sullivan and Plaintiff

41. There is a stark conflict between the evidence of Mr Sretenovic on the one hand and the Plaintiff and his mother or the other. That conflict is confined to the issue of whether, when Mr Sretenovic approached the Plaintiff’s house after the incident, he entered the house uninvited to remonstrate with the Plaintiff and his mother in the manner described by the Plaintiff and Mrs Sullivan, or whether he had verbal communication with Mrs Sullivan but only through a closed door in the manner Mr Sretenovic described in his evidence.

42. In approaching the resolution of this issue I must take into account not only the differences in the factual accounts between the evidence of Mr Sretenovic on the one hand and the Plaintiff and his mother on the other but also contradictions in the evidence between the evidence given by Mr Sretenovic and the evidence given by his wife. In assessing the credibility of his testimony I also take into account the demeanour of Mr Sretenovic when he gave his evidence.

43. I do not accept Mr Sretenovic’s evidence to the effect that when he went to the Plaintiff’s home he spoke to the Plaintiff’s mother but only through a closed door. I accept the contrary evidence of the Plaintiff and his mother to the effect that Mr Sretenovic entered the house and had words with them in the manner and to the effect they described in their evidence. I accept Mrs Sullivan’s evidence that Mr Sretenovic was screaming at them on this occasion.

44. I was aided in coming to the conclusion that I should not accept the evidence of Mr Sretenovic on this issue because the unrestrained, histrionic and intemperately abusive manner of his demeanour when he responded to being challenged in cross-examination and the content of his answers when challenged led me to doubt his truthfulness as a witness. I infer from his demeanour in court when he gave voluble and aggressive answers to questions that he was prone to an exaggerated and florid mode of expression.

45. I find that Mr Sretenovic addressed the Plaintiff and his mother on the day in question in the manner they described. I have already extracted examples of that behaviour from his evidence. Although English was obviously not Mr Sretenovic’s first language, in my assessment, from observing him and listening to him give his evidence, he was sufficiently fluent in his understanding and expression in English, including the ready use of expletives to emphasise his viewpoint, to indicate to me that he did not have a problem of understanding or expressing himself in the English language.

46. In forming my assessment of the demeanour of Mr Sretenovic I took into account the gesture of ridicule he directed at the Plaintiff’s counsel during cross-examination, as noted in the transcript. This revealed him to be of an overbearing disposition to the extent that even in the relatively formal setting of a court hearing, he was prepared to exhibit an attitude of defiance to insult the cross-examiner instead of being patient and rational when being asked questions based on an opposing point of view to his own. I infer from such behaviour that in an attempt to have his position in the litigation prevail irrespective of its veracity, he was prepared to maintain his version of events no matter what the truth of the matter was in fact.

47. Accordingly, I find that Mr Sretenovic did have a face to face confrontation with the Plaintiff and his mother in the manner they described and I reject his evidence to the contrary. I am reinforced in that view because, in an unguarded moment, whilst Mr Sretenovic was being cross-examined, when it was put to him that he blamed the Plaintiff for the dog attack he argued and in his response he sought to assign a degree of guilt and responsibility to the Plaintiff for the occurrence notwithstanding that he did not witness the dog attack. This evidence reinforces my view as to the unreliability of his evidence. I find that the circumstances of Mr Sretenovic’s verbal confrontation of the Plaintiff and his mother in their home amounted to a tirade of abuse.

48. I have no evidence before me that would suggest why Mr Sretenovic would have been motvated to behave so forcefully and aggressively as he did when he gave his evidence and to then deny that he had confronted the Plaintiff and his mother at their home as they had described. Whether or not this denial related to a possible insurance issue concerning the claim for exemplary and aggravated damages which was then on foot is speculative. I do not have to decide that issue although I do observe that Mr Sretenovic had stated that when he approached the Plaintiff’s home he was upset and was aware that the incident could, amongst other things, give rise to an issue “money wise”, which I infer could possibly have adversely affected his pecuniary interests in some way.

Plaintiff’s injuries

49. In his oral evidence the Plaintiff described how in sequence, the dog bit him on the arm twice then bit him on the leg and then bit him on the arm again.

50. In fact the Plaintiff omitted to recount the objectively documented bite to the right side of his abdomen or lower chest. The Plaintiff’s companion, Dylan Anderson, described how the dog pushed the Plaintiff to the ground during the attack. I accept that documented account. The Plaintiff omitted to relate this detail in his evidence. The Plaintiff described feeling scared and in pain when the dog was biting him. His own perception was that he was bleeding from the arm but not heavily. In fact the bleeding was described by his companion as heavy bleeding from all the areas where he had been bitten. The Plaintiff stated that he felt sick and afraid when he saw the bleeding. The description by Dylan Anderson is consistent with what is evident from the coloured photographs of the wounds to the right forearm at the hospital as shown in Exhibit “D”.

51. The assessment I made of the Plaintiff from observing him give evidence is that he tended to understate and play down the extent and the full effect of his injuries. This observation is borne out in several ways. Firstly, he omitted some of the details of his injuries as outlined in the preceding paragraph, such details being provided from the unchallenged statement of his friend Dylan Anderson. Secondly, in his evidence the Plaintiff did not speak about the fact that following the attack he was crying, as was observed by his mother, whose evidence I accept.

52. The Plaintiff’s understated and reticent description of his injuries could possibly be due to him being somewhat in awe of the occasion of giving evidence in court. In my view this is a plausible explanation because the Plaintiff appeared to be of a self-effacing and shy disposition. Additionally, the Plaintiff described himself as not really being a talkative person. Further, I find it likely that he was reticent to speak about the iss The Plaintiff’s understated and reticent description of his injuries could possibly be due to him being somewhat in awe of the occasion of giving evidence in court. In my view this is a plausible explanation because the Plaintiff appeared to be of a self-effacing and shy disposition. Additionally, the Plaintiff described himself as not really being a talkative person. Further, I find it likely that he was reticent to speak about the issues relating to the dog attack because, as he said in his evidence, which I accept, he tries not to remember the trauma of the occasion because it upsets him to do so. I think a combination of these reasons together with his young age is the probable explanation for the Plaintiff’s understated evidence concerning what I find must have been a very painful, terrifying and ferocious dog attack upon him. It was without doubt an horrific experience for him.

53. It is because of the Plaintiff’s reticence to describe the extent and aftermath of the event in his evidence that I find it necessary to review in detail the medical records and the medical reports tendered to identify the historical matters which affected the Plaintiff in the treatment and recuperation phase following his injuries.

54. I now turn to the documentary records to fill out some of the historical details of the Plaintiff’s physical injuries and the treatment he received for those injuries.

Treatment

Ambulance attendance

55. The ambulance transport report form within Exhibit “A” is in the following terms:

“Chief complaint
Multiple dog bites

Patient Incident History
Pt stated he was attacked in the Street by neighbours “sausage dog”.
O/A Pt was being treated by “Response 3” at scene. Pt has laceration
(sic) to R forearm, R thigh area and bit mark to L upper quadrant of
the stomach.”

56. The reference to “sausage dog” is clearly erroneous. I note also that elsewhere the dog in question has been variously mis-described as a pit-bull or a Staffordshire terrier when in fact Mr Sretenovic described it as a Jack Russell Kelpie cross breed. No significance attaches to the different descriptions of the dog.

Assessment and treatment at Nepean District Hospital

57. The Nepean District Hospital notes describe that the Plaintiff had 10 lacerations and puncture wounds to his right forearm and a small puncture wound to the right knee. The hospital progress notes also describe a wound on the left side of the abdomen that required dressing. Fortunately, the lacerations to the right forearm only involved the skin and muscle fascia without involvement of the nerves or tendons. The coloured photographs of the Plaintiff’s right forearm that were taken in hospital (Exhibit “D”) show what I infer would have been very painful lacerations. Under general anaesthesia the right forearm wounds were washed out with saline, debrided, sutured and a drainage tube was inserted. The Plaintiff was treated with antibiotics. His forearm was packed with gauze, bandaged and the forearm was elevated in a splint.

58. The Plaintiff remained an in-patient at Nepean District Hospital for 4 days between 28 April 2005 and 1 May 2005. The hospital progress notes record that post-operatively the Plaintiff reported a dull sensation in his right upper forelimb.

59. On his discharge from hospital the Plaintiff was followed up at the plastic surgery out-patients clinic at Nepean District Hospital on 9 May 2005 for removal of the sutures. At that time it was noted he was well and that his wounds were clean. He was again reviewed in the plastic surgery out-patient’s clinic on 8 June 2005. No specific treatment was recorded and he was then presumably discharged from further follow-up.

Treatment from general practitioners

60. The records of the Plaintiff’s treating general practitioners were produced on subpoena and were tendered by the Defendant for the purpose of demonstrating that, following his discharge from hospital, the Plaintiff made a good recovery and had required very little in the way of treatment for his physical injuries and had made no recorded complaints of a psychological nature. It is therefore relevant to review those records in that context.

61. The subpoenaed records of Dr Sor show that on 3 May 2005, two days after his discharge from hospital, the Plaintiff attended on Dr Sor for a change of the dressings that had been applied in hospital.

62. The subpoenaed records of Dr Looi show that two weeks after his discharge from hospital the Plaintiff attended Dr Looi’s surgery on 16 May 2006 at which time the physical injuries were recorded and a note was made for a scheduled follow-up in three months’ time. On 30 June 2005 the Plaintiff again attended Dr Looi who noted the wounds had healed. The records show that on that occasion reassurance was given. On 19 January 2006 the Plaintiff again attended Dr Looi’s surgery.

63. Dr Looi’s progress notes are difficult to read in their entirety but it appears the Plaintiff had developed a dermatitis on the dorsal aspect of his injured arm which was noted to be weeping and for which he was prescribed a steroid cream. It is possible that this dermatitis was causally linked to the injuries the Plaintiff sustained in the dog attack but the medical evidence does not deal with this issue. I note that the Plaintiff has complained of itching symptoms in relation to his forearm scars.

64. Although the medical evidence is silent and therefore uninstructive on the issue of a possible causal relationship between the dog bites the Plaintiff sustained to the right arm and the later development of dermatitis and itching on that arm, it seems to me reasonable that these complaints were linked to the aftermath of the wounds the Plaintiff received to those areas in the dog attack. In the absence of medical evidence to the contrary, and on the balance of probabilities, I find on the basis of a commonsense presumptive inference that such symptoms are causally linked. See Adelaide Stevedoring Co. Ltd -v- Forst [1940] 64 CLR 538 at 563 to 564 per Rich ACJ; Commissioner of Police -v- Rea [2008] NSWCA 199; Commonwealth -v- McLean [1996] NSWLR 389 at 410D.

65. In the subpoenaed records of another general practitioner, Dr Lam, it is noted that on 27 October 2006 the Plaintiff was referred to as being overweight from drinking a lot of cordial associated with an abnormal lifestyle for which modification advice was apparently given. Again, although the possible causal relationship of the Plaintiff’s abnormal lifestyle and him being overweight was not the subject of an instructive medical opinion, I draw the commonsense presumptive inference that the Plaintiff’s excess weight and abnormal lifestyle was due to the psychological effects of the dog attack upon him, such effects including a change in his personality. See Forst, Rea and McLean previously cited.

66. I am aided in coming to this view by the evidence of Mrs Sullivan and Mr Sullivan as to the Plaintiff’s normal disposition and lifestyle before the dog attack compared with the situation afterwards, including their descriptions of a personality change in the Plaintiff.

Medico-legal assessments

67. The Plaintiff has been assessed by three medico-legal experts concerning his injuries. In reviewing the effects of his injuries I have had regard to the historical information contained in the reports of Dr Alan Meares, a specialist plastic surgeon, Associate Professor Carolyn Quadrio and Dr Neville Whan, the latter two being specialist psychiatrists.

Plaintiff’s physical disabilities

Plaintiff’s description of disabilities and viewing of scarring

68. The survey of the Plaintiff’s post-hospital discharge medical consultations confirm that apart from having residual scarring from his dog bite wounds, he has undergone a relatively uneventful physical recovery.

69. In his oral evidence the Plaintiff stated that the pins and needles sensation he had initially experienced in his right arm had dissipated and was no longer current. Although the Plaintiff said that following the removal of the sutures he no longer experienced trouble with writing, Dr Whan nevertheless recorded a history that in May 2008 the Plaintiff still has trouble writing and thinks his writing is slower than it was before the dog attack. He admitted to having some pain in his right arm but “not as much” and he spoke of getting “a bit itchy” in summer. I find that the discrepancy in this historical evidence is yet another example of the Plaintiff’s tendency to understate his problems.

70. I have viewed the scars on the Plaintiff’s forearm and I have noted them to be obviously disfiguring, indurated, puckered and unsightly.

71. To my observation the Plaintiff was obviously embarrassed about his scars and showed marked awkwardness when he was asked to display them. The Plaintiff tends to wear long sleeved garments to conceal the scars on his right forearm. He obviously prefers to keep them covered.

72. The limited nature of the Plaintiff’s post-injury physical symptoms as set out in the foregoing summary does not of course take into account the psychological consequences of his injury.

Description of the Plaintiff’s scarring by Dr Meares – plastic surgeon qualified by the Plaintiff’s Solicitor

73. On 12 December 2005 and at the request of his solicitors the Plaintiff was examined by Dr Alan Meares a consultant plastic surgeon. Dr Meares examined the Plaintiff 8 months after his injury and noted that the Plaintiff was embarrassed about his scars. Dr Meares recorded that the Plaintiff reported he was still experiencing pins and needles sensation in the area of scarring of the right forearm which sometimes occurred when he was writing.

74. Dr Meares noted that the Plaintiff’s right dominant forearm was functionally normal. He reviewed the Plaintiff’s scarring and expressed the view that it is unlikely that any further treatment would be required to the areas of his scarring. Dr Meares described the right forearm scars as being of pink appearance and obviously capable of being seen from a distance of 2 metres. Dr Meares described them to be of unsightly appearance comprising six scars on the volar-aspect of the right forearm which are irregular in size, shape, quite pink and quite thick and/or hypertrophic in parts and three smaller scars towards the ulnar border of the right forearm.

75. Dr Meares also identified a raised hypertrophic scar to the anterior aspect of the right knee which he described as moderate with another smaller scar nearby. Dr Meares also identified a very feint scar on the left abdomen. I infer these two scars are related to skin puncture wounds from the dog’s jaws.

76. Although the scars to the right forearm have matured and were no longer pink as described by Dr Meares, when I viewed them they were still obviously visible from a distance of 2 metres as was observed by Dr Meares, nearly three years ago. I also viewed the scar to the right thigh which was less disfiguring but nevertheless noticeable when it was exposed. The scars appeared more prominent to actual viewing than appeared in the photographs which were incorporated into the report of Dr Meares. I did not view the scar to the Plaintiff’s abdomen.

Psychological problems due to the dog attack

77. It was obvious to me that when the Plaintiff exposed his right forearm and right knee scars to viewing in court he was very embarrassed. I find the Plaintiff feels very embarrassed by his scars and that he will continue to do so.

78. In reviewing the Plaintiff’s physical injuries I do not ignore the deleterious psychological effects the dog attack and the resultant scarring has had on the Plaintiff. I believe those effects required a separate consideration. It is therefore relevant for me to review the evolution of the Plaintiff’s psychological problems.

Evolution of the Plaintiff’s psychological problems relating to the dog attack

79. The starting point for the review of the Plaintiff’s psychological problems is to have regard to the observations of Mrs Sullivan and Mr Sullivan whose evidence I accept concerning their description of the Plaintiff being of normal disposition and personality before the dog attack.

80. The Plaintiff was undoubtedly shocked and distressed at being ferociously attacked in the horrific manner described. In the immediate aftermath of the dog attack his probity was assailed in an aggressive display by Mr Sretenovic who screamed at him and sought to blame the Plaintiff for the occurrence of the injury. I have little doubt that the Plaintiff found this to be very disturbing but this was not a separate event in the nature of a novus actus interveniens . It was in fact inextricably bound up in the continuum of the events within the state of shock the Plaintiff experienced in the dog attack. It is therefore futile and unnecessary for me to try and apportion aspects of the Plaintiff’s psychological reaction to the dog attack itself, the immediate aftermath of the attack and the resultant scarring that developed from the physical wounds incurred in the attack. See Blaxter -v- Commonwealth of Australia [2008] NSWCA 87 at 71 and 72.

81. On returning to school after the dog attack the Plaintiff found himself in a situation where his peers were asking him to show them his scars. In evidence he related how he was called names such as “chew toy” and “dog meat” and the like. He adversely felt the effects of being teased. He was teased for the remainder of his primary schooling and this has continued in high school. He also related how he was teased by being called “fat and dumb”. He said the teasing made him feel sad, a feeling which persisted until he was able to get away from the teasing environment. I infer that this must have been very difficult in the school environment.

82. The Plaintiff conceded that he had been the subject of some teasing before the dog bite incident if he “did something stupid”. I infer from this that any teasing that occurred before the dog attack, occurred in the normal way that children and teenagers inter-relate to each other in a group and tease each other which is quite different to the specific teasing that the Plaintiff has been subjected to since the dog attack. I find that the dog attack, its immediate aftermath and the resultant scarring from it has sensitised the Plaintiff to specific teasing about the attack and his consequent permanent scarring.

83. I infer from Mrs Sullivan’s evidence which I have accepted concerning the Plaintiff’s pre-injury normal personality, that were it not for the effects of the dog attack, the Plaintiff would have been able to shrug off, ignore or good naturedly fend off in the normal way the ordinary schoolyard teasing that children and young people sometimes practise against each other.

84. At times even in Year 7 at high school the Plaintiff found it necessary to enlist the aid of his teachers to try to stop the teasing however those who teased him apparently found ways to circumvent such teacher interventions.

85. He is presently in Year 9 at Colyton High School. In cross-examination he agreed the teasing was “getting better”. I take this to mean that the teasing either lessened in its frequency or that he was now better equipped to deal with such teasing. The tenor and basis of the cross-examination of the Plaintiff on this issue seems to me to have accepted that the Plaintiff’s peers have subjected him and still subject him to teasing and bullying as a consequence of the dog attack.

86. The Plaintiff described how he experienced intrusive memories and had dreams about the incident. The content of the dreams comprised flashbacks of him being attacked by the dog. He said he tries not to remember these events. He described how the nightmares have reduced from the initial frequency of two to three times per month in the first year following the attack to about once per month at the present time. Dr Whan recorded a history that these dreams occurred once per week in which he relived the incident.

87. The Plaintiff said he is able to speak about the incident to his mother, to a family member or to a friend but he does not want to try to remember the events. Not unreasonably, he carries a cricket bat with him when he leaves the house in case he again encounters the dog in question. The Plaintiff continues to live in the same house and the Defendants have continued to keep their dog nearby. The Plaintiff clearly remains worried about the continued proximity of the dog that attacked him.

88. When the Plaintiff was asked whether he felt he was able to talk to doctors about his emotional problems related to the dog attack he became choked with emotion and gave no verbal reply. I find that his non-verbal reply was tellingly indicative of significant ongoing emotional distress which he tries to conceal. This confirms my assessment that the Plaintiff has understated his problems when giving his evidence on the matter.

89. The Plaintiff agreed he did not get on with his now estranged stepfather, Mr Sullivan. The Plaintiff agreed that his stepfather was tough and strict which caused the Plaintiff to be upset. Mr Sullivan gave evidence acknowledging this and conceded with the benefit of hindsight and in view of his own upbringing that he had been hard on the Plaintiff in connection with the emotional aftermath of the dog attack. He acknowledged that at the time he had not fully appreciated the Plaintiff’s emotional and psychological suffering due to the dog attack.

90. When the Plaintiff was cross-examined about his attitude to his scarring the following interchange occurred:

“Q. Generally with your scarring how much does it upset you now?
A. Well, I try not to think about what happened but it does upset me when I have to look at it or people ask.”

91. In my view this portion of the Plaintiff’s evidence demonstrates an insoluble problem for the Plaintiff. The Plaintiff’s permanent scars are obviously seen. I infer as a matter of commonsense that they are visible to him on at least a daily basis, either when he simply sees his right forearm whilst washing or dressing in the normal way as part of everyday living or as a result of others in some way drawing his attention to the scars by their questions, looks or teasing, or by a combination of these processes.

92. The problem is nevertheless a cyclical one for the Plaintiff. He has permanent scars. I find that these scars will operate as a permanent daily trigger to cause him psychological upset on an unpredictable but probably daily basis depending on the circumstances in which he finds himself. I find that this is likely to occur as a daily event when he views his scars as part of every day living.

93. Consistent with what I find to be the Plaintiff’s self-effacing personality and proneness to understatement when called upon to give an account of his problems, the Plaintiff did not seek to make much of his scarring other than to identify them as a source of upset. However, I observed him to become upset when he recounted that evidence. I regard that observation to be significant in the assessment of the Plaintiff’s psychological difficulties.

94. In view of my finding that the Plaintiff tended to understate his problems I find I must look to the medical histories the Plaintiff and his mother have given to the assessing psychiatrists and to the factual descriptions given by his mother and his estranged stepfather as to how the Plaintiff has been affected by the dog attack.

95. The Plaintiff said he gave a truthful account of his problems to the doctors who had examined him. Consequent upon my acceptance of the Plaintiff as a truthful witness I find myself able to confidently rely upon the recorded medical histories the Plaintiff gave to the examining doctors who have assessed him.

96. For example, Dr Whan, the psychiatrist engaged by the Defendants took a history that at school the Plaintiff became somewhat withdrawn. He recorded the additional items of history that the Plaintiff didn’t want to go anywhere, was often grumpy and hated life. Dr Whan also took a history that the Plaintiff was unhappy at school and that he was teased and bullied at school. He noted the Plaintiff was bothered by tests at school.

97. I find there is a causal link between the Plaintiff’s arm injuries from the dog attack and the Plaintiff’s slow handwriting and his unhappiness at school. I also find that such unhappiness is related to the teasing he was and is subjected to at school and with the Plaintiff getting into trouble because of not finishing his work. None of these matters affecting the Plaintiff have occurred in a vacuum. Whilst Dr Whan did not appear to make a clear connection between these matters and the dog attack, in my view it is not necessary for such a connection to be dependent on the opinion of an expert psychiatrist. Rather, it is a matter of fact to be determined by commonsense analysis. In my analysis, the connection of these events to the dog attack has been established. See Forst; Rea and McLean previously cited.

The evidence of Mrs Sullivan

98. Mrs Sullivan confirmed that she is aware the Plaintiff still experiences nightmares and takes a cricket bat with him wherever he goes in case the dog that attacked him comes near him. She was asked about the frequency with which he spoke to her about the scarring or teasing and she replied about once per month. I find this to be consistent with the Plaintiff’s understated manner and his desire not to talk about the incident. She described how the Plaintiff has kept to himself a lot and that to date he has declined counselling concerning the incident.

99. She related how the Plaintiff was teased at school and got into fights at school about such teasing, initially on a weekly basis. She described how it is a struggle to get the Plaintiff to go to school. Although the fights have now receded she described how the Plaintiff still remains angry about the dog attack.

100. She described how the Plaintiff angrily brings up the subject of the dog attack at random and out of context. In this regard she described how the Plaintiff has bursts of anger and bitterness on such occasions. She related that at times he has stated life was not worth living. Professor Quadrio, the psychiatrist engaged by the Plaintiff’s solicitor, took a history from Mrs Sullivan that since the dog attack the Plaintiff was very angry, snappy and irritable which was not the case beforehand. She noted a history that the Plaintiff did not want to leave the house and of him having a short fuse and being unhappy. Mrs Sullivan described how the Plaintiff wanted to have the family dog put down.

101. I accept Mrs Sullivan’s observations of the Plaintiff’s current situation as summarised above. To the extent that there is a discrepancy between the evidence of the Plaintiff and his mother over his attitude to the family dog, in that the Plaintiff did not say in evidence that he wanted the family dog put down, I put that discrepancy down to his shyness and tendency to understate the situation and I draw no adverse conclusions against the credibility of the Plaintiff on that account.

The evidence of Mr Sullivan

102. The Plaintiff’s estranged stepfather Mr John Sullivan gave evidence to the effect that after the dog attack the Plaintiff had become reclusive, he no longer wanted to go out and would spend most of his time on the lounge at home. This remained the position to his observation until early 2007 when Mr and Mrs Sullivan became separated as a result of which Mr Sullivan subsequently saw the Plaintiff less frequently.

103. Mr Sullivan related how to his observation the Plaintiff was “just unhappy”, he felt sorry for himself and just did not want to do anything whereas before the incident Mr Sullivan described the Plaintiff as a happy person. Mr Sullivan described how after the dog attack the Plaintiff’s participation in life just diminished.

104. I accept the evidence of Mr Sullivan’s observations as to how the Plaintiff has changed since the dog attack.

Personality change in the Plaintiff

105. Following a consideration of the evidence of the Plaintiff’s mother and Mr Sullivan I find that the Plaintiff has undergone a significant change in his personality since the dog attack.

Review of opinions from consultant psychiatrists

106. Since a significant proportion of the Plaintiff’s claim is based on issues to do with his psychological reaction to the dog attack and its aftermath, I believe it is important that I review the psychiatric opinions tendered in the proceedings.

Opinion of Professor Quadrio – psychiatrist qualified by Plaintiff

107. On 4 April 2008, at the request of his solicitors, the Plaintiff was examined by Associate Professor Carolyn Quadrio, a consultant psychiatrist. She expressed the opinion that the Plaintiff has chronic post-traumatic stress disorder, depression and a personality change characterised as an adjustment disorder complicated by symptoms being manifest over the critical years of personality development such that there has been a personality change.

108. Professor Quadrio noted the Plaintiff’s depression to be pervasive and she noted the Plaintiff had a pattern of avoidance due to the dog attack.

109. Professor Quadrio expressed the opinion that the Plaintiff’s occupational and social adjustment is compromised due to the post-traumatic psychological disturbance. Professor Quadrio pointed to potential difficulties for the Plaintiff with his future psycho-social and occupational adjustment. She was of the opinion that such problems were as a direct result of his injury.

110. Professor Quadrio was of the opinion that the Plaintiff was quite seriously affected by the injury and she characterised his post-traumatic reaction as being chronic rather than temporary. In her view the manifestation of a low grade depressive adjustment in the Plaintiff was suggestive of a personality change. This was consistent with Mrs Sullivan’s observation concerning the Plaintiff.

Factual basis of the opinion of Professor Quadrio

111. Professor Quadrio based her opinions on the very detailed history she had taken of the Plaintiff’s problems. It is relevant to highlight that history in order to identify the basis of her opinions and to assist with the resolution of the conflicting psychiatric opinions in this case.

112. At the outset of her report Professor Quadrio recorded her factual observation that the Plaintiff was “clearly shy and at times had difficulty responding”. In my view, having observed the Plaintiff give evidence, this is a matter of some importance to the assessment of his evidence. Her view in this regard coincided with my own assessment of the Plaintiff and reinforces my view that the Plaintiff has understated his problems.

113. When Professor Quadrio examined the Plaintiff she recorded that he told her he felt terrified and very scared at the time of the attack. He described himself as very distressed and scared. He recounted how the owner of the dog blamed him for the incident. He described the wound as looking “freaky”, he described how he was feeling shocked and, almost three years after the event, he became tearful and questioning when describing the details to Professor Quadrio.

114. The Plaintiff told her that when he returned to school he still felt pain at the site of injury. He found it upsetting when people asked to see his scars. His personality changed in that he became more touchy and nervous. He told Professor Quadrio he was the object of jokes and teasing. He also disclosed to her that such teasing included the descriptions “dog meat” and “chew toy”. He told Professor Quadrio that he feels more touchy, nervous and edgy.

115. Professor Quadrio recorded that when she examined the Plaintiff she observed that he had a very gloomy demeanour, was unsmiling, humourless, somewhat depressed, manifestly lacking in enthusiasm about his future and was quite tearful.

116. The Plaintiff told Professor Quadrio that the sight of his scars makes him think about the incident all over again. He gets visual flashbacks in response to triggering events, such as when he is teased. He told Professor Quadrio that when he is teased he becomes upset and angry. The triggers for his upset and anger also includes hospitals and ambulances. He told Professor Quadrio he prefers to wear long sleeves to avoid displaying his scars to others.

117. Professor Quadrio observed in the Plaintiff a numbing of responsiveness, a diminished capacity for relatedness and a shortened sense of the future and that the Plaintiff is no longer sociable and is self-conscious.

118. The Plaintiff told Professor Quadrio that he still suffers from sleep disturbance. He told her he still thinks about the dog attack. He still has realistic dreams about it which wake him in the middle of the night. Initially this occurred nightly but in 2008 the frequency had lessened to about once per month. He told her that he feels haunted by memories of the dog attack and feels nervous and edgy. He said he wakes up feeling flat in the mornings and at times, about once a fortnight, he feels life is not worth living because he feels that people put him down. Mrs Sullivan told Professor Quadrio that the Plaintiff regularly says that life is not worth living. The Plaintiff told Professor Quadrio he feels depressed four days out of seven and this lasts for hours.

Opinion of Dr Whan – psychiatrist qualified by Defendants

119. On 22 May 2008 Dr Neville Whan saw the Plaintiff at the request of the solicitor for the Defendants. He prepared a report dated 19 June 2008 in which he expressed the opinion which, in summary, is to the effect that the Plaintiff’s reaction to the trauma of the dog attack was within the normal reaction to such a trauma. He considered what he described as the Plaintiff’s mood changes to be a reaction to the scarring and the attention this brings upon him. Dr Whan accepted that the scars would continue to adversely affect the Plaintiff’s experience of life and undermine his confidence and self-esteem which may lead to a pattern of avoidance limiting his level of achievement and social life in the future as well as maybe pre-disposing him to developing depression in later life.

120. Dr Whan considered that the Plaintiff’s negative moods are confined to the negative attention the Plaintiff receives in relation to his scars. I reject that view because it fails to have regard to the fact that the Plaintiff becomes upset when he sees his scars which is a matter unrelated to the attention of others.

121. Dr Whan thought the Plaintiff did not have a Mood Disorder as the Plaintiff’s depressive feelings “only related to issues surrounding his scars”. I reject that view. Whether the Plaintiff’s condition is labelled as a Mood Disorder, in accordance with DSM IVR guidelines or is seen as depression due to scarring, in the context of this case, seem to me to be irrelevant differences in semantics. Similar comments apply with regard to Dr Whan’s views on whether or not the Plaintiff has an Anxiety Disorder. The fact is he is anxious and carries a cricket bat when he leaves the house in case he encounters the dog again.

Factual basis of Dr Whan’s opinion as expressed in his first report

122. Having heard the Plaintiff, his mother and Mr Sullivan and having reviewed the first report of Professor Quadrio, it seemed to me that the factual foundation upon which Dr Whan based his opinion was rather limited. For example, he summarised his interview with the Plaintiff which took only 34 minutes in just a few short paragraphs:

“ INTERVIEW WITH JAMES
James told me that at the time of the attack he was training for a drama thing at school. He continued with this and did it in the end, but he said he was getting a lot of questions and teasing about his scars, and being attacked by dogs at school. He complained ‘I was trying not to think about it, but kids kept asking questions’.

He thinks the dreams started perhaps a month or so after he was bitten. The dreams were reliving the incident. He would have the dreams maybe once a week, and they have continued. He told me that he doesn’t hate all dogs, only vicious ones, and he is okay with his dog, and he doesn’t think his fondness of it has really changed. He will think about the attack if he sees a dog that looks vicious, and ‘when I think about it, I feel a bit scared’. He also said he is still anxious near that dog.

He feels safe at school, and he likes being with friends, but school is not a happy place, mostly because of the work. He has trouble writing, and he thinks he is a bit slower than he was before the attack, and he gets into trouble for not finishing the work. He also has some trouble with sport, because it hurts a bit if his arm is hit by a ball.

123. In summarising his 45 minute interview with the Plaintiff’s mother Dr Whan dealt with matters of family history and then recorded the following:

“…
I was told he has hated school from about Year 6 or 7, initially from being teased about his scars, and he will now do anything to have a day off. Once he is at school he is all right, and there have been no complaints from teachers. He does well in Maths, but just passes the others. She has told him that he has to do the School Certificate. He says he would like to be a chef or a mechanic.
Before being attacked by the dog, she described him as a happy kid, who liked jokes. There were three or four boys who ran around together, and he was more of a follower. He has a best friend, Stuart, who has been his friend since Year 5. He loved soccer, and like all his friends he was into computer games. He also liked riding his bike, and he had no behavioural problems”

124. My impression of this history as recorded by Dr Whan is that it is superficial and lacks detail.

125. In summing up the interview with Mrs Sullivan on the topic of the Plaintiff’s problems and progress Dr Whan recorded:

“ PROBLEMS
James was off school for about two weeks after his discharge home. He was basically all right, as he felt safe in the house, watching TV or playing Play station games, and the school were sending work. However, she said that much of the time he lay there not wanting to leave the house, and most of the time he didn’t want to talk about what had happened, although at times he did. At night he was crying and screaming in his sleep, and he would tell her of dreams of ‘it happening all over again’.

When he returned to school his arm was still covered in dressings, but even after it had healed he was wanting dressings so that other students wouldn’t see it. He also continued to wear a jumper to cover it.

He was also having pins and needles up the arm, and at first at times he was dropping his pen. This no longer happens, but he still sometimes has the pins and needles. She thinks he did participate in some sport, but the school didn’t force him, and for much of the remainder of the year she thinks he was probably sitting and watching.

From reports from school he had become somewhat withdrawn, and he stopped talking. However, he was still doing the schoolwork, and there were no apparent problems with application.

PROGRESS
She said that they haven’t been away since the attack, and James says he doesn’t want to go places. He is often grumpy if you speak to him, and he will say ‘I hate life’, but he appears happy to be by himself, and he never says he is bored. He spends the majority of time in his room, but he does keep himself occupied. He often says to his mother ‘I like it, just you and me’. She agrees that he is probably saying that he is pleased that his stepfather has gone.

For perhaps a year after the accident he was complaining ‘you don’t know what it is like to be attacked by a dog’ etc, and he would tell her that he wished he were dead. She would tell him to wake up to himself. His response was ‘you don’t care’. She thinks that perhaps it has only been the last month or so that he has got over this.

Mrs Sullivan commented that a psychiatrist who had seen James three weeks ago in Randwick (presumably at the request of Keddies) said she considered James as depressed, and he should be having counselling.

126. I have set out in detail the foregoing quotations from the first report of Dr Whan for the purpose of contrasting the detail within it compared to the more detailed descriptions of the Plaintiff’s psychological problems that were drawn out by Professor Quadrio. In making this comparison I have formed the opinion that the history recorded by Dr Whan in his first report appears superficial and in view of the matters forms an inadequate basis upon which to form relevant opinions on the diagnosis, severity and the prognosis of the psychological conditions suffered by the Plaintiff.

127. Dr Wha n’s reference to Keddies is obviously incorrect since the re is no evidence that Keddies were ever the Plaintiff’s solicitors. Nothing turns on this.

Dr Whan’s second report

128. Dr Whan was asked by the Defendant’s solicitor to review the report of Professor Quadrio dated 20 April 2008 and to review his own report dated 19 June 2008 to prepare a commentary. He did so and provided a second report dated 15 July 2008. The letter of request is not in evidence but it appears that Dr Whan’s second report is not based on any further examination of the Plaintiff or any new material that may have been made available for consideration.

129. In acknowledging that there were differences between his opinions and those of Professor Quadrio, Dr Whan raised the possibility that there had been some improvement in the Plaintiff in the month between the consultation with Professor Quadrio and when he saw the Plaintiff. I reject that view as facile in the context of the Plaintiff’s young age and his permanent disfiguring scarring which seriously affects his sense of wellbeing.

130. In his supplementary report Dr Whan sought to argue that from a definitional perspective in his opinion the Plaintiff did not meet the diagnostic criteria for post-traumatic stress syndrome although he acknowledged that Professor Quadrio listed the Plaintiff’s symptoms described to her that met the criteria for such a diagnosis. His position seems to me to have been based on the intuitive notion that he remained unconvinced of the diagnosis.

131. Dr Whan also raised the speculation that in the context of a claim for compensation there is the probability of over-listing of symptoms through leading questions which complicates the question of diagnosis. I find there is no evidence to support that view as being applicable to the Plaintiff’s case.

132. In his commentary Dr Whan took what appeared to me to be an unduly narrow analysis of the Plaintiff’s reported problems and distracted himself from an in depth analysis by introducing an alternative diagnosis such as phobic anxiety rather than post-traumatic stress disorder and in doing so paid insufficient regard to the practical question of how the Plaintiff’s life had been affected by his symptoms. He did so based in part on a process of second-guessing or re-defining what he thought Professor Quadrio “has probably relied upon” when her report was sufficiently clear to discern the basis of her opinion.

133. In commenting:

“However, it would seem to me that the important difference with James is that when he is in a situation where he feels safe from such negative attention, he has no emotional problems”

Dr Whan has, in my view adopted an unduly narrow and superficial analysis of the Plaintiff’s problems, particularly the core problem of becoming upset on seeing or being reminded of his scarring.

134. In his second report Dr Whan repeated his earlier expressed and, in my view, unwarranted sceptical and unconvinced attitude to the Plaintiff’s reported adverse reaction to his scarring. In my view such comments do not constitute useful expert opinions because they fail to have due regard to the necessarily subjective component of psychological problems as they affect the person reporting the symptoms.

135. I find Dr Whan’s discussion on whether the Plaintiff needs antidepressants and cognitive behavioural therapy, as argued in his report dated 15 July 2008, to be artificial in the distinctions he seeks to make concerning the appropriateness of the therapies recommended by Professor Quadrio. Further, I am of the view that Dr Whan’s acknowledgement of the possibility that such therapy may help the Plaintiff respond to questions about his scars in a less negative way represents a superficial analysis because it does not contain a balanced discussion of the positive and negative factors to be weighed in reaching an expert conclusion on the issue of the benefits or otherwise of therapy. Accordingly, I find myself unassisted by Dr Whan’s commentary.

136. Dr Whan again raised for discussion the possibility of the Plaintiff having an exaggerated response to the dog attack and the resultant scarring because of some underlying vulnerability in the Plaintiff. Quite apart from the fundamental forensic problem that this issue was never put to the Plaintiff or his mother, the commentary represents a misunderstanding of the forensic legal framework for considering such an issue in that the Defendants must take the Plaintiff as they find him.

137. In view of the evidence of the Plaintiff’s mother and Mr Sullivan, which I accept concerning the Plaintiff’s changed demeanour and loss of interest in life, I do not accept as reasonable Dr Whan's claim that Professor Quadrio has placed unwarranted reliance on her observations on the demeanour of the Plaintiff when she interviewed him.

Professor Quadrio’s response to Dr Whan’s commentary

138. Professor Quadrio was asked by the Plaintiff’s solicitor to comment on Dr Whan’s commentary dated 15 July 2008. She did so and issued a response dated 13 August 2008 which was admitted into evidence as Exhibit “H”. In that commentary she has summarised Dr Whan’s commentaries and has, in my view, resoundingly rebutted those commentaries that were critical of the opinions she had expressed in her report.

139. In her responses to Dr Whan’s commentary Professor Quadrio selected some thirty items from his commentary and has in my view, taking all the responses into account, demonstrated by her responses that Dr Whan has either mischaracterised or undervalued the history given to him in forming his conclusions. Examples of the rebuttal responses arising from the history cited by Dr Whan are as follows:

“James talked about being teased and Dr Whan relates this to some withdrawal and mood disorder.
CQ Comment: Teasing is often related to depression, mood disorder and withdrawal. There is a circular relationship between teasing and mood disorder in children. Teasing leads to mood disturbance and children with mood disturbance are more often the target of teasing .

James told Dr Whan he tries not to think about it.
CQ Comment: Avoidance.

James told Dr Whan about dreams and reliving experiences.
CQ Comment PTSD symptoms .

James also told Dr Whan if he sees a dog he feels scared; he doesn’t like reminders. He avoids them.
CQ Comment: PTSD phenomenon, avoidance .

James told Dr Whan he is not happy at school because he works slower but said his concentration was okay.
CQ Comment: Working slower suggests problems with concentration, focus or mood disturbance.

CQ Comment: This is avoidance, the scarring is a trigger.

140. Examples where, in my view, Professor Quadrio has demonstrated in her responses that Dr Whan has undervalued the Plaintiff’s history in forming his conclusions are as follows:

“Dr Whan says fear of dogs is a normal reaction to trauma.
CQ Comment: It is only normal if it is not part of the constellation of PTSD symptoms.

Dr Whan says James does have mood change but it is related to the scarring.
CQ Comment: The scarring is a sequel of the trauma and is also a trigger, i.e. when he sees the scar it activates the PTSD symptoms .

Dr Whan comments on the reaction of the dog owners which may have contributed.
CQ Comment: That is all part of the trauma experience in that James felt shocked by the reaction of the dog owners.

…

Dr Whan says the mood disturbance change is only related to scarring so therefore is not a mood disorder.
CQ Comment: It is the residual manifestation of the trauma. It is not relevant what aspect of the trauma makes him feel depressed. If he feels depressed about it he has some disturbance of mood.

CQ: I note Dr Whan acknowledges the scars have led to the loss of confidence and self esteem and I note it is likely to lead to avoidance and decreased achievement.

Dr Whan says that the difference with CQ’s report is PTSD in children is controversial because there is some question over the long term outcome.
CQ Comment: We are dealing with the present situation not the long term that had led to the diagnosis of PTSD.
CQ Comment: There is an enormous literature correlating negative mental health outcomes correlated with childhood trauma.

Dr Whan agrees that CQ has provided symptoms of PTSD but Dr Whan comments that checklists are unreliable.
CQ Comment: I did not use checklists. My assessment used the same clinical method as used by Dr Whan.

…

CQ Comment: Nevertheless he continues to have dreams of the trauma.

PTSD does not rely on a certain frequency of dreaming.

When he feels safe he is okay. That doesn’t mean he does not have PTSD.

He feels okay in his classroom and at home but he avoids a variety of other situations.

Dr Whan says he thinks it is a reaction to the scarring more than the dog.
CQ Comment: I would say it is difficult to suggest this because the scarring is a residual and permanent reminder of the trauma and therefore a trigger.

Dr Whan doesn’t think cognitive behaviour therapy will h Dr Whan doesn’t think cognitive behaviour therapy will help with James’s (sic) reaction to dogs.
CQ Comment: Cognitive behaviour therapy is widely accepted as a treatment of choice for fears and phobias.

CQ Comment: CQ is an experienced interviewer of children and is generally able to engage children and enable them to relax at least at some time during an interview situation of some 90 minutes which includes discussion about other interests such as sports, activities, TV, etc.”

Dr Whan’s oral evidence

141. In his oral evidence Dr Whan speculated that differences in the histories provided by the Plaintiff to him and to Professor Quadrio were possibly due to the consultation with Professor Quadrio being in some way therapeutic for the Plaintiff as it was earlier in time to his consultation. I reject that view as speculative and ill-founded in the context of the Plaintiff’s age, permanent disfigurement and the reaction he still has to his scarring.

142. Dr Whan gave the following evidence concerning Professor Quadrio’s second report:

143. It seemed to me that when taking his oral evidence as a whole Dr Whan seemed to distance himself from his earlier sceptical approach to his consideration of the Plaintiffs symptoms and the diagnosis that Professor Quadrio had given and he agreed that a more flexible approach to diagnosis could be taken.

144. Dr Whan’s evidence included the following:

“Q. I just want to ask you about a couple of things that were ventilated in the evidence to see where they fit into the scheme of things psychologically. I’ve noted in the evidence that he has described not wanting to have people see his scar, being angry with everyone and wishing he was dead, keeping very much to himself a lot, and within that constellation it’s also been described that he has changed his personality since the incident. If one accepts those descriptions, where does that put him in the range of diagnosis within DSM-IV?
A. At the stage he was showing those - and I don’t think he was showing all those things you’ve just described at the point I saw him - I'm acknowledging that for a significant part of t A. At the stage he was showing those - and I don’t think he was showing all those things you’ve just described at the point I saw him - I'm acknowledging that for a significant part of the period he would have met the criteria for post-traumatic stress disorder and probably would meet criteria for - even for major depression.

Q. Putting aside DSM criteria and just looking at it in terms of your alternative formulation of just the practicalities, would all of those matters potentially serve to adversely affect his self-esteem and ability to function as one would normally expect a young man to function?
A. His self-consciousness about the scars and sort of his feeling victimised by other children putting him down, teasing him, would be expected to affect confidence and self-esteem. I also gained the impression that he did believe via the attack actually affecting the use of his arm that he seemed to believe that his arm was making him slower with the work at school and sort of therefore sort of less able. So I - I do believe that he showed clear evidence of sort of feeling that sort of he had been handicapped as a result of what had happened to him.

145. The assumptions within the foregoing questions, which I accept as fact and which comprise the problems that are presently current for the Plaintiff, and Dr Whan’s answers as outlined above indicate to me that the Plaintiff has a more serious psychological condition in the nature of a major depression and not the lesser picture which Dr Whan was describing in his initial analysis.

146. Dr Whan acknowledged that the trauma experienced by the Plaintiff was horrific, leaving the Plaintiff with quite disfiguring scars which are quite an issue for him. I am of the view that Dr Whan’s concessions that the Plaintiff bears the risk of loss of self esteem, lack of confidence and depression are indicative that he has significantly under-assessed the nature and impact of what are serious psychological problems for the Plaintiff.

147. Dr Whan seemed to downplay the role of cognitive behavioural therapy in the Plaintiff’s situation, suggesting a delay of six months following the finalisation of the case to see if therapy would be warranted. I do not think that such an approach is reasonable in the context of a medico-legal assessment as it seems to proceed upon an unwarranted assumption that the outstanding litigation is, in some way, impeding the Plaintiff’s progress. That notion is inconsistent with my finding that the Plaintiff has permanent scarring linked to the identified psychological problems which lead him to experience cyclical and unpredictable adverse psychological sequelae and I reject Dr Whan’s views in this regard.

148. Significantly, Dr Whan has conceded that the Plaintiff still has unresolved feelings of anger and upset over the dog attack. I find these feelings that are held by the Plaintiff are now entrenched and will affect him permanently.

Resolution of differences in the psychiatric opinions

149. I find Professor Quadrio’s opinions are supported by the detailed factual history she obtained from the Plaintiff and his mother and as such I find I can confidently rely upon her opinions to make my findings concerning the nature and extent of the Plaintiff’s psychological problems caused by the dog attack upon him. I accept the opinions of Professor Quadrio concerning the diagnosis and prognosis of the Plaintiff’s psychological problem.

150. I find myself unassisted by Dr Whan’s opinions and his analysis in his two reports for a number of reasons.

151. Firstly, he only had a 34 minute interview with the Plaintiff which seems to me to be an unduly short period to take a history from this Plaintiff. In the context of my assessment that the Plaintiff was prone to understate his problems, together with his self-effacing disposition, Dr Whan seems not to have explored the Plaintiff’s psychological issues in depth. For example, apart from noting that the Plaintiff was questioned and teased about his scars at school, it does not appear from Dr Whan’s report that he attempted to draw the Plaintiff out in a discussion of his feelings concerning his scarring. This is in my view a remarkable approach to psychiatric assessment in a case where the scarring and the Plaintiff’s reaction to his scarring occupies such a central focus.

152. Secondly, the mention by Dr Whan of the history of the Plaintiff’s continuing dreams occurring about once per week in which the Plaintiff relives the incident seems not to have been developed into a discussion of the disturbing effect this has on the Plaintiff. This seems to me to be a remarkable omission of an important matter concerning a recurring abnormal event affecting the Plaintiff’s psychological wellbeing.

153. Thirdly, although Dr Whan is both qualified and entitled to express an opinion to the effect that he is unconvinced that the Plaintiff’s dislike of school is due to the negative attention he receives at school, I find Dr Whan’s unreasoned view in that regard is in itself unconvincing. He has not exposed the basis of his unconvinced view to analysis as is to be expected in an expert report. See Makita (Australia) Pty Ltd -v- Sproules (2001) 52 NSWLR 705.

154. In my analysis Dr Whan appears not to have considered what to me seems an obvious causal relationship between the Plaintiff’s negative experiences at school which involved injury related teasing, slow handwriting and the consequent negative teacher attention over this and, in this context, the pressure of tests the Plaintiff was required to do. In this regard I note that although Dr Whan is unconvinced of the relationship between the Plaintiff’s dislike of school and the negative attention he receives at school, the terms of Dr Whan’s evidence does not exclude that there could be such a connection. I find that on a commonsense analysis such a connection is compellingly established and I find that this has had and continues to have a deleterious consequence to the Plaintiff’s psychological wellbeing. See Forst; Rea and McLean. I find that such adverse consequences will extend beyond the Plaintiff’s school years.

155. Fourthly, Dr Whan chose as a framework for his evaluation of the Plaintiff’s reaction to his disfigurement by scarring the speculative notion of whether the Plaintiff had a predisposition to an exaggerated response to his disfigurement. It seems to me that there is an obvious problem with such an approach in this case. There is no suggestion in the documentation reviewed by Dr Whan nor in the record he made in his report of his interview with the Plaintiff and the Plaintiff’s mother that the Plaintiff had an exaggerated response to his scarring. I find that such an approach by Dr Whan was misdirected in this case.

156. Further, even if the Plaintiff, by reason of his pre-injury family situation had a predisposition to an exaggerated response to disfigurement, the existence of such a response is of little negative consequence to the analysis of a causal connection of such a response to the dog attack. This is so because the legal position concerning attributability of harm in such circumstances is that the Defendants must take the Plaintiff as he is found. In this regard I find as a fact that the Plaintiff’s confidence and self-esteem have been undermined which has led to the Plaintiff feeling victimised and vulnerable to the effects of teasing, taunting and bullying. The fact that the Plaintiff’s stepfather may have failed to recognise the full significance of the Plaintiff’s psychological reaction to the dog attack or was perhaps unsupportive in the psychological sense is not a matter which the Defendants can legitimately point to as a novus actus interveniens . I find that these matters all have their genesis in and are directly related to the dog attack.

157. Fifthly, the fact that Dr Whan stated that he had not heard clear evidence of an increase in the Plaintiff’s social withdrawal is of little assistance to me in determining that issue because Dr Whan has not exposed the basis of his reasoning for his view that the issue remains unclear to him. In contra-distinction to Dr Whan’s position in this regard I have had the benefit of hearing the clear and unchallenged evidence of the Plaintiff, his mother and his stepfather on the point. It does not appear from Dr Whan’s report that he had due regard to such matters when forming his views.

158. A further matter which causes me to doubt Dr Whan’s view about the Plaintiff’s prognosis is the basis upon which Dr Whan has suggested further surgical opinions to that of Dr Meares be sought on the question of whether the Plaintiff’s scars could be improved when that matter, as Dr Whan acknowledges, is outside his expertise. Given the clearly expressed and uncontradicted views of Dr Meares in his report dated 12 December 2005 I am left wondering why Dr Whan thought fit to raise this speculative question at all. This causes me to think that Dr Whan appears to have placed inadequate emphasis on the long term psychological significance of the Plaintiff’s scarring in the mistaken and speculative belief that the appearance of such scars could perhaps be improved such that they could represent a less serious continuing source of psychological difficulty for the Plaintiff than they do in fact. Dr Whan has not identified any medical basis upon which it would be reasonable to raise such a speculation.

159. Accordingly, for the foregoing reasons, I prefer and accept the opinions of Professor Quadrio, which I have previously summarised, to those of Dr Whan whose written opinions I reject. I also reject that part of Dr Whan’s oral evidence that is contradictory of the opinions of Professor Quadrio. I accept Professor Quadrio’s responses to Dr Whan’s commentary on her report. In my view those responses completely rebut the views and impressions conveyed by Dr Whan in his commentary on her report and methodology.

Assessment of damages

Preliminary

160. The assessment of damages in a case such as this carries with it inherent difficulties. This is so because the Plaintiff is aged only 14 years and his ongoing problems relate to his embarrassment over and reaction to the cosmetic defects constituted by his permanent scarring. These scars serve as regular reminders and triggers for him causing him to re-experience the traumatic events surrounding the dog attack. These matters have caused him to suffer chronic post-traumatic stress disorder, mood disorder and a personality change. These problems will have ongoing adverse manifestations for the Plaintiff’s psycho-social and occupational future.

161. Whilst it is true that Dr Whan has pointed to the speculative possibility of future improvement in the Plaintiff’s psychological adjustment to injuries he did so on the assumption that the condition was not chronic as opined by Professor Quadrio. Having rejected Dr Whan’s opinions I have to consider the probable future course of the Plaintiff’s psychological problems based on my assessment, which is, that the Plaintiff suffers from the chronic psychological conditions as opined by Professor Quadrio.

Non-economic loss

162. The Plaintiff’s injuries and residual disabilities have had a serious and significant adverse impact upon his life and on his ability to lead a normal life. That deleterious impact has been particularly pronounced because the Plaintiff’s injuries were sustained by him at a critical stage of his personality development and this has resulted in the Plaintiff undergoing a personality change with deleterious consequences for his future.

163. The Plaintiff has significant and disfiguring scars to his right forearm and to a lesser extent his right thigh and abdomen.

164. This means that the Plaintiff is in a situation where he finds himself caught up in a circular problem. His physical scars are permanent and will not improve. When he sees his scarring or is reminded of them this triggers a depressive reaction in him which is associated with anger and social withdrawal. This problem not only occurs when he sees his scarring but when the conduct of others remind him of his scars. He is then reminded of the terrifying experience of the horrific attack he experienced.

165. The Plaintiff’s personality change due to the dog attack has resulted in the psychological symptoms described and which I have accepted. I accept that he finds himself depressed four days out of seven with resultant depression that persists for hours as he recounted to Professor Quadrio. Professor Quadrio has referred to the depression as pervasive and she has noted that the Plaintiff’s behaviour shows a pattern of avoidance. I find that the dog attack in question has caused the Plaintiff to suffer mental harm of a chronic nature. It also constitutes recognised psychiatric illness as has been described by Professor Quadrio whose evidence I have accepted.

166. Although some psychological treatment has been recommended, and for that reason alone in view of the Plaintiff’s age it is worth attempting, I find that the prospects of success of such treatment are poor in the Plaintiff’s particular circumstances because of the nature of the trauma and because the symptoms are entrenched. The evidence does not suggest the Plaintiff will undergo a cure or complete remission of his chronic symptoms.

167. I find that the prospect for the Plaintiff is that he will live a psychologically impaired life in which he will experience chronic depression much the same as he experiences now, if not worse. His current symptoms support a diagnosis of major depression as has been acknowledged by Dr Whan in his oral evidence. I find there is little if any prospect of the Plaintiff’s psychological symptoms receding because there is no prospect for removal of the trigger, namely his permanent scarring and the traumatic memories they re-enliven for him.

168. This is a devastating consequence for a young person with a normal life expectancy. I accept that he will remain prone to significant depression throughout his life and I accept that this will adversely affect him in his everyday life, including in his ability to work.

169. It is against this background that damages for non-economic loss have to be assessed. The parties have made submissions on the appropriate percentage of a most extreme case for the assessment of non-economic loss. The Defendant has submitted the appropriate range to be between 18% and 20%. I consider the range submitted by the Defendant represents a serious under-estimation of the effects of the dog attack on the Plaintiff. The Plaintiff has submitted that the assessment of non-economic loss should be in the range 30% to 35%. In my view that submission is a realistic summation of the range.

170. The complexity for assessment of non-economic loss in this case relates to the interlinked problems of the unsightly permanently disfiguring scars and the emotional distress suffered by the Plaintiff which is liable to be randomly triggered by a range of every day events including just seeing the scars. The prospect for psychological treatment being successful is bleak. The consequence of this combination of factors for the Plaintiff represents a serious and permanent impairment in his ability to enjoy the amenity of his life which warrants a significant assessment of damages for non-economic loss.

171. In view of the findings I have made I am of the opinion that the Plaintiff’s damages for non-economic loss should be assessed at the upper end of the range at 35%. I therefore assess the Plaintiff’s non-economic loss in accordance with s.16 of the Civil Liability Act, 2002 at 35% of a most extreme case in the sum of $154,500.

Future treatment

172. There is a divergence of opinion amongst the medical experts concerning the Plaintiff’s need for future medical treatment and the potential for such treatment to be of benefit to the Plaintiff.

173. The competing opinions are as follows. Whereas Professor Quadrio recommends a combination of antidepressant medication and a short course of cognitive behavioural therapy for the post-traumatic stress disorder and a longer period of psychological treatment for the more pervasive depression, Dr Whan was not as encouraging of such treatment.

174. It is important to note that Professor Quadrio’s treatment recommendations are aimed at improvement, not a cure or complete remission. I find that a cure or complete remission is unlikely to occur given the entrenched nature of the problems experienced by the Plaintiff.

175. In the course of submissions the parties have agreed that in the event I assess damages for future treatment this should be in accordance to an agreed costing regime the terms of which are set out in the agreements identified in MFI “3”.

176. I accept the opinion of Dr Meares that no further surgical treatment of the scars is indicated and therefore I make no allowance for future scar revision notwithstanding the invitation by the parties that I do so.

177. There are competing costings for proposed cognitive behavioural therapy. The cost estimate based on Dr Whan’s suggestions is of the order of $1,400. The cost estimate based on Professor Quadrio’s suggestions range between $1,200 to $2,400 for uncomplicated treatment of 6 to 12 sessions over 6 to 12 months to between $10,400 to $20,000 for extended weekly sessions, over 12 to 24 months, if required. The agreed basis of the cost of cognitive behavioural therapy is $200 per session and the agreed cost of consultations with an adolescent psychiatrist is $225.

178. The parties agree that some allowance should be made for future medication in the form of prescribed antidepressant medication but no monetary submissions were made in this regard. I make a general allowance to cover the Plaintiff for the costs he is likely to incur in treating his depression with medication over his lifetime. I allow the sum of $4,000 in this regard.

179. I think it would be reasonable to provide the Plaintiff with access to consultations with an adolescent psychiatrist to try to assist him with his ongoing issues with chronic pervasive depression and adjustment problems, his pattern of avoidance and personality changes. Notwithstanding my view that such treatment is unlikely to ameliorate the problems to which it would be directed, I make an allowance of such costs to enable the Plaintiff to seek further insight into his psychological problems as he matures. I think it is reasonable to allow for this to occur because in the case of psychological symptoms of a chronic nature, even when there is no prospect of a remission of symptoms, as a matter of basic humanity some support of this kind is required to help him deal with his chronic problems is better than no support at all. Further, in view of the Plaintiff’s statements to the effect that at times he feels life is not worth living, I am of the view that such thoughts should be professionally monitored during his adolescent years, when according to common understanding, he is likely to be most at risk as a result of such thoughts. I assess damages for consultations with an adolescent psychiatrist in the initial 12 months at $2,700.

180. Consistent with the above findings I believe that cognitive behavioural therapy should be attempted. This is so notwithstanding that I find that such treatment will be of doubtful benefit in view of the now chronic nature of the Plaintiff’s condition. For the same reasons I have outlined above in allowing for the cost of consultations with an adolescent psychiatrist, I allow an average of the two extreme ends of the range of costs for the cognitive behavioural therapy recommendations put forward by Dr Whan ($1,400) and Professor Quadrio ($20,800) namely $11,100, which I round down to $10,000.

181. In summary the foregoing amounts total $16,700 i.e.:

(a) Allowance for antidepressant medication

$4,000

(b) Allowance for consultations with an Adolescent Psychiatrist

$2,700

(c) Allowance for the cost of cognitive behavioural therapy

$10,000

Total

$16,700

182. I assess the Plaintiff’s damages for future treatment in the sum of $16,700.

Future loss of earning capacity

183. The objective of the assessment of damages is to place the Plaintiff in the position he would have been in but for his injury insofar as this can be achieved by the award of compensatory damages. In approaching this task I am bound to observe the requirements of section 13 of the Civil Liability Act, 2002 which provides:-

13 Future economic loss-claimant’s prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

184. I am satisfied that but for the dog attack the most likely circumstances of the Plaintiff would have been that he would have had no impediment to ordinary progression through the remainder of his secondary education to the end of Year 12 and to enter the workforce in the normal course at the age of 18 years.

185. I am satisfied that following the deleterious physical and emotional effects of the dog attack, as I have already outlined, the Plaintiff’s future earning capacity has been adversely affected such as to require an award of damages for future economic loss. See Sections 13(1) and 13(3) of the Civil Liability Act, 2002.

186. Section 13(3) of the Act requires that I state the assumptions upon which I base my award of damages for future loss of earning capacity. I set these findings out as follows:-

(a) At the time of the dog attack I find that the Plaintiff was a normal 9 year old boy who was free from physical or psychological difficulties. He was an average student who had not repeated any grades at school. I base this finding on my acceptance of the evidence of his mother, Mrs Sullivan, to the effect that prior to the dog attack the Plaintiff had no significant psychological problems.

(b) I find that, at the time he was attacked by the Defendant’s dog the Plaintiff was at a critical phase of his psychological and personality development. In this regard I accept the opinion of Professor Quadrio to this effect.

(c) I find that the circumstances surrounding the dog attack caused the Plaintiff to feel scared, afraid and shocked. In this regard I accept the inherent plausibility and reasonableness of the Plaintiff’s description of the immediate and lasting effects of the dog attack upon him. I also accept Professor Quadrio’s opinions in this regard.

(d) I find that the trauma of the dog attack and the resultant scarring have created a psychological sensitivity in the Plaintiff which triggers in him the symptoms of post-traumatic stress disorder, adjustment problems and depression when he sees his scarring or is reminded of them.

(e) I find that the Plaintiff’s psychological reaction to the dog attack as recounted by the Plaintiff, his mother and Mr Sullivan was consistent with and comprised an ordinary, natural and foreseeable probable consequence of that attack.

(f) I find that it is unlikely and improbable that the Plaintiff’s post-traumatic stress disorder, adjustment disorder, depression and proneness to depression will recede or diminish.

(g) I find that the Plaintiff’s proneness to depression caused by the dog attack and its aftermath will cause him to suffer worsening depression in the future.

(h) I find that the long term effects of the Plaintiff’s psychological reactions to the dog attack and its aftermath have compromised his self-confidence, his wellbeing and his future occupational opportunities to a marked degree that is difficult to quantify.

(i) I accept Professor Quadrio’s observation of the Plaintiff’s gloominess, lack of self-confidence and general wariness and I find that these matters will most likely diminish his chances of success as a competitor in the labour market as well as compromising his social wellbeing.

(j) I find that the Plaintiff’s psychological symptoms will, on the balance of probabilities i I find that the Plaintiff’s psychological symptoms will, on the balance of probabilities impede his ability to obtain and maintain regular employment so that in the future, throughout his working life he will suffer a loss of earning capacity.

(k) I find that any employment the Plaintiff does manage to secure in the future will, on the balance of probabilities, have gaps in continuity within it so that he will lose income.

(l) I find that the foregoing matters will continue to be adversely influenced by the Plaintiff’s problems with self-esteem and self-confidence.

187. In my view the foregoing matters require that I assess damages for future loss of earning capacity notwithstanding the difficulty of such a task in the case of a 14 year old youth who has not yet formed final views on a preferred career path let alone attempted to find employment. In the light of the evidence and my findings I must somehow make an allowance for future loss of earning capacity for the Plaintiff. As difficult as the task may be I must make an allowance notwithstanding the imponderable factors involved in such a task.

188. I find that at the age of 14 the prediction of what probable career path and earnings the Plaintiff would have achieved had he not been injured is an inherently difficult task to approach let alone to approach with precision. It is therefore necessary for me to refer to a broad economic yardstick as the basis for the assessment of damages for the Plaintiff’s future loss of earning capacity.

189. Given my findings on the chronic nature of the Plaintiff’s post-traumatic stress disorder, adjustment disorder, depression and personality change and the improbability of these conditions abating with treatment it is necessary for me to fix upon a figure to fairly represent the Plaintiff’s loss over his projected working life of 47 years between ages 18 and 65.

190. In view of the foregoing factors that I have listed and weighed, doing the best I can to be fair to the Plaintiff and not unfair to the Defendants I assess the impairment of the Plaintiff’s future earning capacity over the entire period of his anticipated working life to the equivalent of 30% of net average weekly earnings between the ages of 18 and 65 years, i.e. $288 per week net.

191. Giving effect to the foregoing findings, the projection of a loss of $288 per week net at 5% over 47 years (x 961.5) but deferred for 4 years since the Plaintiff is presently aged 14 and given that the loss will not commence until the Plaintiff reaches the age of 18 (x 0.823) yields the sum of $227,898.

192. My assessment of future loss of earning capacity contains no separately identifiable component for the consequential loss of future employer funded superannuation contributions but I have taken that factor into account in assessing the weekly sum to be projected for future loss of earning capacity as such contributions are an ordinary incident of paid employment.

193. In considering the sum I have assessed I must have regard to the conventional contingencies. Amongst these contingencies is the possibility that the ordinary vicissitudes of life may have adversely affected the Plaintiff’s capacity to earn an income irrespective of his injury related disabilities by reason of accident or illness and the like. In assessing these contingencies I also have regard to the possibility that notwithstanding the Plaintiff’s psychological problems he may from time to time find himself able to secure some periods of well paid remunerative employment at rates that may be higher than net average weekly earnings so that the impact of his overall loss of earning capacity may be lessened to a degree which I am unable to determine.

194. To give effect to these considerations and to the requirements of section 13(2) of the Civil Liability Act, 2002 I assess the appropriate adjustment to allow for a disco unt for all these contingencies at 25%. Applying this discount I assess the Plaintiff’s damages for future loss of earning capacity in the sum of $170,923.

Past domestic assistance or attendant care

195. A claim is made for the value of the domestic care and assistance provided gratuitously to the Plaintiff by his mother following the immediate aftermath of the dog attack.

196. The Defendants have conceded that for the four weeks after his discharge from hospital the Plaintiff is entitled to damages for such care in the agreed amount of $2,100.

197. The care which is the subject of that agreement comprised the activities provided to the Plaintiff by Mrs Sullivan. This included bathing him, changing his dressings, cutting up his food and the like for 3-4 hours per day for one month. In addition, in this period Mrs Sullivan provided her son with emotional support of an undefined nature.

198. Mrs Sullivan stated that the gratuitous care she provided to her son was confined to the initial period of four weeks, following which she just resumed the role of being a mother again. In view of this evidence I assess the Plaintiff’s damages for past gratuitous care and domestic assistance limited to the four week period identified by Mrs Sullivan. Accordingly, I assess those damages in the agreed sum of $2,100.

199. I accept that because she was needed to attend to and care for her son Mrs Sullivan had to forego the employment she held at that time and as a result she lost earnings. Although this was indeed an unfortunate consequence for her such lost income does not sound in damages in the Plaintiff’s case.

Past out-of-pocket expenses

200. The past out-of-pocket expenses have been agreed at $500. Accordingly, I assess the Plaintiff’s out-of-pocket expenses in this sum.

Summary

201. The assessment of damages is summarised as follows:-

(a) Non economic loss

$154,500

(b) Loss of future earning capacity

$170,923

(c) Past domestic assistance or attendant care

$2,100

(d) Future treatment

$16,700

(e) Past out of-pocket expenses

$500

Total

$344,723

Orders

202. The orders I make are:

(a) I direct that a verdict and judgment be entered in favour of the Plaintiff in the sum of $344,723

(b) Unless within 7 days the Plaintiff makes an application for any other order, I order that after compliance with HIC legislation the Defendants pay the amount of the verdict monies less any amount to be deducted for compliance with the HIC legislation into court for such monies to be paid out to the Public Trustee for investment on the Plaintiff’s behalf until he reaches his majority, in accordance with the provisions of the Damages (Infants and Persons of Unsound Mind) Act, 1929 .

(c) I order the Defendants to pay the Plaintiff’s costs of the proceedings.

CITATION:	Reed v Sretenovic & Anor [2008] NSWDC 202
HEARING DATE(S):	12; 13; 14 & 15 August 2008
JUDGMENT DATE:	10 September 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment for the Plaintiff in the sum of $344,723. 2. Defendant to pay the Plaintiff’s costs.
CATCHWORDS:	Damages – Plaintiff repeatedly attacked and bitten by a dog – liability determined pursuant to s.25 of Companion Animals Act, 1998 - Causation – Assessment of causal connection of certain disabilities of a psychological nature to injuries where expert medical opinion is silent on a connection of those disabilities to the injuries sustained - Assessment of damages – Considerations for the assessment of future loss of earning capacity in the case of a minor – reference to average weekly earnings as a guide.
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) s.13, s.16 Companion Animals Act 1998 (NSW) s.25
CASES CITED:	Adelaide Stevedoring Co. Ltd v Forst [1940] 64 CLR 538 Blaxter v Commonwealth of Australia [2008] NSWCA 87 Commissioner of Police v Rea [2008] NSWCA 199 Commonwealth v McLean [1996] NSWLR 389
PARTIES:	James Reed by his next friend Sharlene Sullivan (Plaintiff) Rados Sretenovic (First Defendant) Monica Sretenovic (Second Defendant)
FILE NUMBER(S):	5558 of 2007
COUNSEL:	Mr A Campbell (Plaintiff) Ms E Bielby (Defendants)
SOLICITORS:	Gerard Malouf & Partners (Plaintiff) Sparke Helmore (Defendants)

“Chief complaint	Multiple dog bites
Patient Incident History	Pt stated he was attacked in the Street by neighbours “sausage dog”. O/A Pt was being treated by “Response 3” at scene. Pt has laceration (sic) to R forearm, R thigh area and bit mark to L upper quadrant of the stomach.”

(a) Allowance for antidepressant medication	$4,000
(b) Allowance for consultations with an Adolescent Psychiatrist	$2,700
(c) Allowance for the cost of cognitive behavioural therapy	$10,000
Total	$16,700

(a) Non economic loss	$154,500
(b) Loss of future earning capacity	$170,923
(c) Past domestic assistance or attendant care	$2,100
(d) Future treatment	$16,700
(e) Past out of-pocket expenses	$500
Total	$344,723