Yin v Sidhu

[2022] NSWDC 251

District Court

New South Wales

Medium Neutral Citation:

Yin v Sidhu [2022] NSWDC 251

Hearing dates:

28 and 29 June 2022

Date of orders:

8 July 2022

Decision date:

08 July 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [96] for orders

Catchwords:

ANIMALS – strict liability of defendant – defendant’s Rottweiler attacked the plaintiff and her dog: s 25(1) of the Companion Animals Act 1998 (NSW); DAMAGES – assessment of damages for plaintiff’s personal injury – assessment of plaintiff’s property damage claim for injury to plaintiff’s dog

Legislation Cited:

Civil Liability Act 2002 (NSW), s 16

Companion Animals Act 1998 (NSW), s 25(1)

Uniform Civil Procedure Rules 2005 (NSW), r 31.10(1)

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60

Penrith City Council v Parks [2004] NSWCA 201

State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

Category:

Principal judgment

Parties:

Zhuo Ling Yin (Plaintiff)
Sukhwant Singh Sidhu (Defendant)

Representation:

Counsel:
Mr D L Del Monte (Plaintiff)
Mr A Radojev (Defendant)

Solicitors:
Turner Freeman (Plaintiff)
P Williams and Company Lawyers (Defendant)

File Number(s):

2021/158148

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Facts not in dispute	[2] – [7]
Evidence overview	[8] – [10]
Surveillance images obtained by defendant	[11]– [13]
Issues	[14]
Issue 1 – Credibility and reliability of testimony	[15] – [25]
Evidence of the plaintiff	[16] – [20]
Evidence of plaintiff’s son	[21]
Evidence of the defendant	[22] – [25]
Issue 2 – Findings on relevant matters of fact	[26] – [50]
Plaintiff’s background	[27] – [30]
Circumstances of injury	[31] – [34]
Treatment	[35] – [41]
Disabilities that remain	[42] – [47]
Work	[48]
Domestic tasks	[49]
Mitigation	[50]
Issue 3 – Assessment of damages	[51] – [93]
Non-economic loss	[52] – [59]
Past out-of-pocket expenses	[60] – [61]
Future domestic assistance	[62] – [68]
Future treatment expenses	[69] – [73]
Future canine treatment expenses	[74] – [92]
Summary of damages assessment	[93]
Disposition	[94]
Costs	[95]
Orders	[96]

Nature of case

1. These personal injury damages proceedings arise from an unprovoked dog attack on the plaintiff by the defendant’s 40-50kg Rottweiler. The plaintiff was attacked whilst walking on the footpath of a public street. After the dog attacked the plaintiff, it proceeded to also attack and maul the plaintiff’s dog, a small Bichon Frise poodle. The proceedings are governed by the liability provisions of the Companion Animals Act 1998 (NSW) (“CA Act”) and the damages provisions of the Civil Liability Act 2002 (NSW) (“CL Act”). The defendant accepts that he is liable to the plaintiff in damages for the consequences of that attack: s 25(1) of the CA Act.

Facts not in dispute

2. At about 6.00pm on Saturday 27 April 2019, the plaintiff, Zhuo Ling Yin, then aged 61 years, was walking on the footpath with her own dog on a leash, across the road from, and opposite the house of the defendant, Sukhwant Singh Sidhu, in Morton Street, Parramatta.

3. As the plaintiff walked opposite the defendant’s house, she unwittingly attracted the attention of the defendant’s Rottweiler dog, which was indoors and not restrained. That dog pushed against and opened an unlocked screen door, ran out of the house, across the front yard, through the gateway, and across the road. It then proceeded to attack and wound the plaintiff, and then the plaintiff’s dog.

4. The plaintiff suffered severe puncture wounds to her left hand, including what was described as a pulley-type A1 laceration to her left thumb, which is an injury to the flexor pulley tendons, a lacerated left index finger with an associated injury to the cartilage of the first metacarpo-phalangeal joint, and lacerations to the dorsum of her left hand. Those injuries were painful. The photographs of the plaintiff’s sutured wounds reveal that her injuries were significant. The incident has left her with lasting physical and psychological disabilities. The defendant accepts liability to the plaintiff for her damages which require assessment.

5. In the second phase of the attack by the defendant’s Rottweiler, the plaintiff’s dog suffered extensive biting injuries to its limbs, back, torso and thorax. The plaintiff claims damages in respect of her own personal injuries, as well as damages for the property damage she has incurred in relation to the injuries suffered by her dog.

6. A photograph of the defendant’s dog, as extracted from the Court Book, appears below:

[Exhibit B, p 12]

7. In this case it is paradoxical that there is more expert evidence in the form of descriptive reports concerning the treatment of the plaintiff’s dog and its ongoing needs, than in relation to the plaintiff.

Evidence overview

8. In the plaintiff’s case, in addition to her own evidence, oral evidence was given by her adult son, Mr Cecil Dong. The defendant was the sole witness called to give evidence in his case.

9. The parties tendered the following exhibits: Exhibit A – plaintiff’s chronology; Exhibit B – plaintiff’s Court Book, comprising 305 pages; Exhibit 1 – a USB drive containing a series of selected surveillance video segments of the plaintiff showing her walking her dog.

10. Incorporated into the plaintiff’s Court Book was a short video segment showing the plaintiff’s dog walking awkwardly, with a lame right forelimb, an affliction that remains current, and which appears after the dog had walked for more than a half-hour or so.

Surveillance images obtained by defendant

11. The defendant tendered and played a sequence of some 25 short segments of footage taken on separate identified occasions showing the plaintiff walking her dog in the neighbourhood, over the period between 19 July 2021 and 8 June 2022. The material had been served on the plaintiff in accordance with UCPR r 31.10(1).

12. That material was selected by the defendant from “hundreds” of other segments taken by the defendant and other members of his family. In essence, this material comprised brief segments showing the plaintiff holding a metal rod in her hands, and holding the leash attached to her dog whilst walking in the neighbourhood, at times changing the holding hands from left to right, and vice versa.

13. In my assessment, that evidence does not serve to materially contradict the plaintiff’s evidence. Nor does it discredit the plaintiff or the case she seeks to make. The plaintiff did not give evidence of an inability to walk her dog. She did not say she could not hold the aluminium rod, which was lightweight, and which she carried for self-protection against further dog attacks. Nor did she say she could not hold her dog’s leash. In my assessment that surveillance evidence does not serve to discount the plaintiff’s evidence, or her damages. Furthermore, those brief segments do not serve to contradict her evidence that the plaintiff’s dog becomes fatigued and cannot walk for more than half an hour or so.

Issues

14. Since the defendant does not contest liability, the remaining issues to be determined in this case concern: the credibility and reliability of testimony; the findings on relevant matters of fact; and the quantum of the plaintiff’s damages. I now turn to the consideration of those issues.

Issue 1 – Credibility and reliability of testimony

15. My consideration of the credibility and the reliability of the witnesses who gave oral evidence now follows.

Evidence of the plaintiff

16. The plaintiff gave her evidence with the assistance of a Chinese interpreter. I found the plaintiff to be a credible witness. Contrary to the effect of the submissions made on behalf of the defendant on damages issues, I gained the impression that she gave her evidence with an air of stoic restraint, and without embellishment or exaggeration.

17. It was suggested to the plaintiff that she had a greater capacity for the use of her left hand than she has stated in her evidence. That suggestion was based on the video surveillance material referred to above and an observation recounted by the defendant. As already explained, in my view, the video material did not have the effect that was contended on behalf of the defendant.

18. The defendant gave evidence to the effect that in the presence of the defendant, his wife and his son, post-injury the plaintiff had managed to lift and load a quantity of bricks into her vehicle. That evidence was aimed at contradicting the plaintiff’s evidence that she had only handled a few demolished bricks that the defendant had allowed her to take from his demolition site some time after she had recovered from the dog attack. I did not regard the defendant’s evidence on this issue to be persuasive on account of several factors.

19. First, in contrast to the plaintiff’s evidence in which she estimated the number of bricks involved as being about 10, where the handling had been assisted by the defendant, the defendant’s evidence as to the quantity of bricks involved, was imprecise and unconvincing. His descriptions were prefaced by the imprecise qualifier of “maybe”, and his nomination of a range of bricks, maybe 20 to 30, claiming that the plaintiff had loaded “maybe” 90 per cent of them singlehanded and without apparent difficulty, seemed to me to be imprecise and unreliable guesswork. I found the defendant’s evidence unconvincing on this aspect. I accept that the plaintiff used two hands for that task. This discrete area of dispute could have been clarified by the defendant calling evidence from his wife and his son. I infer from the failure to call those witnesses that their evidence would not have assisted the defendant’s case.

20. I have accepted the plaintiff as a truthful and reliable witness on disputed matters of fact.

Evidence of the plaintiff’s son

21. The plaintiff’s son, Mr Cecil Dong, gave evidence about his knowledge of his mother’s state of health before the dog attack, and her subsequent condition as understood by him. The main focus of his evidence concerned the level of post-injury domestic assistance he has regularly provided to his mother. He described that assistance as being two to three times per month with regard to gardening, shopping, and in dealing with her appliances due to the difficulties she experiences with her left hand. His evidence was not the subject of material challenge.

Evidence of the defendant

22. My assessment of the evidence of the defendant was that he was plainly and genuinely remorseful over the circumstances of the plaintiff’s injury and the injury to her dog. This was also plain from his statement to Mr Sharma, the officer from Parramatta Council who attended and interviewed him about the incident on 8 May 2019. His remorse was also evident from the fact that he had readily paid the sum of $3717 for the initial emergency treatment of the plaintiff’s dog at the animal hospital: Court Book, pp 13 – 15.

23. The content of the defendant’s statement to Parramatta Council indicated he had subsequently taken a number of precautionary steps to ensure that his dog remained secure within his premises.

24. The defendant and members of his family on numerous occasions took steps to surreptitiously follow the plaintiff and secretly film her whilst she walked her dog in the neighbourhood. Whilst this was understandable as a measure aimed at seeking some protection against her claim for damages, it was ineffective and unpersuasive, as explained at paragraph [13] above. The non-transparent process by which the defendant selected the images to be tendered cast doubt on the reliability of that evidence and on reviewing the detail of it, I found it unpersuasive. Also, as explained at paragraph [19] above, I found the defendant’s evidence about the plaintiff’s handling of bricks to be unpersuasive.

25. Whilst I am satisfied that otherwise, the defendant generally gave his evidence to the best of his recollection, I considered that his recollection was clouded by the dynamics of the litigation. As will be explained at a later point in these reasons dealing with the plaintiff’s disabilities, I have not accepted his evidence on relevant matters of disputed fact concerning the plaintiff’s disabilities.

Issue 2 – Findings on relevant matters of fact

26. In the paragraphs that now follow, I set out my factual findings concerning the plaintiff’s pre-injury background circumstances, the injuries she sustained in the dog attack, the treatment she received for those injuries, and the disabilities that continue to affect her in her day-to-day life.

Plaintiff’s background

27. The plaintiff is presently aged 64 years. She was born in China. After leaving school in China, she obtained a Bachelor of Engineering degree and she worked as an electrical engineer, a computer repairer and a quality control technician. She migrated to Australia in 1991 with her son, who is now an adult and independent of her. Since she has been in Australia, she has not worked in her profession. Instead, she has worked as a disability carer, and more recently, as a clerk.

28. The plaintiff had some pre-existing work-related injuries. In 2012 and 2013 she injured her lower back and right upper limb and shoulder whilst at work. She was right hand dominant but is also able to write with her left hand. Before the dog attack, she had substantially transferred her dominant reliance onto her left hand following her earlier work-related injury. She was otherwise in good health.

29. The plaintiff’s dog was her daily companion, and she took particular enjoyment from walking her dog daily, for about an hour. Her dog was not disabled before it was attacked by the defendant’s Rottweiler and her dog’s walking time and her enjoyment of that time together, was not limited as has been the case since the dog attack.

30. The plaintiff’s prior health problems included occasional headaches, elbow pain, chest pains, abdominal pain, knee pain, and left ankle pain with toe numbness. Those problems had not prevented her from walking her dog or from working.

Circumstances of injury

31. The circumstances of the attack and the plaintiff’s injuries have already been sufficiently described in paragraphs [1] – [3] above.

32. In the moments leading up to that attack, the plaintiff took fright at the apprehended approach of the defendant’s Rottweiler. In those events she picked up her own dog off the ground and held it close to her chest with both hands as a protective reaction. Her reaction was understandable given the imposing and potentially menacing appearance of the Rottweiler, as seen in a photograph appearing at paragraph [6] above.

33. In the attack, the defendant’s dog savagely bit the plaintiff’s left hand multiple times. In those events, the plaintiff was unable to maintain her hold on her own dog and she dropped it to the ground whereupon the defendant’s dog proceeded to savagely attack the plaintiff’s dog, biting and mauling it multiple times, causing it to suffer serious injuries.

34. In those events the plaintiff was screaming loudly and was repeatedly calling for help. Her screams were heard by the defendant and his family. They approached the scene, took hold of and restrained the Rottweiler, and provided some initial assistance to the plaintiff who was greatly distressed. They called for an ambulance. The plaintiff called for the attendance of her son.

Treatment

35. The plaintiff was bleeding profusely from the dog bite wounds on her hand. A box of tissues was used by the defendant’s family in an unsuccessful attempt to stem the bleeding pending the arrival of an ambulance.

36. The plaintiff was given first aid by ambulance personnel but there was a delay in obtaining hospital medical attention for her injuries because the plaintiff had insisted that the first aid needs of her own dog be attended to first. Her son, who by that time had arrived on the scene, assisted in that regard. Once arrangements were made for the plaintiff’s injured dog to receive appropriate veterinary attention, the plaintiff agreed to being taken by ambulance to Concord Hospital.

37. The ambulance records show that when the ambulance officers arrived, they found the plaintiff to be in an extremely distressed state, with multiple penetrating wounds to the palm of her left hand, to her left thumb, and to her left wrist: Court Book, p 42.

38. After the plaintiff was re-assured by her son, by police officers, and by ambulance officers, that her injured dog would be given appropriate veterinary care, she agreed to be taken to hospital.

39. At Concord Hospital the wounds to her left thumb and index finger were surgically cleaned and washed-out in the operating theatre: Court Book, p 129. The hospital records noted that the plaintiff could not move her left index finger, and that it was numb: Court Book, p 125. She believed the defendant’s dog had bitten her finger to the extent that a piece of bone had been removed.

40. Her wounds were sutured and she was treated with antibiotics. She later developed a wound infection which required further antibiotic treatment. She remained in hospital for 5 days under the care of the plastic surgery team. She had to wear a back slab support for her left hand. She was also monitored and treated for oedema to that hand. She was discharged from hospital with a hand splint and she was given instructions on how to carry out specific rehabilitative exercises: Court Book, pp 85 – 86; p 124.

41. Following the plaintiff’s discharge from hospital, she received extensive outpatient therapy from occupational therapists at the Concord Hospital Hand Clinic. She had to maintain elevation of her injured hand and it was noted that she had to modify aspects of her personal care and her dressing to use her right hand: Court Book, p 230. The hospital arranged for the plaintiff to be followed up medically by an assigned local general practitioner (not her usual doctor), to monitor her treatment: Court Book, pp 226 – 284. This became necessary as she was unable to drive and she was therefore unable to see her usual doctor.

Disabilities that remain

42. The plaintiff has been left with significant permanent disabilities. She has scarring to the palm, dorsum and index finger of her left hand. She also has pain and restricted movement, and reduced function in the index finder of that hand, and the metacarpo-phalangeal joint is particularly painful. There are many tasks that she can no longer perform with her left hand as she usually did, including toileting, writing, making a fist for gripping, typing, and various domestic cleaning and car cleaning tasks.

43. The historical clinical notes kept by the plaintiff’s usual doctor (Court Book, pp 245 – 255) reveal that in addition to her physical problems that followed the dog attack, the plaintiff developed a post-traumatic stress disorder, and an adjustment disorder with anxiety and depression. This required psychiatric review, and the plaintiff was referred for treatment by a psychologist under a mental health care plan.

44. On 18 January 2021, the plaintiff’s usual doctor recorded that since the dog attack, the plaintiff has been experiencing recurrent nightmares, flashbacks in which she felt she was re-experiencing the dog attack, including the physical sensations, and was experiencing a surging heart rate and sweating, in conjunction with reminders of the trauma of the dog attack. She did not walk her dog for 6 months after the incident and she avoided going near the scene of the dog attack because she was scared and afraid, and would shiver when she heard the bark of the defendant’s dog.

45. The plaintiff’s usual doctor also noted that she was having difficulty falling or staying asleep, and was experiencing feelings of irritability and anger outbursts, and constant feeling of hypervigilance or “on guard”, expecting “danger is lurking around every corner”. It was also noted that she had lost interest in important and once positive activities, and that she was experiencing difficulty having positive feelings such as happiness or love. Her thought content, her insight, her judgment and her cognition were assessed as being normal. She was given stress management advice and psychological exercises, and she was referred to a psychologist. She is presently waiting for an appointment with that practitioner.

42. As a result of the attack, the plaintiff’s dog required extensive expert veterinary treatment. This seems to have also caused distress to the plaintiff. The defendant offered to pay for, and in fact did pay for, the veterinary treatment that the plaintiff’s dog received at an animal hospital.

43. As a consequence of the dog attack police and council officers became involved in the investigation that followed. The plaintiff, being a dog lover, specifically requested that the defendant’s dog not be euthanised on account of its attack upon her. As a result, no action was taken in relation to the defendant’s dog.

Work

48. In these proceedings, the plaintiff makes no claim for economic loss even though the dexterity and typing capability of her left hand has been adversely affected. At the time of the accident, the plaintiff was working part time as a clerk. She took on that work in order to accommodate the limiting effects of her pre-existing disabilities relating to her right arm, right shoulder and her back. The plaintiff makes no claim for past or future loss of earnings or loss of earning capacity. However, her reduced manual dexterity does have a significant adverse impact on her ability to carry out her work, which is an aspect of the amenity of her life.

Domestic tasks

49. After the dog attack, the plaintiff received some domestic assistance from her son and from her tenants to whom she rents rooms. That assistance was necessary due to the difficulties she was experiencing in carrying out her full range of domestic tasks. Whilst she makes no claim for damages for past domestic assistance, she does make a claim for the value of some future domestic assistance on account of a need for such services following the dog attack.

Mitigation

50. The plaintiff obtained prompt medical and rehabilitative treatment. She has pursued reasonable steps to address her post-dog-attack physical and psychological problems. The defendant did not suggest that the plaintiff had in any way unreasonably failed to mitigate her damages.

Issue 3 – Assessment of damages

51. In the paragraphs that follow, I now set out my assessment of the plaintiff’s entitlement to damages for non-economic loss, past out-of-pocket expenses, future domestic assistance, future treatment expenses, as well concerning property damage in relation to her dog.

Non-economic loss

52. The parties made disparate submissions as to the appropriate amount of damages to be awarded to the plaintiff for non-economic loss for pain, suffering and loss of amenity of life pursuant to s 16 of the CL Act.

53. On behalf of the plaintiff, it was submitted that such damages should be assessed at 30 per cent of a most extreme case in accordance with that provision. The defendant initially submitted non-economic loss should be assessed at $50,000, and then at 15 per cent, then later at 18 per cent, and then later at 22.5 per cent of a most extreme case.

54. In my view, the defendant’s ultimate submission as to quantification of non-economic damages should not be accepted because the nature and the extent of the plaintiff’s injuries and her ongoing disabilities call for a much higher assessment.

55. The plaintiff has been left with significant physical limitations in the dexterity and use of her left hand. She cannot straighten her index finger and she cannot make a fist to grip items. Her index finder is painful and she cannot hold a pen to write with that hand. She has discomfort in her index finger when she types. She has significant psychological disabilities, and she has been left with disfiguring scars on her left hand.

56. In assessing the plaintiff’s psychological injury it seems clear that the dog attack has led to her suffering PTSD and she has ongoing anxiousness and apprehensiveness. In assessing damages for non-economic loss, I have not placed any weight on the plaintiff’s reduced amenity from the impaired companionship provided by her dog due to its injuries. Plainly, the focus for her PTSD, her anxiety, and her depression, is the trauma of the dog’s vicious attack upon her.

57. The fact that the plaintiff had pre-existing disabilities to her back, right arm and shoulder, should not be seen as a discounting factor. The defendant must take and accept the plaintiff as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18]. The relevant point of consideration is that the plaintiff could ill-afford the additional layers of physical and psychological disability that flow from the dog attack.

58. In my view, the plaintiff’s pain, suffering and her loss of amenity of life, as summarised at paragraphs [35] to [43] above, including the visible scarring to her left hand, her physical restrictions, and her psychological problems, as already described, indicate that the appropriate assessment for this head of damage is 29 per cent of an extreme case. This equates to $125,000.

59. I therefore assess the plaintiff’s damages for non-economic loss in the amount of $125,000.

Past out-of-pocket expenses

60. The plaintiff’s treatment expenses have been paid by Medicare. Due to COVID-related administrative problems experienced by Medicare, the plaintiff’s solicitor has been unable to obtain an up-to-date schedule of payments made by Medicare which precisely identifies her actual out-of-pocket expenses.

61. Accordingly, a sensible practical course has been taken by the parties by making an allowance of the sum of $5000 for this head of damage, which allows for that amount to be adjusted by consent, one way or another, once the Medicare schedule becomes available. On that basis, I assess the plaintiff’s damages for past out-of-pocket expenses in the interim amount of $5000.

Future domestic assistance

62. The plaintiff’s experience of difficulties with performing aspects of her housework have been summarised at paragraph [49] above. Dr McGlynn has expressed the unchallenged opinion that the post-injury condition of the plaintiff’s left hand limits her capacity to perform domestic tasks. The claimed tasks involved lifting, carrying, repetitive manual activity, including most aspects of cleaning, and house maintenance tasks.

63. The plaintiff made a claim for the projected value of 4 hours per week of domestic assistance at the apparently accepted rate of $33.97 per hour, which, when projected over the plaintiff’s estimated median life expectancy of a remaining 24 years (x 738), yields the undiscounted sum of $100,279.44. In contrast, the defendant’s submissions make no allowance for this head of damage.

64. In my view, the defendant’s submissions seeking to avoid liability for this head of damage should not be accepted. The plaintiff’s stated difficulties with domestic tasks are credible and her evidence has not been contradicted. The defendant had commissioned a medical report on the plaintiff’s condition but did not comply with the rules that govern the use of such reports. This element of her claim is supported by the uncontradicted and not otherwise improbable opinion of Dr McGlynn.

65. That said, Dr McGlynn’s quantifying estimate of 4 hours per week for the plaintiff to have assistance with domestic tasks is neither authoritative nor prescriptive as the task of estimation of the time required for domestic assistance tasks does not appear to be within the remit of his professional expertise.

66. Nevertheless, in my view, some allowance must be made for the plaintiff’s injury-related difficulties with her domestic tasks. She has problems cleaning bowls following meals. Her tenants assist her to do some of her domestic tasks. Those matters are plainly as a result of her injury-related disabilities.

67. I consider that some discounting factors must be taken into account in assessing this head of damage, including the plaintiff’s other disabilities, which may further deteriorate independently of the injuries she received in the dog attack. In my view, her need for domestic assistance as identified in the evidence is not something that calls for the projection of a regularly recurring precisely identified weekly sum. Instead, I consider that an award of a discounted buffer amount would be the more appropriate method of compensation for this head of damage.

68. Accordingly, I assess the plaintiff’s damages for future domestic assistance in the discounted buffer amount of $25,000.

Future treatment expenses for the plaintiff

69. The plaintiff made a claim for future treatment expenses in the submitted total amount of $60,196.15 (sic for $73,651.15), that sum comprised the following elements:

(1)   Arthroplasty / fusion of the left index finger at the first metacarpo-phalangeal joint	$9,300
(2)    Annual consultations with a specialist hand surgeon at $500 per consultation ($9.62 per    week x 738)	$7,096.15
(3)   Supervisory treatment from a hand therapist for 5 years involving 3 monthly reviews	$36,000
(4)   Analgesics	$5,000
(5)    General practitioner consultations for at least 2 years every 2 – 4 weeks	$2,800
(6)   Consultations with a psychologist for at least 2 years every 1 – 2 weeks	$13,455
Total	$73,651.15

70. In my view, the evidence does not permit a prescriptive approach to assessment along the detailed lines submitted, as outlined above. The only evidence adduced by the plaintiff to support any form of future treatment is within the 3 February 2022 report of Dr McGlynn.

71. The suggested arthroplasty and treatment by a hand therapist seems reasonable in view of the plaintiff’s complaints but the frequency of that therapy and the other suggested consultations and the cost of analgesia represent imponderable factors not capable of precise costing.

72. In my view, on the evidence, the most appropriate method for assessment of this head of damage is to award the plaintiff a buffer amount that allows for the claimed surgery and for some of the other items claimed but at a discounted incidence and frequency compared to that which has been claimed. I consider the appropriate buffer to be $25,000.

73. Accordingly, I assess the plaintiff’s damages for her likely future treatment expenses in the buffer amount of $25,000.

Future canine treatment expenses – property damage

74. The plaintiff’s dog suffered serious and disabling injuries when it was attacked by the defendant’s Rottweiler. Her dog was taken to the University of Sydney Veterinary Teaching Hospital where it was examined, partially shaved, and then treated under general anaesthesia for multiple wounds to the skin requiring debridement and reduction of the luxation of the right elbow. Bruising was also noted to the dog’s back. The dog was in the veterinary hospital for 5 days and it was fitted with a walking splint. It was also referred to a veterinary rehabilitation specialist.

75. The plaintiff’s dog has been left with residual problems that require ongoing treatment which is the subject of an uncontradicted veterinary report from Professor Wendy Baltzer dated 16 December 2021. In a further and undated supplementary report, Professor Baltzer estimated a list of further treatment costs for the dog’s ongoing disabilities. None of her treatment recommendations seemed inherently improbable.

76. Since the Rottweiler attack, the dog becomes lame after prolonged walking and it has presented to the RSPCA Animal Referral Hospital on numerous occasions: Court Book, pp 271 – 302.

77. Professor Baltzer has diagnosed the plaintiff’s dog as having a series of post-injury problems including arthritis in the right elbow, lameness with a reduced range of motion, hindlimb pain, pain on spinal extension, and left iliopsoas muscle pain, all being due to the trauma. She has stated that the dog’s elbow osteoarthritis is an incurable condition that would progress over time and would require treatment over the remainder of its life.

78. Professor Baltzer also identified a need for the plaintiff’s dog to have specialised investigations, including MRI scans to the back and groin areas in order to assist with determining further treatment options.

79. Professor Baltzer’s report unequivocally indicated that the arthritis to the dog’s right elbow, the problems with the back, bilateral hindlimb pain, and the left iliopsoas pain, were related to the dog attack. She recommended 3 modalities of investigation for treatment of the dog’s residual problems.

80. For the right elbow problem, she suggested bilateral diagnostic CT scans, at an average cost of $2,475. For hindlimb pain she suggested an MRI contrast examination at an average cost of $3,850, and for the left iliopsoas problem, she suggested a diagnostic MRI scan at an average cost of $3,850. The separate MRI scans involve general anaesthesia.

81. I see no reason within the evidence for not combining the two separate MRI scans into one procedure as a cost saving. Taking that approach, the investigation costs for diagnosis for treatment, as outlined above, total something of the order of $6,325.

82. Dr Baltzer also identified the following ongoing treatment costs:

1. For lifelong management of the right elbow arthritis, including daily oral prescription medication and a special diet, between $780 to $2,000 per month, or an average of $1,390 per month, or $320 per week;

2. For the lifelong management of the hindlimb problems (excluding the possibility of the more expensive treatment for disc herniation which is at present not indicated), between $480 to $1,200 per month, or an average of $840 per month, or $193 per week;

3. For recurrence of left iliopsoas pain, a common occurrence, treatment over 1 to 3 years, which can involve weekly to monthly visits, at an average of $4,338 in total, or $27.80 per week.

83. The total of those ongoing costs, as analysed above, is the equivalent of $540.80 per week.

84. No one has suggested that the rates for those suggested treatments were unreasonable or excessively quantified. The parties have agreed that for the purposes of assessing future treatment costs for the plaintiff’s dog, which is presently aged a little over 11 years, the assumed remaining life expectancy is 3 years. The undiscounted 5 per cent actuarial multiplier for 3 years is 143.6.

85. The plaintiff’s dog is a sentient animal. No submission has been made to the effect that it should be euthanised in order to mitigate its suffering. In those circumstances, I am required to assess the fair and reasonable treatment costs which the plaintiff will likely incur as a result of the attack in maintaining the health and wellbeing of her dog on account of the described injuries due to the attack by the defendant’s Rottweiler.

86. Whilst the described costs for veterinary treatment seem high, and possibly disproportionate compared to the cost of equivalent medical treatment for humans, it should be recognised that those costs are not subsidised by the government. The quantified costs, estimated by a suitably qualified University Professor of Veterinary Medicine, are not challenged by any opposing opinion to the contrary. I therefore accept the base rates for costs as reasonable.

87. The remaining question is the total amount that should be allowed for such costs over a period of a further 3 years having due regard to the imponderable factors that necessarily call for a discount. Such factors include, for example, the possible earlier demise of the dog, that is sooner than 3 years, and the possibility that the plaintiff may decide not to pursue all of the investigations and treatments that have been suggested by Professor Baltzer, either because, after some suggested investigations, the need for some of them may recede or become problematic, or the plaintiff may decide not to put her dog through the discomfort of all of the suggested treatments.

88. In those circumstances, I consider the appropriate method for assessing the plaintiff’s dog’s treatment costs is to award a discounted buffer sum: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

89. On behalf of the plaintiff, a revised submission was made in respect of her claim for future treatment expenses for her dog, as an incident of property damage, seeking an award of $88,893: MFI 6.

90. The defendant submitted that the plaintiff’s dog has not received significant treatment since the initial treatment following the attack and such a sum should therefore not be allowed. The effect of the defendant’s submission is that it is unlikely such costs will be incurred. In my view, there are convincing rebuttal answers to that submission, as follows, which indicate that the submission made on behalf of the defendant should not be accepted.

91. First, the plaintiff has great affection, connection and concern for her dog, her companion, as is evidenced by the recorded RSPCA clinic attendance notes that were made over time: Exhibit B, pp 262 – 305. Secondly, as a sentient animal that is loved by the plaintiff, it is more probable than not that the plaintiff will seek treatment for her dog to a significant level that hitherto, her impecuniosity has prevented her from pursuing.

92. Nevertheless, a discount must be applied on account of the imponderable factors, for the reasons stated above. In balancing the interests of the respective parties, being fair to the plaintiff whilst being not unfair to the defendant, I assess the plaintiff’s claim for reasonable compensation for property damage for the treatment of her dog in the buffer amount of $45,000.

Summary of damages assessment

93. My assessment of the plaintiff’s damages is summarised as follows:      

Head of damages	Assessment
(a) Non-economic loss	$125,000
(b) Past out-of-pocket expenses	$5,000
(c) Future domestic assistance	$25,000
(d) Future treatment expenses	$25,000
(e) Property damage – canine treatment	$45,000
Total	$225,000

Disposition

94. The plaintiff has succeeded in her claim against the defendant and she is entitled to a verdict and a judgment against the defendant in the amount of $225,000 plus costs.

Costs

95. Consequently, the ordinary costs consequences should follow, and the defendant should pay the plaintiff’s costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

96. I make the following orders:

1. Verdict and judgment for the plaintiff against the defendant in the amount of $225,000;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless a party can show an entitlement to some other costs order;

3. The exhibits may be returned;

4. Liberty to apply for further or other costs orders, if required.

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Decision last updated: 08 July 2022