Zycher v Pergl
[2022] VCC 1801
•27 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-21-02039
| ROSALIE ZYCHER | Plaintiff |
| v | |
| JAMES PERGL | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 June 2022 and 1, 4, 5, 6, 7 and 8 July 2022 | |
DATE OF JUDGMENT: | 27 October 2022 | |
CASE MAY BE CITED AS: | Zycher v Pergl | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1801 | |
REASONS FOR JUDGMENT
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Subject:PERSONAL INJURIES – LIABILITY AND QUANTUM
Catchwords: Dog bite – scienter – negligence – duty of care – contributory negligence – obvious risk – volenti – damages
Legislation Cited: Wrongs Act 1958, s53, s54, s62
Cases Cited:Jolly v Kondos [2021] VCC 1397; Romano v Spagnol [1994] NSWCA 271; Trethowan v Capron [1961] VR 460; Gladman v Johnson [1876] 36 LJ CP 153; Griffiths v Kerkemeyer (1977) 139 CLR 161; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Judgment: Judgment is given for the plaintiff against the defendant in the sum of $446,720
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Seelig | Slater & Gordon |
| For the Defendant | Mr P Johnstone | Mills Oakley |
HIS HONOUR:
Introduction
1On 19 January 2019, the plaintiff, Ms Rosalie Zycher, went for a walk in North Caulfield, where she lives. It was a beautiful day. At that time, she was sixty-nine years old, and she had been retired for several years. She had previously worked in the creative arts. Her roles included working as a director and as a dramaturg. She had lived and worked, not only in Australia, but also in Israel, New York and London. She is an intelligent, educated, articulate and social person by nature.
2At about 10.00am, she was walking in a northerly direction in Tennyson Avenue, when she saw the defendant, Mr James Pergl, and his wife, Ms Despina Sarikizis. They were on the other side of the road, walking on the footpath in a southerly direction. They were walking their greyhound dogs.
3Mr Pergl had the dog “Steve” on a lead. Ms Sarikizis had the dog “Kiera” on a lead. Neither dog was wearing a muzzle.
4Mr Pergl and Ms Sarikizis were known to Ms Zycher. They were not close friends. Their relationship is best described as an acquaintance. Ms Zycher’s daughter Abigail (“Abbie”) previously had contact with the Pergl family.
5Ms Zycher, upon seeing Mr Pergl and Ms Sarikizis, crossed Tennyson Avenue and approached them. A conversation ensued. Just where the parties were standing in Tennyson Avenue, and the precise sequence of events which unfolded, was hotly contested during the hearing. However, what is common ground, is that Ms Zycher and Ms Sarikizis entered into discussion. Mr Pergl was standing a distance behind Ms Sarikizis. What is also common ground is that Steve, who was under Mr Pergl’s management and control, bit Ms Zycher on her right wrist and arm (“the incident”).
6On one view, the incident may be thought to have been an unfortunate one-off event. However, Steve had previously bitten a person. On 29 November 2016, at Mr Pergl’s home, Steve had bitten Abbie’s left hand, causing her injury. Mr Pergl was aware of the attack on Abbie. Indeed, since that time, Mr Pergl and Ms Sarikizis had been concerned about Steve. Ms Sarikizis said they had agreed that they should be cautious with Steve, and he should be kept away from people he did not know.[1] When out on walks, he was to be kept at a “safe distance”.[2]
[1]Transcript (“T”) 530, Lines (“L”) 17 ꟷ T531, L6
[2] T527, L13-22
7As a result of deep lacerations to her right arm and wrist, Ms Zycher immediately sought medical treatment. Initially, she consulted her general practitioner, Dr Susan Cohen, who had rooms nearby. Dr Cohen referred her to The Alfred hospital. At the Accident and Emergency Department, Ms Zycher’s wounds were cleaned and sutured. She was discharged with antibiotics and painkillers.
8Over the following days, Ms Zycher’s wounds became infected. She re-attended at The Alfred hospital on 21 January 2019. She was admitted. She underwent a second operation on 23 January 2019. On 25 January 2019, she was discharged.
9Prior to the incident, Ms Zycher was generally in good health. She enjoyed a range of social, recreational, and day-to-day activities. She described a fulsome and happy life.
10Ms Zycher said that, because of the incident, she has been left with a painful and dysfunctional right wrist and hand, and that she has developed significant psychiatric distress. Ms Zycher said her quality of life had been significantly impacted by her injuries.
11Ms Zycher alleges that there was a breach by Mr Pergl that was the cause of the incident and that she is entitled to damages. Mr Pergl denies this.
The nature of the proceedings
12Ms Zycher brings her claim on two legal grounds.
13Firstly, she relies on the principle of “scienter”. She says that Mr Pergl had knowledge of Steve’s mischievous or dangerous propensities and consequently he is strictly liable for the injuries which she suffered because of the incident.
14Secondly, Ms Zycher says that Mr Pergl was negligent in failing to exercise reasonable management and control over Steve to ensure that he did not attack her.
15Mr Pergl denies the factual background relied upon by Ms Zycher and disputes her version of the incident. He says that the principles of scienter do not apply on the facts. He denies that, before the incident, Steve had displayed mischievous or dangerous propensities. He says that Steve did not have a propensity to bite and cause the harm which Ms Zycher suffered.
16Mr Pergl also said that he did exercise reasonable care and control over Steve. He said the incident and Ms Zycher’s injuries were not reasonably foreseeable.
17Further, Mr Pergl said that any risk posed by Steve was obvious and Ms Zycher had voluntarily assumed any risk that existed. He also said Ms Zycher’s own negligence contributed to the incident.
The issues
18The issues that arise to be determined in these proceedings are:
(a) Is there a factual and legal basis for the principles of scienter to apply?
(b) Is Mr Pergl liable in negligence in addition, or in the alternative, to any liability pursuant to the principles of scienter?
(c) Did Ms Zycher disregard an obvious risk, voluntarily assume risk and/or was she contributorily negligent?
(d) If so, should the principles of scienter apply? Is Mr Pergl, as a matter of law, entitled to rely upon the defences of obvious risk, voluntary assumption of risk and/or contributory negligence?
(e) If scienter applies and/or Mr Pergl was negligent, what is the quantum of Ms Zycher’s general and special damages?
Assessment of the liability evidence
19The determination of scienter firstly requires findings of fact in respect to the alleged mischievous or dangerous propensity of Steve and his propensity to cause the type of harm suffered by Ms Zycher. It next requires findings of fact as to the incident itself.
20It is only then that the relevant legal principles can be analysed and applied to this case.
Events prior to 19 January 2019
General background
21Ms Zycher had, from 2006 to the time of the incident, owned two greyhound dogs: “Honey” and “Spike”. Her daughter, Abbie, shared her love of the dogs and their care.
22At some time in 2012 or early 2013, Mr Pergl and Ms Sarikizis encountered Ms Zycher and/or Abbie, who were out walking Honey and Spike. There were discussions about the merits of owning greyhounds as pets and the Greyhound Adoption Program (“GAP”).
23Mr Pergl and Ms Sarikizis decided to adopt two greyhounds via the GAP. In or about July 2013, they obtained Kiera. In January 2014, they obtained Steve.
24I pause here to note that racing greyhounds, prior to being adopted under the GAP, undergo an assessment and training process. This process of conversion from being racing dogs to being family pets and the GAP was subject to a good deal of evidence during the hearing. Various materials were tendered in respect to Steve. Steve had displayed some behavioural issues during the GAP which raised concerns. Steve had shown some aggression. This was known to Mr Pergl and Ms Sarikizis.[3] While Steve had shown some aggression, I note that he did pass the GAP assessment and training process. He was deemed an appropriate dog for adoption.
[3]T521, L4 – T522, L3
25Having obtained Kiera and Steve, Mr Pergl and Ms Sarikizis would invite Abbie to bring Honey and Spike to their home. Seemingly, they did so for two reasons: Firstly, so their dogs could socialise with Honey and Spike. Secondly, so their children could interact with Abbie. It was in this context that Abbie intermittently attended the Pergl home.
The Spike incident
26On 28 April 2014, Abbie, Honey and Spike were present at the Pergl home. There was an incident involving Steve and Spike. The circumstances were subject to dispute. There were only two people who observed this incident: Abbie and Alannah Pergl (“Alannah”). At that time, Abbie was aged seventeen-and-a-half years.[4] Alannah was aged ten years.[5]
[4] T329, L28
[5]T470, L28
27Abbie said that as she was leaving the Pergl home, both her dogs were on their leads. Both were wearing muzzles. As she was going through a side gate to leave the property, Steve attacked Spike from behind. Steve bit Spike’s head (“the Spike incident”). As a result, Spike suffered a deep laceration at the base of his right ear. Alannah said that Spike had lurched at Steve and Steve responded.
28Pausing, I prefer the evidence of Abbie. In summary, I formed the view that she had a much better recollection of the events of the day. Her explanation of taking her dogs through the gate was given in detail and withstood scrutiny. Alannah’s description of events was not convincing. I have no doubt she gave her evidence as best as she could recall, but I consider her young age at the time of the Spike incident to be a likely factor in the fact her evidence was less convincing.
29Returning to the Spike incident. After the attack, Spike was taken to an animal emergency hospital in Moorabbin. He required surgery to repair the wound. Mr Pergl paid for the cost of this surgery.
30The Spike incident was clearly a disturbing event for all concerned. Mr Pergl and Ms Sarikizis were worried about Steve’s behaviour.
31Mr Pergl said:
· that while he was not a dog psychologist, he thought there were territorial issues involving Steve and his interaction with Spike.[6]
· that he concluded it would probably be best either not to invite other dogs to the Pergl home or, if they did, to manage Steve and ensure that Steve did not repeat the Spike incident.[7]
· from that time on, when he and Ms Sarikizis were out walking the dogs and they saw Abbie with her dogs, “we made sure that we weren’t anywhere close to them, we would say hello, but we kept the dogs apart, you know, a few metres apart”.[8]
· that when he and Ms Sarikizis were out walking Steve, they would not encourage him to go and meet other dogs that they had never met before, because he thought it “better to be safe than sorry”.[9]
· when Mr Pergl walked Steve after the Spike incident, he held him back from other dogs.[10] Because of the Spike incident, he felt the need, when outside of the home, to keep restraining Steve.[11]
· after the Spike incident, Mr Pergl continued to be concerned that Steve may be aggressive to other dogs.[12]
[6]T408, L11-14
[7]T408, L27-31 and T410, L19-27
[8]T409, L24-28
[9]T410, L8-9
[10]T412, L15-17
[11]T412, L23-27
[12]T413, L12-18
32There was an arrangement between Mr Pergl and Ms Sarikizis that they would keep Steve back from other dogs who they may encounter out walking. Mr Pergl said:
Q:“When you say, ‘We kept him back’, was that an arrangement between you and Despina, was it, to keep him back?---
A:Yes, sometimes she would walk him, sometimes I would walk him.”[13]
[13]T414, L7-9
33Moving now to Ms Sarikizis’ evidence of the concerns which were held after the Spike incident.
34Firstly, in respect to Abbie and her dogs, she said:
“And because of what had happened with Spike, we were cautious, you know, Abbie stayed on one side of the road and I stayed on the other side of the road, and sometimes I would just say, if James was with me, which normally he was, we walked the dogs twice a day, ‘Hold the dogs’ and I went over to Abbie and I would say hello to Abbie. It was brief but we knew that it was ridiculous we had to keep our distance.”[14]
[14] T505, L8-18
35She also said:
· That after the Spike incident, she did her own research on the internet and sought reassurance from a “dog whisperer”.[15]
· That after this incident, she and Mr Pergl were more cautious when out walking the dogs. They kept the dogs closely by their side. They kept Steve a few metres away from other dogs.[16]
· That there was a plan going forward to be cautious with Steve.[17]
[15]T526, L3-7
[16]T524, L22-31
[17]T523, L10-11
36I accept that, after the Spike incident, Mr Pergl and Ms Sarikizis were concerned about Steve’s behaviour. They were worried about the risk of further incidents. They would manage Steve when out walking.
Contact between the Spike incident and 29 November 2019
37Referring now to the contact between Ms Zycher and Abbie and Mr Pergl, Ms Sarikizis and Steve between April 2014 and November 2016.
38There was, in fact, very limited contact between them.
39Mr Pergl and Ms Sarikizis did, from time to time, see Abbie when they were out on the street walking their dogs. I accept Ms Sarikizis’ evidence that on such occasions, the dogs were kept apart. Between the Spike incident and 29 November 2016, Abbie had not been to the Pergl home with her dogs.[18]
[18]T324, L23-25
40As between Ms Zycher and Mr Pergl, Ms Sarikizis and Steve, there was only very limited contact, if any. Mr Pergl said that they met on the street once or twice only.[19] Ms Zycher could not recall seeing Mr Pergl, Ms Sarikizis and Steve out on the street, but conceded she may have said hello to them in passing. Certainly, she did not go to their home.[20]
[19]T359, L22-27
[20]T109, L15-19
41There was very limited contact between the parties, and, when there was, it was in very controlled circumstances. Mr Pergl and Ms Sarikizis ensured that was so.
The Abbie incident
42Moving now to the events of 29 November 2016.
43What occurred on this day is very important in the context of this case. While Steve had attacked another dog back on 28 April 2014, on this day he attacked a person.
44On 29 November 2016, Abbie attended the Pergl home at the request of Mr Pergl and Ms Sarikizis. She was there to discuss the possibility of housesitting for the Pergl family and looking after their two dogs while they were away on holidays in January 2017.
45Abbie was in the kitchen. She had been there about twenty minutes. She was standing next to the kitchen table. Ms Sarikizis was standing at the sink. She was preparing food. Mr Pergl said he and their two children were also in the kitchen.
46While Abbie was standing next to the kitchen table, Steve bit her left hand. Neither Mr Pergl nor Ms Sarikizis saw this occur. Abbie was very clear in her evidence. She said Steve, without cause or warning, bit her left hand (“the Abbie incident”). At this time, Abbie was aged nineteen years and three months.
47I accept that Steve’s attack on Abbie was unprovoked.
48As a result of the bite, Abbie suffered a puncture wound to her left hand.[21] She was taken by Ms Sarikizis to the St Kilda Superclinic. Ms Zycher met them there.
[21]Plaintiff’s Updated Court Book (“PCB”) 122
49At the St Kilda Superclinic the wound was cleaned and dressed. Abbie was prescribed antibiotics and had a tetanus booster. The wound had to be dressed again a few days later.[22] The wound subsequently healed without complication.
[22]PCB 122
50As a result of the Abbie incident, I find that Mr Pergl was on notice that Steve had a propensity to bite people. I accept this propensity can be properly framed as a “mischievous or dangerous propensity”.
51The circumstance of Steve biting Abbie was of concern to Mr Pergl and Ms Sarikizis. Rightly so.
52Mr Pergl and Ms Sarikizis turned their minds to the consequences flowing from Steve biting Abbie. Mr Pergl and Ms Sarikizis agreed that they should manage Steve.[23]
[23]T529, L23-25 and T530, L17-20
53Dealing firstly with Mr Pergl’s response.
54Mr Pergl said that he considered Steve biting Abbie as being “an aberration”. He said, in response to questioning by Mr Johnstone:
Q:“…Mr Pergl, following the incident in November 2015 involving Abbie, did you have concern that directed you to seek advice from anybody who might know about greyhounds or veterinary science?---
A:No. We, not being an expert in dog psychology, but we thought that it might – it was an aberration and maybe related to the initial fight between Spike and Steve and that it was somehow connected with that, that maybe Steve smelt Spike on Abbie’s hand and that caused him to react the way he did. Given that he had not reacted and did not react with other people or dogs then we felt that that was some aberration and we didn’t need to take further steps.”[24]
[24]T371, L29 – T372, L9
55Mr Pergl, under cross-examination, said that:
· He formed the view that Steve must have smelt Spike’s scent on Abbie’s hand, and he thought that was the reason why Steve bit her.[25]
· Having assumed that there was a causal link between the Spike incident and the Abbie incident, he did not think he had any conversation with Ms Zycher warning her of a potential problem.[26]
· He agreed that he should have contacted Abbie and told her that he suspected there was a problem between Steve and Spike. He said he could not recall whether he contacted Abbie or not.[27] (It was not put to Abbie that he had).
· Notwithstanding Steve had bitten Abbie, he did not modify his management of Steve any further when out on walks. He said he did not want to hold Steve back anymore.[28] He said that he and Ms Sarikizis did not feel this was necessary.[29]
· He did not seek any guidance about Steve’s behaviour after the Abbie incident.[30] He did not:
§Send Steve off for further training.[31]
§Seek advice from a veterinarian about Steve’s behaviour.[32]
§Contact the GAP to discuss either the Spike incident or the Abbie incident.[33]
§Seek any guidance from a dog trainer or any appropriate expert about Steve’s behaviour.[34]
[25]T415, L10-12
[26]T425, L3-6
[27]T416, L12-14
[28]T423, L3-6
[29]T423, L7
[30]T415, L14-15
[31]T423, L30
[32]T423, L31 – T424, L1
[33]T463, L31 – T464, L5
[34]T415, L14-15
56In summary, Mr Pergl formed the view that the Abbie incident was an aberration. Further, while he formed the view that Steve’s behaviour at the time of the Abbie incident was related to the Spike incident, he did not provide any warning to Ms Zycher or Abbie.[35]
[35]T424, L3 – T425, L6
57Moving now to Ms Sarikizis’ response to the Abbie incident.
58She said, after the Abbie incident, that:
· They did not seek advice from either a veterinarian, the GAP or a dog psychologist.[36]
· Rather than seek professional help, she did her own research on the internet.[37]
· That she did discuss the “supervision arrangement” of Steve with Mr Pergl.[38]
· She thought they could manage the issues involving Steve themselves.[39]
· They were “cautious with Steve”.[40]
· Because of their concerns, they modified their management of Steve when they were out walking.[41]
· There was an agreement between herself and Mr Pergl that they would keep Steve away from people and dogs he did not know.[42]
· Steve did not know Ms Zycher.[43]
[36]T527, L6-7
[37]T529, L23 – T530, L7
[38] T529, L23-25
[39]T530, L6-7
[40] T530, L20
[41]T527, L13-22
[42]T530, L31 – T531, L2
[43]T531, L6
59Both Mr Pergl and Ms Sarikizis said that after the Abbie incident, they did not put a muzzle on Steve when they were out walking. They did not consider that was necessary.
What was Mr Pergl’s state of mind in respect to Steve as at January 2019?
60Referring now to Mr Pergl’s state of mind in respect to Steve as at 19 January 2019. He said:
Q:“And as at January 2019 you knew that if the plaintiff smelt like Spike she was at risk?---
A:Possibly, yes. I don’t know whether I continued to hold that view, but, yes.
Q:And that risk could have been mitigated by just keeping Steve well away from the plaintiff?---
A:Yes.
Q:And at no time have you communicated with the plaintiff and told her, ‘Hey, Steve has a problem with you’?---
A:No, I don’t recall, no, I don’t think we did.”[44]
[44]T426, L24-31
61Mr Pergl agreed that as at January 2019, Steve was potentially dangerous to any person who smelt like Spike.[45] This clearly included Ms Zycher.
[45]T427, L9-11
62It was in the context of this knowledge that the events of 19 January 2019 unfolded.
Events of 19 January 2019 – the incident
63There were three people present in Tennyson Avenue when the incident occurred. There are three different versions of what happened.
Ms Rosalie Zycher
64Ms Zycher said that after she crossed Tennyson Avenue she stopped, and was standing on the grass nature strip adjacent to the footpath. She said she was in the vicinity of 17 Tennyson Avenue. She said Mr Pergl, Ms Sarikizis and their two dogs, who were all on the footpath, had stopped before she crossed the road.
65A diagram of Ms Zycher’s version of where the parties were prior to the incident is set out in exhibit D. Ms Zycher said Ms Sarikizis was standing on the footpath to the northwest of her; that is, to her right. She said Kiera was on her left. She said Mr Pergl and Steve were some distance to her right in a northerly direction. She said Mr Pergl was about 3 to 4 metres away from her.[46] She said, at this time, Steve was with him and not in her immediate proximity.
[46]T115, L27 – T116, L9
66Ms Zycher said that she engaged in conversation with Ms Sarikizis. She said that as she was talking to Ms Sarikizis she sensed something. She said she looked down to see Steve. She said in that instant Steve grabbed her hand in his jaws and bit, and then bit harder. She described unbelievable pain. She described Ms Sarikizis screaming at Mr Pergl. She said Ms Sarikizis was hysterical. She said Ms Sarikizis had screamed at Mr Pergl, “you were supposed to hold him back”.[47]
[47]T46, L24-25
67Ms Zycher said, after the incident, Mr Pergl told her, “he must have smelt your dog on you”.[48]
[48]T47, L1-3
68Ms Zycher said that she did have, prior to the incident, concern about Steve, given the Abbie incident. However, she said Mr Pergl had been stationary behind Ms Sarikizis, north of where she was standing. She said Steve was some distance from her and under the care and control of Mr Pergl. She said she trusted Mr Pergl to control Steve. Ms Zycher said that if Mr Pergl had held Steve and ensured that Steve had stayed where they were positioned when she commenced talking to Ms Sarikizis, then there was no risk to her. She said that she was not at risk unless Mr Pergl made it a risk by allowing Steve to approach her.[49]
[49]See the evidence of Ms Zycher at T117, L23 – T118, L28
Mr James Pergl
69Mr Pergl said, as he and Ms Sarikizis walked along Tennyson Avenue, they were walking in single file. He was walking Steve. Ms Sarikizis, who was in front of him, was walking Kiera. He said that they stopped outside 21 Tennyson Avenue, where there were a number of quite large trees in the nature strip. He said Ms Zycher crossed the road and walked towards them. Mr Pergl said, at this time, Ms Sarikizis was in front of him on the footpath. He said that he was “slightly back”.[50] He had Steve with him. They were hemmed in by the trees on the nature strip. He said that Ms Zycher was further down the footpath in a southerly direction. He said he would have liked to have been closer to Ms Zycher, but he could not be because of the trees in the nature strip, and that Ms Sarikizis was in front of him, and between him and Ms Zycher.[51]
[50]T376, L29-30
[51]T386, L1-9
70Mr Pergl said that Ms Zycher and Ms Sarikizis engaged in conversation. He said, at the time of, and for some time leading up to Steve biting Ms Zycher, she was looking Ms Sarikizis in the eye. He said that while Ms Zycher still had eye contact with Ms Sarikizis, she reached out with her right hand for Steve.[52] He said that Ms Zycher patted Steve, then patted Kiera, then patted Steve again. It was at that time, he said, that Steve bit Ms Zycher. Mr Pergl’s diagram of where the parties were standing is exhibit 18.
[52]T365, L14-22
71Mr Pergl agreed that he had, prior to the time of the attack, the management and control of Steve. He said he had Steve on a lead.[53] Mr Pergl said that he did not recall Ms Sarikizis saying to him, after the incident, that he should have kept Steve back. In fact, he denied this. He said, at that time, he was in a state of shock. Mr Pergl said that Ms Zycher had said to both he and Ms Sarikizis that “it’s okay, it is not your fault”.[54]
[53]T364, L28-29
[54]T367, L15-16
Ms Despina Sarikizis
72Ms Sarikizis said that she had been walking in a southerly direction in Tennyson Avenue prior to seeing Ms Zycher. She had Kiera on a lead. She said Mr Pergl was behind her. He was walking Steve on a lead. She said that they stopped as Ms Zycher crossed the road and walked towards them.
73Ms Sarikizis said they were all on the footpath in the vicinity of 21 Tennyson Avenue. She said that Ms Zycher was in front of her, being further south on the footpath. She said Mr Pergl was standing behind her; that is, to the north. Ms Sarikizis said that, while she knew Mr Pergl was behind her, she did not know how close he was. She said Kiera was to Ms Zycher’s left, and Steve was to her right. Ms Sarikizis’ diagram of where the parties were located is exhibit 20.
74Ms Sarikizis agreed that prior to the incident, she and Ms Zycher were engaged in conversation. She said she and Ms Zycher maintained eye contact. She said Ms Zycher patted Kiera. She said Ms Zycher then “leaned over” Kiera and patted Steve. It was then Steve took two bites of Ms Zycher’s arm. Ms Sarikizis said she was in shock. She said she was absolutely frozen and could not talk. Ms Sarikizis said she could not remember saying to Mr Pergl he should have kept Steve back.[55]
[55]T515, L25-29
75Ms Sarikizis said, when the conversation with Ms Zycher started, Steve was “a little bit behind” her.[56] She also said Mr Pergl was not engaged in the conversation with Ms Zycher.[57]
[56]T535, L3-4
[57]T534, L21
Conclusions in respect to the incident
76There are discrepancies between the versions of events given by each of the people who were present. Before completing my analysis of the incident, I will make observations in respect to each of these witnesses.
77I considered Ms Zycher gave her evidence in a forthright manner. She was consistent in her version of events. Her credit was well tested by Mr Pergl’s counsel. I found her evidence persuasive. I do not consider her credit in respect to the incident was impugned.
78Having observed Mr Pergl in the witness box, I felt that he was being protective of Steve, who was obviously much loved by the Pergl family. I consider he was defensive in his evidence. I consider that he reconstructed matters in a manner favourable to his position. Ms Sarikizis was much more forthcoming when giving evidence about the management of Steve after the Abbie incident.
79For example:
(a) His Answers to Interrogatories. Mr Pergl, in his answers in respect to the Abbie incident, attributed fault to Abbie. However, in his oral evidence, he conceded that Steve biting Abbie was an unprovoked attack;[58]
(b) That in the Moorabbin Magistrates’ Court on 28 June 2019, Mr Pergl pleaded guilty to failing to restrain a dog to prevent it attacking a person.[59] However, during this hearing, Mr Pergl:
(i)denied that he had failed to properly restrain Steve; and
(ii)sought to attribute the blame for the attack to Ms Zycher;
[58]T414, L27 – T415, L7
[59] PCB 36-37
(c) During the hearing, Mr Pergl said he was a participant in the conversation between Ms Sarikizis and Ms Zycher. Both Ms Sarikizis and Ms Zycher said that he was not;
(d) Mr Pergl said he did not change his management of Steve after the Abbie incident. That can be contrasted to the evidence of Ms Sarikizis, who said they did.
80I will come back to Mr Pergl’s evidence.
81Referring now to Ms Sarikizis’ evidence.
82Ms Sarikizis said, because of the incident, she was in a state of shock. Ms Zycher said that she was hysterical. At times, when giving evidence, Ms Sarikizis became quite distressed, notwithstanding three-and-a-half years had elapsed since the incident. Ms Sarikizis was obviously very affected by what occurred on 19 January 2019. She was clearly troubled by the circumstances of Steve biting Ms Zycher. I consider Ms Sarikizis’ distress impacted upon her recollection and description of events.
83Ms Sarikizis said she could not recall saying to Mr Pergl, after the incident, words to the effect “you were meant to hold him back”. Mr Pergl denied that she did. Ms Zycher was adamant that she did.
84I accept Ms Zycher’s evidence that Ms Sarikizis did in fact use words to the effect “you were meant to hold him back”. Such a comment by Ms Sarikizis was consistent with her evidence that, after the Abbie incident, there was an agreed strategy to manage Steve when out walking; that is, to hold Steve back from strangers. Such a comment by Ms Sarikizis at the time of the incident was consistent with the strategy she said existed, and the failure by Mr Pergl to adhere to it.
85Referring back to Mr Pergl’s evidence. As noted, Ms Zycher said that Ms Sarikizis became hysterical and was screaming at Mr Pergl when she said, “you were meant to hold him back”. When this was put to Mr Pergl, he responded by saying “I don’t think Despina screams at all”.[60] That answer was unconvincing and lacking credibility. I formed the view that Mr Pergl deliberately downplayed his wife’s response to the incident. It was consistent with the general tenor of his evidence.
[60]T437, L2-11
86Moving back to the incident itself, I do not consider the precise location where the incident occurred to be the key issue; that is, whether it occurred outside 17 or 21 Tennyson Avenue. What is important, is the relevant positioning of the parties and Mr Pergl’s management and control of Steve.
87I accept that, when the conversation between Ms Zycher and Ms Sarikizis commenced:
(a) Ms Zycher was standing in a location south of Ms Sarikizis; and
(b) Mr Pergl was standing in a location north of Ms Sarikizis.
88This configuration, by necessity, put Mr Pergl a distance away from Ms Zycher; that is, they could not have been and, indeed, were not, in immediate proximity of each other. I accept Ms Zycher’s evidence that they were at least 3 metres apart. At that time, Steve was on a lead held by Mr Pergl and under his management and control.
89I accept that in the moments prior to, and at the time of, the incident, Ms Zycher and Ms Sarikizis were engaged in conversation and, importantly, they maintained eye contact.
90A real conflict in the evidence was the contention by Mr Pergl that Ms Zycher had, immediately prior to the incident, patted both dogs.
91There are three different versions.
92Ms Zycher said she did not pat either dog.
93Ms Sarikizis said that Ms Zycher firstly patted Kiera and then “leaned over Ki[e]ra” and patted Steve.[61] It was then that Steve bit her. I note this evidence is contradictory to Ms Sarikizis’ diagram of where the parties were positioned at the time of the incident. Based on the diagram which Ms Sarikizis said was correct, her description of Ms Zycher leaning over Keira to pat Steve must be incorrect. This impacts on the reliability of her recollection of events and the weight of her evidence.
[61]T511, L14-15
94Mr Pergl said that Ms Zycher firstly patted Steve, then patted Kiera, and then returned to pat Steve again. It was then that Steve bit her. This version is at odds with both Ms Sarikizis’ version and Ms Zycher’s denial.
95I do not accept that Ms Zycher patted Steve. She was aware that Steve had bitten Abbie. She was concerned about Steve’s behaviour. I do not accept that she did act in this manner.
96Having considered all the evidence and assessed the witnesses while giving evidence, I accept:
(a) That at the time the conversation commenced between Ms Zycher and Ms Sarikizis, Steve was some distance away; that is, neither Mr Pergl, nor Steve were in the immediate proximity of Ms Zycher. Importantly, Steve was not in “striking distance”;
(b) Steve was under the management and control of Mr Pergl. Ms Zycher trusted Mr Pergl to manage Steve. I do not consider this to be unreasonable. Ms Zycher said she was not at risk unless Mr Pergl made it a risk. I accept that to be so;
(c) That by reason of Steve’s behaviour prior to 19 January 2019, Mr Pergl and Ms Sarikizis had agreed that, when encountering strangers while out on their walks, Steve was to be held back, and care would be exercised. Ms Zycher was a stranger to Steve;
(d) That prior to 19 January 2019, Mr Pergl had considered Steve may attack persons who smelt of Spike. He considered that to be a risk. He knew Ms Zycher was a person who may smell of Spike. In those circumstances, Steve was potentially dangerous;[62]
(e) At some time while Ms Zycher and Ms Sarikizis were engaged in conversation, and while Steve was under the management and control of Mr Pergl, he allowed Steve to approach Ms Zycher;
(f) While Ms Zycher was engaged in conversation with Ms Sarikizis, and, importantly, maintaining eye contact with her, she sensed Steve’s presence. She did not pat Steve. It was within moments of her sensing Steve’s presence that he bit her;
(g) That after the incident, Ms Sarikizis did say to Mr Pergl words to the effect “you were supposed to hold him back”. That is consistent with the agreement which they had reached in respect to the management of Steve.
[62] T427, L9-11
Does the Plaintiff establish breach by Mr Pergl?
Scienter
97The first ground of Ms Zycher’s allegations of breach by Mr Pergl is based on the principle of scienter.
98The principle of scienter provides that a person will be held strictly liable for the damage caused by an animal if that animal is known by the owner, or presumed by law to be, dangerous.[63]
[63]See for example Jolly v Kondos [2021] VCC 1397, the discussion at paragraphs [103]-[107]; Romano v Spagnol [1994] NSWCA 271 and the discussion by Adam J in Trethowan v Capron [1961] VR 460
99There is a distinction at law between inherently dangerous animals (for example lions) and an animal considered to be harmless in nature, such as a domestic dog.
100For scienter to apply to a domestic dog, as alleged in this case, the owner must have knowledge of the dog’s mischievous or dangerous propensity.[64]
[64]Trethowan v Capron (ibid) (per Adam J)
101I accept that Steve had, prior to the incident, displayed a mischievous or dangerous propensity. He had bitten Abbie.
102If Mr Pergl’s analysis be correct, Steve had a propensity to bite any person who may have smelt of Spike. As conceded by Mr Pergl, this included Ms Zycher.
103A single prior incident is sufficient to demonstrate a mischievous or dangerous propensity.[65]
[65]See Gladman v Johnson [1876] 36 LJ CP 153
104I conclude that, on 19 January 2019, Mr Pergl was aware of Steve’s propensity for mischievous or dangerous behaviour of the type which occurred.
105I do not accept the effluxion of time between the Abbie incident and 19 January 2019 absolved Mr Pergl of that knowledge and the responsibilities that went with it. In fact, on Mr Pergl’s evidence he continued – rightly – to be conscious of Steve’s potential to be mischievous or dangerous after the Abbie incident. Bearing in mind that scienter is a strict liability principle, Mr Pergl cannot “have it both ways” and say, on the one hand scienter does not apply because Steve did not have a mischievous or dangerous propensity, but, on the other hand, say that because Steve had previously bitten Abbie, he was conscious of how he managed the dog.
106In the circumstances, I find that the principles of scienter do apply. I find that Ms Zycher has established liability against Mr Pergl based on the principles of scienter.
Negligence
107The second ground of Ms Zycher’s case against Mr Pergl is based on negligence. While I have found in favour of Ms Zycher based on scienter, I will, for completeness, set out my findings in respect to the negligence allegations.
108Mr Pergl did owe Ms Zycher a duty of care. He had to exercise reasonable care in his management and control of Steve to ensure that Steve did not cause Ms Zycher a reasonably foreseeable injury.
109My starting point is the GAP. Mr Pergl was aware that Steve displayed some aggressive tendencies during this program. However, Steve passed the program. While I do not accept the observations of aggression in the course of this program as being conclusive of his disposition, those observations should have been a red flag.
110Moving, then, to the Spike incident.
111While this did not involve an attack on a person, Spike did suffer quite severe injuries, and this incident could not be ignored by Mr Pergl. Indeed, it was not. As conceded by both Mr Pergl and Ms Sarikizis, this incident was a real concern to them. As a responsible dog owner, Mr Pergl had an obligation to take heed of this attack. The Spike incident was certainly a red flag.
112That then takes me to the Abbie incident. This was an attack on a person. This is a matter of real concern for any responsible dog owner. The Abbie incident went beyond a red flag.
113In response to the Spike incident and/or the Abbie incident, Mr Pergl did not seek advice from:
(a) the GAP;
(b) a veterinarian;
(c) a dog trainer;
(d) a dog psychologist;
(e) any other relevant expert.
114I consider the failure to seek professional advice in circumstances where Steve, in an unprovoked attack, had bitten Abbie, as falling below the standard of what a reasonable dog owner would do.
115Rather, Mr Pergl and Ms Sarikizis thought they could manage Steve’s aggressive behaviour themselves.
116Mr Pergl did not consider it necessary to have a muzzle fitted to Steve when out walking. Ms Zycher said a muzzle could be purchased for approximately $10.[66]
[66] T49, L29
117Mr Pergl conceded that, after the Abbie incident, he considered Steve to be a risk. He said, when out on walks, he held Steve back from people and dogs. He was concerned about strangers. He was also concerned about anybody who may smell of Spike. He conceded that Ms Zycher was both a stranger to Steve and someone who would smell of Spike. It was in this context, on 19 January 2019, Mr Pergl was exercising the management and control of Steve in the vicinity of Ms Zycher.
118I accept Ms Zycher’s evidence that when she engaged in the discussion with Ms Sarikizis, Steve was some distance away from her. I accept that to have been at least 3 metres. I accept Ms Zycher was wary of Steve and assessed the risk. She formed a view, which I do not consider to be unreasonable, that she was in a safe position. She trusted Mr Pergl to manage Steve. Again, I do not consider this to be unreasonable.
119I accept, had Mr Pergl exercised reasonable management and control of Steve, and restrained him from approaching Ms Zycher, then Steve could not have bitten her. This, in circumstances where Steve was not wearing a muzzle.
120I find that Mr Pergl failed in his duty to manage and control Steve.
121Mr Pergl said that it was not reasonably foreseeable Steve would bite Ms Zycher. He said Steve had not bitten anyone since the Abbie incident and he had no reason to believe Steve would bite Ms Zycher. In support of this, he relied upon both the effluxion of time since the Abbie incident and Steve’s behaviour in the interim. I reject Mr Pergl’s proposition. It is contrary to both his and Ms Sarikizis’ evidence. Mr Pergl conceded that he had formed the view that care had to be exercised when walking Steve. He accepted he was a risk. Mr Pergl said he was concerned about Steve’s behaviour with both strangers and anyone who may smell of Spike. I find Mr Pergl was aware of the risk Steve posed to Ms Zycher. I accept he was meant to hold Steve back because of this risk. He did not. Steve was not wearing a muzzle. As a result, Ms Zycher was at risk Steve would bite her. Steve did.
122I accept that, in all the circumstances, it was reasonably foreseeable Steve may bite people, in this instance, Ms Zycher. Certainly, it was not far-fetched, nor fanciful, as suggested by Mr Pergl.
Mr Pergl’s Defences
123Mr Pergl said that, in the circumstances of this case, he was entitled to rely upon the defences of:
(a) obvious risk;
(b) volenti;
(c) contributory negligence.
124Ms Zycher said that, in the circumstances, the defences relied upon by Mr Pergl cannot be maintained. Further, she said that should I find in her favour, based on scienter, that these defences were not available to Mr Pergl.
Obvious risk
125Mr Pergl relied upon the operation of s53 of the Wrongs Act 1958. He said Ms Zycher knew of the obvious risk posed by Steve on 19 January 2019 and, despite this, she approached him. Mr Pergl said she should not have done so, and, by reason of her actions, her case must fail.
126I do not accept this submission made by Mr Pergl. True, it is, that Ms Zycher was concerned about Steve. She said so. She was well aware he had bitten Abbie. However, as set out earlier in this judgment, I accept that:
· When Ms Zycher and Ms Sarikizis engaged in discussion, Mr Pergl and Steve were a distance away. By this, I accept a safe distance such that Steve, if managed properly and kept restrained, posed no risk.
· While Ms Zycher and Ms Sarikizis were engaged in discussion and maintaining eye contact, Mr Pergl allowed Steve to approach Ms Zycher and enter into close proximity to her.
· The first time Ms Zycher became conscious of Steve’s presence was in the moment before he bit her.
· Ms Zycher had assessed Steve’s whereabouts and concluded that she was, as matters stood, in a safe position. I accept that was reasonable. The risk of Steve biting Ms Zycher was only a risk if Mr Pergl made it a risk by his management and control of Steve.
127I do not accept that Ms Zycher had “approached Steve” and patted him. I do not accept that she had, as asserted by Mr Pergl, accepted an obvious risk.
Volenti
128Mr Pergl relied upon s54 of the Wrongs Act. He said Ms Zycher was aware of the precise risk which Steve represented to her and she freely accepted that risk. He said this was a complete defence to Ms Zycher’s claim.
129For the reasons set out in the preceding paragraphs, I do not accept that Ms Zycher voluntarily assumed the risk posed by Steve.
Contributory negligence
130Mr Pergl said it was Ms Zycher’s own actions and knowledge that contributed to the incident. He said s62 of the Wrongs Act applied. Mr Pergl said, by reason of her own failure to take reasonable care for her own safety that:
(a) her case should fail completely; and
(b) any damages awarded to her should be reduced by reason of her share in the responsibility for the damage suffered.
131I do not accept, on the facts of this case as I have found them, that Ms Zycher was contributorily negligent. I note my findings of fact previously set out in this judgment. While I do not want to be repetitive, it is relevant to note that I accept:
· Ms Zycher, being aware that Steve may be a risk, was conscious of where he was when she commenced her discussion with Ms Sarikizis.
· Ms Zycher believed that Mr Pergl had Steve under control and restrained by use of the lead.
· Ms Zycher engaged in conversation with Ms Sarikizis. Mr Pergl was not involved in that conversation. Indeed, he remained a distance behind Ms Sarikizis.
· It was Mr Pergl who allowed Steve to approach Ms Zycher and enter into close proximity such that he could bite her.
· Ms Zycher was not aware of Steve being in her proximity until the moments prior to the attack. It was then too late.
132I reject Mr Pergl’s arguments that he has a complete defence to Ms Zycher’s claim by reason of contributory negligence. Further, I do not find, on the facts as I have found them, that there should be a reduction of any damages to which Ms Zycher may be entitled by reason of negligence on her behalf. I consider, in the circumstances, her behaviour to have been reasonable.
The principles of scienter and the defences pleaded
133Ms Zycher said that the defences pleaded by Mr Pergl did not apply where there was a finding of scienter. Mr Pergl said they did. Given my findings of fact and the conclusions which I have reached, I am not called upon to decide such matters.
What are the pain and suffering consequences to Ms Zycher?
Ms Zycher’s evidence
134At the time of the incident, Ms Zycher was aged sixty-nine years. She is now seventy-two years of age. Ms Zycher was born in Poland. Many family members perished in the Holocaust. She has a sister, Augustine Zycher (“Augustine”), who also lives in Melbourne.
135Twenty-four years ago, Ms Zycher adopted her daughter, Abbie, from the Ukraine.
136Ms Zycher has never married.
137Ms Zycher came to Australia at a young age. She completed her schooling and then obtained an Arts Degree. She undertook a Master of Arts while studying in Israel. She had a career working in theatre and opera. She worked in various overseas countries. In later years, she ran a training business with her sister, Augustine. They conducted their business throughout Australia. She had retired prior to the incident.
138Prior to the incident, Ms Zycher had an active social and recreational life. She was a regular theatre goer. She swam at the Harold Holt Pool. She loved galleries, museums and socialising with friends. She also enjoyed cooking, reading and gardening. She still ran regularly. She had a passion for travel. Indeed, over the years, she had travelled to many countries. She gained great pleasure from her overseas trips. She also helped Augustine in her business.
139It was very clear to me that, prior to the incident, Ms Zycher lived a fulsome life and was a person who gained great pleasure from a wide range of activities.
140Ms Zycher said that, when Steve bit her hand and wrist, the pain was “unbelievable”. It was like a truck had run over her. She said she was in “absolute agony”. She said she had never suffered pain like that before in her life.[67]
[67]See T46, L15-22
141After the incident, Ms Zycher walked to the clinic of her general practitioner, Dr Cohen. Dr Cohen cleaned and bandaged the wounds and told her that she must go to The Alfred hospital Accident and Emergency Department. Ms Zycher organised a taxi to take her to The Alfred hospital. She described being in terrible pain during that taxi ride.
142At The Alfred hospital, her wounds were cleaned and dressed. She was prescribed antibiotics and painkillers (including Endone). She was sent home.
143On 21 January 2019, Ms Zycher noticed red swelling on her right arm. It extended from the base of her fingers to her elbow. She re-attended The Alfred hospital. She was assessed at Accident and Emergency. Plastic surgeons were consulted. She was admitted to the hospital and told that she needed to undergo emergency surgery. She was operated on that night at about 11.00pm.
144The next morning, Ms Zycher was advised that the injuries were worse than had been anticipated and that she had to undergo further surgery later that day. Ms Zycher explained that, at the time of the second surgery, a lot of tissue had to be debrided from the wounds. She said her arm was very swollen. Photographs taken 22 January 2019[68] showed the nature and extent of the wounds and swelling. They were extensive. Ms Zycher had clearly sustained a very nasty injury.
[68]Exhibit E
145Ms Zycher remained in The Alfred hospital for five days. She said she was in great pain during this admission. She was on IV antibiotics. She had difficulty sleeping.
146After her discharge and return home, Ms Zycher had care from the Royal District Nursing Service. Initially they were coming to her home every day. The nurses had to repack the wound and apply new dressings. Ms Zycher had to purchase the dressings and medications. She described being in a lot of pain at this time. She was unable to care for herself. She was reliant upon Augustine and Abbie for day-to-day needs.
147Ms Zycher continued to suffer a lot of pain and was very disabled for several months after the incident. She continued to rely upon Augustine and Abbie. They had to cook, clean, wash, shop and generally provide for her.
148Ms Zycher explained that, after many months, the acute symptoms moderated to a degree. However, she said that she has been left with ongoing pain and restriction in her hand and wrist. She said, currently, there were times when she had terrible pain in her hand and wrist and that she intermittently suffered shooting pain which went up her arm. She said on a good day, her pain was 3‑4/10. On a bad day, the pain was 9/10 and it stopped her using her right hand. Ms Zycher is right-hand dominant.
149Ms Zycher explained that the more she tries to use her right hand, the more pain she suffers. Put simply, she said she “pays the price” of using her right hand. She said she continues to be reliant on painkilling medication. She uses Ibuprofen and Panadol. This costs her in the vicinity of $5 to $7 per week.
150There continues to be obvious scarring around the right wrist and hand. She said that she considered this to be “ugly”. She said it was a constant reminder to her of the incident.
151Ms Zycher explained that, by reason of the circumstances of the incident itself, her pain and her ongoing restriction, she developed psychological distress. She said her psychological distress has been ongoing and continues to this day. She explained that she had become very anxious, fearful and depressed, and had feelings of worthlessness. She said that, at times, she felt so tense it felt like she was going to burst. While she said she gained some benefit in talking to her psychologist, she said those symptoms were ongoing. She said these symptoms impacted on her social life, her recreational activities such as going to the theatre or the movies, and her general day-to-day life. She said she lives with constant fear and anxiety, and feelings of hopelessness and depression.
152Ms Zycher explained that Dr Cohen had referred her for psychological assessment and treatment. She initially saw Dr Heather McCormack. She then saw Ms Leonie Hehir. There was a period of overlap. She continues to consult Ms Hehir. These visits cost her $88 per visit.
153By reason of her hand and wrist injury, she said that she has many limitations around the house. Things such as doing the laundry, lifting heavy items, putting sheets on a bed, gardening, cooking, doing the dishes and shopping, are all impacted. She said that she needed three to four hours’ help a day. This was challenged by Mr Pergl as being excessive.
154Ms Zycher’s credit was challenged by Mr Pergl. For example he referenced Ms Zycher setting up a business “Rosie’s Bagels” and submitted this was evidence that she had a greater capacity than she was prepared to admit.
155I did not accept the submission that Ms Zycher’s credit was impugned. Ms Zycher has clearly tried to do things and improve her level of function. I accept this is consistent with her personality and the encouragement provided by Augustine. Indeed, I would have been surprised if she had not endeavoured to test the boundaries of her injuries.
156Ms Zycher said she no longer went swimming because of her hand/wrist injury. She said she was still able to go running. Indeed, running helped her psychological state. She said she no longer enjoyed travel as she had. Augustine had taken her overseas to Morocco. She said, previously, she “absolutely loved” overseas travel. She said that she “hated” the trip to Morocco.
157The dog bite wounds have left permanent scarring. This is clearly apparent. Ms Zycher said that she considered the scarring to be ugly and it was a constant reminder of what had happened.
158I accept Ms Zycher’s evidence in respect to the nature and extent of her injuries. I accept that she requires ongoing services.
Augustine Zycher
159Augustine gave evidence in respect to the impact which the injuries had on Ms Zycher. She described Ms Zycher prior to the incident as being a person who had a love and passion for life, who was highly skilled and highly talented and was a joy to be with. She said she was a woman of integrity and was an outgoing, joyous, happy, confident and creative person. I accept that to be so.
160On 21 January 2019, Augustine took Ms Zycher to The Alfred hospital. She described the severe pain and distress Ms Zycher was suffering at that time. She said that after Ms Zycher was discharged from hospital, she continued to be in a lot of pain, and she was “helpless”. She explained her role in providing care for Ms Zycher. It was clear that she and Abbie, in the months after the incident, provided extensive care to Ms Zycher.
161As the years have progressed, Augustine has continued to provide care and support to Ms Zycher. She said that involved “most of the practical stuff of maintaining a house”. She said that over the years she had encouraged and indeed pushed Ms Zycher to undertake activities and become more active. For example cooking. She explained that Ms Zycher had previously been a wonderful cook. She said that Ms Zycher is now restricted in what activities she can undertake in the kitchen. Indeed, she said that those restrictions were not just limited to the kitchen but involved a wide range of day-to-day activities. This included cleaning the house, doing the laundry, shopping and the like. She said that she provided 15 to 20 hours per week of care and support to Ms Zycher.
162Augustine described the impact which Ms Zycher’s injuries had upon her social life and recreational interests. She said that Ms Zycher would not go to the theatre and opera as she had previously enjoyed. She said Ms Zycher basically stays at home.
163Augustine said that Ms Zycher had previously been a voracious reader. She said this, too, had been impacted.
164Prior to the incident, Augustine said that Ms Zycher had enjoyed overseas travel. She described taking Ms Zycher to Morocco after the incident. She said that this trip was “awful”.
165The psychological distress suffered by Ms Zycher was a real concern to Augustine. She said that prior to the incident, Ms Zycher was even-tempered and had a pleasant personality. Now, she said Ms Zycher was extremely anxious, extremely nervous, fearful and would just erupt in anger. Augustine described how Ms Zycher’s personality had changed.
166The setting up of the business Rosie’s Bagels was Augustine’s idea. She explained that she hoped that Ms Zycher’s involvement in this project would stop her “shrinking and fading away”. She said that this venture turned out to be a disaster.
167Augustine’s evidence was well tested by Mr Pergl. Mr Pergl suggested to Augustine that Ms Zycher’s level of activity was greater than both she and Ms Zycher were prepared to concede. Augustine rejected these propositions. I found Augustine’s response to these attacks to be considered and genuine.
168Augustine was an impressive witness, who gave evidence in a considered and clear manner. I accept her evidence.
Abigail Zycher
169Whilst Abbie primarily gave evidence in respect to matters touching upon liability, she did describe her mother both pre and post the incident. Abbie said that prior to the incident, her mother was a go getter. She was in an incredible woman. She explained that since the incident, she does not socialise with her friends anymore, she does not participate in all the recreational activities like she used to and that she “just stays home”. She said her mother was “a lot more down”.
The medical evidence
170Ms Zycher tendered medical reports from:
(a) Dr Albert Kaplan, psychiatrist;
(b) Dr Susan Cohen; general practitioner;
(c) Dr Heather McCormack, psychologist;
(d) Dr John Buntine, plastic surgeon;
(e) Ms Leonie Hehir, psychologist.
171Only Dr Kaplan was called to give oral evidence.
172Mr Pergl tendered the Medical Panel determination and Reasons for Opinion.
Dr Cohen
173Dr Cohen saw Ms Zycher on 19 January 2019 approximately 30 minutes after the incident. She provided her with temporary dressing and referred her to The Alfred hospital. She explained that two days later, Ms Zycher developed cellulitis and had to be admitted to The Alfred hospital. She said she underwent two surgical procedures. She described two of the wounds suffered by Ms Zycher as being “very deep”. One into the wrist joint. The other down into the ulnar neurovascular bundle. Dr Cohen described the course of treatment which Ms Zycher received. This was consistent with what Ms Zycher told the Court. In her report dated 16 June 2022, Dr Cohen concluded:
“The injuries sustained are consistent with the stated cause.
The injuries have significantly impacted on Rosalie’s lifestyle: she developed symptoms of anxiety, depression and post traumatic stress disorder following the injury.
It is likely that Rosalie may need ongoing psychological therapy, the duration of which is uncertain.”[69]
[69]PCB 167
Dr Heather McCormack
174Dr McCormack first saw Ms Zycher on 5 August 2019. At that time, she noted Ms Zycher was “very tearful and distressed”. She said that Ms Zycher’s psychological distress was “very obvious during each of my appointments with her”. Dr McCormack considered Ms Zycher’s ongoing pain, limited movement in her right wrist and hand and the scarring all contributed to her distress. She said:
“… the psychological sequelae of this event have been significant. Mrs Zycher has lost confidence. She described herself as suddenly feeling ‘old’ and feeling like a ‘silly old woman’. She described times when she has broken down and felt absolutely out of control. These are unfamiliar experiences for Mrs Zycher. In addition Mrs Zycher described her anxiety as having ‘skyrocketed’ since the event. She also described significant depression symptoms, including depressed mood, loss of pleasure in day to day activities, loss of confidence, sleeping difficulties, difficulties making decisions, agitation, irritability, fatigue, loss of appetite and poor concentration.”[70]
[70]PCB 80 and 81
Ms Hehir
175Ms Hehir first saw Ms Zycher in September 2019. She diagnosed Ms Zycher with Post-traumatic Stress Disorder (“PTSD”), severe anxiety, insomnia and depressed mood. Ms Hehir noted that the psychological injury impacted on Ms Zycher’s independent living activities, her social life, and her capacity to go into public places. She noted Ms Zycher’s previous lifestyle had been significantly impacted. She said Ms Zycher required continued and intensive treatment.
Dr Buntine
176Dr Buntine assessed Ms Zycher’s physical injuries on 14 February 2020. He considered Ms Zycher had a permanent impairment to her wrist and hand. Dr Buntine noted Ms Zycher’s present complaints as being pain, weakness of grip, stiffness of the right wrist and the scarring. Dr Buntine considered Ms Zycher provided a consistent, detailed and accurate description of all matters. He concluded that her use of her right hand is limited. He said she continues to suffer some aching discomfort and hyperesthesia affecting the immediate vicinity of the dorsal and palmar scars. He noted that she had transient occurrence of severe pain. Dr Buntine said that the dog bite had significant permanent effects to Ms Zycher. He also said that her condition will slowly improve to a minor degree over a long period of time.
Dr Kaplan
177In addition to providing two medical reports, Dr Kaplan gave oral evidence. He said Ms Zycher would qualify for the diagnosis of PTSD. He said that she was also suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Overall, he felt that her prognosis was likely to be unfavourable.
178Dr Kaplan said that Ms Zycher required further and ongoing treatment. He said the outcome of this treatment was difficult to predict.
The Medical Panel
179Mr Pergl relied upon the Opinion of the Medical Panel, particularly in respect to Ms Zycher’s physical injury. The Medical Panel, under Physical Diagnosis, concluded:
“… that the claimant is suffering from mild residual dysfunction of right wrist and healed scarring at the right wrist/forearm secondary to traumatic puncture wounds complicated by the development of cellulitis.
The Panel considers the claimant’s condition has stabilised.”[71]
[71]PCB 72
180Mr Pergl challenged Ms Zycher’s evidence in respect to the alleged impaired movement of her wrist and hand. He said that her evidence was contrary to the Medical Panel finding.
181In respect to Ms Zycher’s psychiatric injury, the Medical Panel concluded:
“… that the claimant is suffering from post-traumatic stress disorder and major depressive disorder.”[72]
[72]PCB 75
Conclusions in respect to Ms Zycher’s evidence and the medical evidence
182I found the medical evidence to be generally consistent with Ms Zycher’s evidence. While Mr Pergl challenged the severity of the consequences claimed by her and raised inconsistencies in her evidence, such as the alleged limitation of movement of her wrist, I do not accept Ms Zycher’s evidence to have been impugned. Overall, I found her to be a credible witness when describing the consequences of her injuries.
183I was assisted in the evidence of Augustine. I found her to be an impressive and credible witness. Augustine’s evidence reinforced my assessment of Ms Zycher’s evidence.
184Overall, I accept Ms Zycher’s complaints of both physical pain and restriction and psychological distress. While her evidence was well tested by Mr Pergl’s counsel, I do not accept, as suggested, that she exaggerated.
What is a fair and reasonable quantum for Ms Zycher’s pain and suffering damages?
185Having considered all the evidence, I accept that Ms Zycher’s life and lifestyle have been very significantly impacted by her injuries. I accept that prior to the incident, she was living life to the full and enjoyed a wide range of activities. I accept that immediately after the incident, Ms Zycher suffered from very significant pain and restriction. Whilst her level of pain moderated over the months after the incident, I accept that she has been left with a permanently painful wrist and hand and a level of ongoing dysfunction. The scarring is obvious. I also accept that she has developed a significant psychiatric condition which is attributable to the incident and its consequences. I accept the psychological distress is ongoing.
186Ms Zycher has, for more than three-and-a-half years, suffered the pain, restriction and psychological distress flowing from the incident. While there may still be some modest improvement in those symptoms, I accept that she will endure consequences for the rest of her life. These consequences are, and will continue to be, significant.
187I assess her entitlement to pain and suffering damages in the sum of $200,000.
Medical expenses and Griffiths v Kerkemeyer[73] damages
[73] (1977) 139 CLR 161
188The parties provided me with a document headed “Agreed Schedule of Special Damages”. This document did not represent an “agreed” level of damages but rather a table setting out the quantum of damages which would be reasonable depending on my ultimate findings. I was assisted by this agreed schedule.
Past special damages
189I accept on the evidence that the items claimed by Ms Zycher were appropriate and reasonable. I allow $5,010 for past medical expenses.
Past Griffiths v Kerkemeyer damages
190I accept that Ms Zycher, for the period between 25 January 2019 (her discharge from hospital) to 31 March 2019, required very significant levels of care and support. I consider a reasonable allowance to be within the range of 4-6 hours per day. I allow $10,000 for this period.[74]
[74]Various damages figures have been rounded off in accordance with the principles set out in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
191For the period 1 April 2019 to the date of hearing, I consider a reasonable allowance to be in the range of 2-4 hours per day. I allow $100,000 for this period.
Future special damages
192I accept the evidence of Dr Kaplan in respect to Ms Zycher’s need for further psychological treatment. The need for ongoing psychological treatment was echoed by Ms Hehir. While Dr Kaplan said that the outcome of the suggested treatment regime was uncertain and, by inference, the plaintiff may ultimately require additional treatment, I consider that to be speculative. I accept Dr Kaplan’s evidence and adopt the assessment set out in the agreed schedule. I allow $3,696.
193The other item claimed by Ms Zycher was the ongoing cost of medication. I consider an allowance of $5 per week to be appropriate. I allow $3,014.
Future Griffiths v Kerkemeyer damages
194I accept Ms Zycher continues to have a range of limitations relevant to her injuries which necessitate the provision of services. I consider Dr Buntine’s evidence that there may be some improvement in the long term. I also consider that as the years progress, Ms Zycher, by reason of the aging process, may require a level of services regardless of the incident-related injuries. While I accept presently a reasonable allowance would be in the range of 2-4 hours per day, there should be a discount from the figures set out in the agreed schedule. I allow $125,000.
Conclusion
195For the reasons outlined in this judgment, I find that Ms Zycher sustained injury because of the breach by Mr Pergl. I find in her favour based on the principles of scienter. I also find that Mr Pergl had been negligent.
196For the reasons outlined, I do not accept that Mr Pergl can rely upon the defences pleaded.
197I assess the total damages in the sum of $446,720.
198There is no reduction for contributory negligence.
199I will hear the parties in respect of costs and generally.
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