Collins v Carey[2002] QSC 398

SUPREME COURT OF QUEENSLAND

[1] PHILIPPIDES J:  The plaintiff seeks damages for personal injuries sustained as a result of a dog bite injury, which occurred on 23 November 1995, whilst he was employed by the second defendant as a furniture removalist.  On the day in question, the plaintiff was engaged in removing furniture from the home of the first defendants, Mr and Mrs Carey, the owners of the dog in question.  The plaintiff’s claim against the first defendants is based on scienter and negligence.  The claim against the second defendant is framed in negligence, breach of contract and breach of statutory duty. 

[2] It is not disputed that the dog in question was owned by the first defendants, nor that the plaintiff was bitten by the dog at the home of the first defendants at 42 Alexander Avenue, Kallangur, Brisbane.

The Incident on 23 November 1995

[3] The first defendants engaged the second defendant to effect the transportation to Cairns of their personal belongings.  On 21 September 1995, a representative of the second defendant, Mr Bolton, attended the first defendants’ premises for the purpose of providing a quotation, which was accepted.   He also prepared a booking sheet, specifying items for removal, which noted “cubby house to go”.   Apparently, Mr Bolton’s practice was to note the presence of any dog that might cause difficulties to those undertaking the removal.  He did not make any notation under the heading “special instructions” on the booking form.

[4] On 22 November 1995, representatives of the second defendant attended the premises for about half a day in order to pack some of the first defendants’ belongings prior to the removalists undertaking the removal of the belongings the following day.  They also tagged several items in the backyard, including the cubbyhouse, which were to be removed.   During this period, the dog appears to have been present but unrestrained.

[5] At about 8 am on 23 November 1995, the plaintiff and two other employees of the second defendant, namely Keith Gifkins (who was in charge) and Brad Gambling, attended the first defendants’ house to effect the transportation. 

[6] Mr Carey met the removalists at the front of the house.  He gave evidence of a conversation, during which one of the three removalists, whom he could not identify, asked about the dog.  He said that they did not ask anything specific about the dog.  Mr Carey stated that he told them that he would chain the dog up “if it was a hassle”.  He explained that he then chained the dog up, because he did not want it to get in the removalists’ way or escape if a door were left open.  He also said that the second defendant had previously requested that the dog be chained up.  Mr Carey said that he chained the dog up with a standard 2 to 2½ metre chain.  He said that he told the three removalists he would chain it to the cubbyhouse, that he was going to collect a chainsaw and that they had no reason to go there until he returned with the chainsaw.  Mr Carey was intending to saw down the remaining upright poles.  He said that he chained the dog to the front left post of the cubbyhouse.  He said that he told them not to touch anything near the cubbyhouse as the dog was chained there.  There is some discrepancy in his versions as to exactly what he said.  However, I do not consider the discrepancies are such that any adverse inference should be made.  Mr Carey said that he then showed the three removalists through the house, and took them downstairs and into the backyard. 

[7] It was not disputed that, prior to the arrival of the second defendant’s employees on 23 November 1995, the cubbyhouse had been dismantled.  The first defendants’ evidence was that Mr Carey dismantled the cubbyhouse, carrying the dismantled items to the garage under the house.  All that remained of the cubbyhouse in the backyard were the five upright cemented poles[1] and the base of the cubbyhouse, which was too heavy to lift, but had been skull dragged a little way and left between the remaining upright poles.  There were some other tagged items in the backyard, but they were not in the vicinity of the cubbyhouse.

[8] The plaintiff’s evidence was that after arriving at the first defendants’ house, Mr Carey showed them through the house, the downstairs area and the yard, and told them to remove the cubbyhouse.  He did not recall seeing the dog during the initial tour of the premises, although he admitted that his recollection of the events leading up to the dog bite was hazy.   He said that he did not hear any conversation about a dog.  The plaintiff recalled that Mr Carey told the removalists that he had to get a chainsaw to cut the cemented poles of the cubbyhouse.  He recalled that the various pieces of the cubbyhouse were located altogether, near the upright poles of the cubbyhouse, and that there was a pile of dismantled logs on the ground.  He did not recall any part of the dismantled cubbyhouse being in the garage.

[9] He said that he and the other two removalists went to the front of the house to prepare the truck for loading.  He said that Mr Gifkins instructed him to start loading the dismantled cubbyhouse from the backyard first.  The plaintiff thought that he was the first of his colleagues to go to the backyard to collect the cubbyhouse.  The plaintiff’s evidence was that he went into the backyard and saw the dog tied to a bush about three feet from the cubbyhouse and that that was the first time he saw the dog.  The dog did not bark and was lying on the ground.  He walked over to the cubbyhouse, turned his back on the dog and bent down to pick up a dismantled piece of the cubby (consisting of loose pine logs).  The plaintiff said that it was then that the dog, who was behind him, bit him.  At this stage the plaintiff had been on the premises for some 15 minutes.  The plaintiff denies touching the dog prior to being bitten. 

[10] Mr Gifkins’ evidence was that Mr Carey met him and the others at the front of the house and then took them on a tour of the house and yard.  He said that while they were all upstairs, the dog was with them.  He recalled a discussion about the dog and said that at the time the plaintiff was present.  He said that someone, he cannot recall exactly who, asked whether the dog would bite and that Mr Carey said that the dog “shouldn’t”, but that he would tie it up anyway.  Mr Gifkins did not recall Mr Carey saying that he would tie the dog up to the cubbyhouse, nor his saying not to touch anything in the backyard, nor his mentioning the need to get a chainsaw.  

[11] Mr Gifkins’ evidence was that the big parts of the dismantled cubbyhouse, including some poles, were still in the backyard, while other smaller parts, including cross-members and a swing or slide were in the garage.  He said that when they were in the backyard, before they began to load the cubbyhouse, he noticed that the dog was tethered.  According to Mr Gifkins, the dog was tethered somewhere towards the right of the cubbyhouse, at a distance less than five metres from the cubbyhouse.  The dog was not barking and he thought it was at the end of its leash when he saw it.  Mr Gifkins told the others to start with the cubbyhouse, because its heavy poles needed to be loaded first.  According to Mr Gifkins, all three removalists went into the backyard and each took some of the cubbyhouse poles to the truck.  Mr Gifkins said that he and Mr Gambling then secured a couple of the poles from that first load to the truck while the plaintiff returned to get more.  He then heard the plaintiff scream and saw the plaintiff come out to the front of the premises.  He was holding his leg and saying that the dog had bitten him.

[12] Mr Carey gave evidence that he was getting into his car to pick up the chainsaw when one of the removalists came running over to say his colleague had been bitten by the dog.  Mr Carey ran into the backyard and saw the plaintiff holding his leg.  The dog was lying down and was still chained up, with its collar intact.  He gave the plaintiff a towel for his leg and drove him to a doctor.  He said that during the journey to the doctor, he apologised to the plaintiff for what had happened and asked the plaintiff how he was bitten.  Mr Carey’s evidence was that the plaintiff replied that he had gone up to the dog and had patted it and that it had rolled over and he had patted its stomach. He said the plaintiff told him that “he thought the dog seemed okay, so he thought he would move some items”. He said that the plaintiff then said “I think I did the wrong thing.  Grace Brothers tells us and warns us not to play with dogs and not to touch dogs”.  The plaintiff denied that this conversation occurred and that Mr Carey told him not to go in the backyard.  He also denied that Grace Brothers had told him not to approach dogs. 

[13] After the doctor had attended to the plaintiff, Mr Carey took the plaintiff back to his house.  Mr Gifkins phoned Mr Mundy, the Health and Safety Officer of the second defendant, to come and collect the plaintiff.  Mr Carey then left to get the chainsaw.  Mr Carey’s evidence was that on his return some 50 minutes later, he noticed the plaintiff carrying some small items of furniture.  Mr Carey said that he told the plaintiff to rest, but the plaintiff said he was okay.  The plaintiff’s evidence is that he waited for Mr Mundy in the house and finished some paperwork.  He conceded that he also may have continued to assist with loading some light furniture into the truck.  Later, Mr Mundy arrived to collect the plaintiff.

[14] Mr Carey said that he saw the remaining pieces of the cubbyhouse being removed after the incident and that the dog was within the range of those items being removed.  However, Mr Gifkins’ evidence was that after the incident, he and Mr Gambling completed the removal of the remaining items of the cubbyhouse from the backyard and were able to do so without the dog, who was still tethered in the same position, coming within their range and that the dog was never a concern.

[15] Mr Gifkins gave evidence that he was not aware of any internal policies of the second defendant about warning people about dogs and he would only ask if the dog showed signs of aggression.  Mr Gifkins’ evidence was that he did not check to see that the dog could not reach the cubbyhouse.  However, he said that when he first began retrieving the cubbyhouse items, he thought he saw the dog at the end of its leash, and that it was not within the range of the cubbyhouse. 

Evidence Concerning the Dog’s Temperament

[16] Mrs Carey gave evidence that in 1988 she and Mr Carey purchased a white Staffordshire Bull Terrier, which in March 1990, gave birth to “Milo”, a Cattle Dog cross, which is the dog in question here.  Shortly before the incident on 23 November 1995, the Staffordshire Bull Terrier was put down because of an illness.  Mrs Carey described both dogs as “sooks” and said she never had any concern about their temperament.  She described Milo as a playful and friendly dog, which often played ball, and was never aggressive. 

[17] Mr Carey also gave evidence that Milo was a quiet, affectionate and lovable family pet.  He described the dog as placid and a sook and he did not consider that the dog was a threat to anyone. The dog had never displayed signs of aggression, nor did it bark at people and was indifferent to strangers.  Mr Carey said that although there was a bus stop outside the Careys’ house, there were never any complaints from any of the people using the bus about the dog.  Mr and Mrs Carey said Mrs McKeller, a neighbour from across the street, and her children on a few occasions put the dogs back in the garage if they got out during thunderstorms, as the dogs were frightened of thunderstorms.

[18] Mr and Mrs Carey said that they had no knowledge of the temperament of Staffordshire Terriers or Cattle Dog breeds or cross breeds as such, nor did they know whether Cattle Dogs or Bull Terrier type breeds could be aggressive or protective.  They said that the dogs were only chained up when washed and there was never any difficulty.  Mrs Carey conceded that dogs chained around property in general are protective of that property and should not be approached.  She said that while she would expect the dogs to be protective of her son, who was a toddler at the time in question, and protect their property from strangers, she did not buy the dogs for security purposes.  It was also Mr Carey’s evidence that the dogs were not purchased for security purposes. 

[19] Ms McKellar, gave evidence concerning the first defendants’ two dogs, which she also described as “sooks” and as “harmless”.  She also said that during thunderstorms, the dogs would run over to her place to hide and she or her children would return the dogs to the first defendants’ place and lock them up in the garage.  She described the white dog as placid.  She said that she thought that Milo might have been a dog “not to be trusted, but otherwise fine”.  She said that on one occasion, about one year after the first defendants had moved into their house, when she was speaking to Mrs Carey and patting Milo, Mrs Carey told her not to enter their backyard if there was no-one home, “because it may bite you”.  Mrs Carey denied having said this.  She said she would never have said that the dogs might bite, as they had never bitten anyone.  She conceded that she might have said, “Don’t come to our yard because we have dogs”.  She explained this by saying that Mrs McKellar’s children used to go to the next door neighbour’s yard and wander in and out of their house all the time and she did not want that happening in her yard and house.

[20] Evidence was also given as to the dog’s disposition by Mr and Mrs Baker, who, together with their young son, lived next door to the first defendants.  They were not aware of any occasion when the dog had shown aggression.  They said that on one occasion, when the first defendants were away, they went into the first defendants’ yard to feed the dogs and change their water a number of times over the course of a weekend.  Their child, who was a toddler at the time, accompanied them.  Mrs Carey also on one occasion put the dogs on the back deck to enable the real estate agent to show people around.  Mr Baker described the dogs as friendly, saying he had never had a problem with them and that on occasions, when he jumped the fence into the Carey’s yard to retrieve a ball, the dog would come up for a pat.

[21] Evidence was given by David Conway, a nephew of Mrs Carey, who had visited the first defendants on at least 20 occasions, first encountering Milo when he was about 8 years old, the dog then being about 15 months old.  He said he often played with Milo when he visited and that the dog was never threatening.

[22] Expert evidence was given by Dr Day, a veterinarian specialist in animal behaviour, concerning the propensity of Staffordshire Bull Terriers and Australian Cattle dogs and cross-breeds of these types of dogs to be aggressive and in particular to bite.  He said that Cattle Dogs and their crosses are among the most likely breeds to attack people and are well-known for their protective territorial nature. He described Staffordshire Bull Terriers as friendly family dogs, but said they can also be aggressive.  Dr Day also gave evidence that dogs can become more aggressive when chained.  Dr Day agreed that a stranger turning his back on a dog and picking up something belonging to a dog’s owner may trigger aggression in a dog, and pointed out that Cattle Dog crosses are designed to attack from behind.

THE FIRST DEFENDANTS’ LIABILITY

Scienter

[23] A person who keeps an animal which is known by that person, or presumed in law, to be dangerous may be strictly liable for damage caused by the animal. This is referred to as the scienter action, because liability depends on the person’s actual or presumed knowledge of the animal’s dangerous propensities.  Animals are divided into two classes for the purpose of scienter liability; ferae naturae (dangerous by nature) and mansuetae naturae (harmless by nature).  Classification is by species and is a question of law.  Domestic dogs fall into the category of mansuetae naturae.[2] 

[24] In the case of an animal that is mansuetae naturae, liability for injury attaches without proof either of intention or negligence, but only for injury caused by the animal’s known vicious or dangerous propensity as explained by Edmund Davies LJ in Draper v Hodder:[3]

“ A person keeping an animal “mansuetae naturae”, which he knows has a propensity to do a particular kind of mischief, is under an absolute duty to prevent it from doing that kind of mischief, and is, therefore, liable without proof of negligence for any damage caused by the animal’s acting in accordance with that known propensity.  But to render the defendant liable, proof must be directed to his knowledge regarding the propensity of the individual animal whose activities have given rise to the institution of legal proceedings.”

[25] The plaintiff bears the burden of showing that there is evidence that the first defendants had knowledge of the dog’s vicious propensity or facts from which some knowledge can be inferred.[4]  The plaintiff relied on Romano v Spagnol[5] as support for the view that only slight evidence of knowledge is required.  In that case the defendant relied on his description of the dogs, the tender of a chain by which the dogs were restrained and the description by the police of the fact that, when they attended the premises soon after the attack, they found the dogs chained to a spike.  From those three elements the trial judge inferred that the requisite knowledge of propensity existed.  In refusing leave to appeal, Kirby J noted the trial judge’s reference to “the mere size of the chains”, from which it was inferred the dogs were “hardly the pet variety” claimed by the owner.  Kirby J stated that “in cases of this kind it is usually accepted that slight evidence is sufficient to sustain knowledge, the matter of the actual propensity of the particular animals usually being peculiarly within the owner’s knowledge”[6].  What is sufficient in each case to establish knowledge depends on the facts of the individual case.  The mere fact that the same three features are present in another case will not necessarily result in the element of knowledge having been proved.  It is quite clear that in Romano v Spagnol the size of the chains was a matter of considerable significance.

[26] The amended Statement of Claim and particulars relied on a number of matters as establishing knowledge of the dog’s vicious propensity.  It was said that the dog was a mixture of two breeds, namely Bull Terrier and Cattle Dog, both of which were well-known in the community at large and by the first defendants as having a tendency to be aggressive and territorial.  Further, it was said that such breeds of dogs are generally acquired by people as watch dogs, as well as family pets, for the reason that they have a protective and territorial nature, but are generally faithful to and protective of their owners.  This, it was said, was also well-known within the community and by the first defendants.  In addition, it was pleaded that in the five years prior to the incident, there had been 25 articles in the Courier Mail and Sunday Mail newspapers concerning dog bites by dogs of Bull Terrier and Cattle Dog breeds.  The plaintiff sought to infer knowledge of such matters by the first defendants as persons living within the circulation areas of the newspapers.  Further, it was alleged that the first defendants’ knew of the dog’s propensity to bite in circumstances where it was chained up in a yard, and strangers were present in the owner’s absence.

[27] It was said that “knowledge” was principally to be found in two aspects of the case.  Firstly, it was contended that knowledge on the part of Mr Carey could be inferred from the assertion in the first defendants’ defence that Mr Carey had warned the plaintiff and the other removalists not to commence work in the yard near the cubbyhouse as the dog would be chained to the cubbyhouse.  It was said that such warning would not have been necessary, unless the plaintiff had the alleged knowledge of protectiveness and propensity of the dog to bite.  Secondly, it was contended that knowledge on the part of Mrs Carey could be inferred from the evidence of Mrs McKeller as to the warning given to her by Mrs Carey not to go into the first defendants’ yard because the dog might bite her. 

[28] The evidence of Mr and Mrs Carey was that they did not subscribe to the Courier Mail, but occasionally obtained these newspapers.  Mrs Carey said she was not in the habit of reading newspapers and only read the horoscope section or gossip columns.  She said she had not read any articles concerning dog attacks.  Mr Carey said his practice was to read only the sports section of the Sunshine Coast Daily or the Sunday Mail.  I accept the first defendants’ evidence that they had no knowledge of any propensity of the dog to be vicious based on its breed or type, whether arising from newspaper articles or otherwise.

[29] I also accept the first defendants’ evidence that, prior to the incident, the dog in question had shown no propensity to be aggressive or to bite and had not exhibited any behaviour, which would give rise to any knowledge that the dog had any dangerous or vicious tendency as alleged by the plaintiff. 

[30] Nor do I accept that there are facts from which it can be inferred that the first defendants had any such knowledge.  I do not consider that it can be inferred from the alleged “warnings” given by Mr and Mrs Carey that either had any knowledge as alleged by the plaintiff.  Even if Mrs Carey gave a warning in the terms stated by Mrs McKellar, I find that this was done not because of a belief that the dog might bite, but for the reasons she gave.  I do not accept that it was reflective of any knowledge of a propensity to bite. 

[31] Likewise, I do not consider that Mr Carey’s conduct in telling the removalists not to go near the cubbyhouse because the dog would be there betrayed any knowledge of propensity.  I find on the evidence that the first defendants were not aware of any propensity of the dog to bite or be dangerous or vicious in any way.

[32] In the circumstances, I am not satisfied that the plaintiff has shown that the first defendants had the requisite knowledge to make out a case of scienter.  Accordingly, the scienter action must fail.

Negligence

[33] The plaintiff alleges negligence by the first defendants in:

(a) failing to lock up or otherwise secure the dog;

(b) failing to warn the plaintiff of the vicious propensity of the dog;

(c) in the circumstances, failing to take reasonable care for the plaintiff’s safety;

(d) chaining the dog on a chain that was too long to prevent it biting the plaintiff.

[34] In Galea v Gillingham[7], Shepherdson J after a detailed review of the relevant authorities, stated:

“I think that the development of the law of negligence so far as it relates to damage caused by the domestic-type animals such as a dog has placed certain difficulties in the path of persons injured by such animals who seek to prove negligence in the owner or keeper of the animal.”

[35] His Honour was referring to the statement by Pearson LJ in Ellis v Johnstone[8] that for the action of negligence, it must be shown that “the defendant  knew or ought to have known of the existence of the danger, which does not necessarily arise from a vicious propensity of the animal, although perhaps some special propensity is required.”  His Honour had also considered of the statement of du Parcq LJ in Draper v Hodder[9] that:

“For the purposes of this case the established rules may be stated as follows: (1) negligence cannot be established merely by proof that a defendant has failed to provide against the possibility that a tame animal of mild disposition will do something contrary to its ordinary nature. (2) Even if a defendant’s omission to control or secure his horse is negligent, an act on the part of the horse which is contrary to its ordinary nature cannot be regarded, in the absence of special circumstances, as being directly caused by such negligence ”

[36] Shepherdson J held[10] that a plaintiff suing in negligence for damages for injuries suffered by a domestic animal hitherto docile must prove :

“1.That there was a foreseeable risk that in the absence of reasonable care by the defendant, injuries of the type suffered could be caused by the animal;

2. A propensity on the part of the animal not necessarily known to the owner or keeper but one which was such that the owner or keeper knew or ought to have known and therefore ought to have foreseen that there was a real risk of the injury or damage complained of being caused by the animal exhibiting that propensity.”

[37] The evidence indicates that on the morning of 23 November 2002 the dog did not bark or react in an aggressive manner prior to biting the plaintiff.  There is a conflict in the evidence as to where the dog was tied up and as to whether, when tied up, it was within the vicinity of any of the dismantled cubbyhouse items.  The plaintiff gave evidence that the dog was tied to a bush about three feet to the right of the cubbyhouse.[11]  Mr Gifkins’ evidence was also that the dog was tied up to the right of the cubbyhouse.  However, he said that it was tied up further away from the cubbyhouse, but nevertheless at a distance less than 5 metres from it.  Mr Carey’s evidence, on the other hand, was that the dog was tied to the cubbyhouse, that is, to the front left-hand pole of the cubbyhouse.  There was also another discrepancy as to whether any of the items to be removed were near the cubbyhouse.  The evidence of the plaintiff and of Mr Gifkins was that there were dismantled poles from the cubbyhouse in the vicinity of the cubbyhouse to be removed.  However, Mr Gifkins thought they were all beyond the dog’s reach.  The first defendants’ evidence was that there were items within the dog’s reach. 

[38] As regards the discrepancies in the evidence as to where the dog was tied up, I accept the evidence of the plaintiff that the dog was tied up somewhere beyond the cubbyhouse and not to the cubbyhouse pole as claimed by Mr Carey.  In reaching that decision I note that there was no evidence that the dog was moved after it bit the plaintiff (indeed Mr Gifkins indicated the opposite).  Given the fact that the floor of the cubbyhouse was left in the middle of the cubbyhouse poles and given Mr Gifkins’ evidence, which I accept, that the remaining items were able to be removed without the dog coming within the range of those items, it seems most likely that the dog was not tied to the cubbyhouse pole.  Furthermore, the poles of the cubbyhouse were cut down by Mr Carey and appear to have been removed also without the dog requiring to be relocated from its tethered position and that also appears to be inconsistent with Mr Carey’s evidence as to where the dog was tied.

[39] I accept the evidence of the plaintiff and Mr Gifkins that not all the dismantled logs of the cubbyhouse had been placed under the house as stated by the first defendants.  I accept the plaintiff’s evidence that immediately before he was bitten, the plaintiff was about to remove a log from the vicinity of the cubbyhouse, as directed by Mr Gifkins.  Whilst Mr Gifkins’ evidence was that the items removed after the plaintiff was bitten were beyond the range of the tethered dog, he was more equivocal about whether the item that the plaintiff was attempting to remove when he was bitten was also beyond the range of the dog.

[40] I find that after the removalists arrived on 23 November 1995, there was a general inquiry of Mr Carey as to whether the dog bit, to which Mr Carey responded to the effect that it “shouldn’t”, but that he would tie it up if it was a hassle.  As I have mentioned, I do not accept that that response, nor the statement Mr Carey said he subsequently made not to go near the cubbyhouse, indicated knowledge of propensity.  However, Mr Carey’s statements and conduct indicated that he nevertheless recognised that there was a risk that, contrary to its past conduct, the dog might bite one of the removalists.  Furthermore, that risk was real enough for Mr Carey to take the precaution of tying up the dog out of the way (even making allowance for his evidence that there had been an earlier request from the second defendant to do so) and, on Mr Carey’s evidence, for him to give a warning not to go near the cubbyhouse as the dog would be tied up there. 

[41] Given those particular circumstances, Mr Carey ought to have foreseen that there was a real risk of injury of one of the removalists being bitten by the dog, if it were not properly restrained and out of their way.  There was a foreseeable risk that, in the absence of reasonable care by Mr Carey, injuries of the type suffered by the plaintiff could be caused by the dog.

[42] I find that Mr Carey did not tie the dog beyond the range of all the dismantled items of the cubbyhouse and that the item which the plaintiff bent to pick up was within the dog’s reach.  The plaintiff denies that he was told by Mr Carey not to go near the cubbyhouse, because the dog would be tied up there.  I accept that the plaintiff did not in fact hear any such warning by Mr Carey.  In the circumstances, I find Mr Carey to have been negligent in failing to restrain the dog out of the reach of all the items to be removed.

THE SECOND DEFENDANT’S LIABILITY

[43] The plaintiff claims against the second defendant for negligence and/or breach of contract of employment, alleging the second defendant:

(a) failed to ascertain whether the first defendants kept a dog and failed to require or advise the first defendants to lock up, adequately chain or otherwise secure the dog;

(b) failed to instruct, warn or advise the plaintiff not to enter the yard until it was ensured that the dog was locked up, adequately chained or otherwise secured;

(c) in the circumstances, failed to take reasonable care for the plaintiff’s safety;

(d) failed to provide the plaintiff with any or any adequate training and information as to the dangers posed by dogs in the course of his work;

(e) required the plaintiff to remove the cubbyhouse when the dog was chained nearby.

[44] The plaintiff, relying on the above particulars, claims in the alternative that the second defendant breached its statutory duty under s 28(1) of the Workplace Health and Safety Act 1995 by failing to ensure the workplace health and safety of the plaintiff at work.

[45] On behalf of the second defendant it was conceded that, in the circumstances of this case, there was a foreseeable risk of injury to the second defendant’s employees presented by untethered dogs.  It was submitted that the second defendant responded to that foreseeable risk of injury, by requiring that the dog present on the property be tethered whilst the second defendant’s employees were present.  Further, reliance is placed on the inquiry made by either Mr Gifkins or Mr Gambling as to whether the dog bit, which it is said led to the dog being tied up, as indicating that the second defendant took steps to ensure the dog was tethered.  It was therefore submitted that the second defendant discharged any obligation owed to the plaintiff by ensuring that the dog was tethered out of the way by Mr Carey. The second defendant also relied on the evidence of Mr Gifkins that the dog was not within the range of the items to be moved, except possibly the floor which required two people to move it.

[46] Further it is said that even if the plaintiff’s evidence is accepted, that he went to the cubbyhouse to collect parts of the cubbyhouse, he had become aware of the dog’s presence and knew that dogs could be unpredictable and accepted that commonsense told him that he should not approach a dog he did not know.  It is said that the plaintiff’s conduct in approaching the dog was such that this was not a case of injury arising from inadvertence or inattention, but rather from conduct of the plaintiff which was dangerous and foolhardy and therefore could not be regarded as reasonably foreseeable by the second defendant. 

[47] I do not accept that Mr Gifkins checked to see that the dog was out of range of all the items.  The second defendant breached its duty of care to the plaintiff in failing to ensure that all items which required removal were out of the range of the tethered dog.  As I have mentioned, I accept that immediately before the plaintiff was bitten, he was bending down to pick up an item of the dismantled cubbyhouse and that that item was within the range of the dog.  In those circumstances, I find that the second defendant breached its duty of care to the plaintiff by requiring the plaintiff to remove items of the cubbyhouse when the dog was chained nearby and within the range of the item.

[48] It is not necessary to consider further the issue of breach of statutory duty of care.

CONTRIBUTION BETWEEN DEFENDANTS

[49] Each of the defendants claims contribution or indemnity from the other on the basis that the plaintiff’s injuries were caused by the negligence of the other. For the purposes of the Law Reform Act 1995, I apportion liability equally between the defendants.

QUANTUM

Medical evidence

[50] The plaintiff is 37 years of age.  As a result of the dog bite wounds, the plaintiff suffered significant injuries, which have left him with a permanent physical disability.  He was admitted to the Logan hospital for 2 weeks, where he underwent surgery in respect of infection to his wounds.  The hospital records reveal wounds some 3cm long by 2.5cm wide and 1 cm deep.

[51] On discharge from hospital, the plaintiff stayed with his brother and sister-in-law for three weeks, receiving initial assistance from them.  He then stayed with his parents at South West Rocks for a while, who also provided assistance to him.  The plaintiff was on crutches for 3 months until the wounds healed.  The plaintiff walked with a limp for some time and experienced difficulties walking or sitting due to aching and throbbing.  He said he had trouble driving for 5 to 6 months.

[52] Dr Hopcroft, general surgeon (orthopaedics), saw the plaintiff on 9 August 1996, at which stage he noted that the plaintiff experienced “pain and tenderness around his medial left thigh with aching, occasional swelling as a secondary phenomenon in his left groin and difficulty walking up and down stairs or on uneven ground”.  He assessed the permanent loss of the efficient use of the left leg as 10%.  He considered that there had been good tissue healing, although there were some residual problems of tenderness, sensitivity, occasional swelling and pain on walking.  He was of the view that the plaintiff was fit for light physical work, provided major strains on his left leg did not have to be taken during the course of employment, and driving was manageable. 

[53] In a subsequent report dated 2 December 1999, Dr Hopcroft referred to the plaintiff’s acquisition of a prawn trawler since his last visit, and made the following assessment:

“[the plaintiff] can go into a fully loaded flexion crouch without difficulty and carry all his weight with his left leg without difficulty.  However he has one focal area … on the posterior lip of the deepest gouging wound he suffered with proximal and distal paraesthesia extending from that site. 

I do not believe this patient is a candidate for any surgical correction… his best advice is simply to wear a tight thigh guard from time to time to give him some additional support… While the patient is coping with heavy manual work he has some difficulties in rough seas with the constant abrasion against his thigh and the feeling that his leg will give way on him.”

[54] Dr Hopcroft reviewed the plaintiff again on 14 August 2002, on which occasion the plaintiff complained of the cosmetic appearance of the wounds (which had left two deep scarred areas on the medial aspect of the left leg approximately 2cm and 2.5cm in diameter) and indicated he would like cosmetic improvement undertaken.

[55] Dr Packer, orthopaedic surgeon, assessed the plaintiff’s physical disability in June 1996, as being in the order of a 5% impairment.  Dr Packer’s expectation was that the plaintiff’s injuries, being primarily soft tissue injuries, would improve with time.  Dr Nutting, orthopaedic surgeon, in his report of 20 December 2000, assessed the plaintiff as having a permanent impairment of the lower limb of 10%.   Dr Packer considered that, at the time he saw the plaintiff in 1996, truck driving or courier driving would be within the plaintiff’s capabilities.

[56] Dr Pegg, Professor of Burns Surgery, saw the plaintiff on 19 December 2000 and assessed a 5% total bodily disability as a result of the scars, which he considered might improve with surgery.  However, the major complaint he assessed was one of pain.  He assessed the plaintiff as having a 30% disability in relation to his pain, but conceded that, on the basis of a functional assessment made without reference to pain, the plaintiff’s disability was in the region of 5 to 10%.  He considered that “it would be satisfactory” for the plaintiff to work as a commercial fisherman, “the limiting factor” being the pain the plaintiff was experiencing.

[57] Mrs Tchan, an occupational therapist, reported that the plaintiff has 36% of the lifting capacity of a commercial fisherman, which she placed at 25 kg based on information from the plaintiff.  That assessment of ability, however, sits uncomfortably with the plaintiff’s evidence as to his activities as a commercial fisherman.

[58] There is a conflict in the medical evidence as to whether the plaintiff has suffered from a psychiatric disability as a result of the incident, that is, whether he suffered post traumatic stress disorder (PTSD) as opposed to an anxiety disorder.   Dr Holmes, a psychiatrist, diagnosed PTSD.  Dr Chalk on the other hand, did not consider that the plaintiff was suffering from PTSD, but did assess the plaintiff as suffering from an anxiety disorder with depressed mood.  Dr Douglas, a psychologist, saw the plaintiff on 15 March 2002.  She concluded from the results of the testing she carried out, that the plaintiff was over presenting his symptoms.  Having considered the reports and the oral evidence, I do not accept that the plaintiff has suffered or is suffering from PTSD, although I accept that he does suffer from an anxiety disorder.

General Damages for Pain and Suffering and Loss of Amenities

[59] The plaintiff seeks $50,000 general damages for pain and suffering and loss of amenities.  The defendants contend that $25,000 is an appropriate award for this head.  I find that the plaintiff has a 10% permanent disability of the leg and suffers from an anxiety disorder.  An award of $30,000 sufficiently compensates the plaintiff for this head of damage.  Interest on half that amount is awarded at 2%[12] for 6.75 years, which yields $2,025.

Economic Loss

[60] The plaintiff left school after year 11, working as an apprentice chef for 2 years and thereafter in the food industry for a time.  He worked in Albury, New South Wales, with Ansett Wridgeways for 5 years, doing furniture removal work.  He then worked on a casual basis at Ansett Freight Express and IPEC for some 12 months as a parcel courier until it closed down.  That work involved loading parcels onto a truck and delivering them to shops and factories or warehouses, with the use of trolleys and fork-lifts.  He also worked as a deckhand on fishing boats at South West Rocks for about 16 months.  The plaintiff’s financial records show he was unemployed for about 2 years.

[61] In 1994, he obtained casual work with John Holland Construction and Engineering (“John Holland”), working in the sleeper yard for about 12 months, which involved travelling to different locations and unloading, grading, and packing sleepers.  He was not a full-time employee, and was engaged for three contracts.  It appears that the plaintiff started on 18 August 1994 as a Construction Worker Class 1 and became a Construction Worker Class 3 from 23 January 1995.  The plaintiff was engaged on two projects for John Holland, the first being from 18 August to 23 December 1994, and the second being from 20 January to 13 April 1995.  The plaintiff’s employment with John Holland ceased on 13 April 1995 and no further work was offered to him before the incident in November 1995.  The plaintiff was thus employed by John Holland for 30 weeks over a period of some 65 weeks in 1994 and 1995. 

[62] At that time, the plaintiff was living with his parents at South West Rocks, a fishing community, and planned to seek further work with John Holland as it was the “best job [he had] ever had”.  The plaintiff hoped, on the basis that he had been re-hired three times while others had not, to eventually obtain full-time employment.  However, notwithstanding that the plaintiff contacted John Holland regularly “for a long period”,  he was unable to obtain further work.  His evidence as to these efforts to obtain further work with John Holland was as follows:

“Plaintiff:… about every three or four weeks I was in contact with a couple of guys, couple of the bosses, field officers, and they just kept saying, ‘Okay, just try again in another three or four weeks’, but I kept in contact for a long time.

Counsel:What was the problem?

Plaintiff:There was no work, or there was no contract became available at that stage (sic).”

[63] A letter tendered by the plaintiff from Mr Donelly, Construction Manager with John Holland, indicates that at the time of the plaintiff’s termination of employment in April 1995, John Holland did not have work for the plaintiff.  Work only became available if John Holland was able to successfully tender for contracts.  However, Mr Donelly states that there would have been work prospects, but no guarantee of employment.  Mr Donelly does not clarify what the prospects of employment were.  There is no evidence as to what projects John Holland had which would have been available for the plaintiff to work on during the period up to the trial and what the plaintiff’s prospects of employment on those projects were, nor how frequently and for what periods the plaintiff was likely to have been employed. 

[64] After his last contract with John Holland, and with no further work forthcoming, the plaintiff decided to visit his brother in Brisbane for a holiday.  While he was in Brisbane he applied and obtained casual work with the second defendant in November 1995.  At the time of the incident, the plaintiff was earning $415 net per week.  The plaintiff conceded that the work with the second defendant would have dropped off in February 1996, given the fluctuating nature of the demand for the second defendant’s services, so that his income would not have continued at the rate of $415 per week.

[65] After the dog bite incident, the plaintiff returned to South West Rocks and was unemployed for some years.  He did some recreational fishing, about which he was a “fanatic”.  In May or June 1998, the plaintiff decided to embark on a new occupation as a trawler operator, when an opportunity arose to acquire a trawler.  The plaintiff acquired the trawler by agreeing to take over the loan for the trawler.  The plaintiff undertook a course at Port Macquarie in order to get a fishing licence.  While he completed his trawling qualifications, which took approximately 6 months, the plaintiff engaged a skipper on the boat for about 6-8 weeks, who was paid on a percentage basis.  The plaintiff began operating the boat himself around Christmas 1998.

[66] The plaintiff’s evidence was that he worked up to 80 hours per week trawling and maintaining the boat.  The plaintiff gave evidence as to the work which he performed on a typical day.  Each round trip on the vessel involved between about 13 to 16 hours work.  The plaintiff spent one hour preparing the boat, which involved: unpacking the nets; fixing the ropes; checking oil, water, steering and electronics; and shovelling ice into 4 to 6 plastic fish boxes at the co-operative, which he then carried to his truck.  The boxes were 2 feet long, 1 foot wide and 1½ feet deep, and were filled ¾ full of ice.  The plaintiff then drove to the boat and carried the boxes of ice down the jetty to the boat, which was about 11 metres long.  It took the plaintiff 2 hours (each way) to get to the fishing location.  On the way out, the trawl booms were lowered.  The rest of the 2-hour journey was spent sitting in the wheelhouse motoring.  He trawled for about 2 hours and then would winch up the gear, unload the nets and put them back in the water.  The plaintiff did 4 to 5 “shots” each night, which took about 2 hours each.  While trawling, he sorted the catch, which he then placed in the vessel’s cooker and later stored in ice boxes.  This process took about 40 minutes.  The plaintiff would sit and rest his leg for the remaining time between shots.  On his return, he carried the product from the ice box to his vehicle and then to the co-operative.  These tasks took 45 minutes to 1 hour.  The plaintiff did not use a trolley to assist in unloading the boat.  A good catch was about five boxes of prawns.  The plaintiff usually loaded the boxes with up to 15 kilos of catch.  The plaintiff worked alone, although occasionally a few mates would join him.

[67] While fishermen generally trawled about 5 nights per week, the plaintiff said he trawled only about 4 to 5 nights per fortnight, because of the pain in his leg.  He said he could not trawl in rough conditions, because his leg ached and became weak.  The boat requires a lot of maintenance, with which the plaintiff’s father (who is about 65 years old) assists, doing the painting, welding and working in the engine room.  The plaintiff said he was unable to work in the confined space of the engine room for long periods,  because his leg ached and throbbed.  The boat was painted 3 times per year from the waterline down with anti-foul, which took 2 days at 10 hours per day, and was fully painted once each year, which took about 5 days at 10 hours per day.  The plaintiff’s father spent about 5 hours per week helping with boat maintenance.  The plaintiff assisted his father with all maintenance.  The plaintiff’s father also assisted the plaintiff by mowing the lawn once a fortnight at the plaintiff’s property, which is on a hill, as the plaintiff was unable to do that.  The task took about 1 hour. 

[68] The plaintiff’s claim for economic loss is postulated on a number of different bases.  The plaintiff claims that he was not able to work by reason of his physical and psychiatric state for approximately 2½ years after the incident (that is, from 23 November 1995 to June 1998 when he acquired the trawler).  The plaintiff’s counsel submitted that while Dr Hopcroft indicated, in August 1996, that the plaintiff was fit for light physical work, he qualified this opinion by the proviso that major strains on his left leg not be undertaken.  It was submitted that this restricted the plaintiff’s ability to work to light parcel delivery at best, possibly on a part time basis and subject to not having to walk up and down stairs.  The plaintiff’s counsel also referred to Ms Tchan’s evidence that parcels up to 30 kg might have to be carried.

[69] The plaintiff makes a claim for economic loss on the basis that, but for his injuries, he would have worked as a labourer/furniture removalist from the date of the incident until June 1998 and thereafter he would have worked as a trawler operator.  This approach to economic loss is set out in the schedules to the submissions of plaintiff’s counsel.  Schedules A and B proceed on the assumption of a finding that the plaintiff could have worked from June 1998 as a light parcel delivery driver.  An alternative approach is set out in Schedule C of the submissions, and proceeds on the basis that the plaintiff would have worked as a labourer with John Holland (but makes an allowance for the plaintiff being able to work as a light parcel delivery driver from June 1998).

Past Economic Loss

[70] I find that for the period of some 31 weeks from 23 November 1995 to 24 June 1996 (the date of assessment by Dr Packer), the plaintiff was unable to work.  Immediately prior to the incident, the plaintiff was earning $415 net per week with the second defendant.  That equates to a loss of $12,865 for the 31-week period.  However, as I have mentioned, the plaintiff conceded that that level of earnings would not have continued after Christmas.  The plaintiff’s average net earnings for the 4 years prior to the accident was approximately $230 per week.  Proceeding on the basis of a weekly loss of income of $230, his loss over the 31-week period would be $7,130.  This is the approach contended for by the defendants.  They also contend that no allowance should be made for interest given that the plaintiff received $16,452.60 from WorkCover by way of weekly benefits.   

[71] As regards the John Holland work, the plaintiff sought to obtain further work, prior to the dog bite, and kept in regular contact with the appropriate officers of John Holland, phoning every few weeks, but no further work became available.  The plaintiff had only ever obtained three contracts from John Holland and had only worked as a casual employee.  The plaintiff’s counsel sought to meet the defendants’ arguments concerning the lack of evidence as to the likelihood of the plaintiff obtaining further work from John Holland by relying on the letter from Mr Donelly.  However, there was no evidence as to what further work John Holland had available in the period leading up to trial and as to the plaintiff’s prospects of obtaining that particular work either on a casual or full time basis.  The mathematical approach to compensation for loss of opportunity to obtain the John Holland work urged by the plaintiff in the schedules to counsel’s submissions is inappropriate.  It gives an incorrect picture of the likely earnings from the John Holland work by artificially apportioning the earnings from John Holland. 

[72] A more appropriate approach in this case, where the evidence of the likelihood of obtaining such work is of such a poor nature, is to proceed, as the defendants submit.  The plaintiff should be compensated on the basis of his average earnings for the 4 years prior to the accident during which period he had been employed by Ansett Wridgeways, Ansett Air Freight, John Holland and the second defendant.  That of course allows some component for the John Holland work in the base net weekly figure.  I therefore award $7,130 for the period from 23 November 1995 to 24 June 1996, being 31 weeks at $230 per week.  I make no award for interest on that.  Provision should be made for loss of superannuation and I allow $427.80 being 6% of $7,130, making $7,557.80

[73] As for the period from 24 June 1996, I find that the plaintiff was capable of working as a courier and as a parcel delivery driver, occupations in respect of which the plaintiff was suited, by virtue of past work experience.  I reject the plaintiff’s submission that the plaintiff is entitled to compensation for economic loss on the basis of the difference between that which he could have earned as a labourer (based on the hypothetical John Holland employment) and that which he could have earned as a parcel delivery driver.  I do not accept that there was any loss of opportunity to do the John Holland work on a full-time basis.  However, some allowance should be made for the plaintiff’s reduced employability on the open market and for the plaintiff’s inability to pursue lucrative heavy work, such as the John Holland type of work.  The mathematical approach to compensation for that loss urged by the plaintiff is, as I have indicated, inappropriate, in that it presents an artificial picture of the likely earnings from such work.  A more appropriate approach in this case, where the evidence of the likelihood of obtaining such work is very low, is to take a global approach.  I award $15,000 for the period from 24 June 1996 to trial, for reduced employability as a courier/ parcel delivery driver and loss of opportunity to pursue heavy labouring work, including a component for superannuation. 

[74] I also reject the plaintiff’s alternative submissions that the appropriate measure of economic loss is the difference between the hypothetical earnings which the plaintiff might have earned as a trawler operator and those he would have been able to earn as a parcel delivery driver. Evidence was given by two commercial fishermen as to average yearly earnings.  That evidence was of the most general kind.  Leaving that matter to one side for the moment, I do not accept that there was any loss of opportunity, in accordance with the principles in Malec v JC Hutton Pty Ltd,[13] to become a trawler operator. 

[75] When pressed as to the evidence supporting the loss of opportunity to pursue that occupation, counsel for the plaintiff referred to the following evidence by the plaintiff:

[76] The plaintiff explained the manner by which he came to acquire the trawler as follows:

[77] The evidence shows that operating the trawler was work which the plaintiff, after becoming injured, was unsuited to carry out on a full-time basis and one which was unprofitable for the plaintiff to carry out on a part-time basis.  The plaintiff had not sought to pursue that occupation prior to the incident.  Nor, notwithstanding his “love” of fishing, had the plaintiff shown any interest in undergoing any relevant training or other qualification prior to the incident, except perhaps in a marginal way as a deck hand for a short period.  I do not accept that, had the plaintiff not been injured, the occupation of being a trawler operator was one which he was likely to have undertaken.  Quite the contrary, the plaintiff appears, following his injury, to have decided on a “lifestyle choice”, motivated by his belief, that the occupation of being a trawler operator would best accommodate his limitations.  The plaintiff therefore appears to have chosen to pursue the new occupation because of his injuries.  What triggered the plaintiff considering a change in occupation was his belief that it would suit his situation after the incident.  I do not accept that there was any real likelihood of the plaintiff becoming a trawler operator had he not been injured.  The loss of opportunity is so low as to be too speculative to form the basis of an award.  I make no allowance for this in the compensation for past economic loss. 

Future Economic Loss

[78] As I have mentioned, I find that the plaintiff is able to return to the courier-type work he carried out prior to the incident.  The plaintiff is unable to carry out any heavy labouring work of the type he did for John Holland.  Except for the inability to carry out heavy labouring work, the plaintiff has suffered no loss of earning capacity. It is appropriate to make some allowance for future economic loss for the plaintiff’s reduced employability on the open labour market in respect of the courier work.  An appropriate allowance is $20,000.  

[79] In addition, it is appropriate to compensate the plaintiff for his inability to pursue lucrative heavy work, such as the John Holland type of work.  As I have mentioned, I do not accept that there was any loss of opportunity to do the John Holland work on a full-time basis.  Furthermore, the mathematical approach to compensation for that loss urged by the plaintiff is, as I have indicated, inappropriate and presents an artificial picture of the likely earnings from such work.  A more appropriate approach in this case, where the evidence of the likelihood of obtaining such work or similar work is very low, is to take a global approach.  I award $35,000 for that loss, including a component for superannuation.  I therefore award $55,000 for future economic loss.

Past Gratuitous Care

[80] The plaintiff gave evidence concerning the gratuitous assistance he has received. The plaintiff claims in respect of visits from his brother and sister-in-law while he was in hospital.  Whilst compensation is not provided where a relative attends on a loved one at hospital because of a desire to be close to the loved one, an allowance is permitted to reflect the therapeutic value of the presence of a family member.[14]  There was no evidence that the presence of the plaintiff’s relations at the hospital was of therapeutic value.  I make no allowance for that assistance. 

[81] The plaintiff also claims assistance they gave him on his discharge from hospital, with respect to cooking, washing clothes, changing dressings and getting around.  His evidence was that from 7 to 24 December 1995 his sister-in-law spent 5 hours each day caring for him. He also received daily visits for a period of about 18 days from the Blue Nurses.  A claim is made in addition for assistance received from his parents of 8 hours a day for the period 24 December 1995 to 7 February 1996.   Thereafter, a claim is made for 2 hours a day until mid April 1996 and then for 1 hour a fortnight for lawn mowing assistance.  

[82] As regards assistance upon the plaintiff’s discharge from hospital,  I consider that an appropriate allowance is 4 hours per day, as contended for by the defendants at the agreed rate of $10 per hour.  This covers the period of convalescence at the plaintiff’s brother’s house from 7 to 24 December 1995 and a period from 24 December 1995 to 7 February 1996 when he was cared for by his parents.  An allowance of 1 hour’s assistance per day from February to April 1996 at $10 per hour is also appropriate.  In addition, an allowance of 1 hour per month for lawn mowing should be allowed.  I accept the calculation of the schedule for past care as calculated by the second defendant as an appropriate measure of compensation for past care.  That yields $3,953, which I award for past care. 

[83] Interest is awarded at 5 % for 6.75 years, making $1,334.14.

Future Care

[84] The plaintiff makes a claim for future care for $109,506.23.  The bulk of the claim concerns general maintenance of the plaintiff’s trawler, for which a claim of $100,325.48 is made.

[85] I do not consider that any allowance should be made for assistance with the maintenance of the trawler.  The plaintiff’s claim for Griffiths v Kerkemeyer for assistance provided by his father in the maintenance of his boat is put forward on the footing that no award for economic loss is made for loss of opportunity to earn income as a trawler operator.

[86] The plaintiff claims that he has an injury-caused loss of capacity to maintain the trawler, which makes it necessary for him to seek assistance from his father.  Generally, a Griffiths v Kerkemeyer claim is concerned with the need for domestic assistance.  The assistance provided in this case does not arise from a need of the plaintiff for domestic assistance.  Some authorities have recognised that other forms of voluntary assistance can be the subject of compensation.[15]  In the present case, the claim arises because the plaintiff chose to engage in an unprofitable financial venture in respect of which he was physically unsuited, rather than pursuing the type of employment he was physically able to.  The defendants should not be visited with the costs of the plaintiff being assisted by his father with tasks he is unable to do himself in order to pursue that venture.

[87] The remaining item of future care concerns lawn mowing, in respect of which a claim is made for $9,180.75.  Whilst I accept that the plaintiff will have some difficulty with this activity, I do not accept the plaintiff’s quantification of this claim.  I accept the second defendant’s submissions on this claim and make an allowance of $3,622.53.  That takes into account that the service is likely to be rendered by the plaintiff’s father for a period and thereafter commercially and includes an appropriate discounting for contingencies.

Specials

[88] The plaintiff claims specials of $6,483.  This is comprised of a refund to WorkCover of $3,584.23 and of $750.60 for other medical expenses, which amounts I allow.  I also allow the claim for $394 for travelling expenses.  There is a claim for $1,755 for pharmaceutical expenses in respect of Panadeine Forte/Panadol at a rate of 5 packets of 36 tablet packets a month for the period from March 1996 to trial.  Dr Douglas’ report states as at March 2002 that the plaintiff’s “current medications reportedly only include occasional Panadol … [but that he] was taking up to 12 – 15 Panadol a day at times.”  In those circumstances. and given that there was no evidence by the plaintiff as to the quantity of his continued use of Panadol, an appropriate allowance is $500.  Accordingly, I allow $5,228.83.

[89] I allow interest on actual out of pocket expenses, after deducting WorkCover payments of $3,584.23, at 5 % over 6.75 years, making $555.05.

Future Medical Expenses

[90] The plaintiff claims $12,620 for future medical expenses. This claim includes a claim for $9,500 for scar excision and reconstruction as referred to by Dr Arianayagam, a plastic and reconstructive surgeon, who considered the plaintiff would need surgery, which would require hospitalisation for about fourteen days.  His estimation of costs was professional fees of about $1,200-$1,500 and hospital expenses of approximately $7,000-$8,000.  I note that Dr Hopcroft did not consider the plaintiff was a suitable candidate for surgical correction of the paraesthesia.  His view was that it would be wise for the plaintiff to undergo cosmetic surgical excision of the wound and perhaps neurolysis, the freeing up of the nerves at the site of the triggered paraesthesia, which would cost about $400.  I allow the amount of $400 referred to by Dr Hopcroft.

[91] Dr Holmes noted in his report that the plaintiff was considering surgery to improve the appearance of his scars.  Dr Pegg’s opinion was that the plaintiff’s scars could be improved by surgery, which would require one day’s hospitalisation at least with anaesthetic and operating theatre.  He estimated the overall cost of the procedure to be $1,500.  I allow an amount of $1,500 for such operative expenses. 

[92] There is a claim for cognitive behaviour therapy, which was recommended by Dr Holmes.  The claim is for $3,120 for 12 sessions at the AMA rate of $260 per session.  I note that Dr Holmes stated that the plaintiff had not sought treatment for his claimed psychological condition, but would benefit from a dozen sessions.  The plaintiff did not give evidence that he would undergo any therapy and has not sought such treatment in the 7 years since the incident.  In those circumstances, I make no award for this.

[93] In addition, there is a claim for future costs of analgesics which it is said the plaintiff will require for the rest of his life.  This claim is for $5,161.50 being for 5 packets of 36 tablets per month at $4.50 per packet.  The plaintiff’s evidence did not support this claim.  I make no allowance for this claim.

[94] Accordingly, I award $1,900 for future medical expenses. 

Contributory Negligence

[95] The plaintiff’s case is concurrently framed in negligence and breach of contract.  The second defendant accepts that it is precluded from relying upon s 10 of the Law Reform Act 1995, so that contributory negligence is not in issue in so far as the second defendant is concerned.[16]   However, the first defendant submitted that there was contributory negligence by the plaintiff.

[96] The plaintiff admitted that he knew that, as a matter of common sense, he should not approach strange dogs and that he did not need to be told this.  He also knew that dogs could be unpredictable.  There was no evidence that he knew that he should not turn his back on a dog.  While Mr Carey may have told the removalists not to go near the dog, I accept that the plaintiff did not hear any such warning.  The plaintiff’s evidence, as I have mentioned, was that the dog was lying down when he entered the yard, so that he was unable to gauge the full extent of the dog’s reach.  As regards the admission, which Mr Carey said the plaintiff made, that the plaintiff approached the dog to pat it and tickle it, nothing turns on whether that admission was made by the plaintiff, I find that the plaintiff was not bitten when or because he approached the dog to pat it.  Rather, the plaintiff was bitten when he bent down to pick up a piece of the cubbyhouse and, in so doing, came within the dog’s reach.  The plaintiff misjudged the reach of the dog and failed to appreciate its full reach.  That misjudgement was a matter of inadvertence, rather than negligence.

[97] In the circumstances I do not consider that there was any contributory negligence on behalf of the plaintiff.

  Conclusion

[98]

[99] I shall hear the submissions as to costs.