Anne Penfold v John Betteridge & Carol Betteridge

The Claim under the Companion Animals Act 10The defendants did not dispute that the attack occurred and that Buster was the aggressor. They conceded that they were owners of Buster, as defined in s 7(1)(b) of the Act. Their defence to this part of the plaintiff's claim centred on the location at which the attack occurred. 11Section 25 of the Act provides: Liability for injury to person or damage to personal property (1) The owner of a dog is liable in damages in respect of: (a) bodily injury to a person caused by the dog wounding or attacking that person, and (2) This section does not apply in respect of: (a) an attack by a dog occurring on any property or vehicle of which the owner of the dog is an occupier or on which the dog is ordinarily kept, but only if the person attacked was not lawfully on the property or vehicle and the dog was not a dangerous dog or restricted dog at the time of the attack, 12The defendants claimed that the incident occurred on their property, that at the time of the incident the plaintiff and Sam were on their property without their consent and that they were therefore not lawfully on the property . Thus, it was argued s 25 of the Act did apply and did not impose liability on them. 13I rejected this part of the defence. I did not accept the defendants' evidence concerning the location at which the attack took place. I did not accept that, even if the plaintiff entered the defendants' property to separate the dogs, that entry was unlawful.

Location 14Evidence concerning the location of the attack was given by the plaintiff, Mr Hyland, both defendants and the defendants' daughter Ms Kristin Betteridge. 15Each of these witnesses marked on photographs the position at which they said they saw the encounter between the dogs. Each of them marked that position in a different place. 16The plaintiff denied that Sam entered the defendants' property and that the attack occurred after he went onto the driveway in their front yard and urinated. She said that, in dragging Sam, Buster could have pulled him onto the defendants' property. 17The plaintiff and Mr Hyland marked positions on the nature strip outside the defendant's property. The defendants and Ms Betteridge marked positions within the property. 18The result was that it was necessary to choose between the versions of the defendants and their daughter and those of the plaintiff and Mr Hyland, each of whom had obvious reasons to misrepresent the facts as to where the incident occurred. 19I decided that I preferred the evidence of the plaintiff and Mr Hyland for the following reasons. 20Mrs Betteridge's evidence of her recollection of events was of little assistance. She placed the plaintiff and Mr Betteridge in a position on the lawn very close to the front of her house but remembered so little of the other details of the occurrence, including the question of whether Mr Hyland was present, that I did not consider her evidence to be reliable and I disregarded it. 21Ms Betteridge said she saw Sam on the drive of 28 Pitcairn Street. She said Buster was in the rear yard of the defendants' property a few minutes earlier when she was there smoking a cigarette. She heard him bark and next saw the dogs fighting at the point that she marked on the drive. She said the plaintiff then came onto the property and attempted to separate the dogs. Mr Betteridge also went outside and joined with the plaintiff in separating the dogs. 22There were problems with this evidence because it was inconsistent with the evidence of Mr Betteridge. In addition, Ms Betteridge's description of Buster as an affectionate sooky dog contrasted sharply with the description of Mr Nash, the occupier of the property at 30 Pitcairn Street. He said that Buster was aggressive and territorial, that he barked at persons walking in the street and on the drive of his property. 23Neither Ms Betteridge or Mr Betteridge made reference to the plaintiff's leaving the area of the dog fight to seek assistance from Mr Nash. The evidence of Mr Nash that she did in fact go to his home at a time when she was bleeding from her wounds was not challenged in cross examination. 24Mr Betteridge said his daughter drew his attention to the presence of Sam on the drive. He then saw Buster attacking Sam. At that stage he did not see the plaintiff or Mr Hyland. He went to his bedroom to put on shoes and then outside to separate the dogs. 25There he saw the plaintiff and Mr Hyland and the dogs continuing to fight. He said he separated the dogs and took Buster inside, locking him in the rear yard. 26According to Mr Betteridge, neither the plaintiff nor Mr Hyland attempted to separate the dogs. He said he undertook this task, twice having to separate them. He subsequently said that Mr Hyland did his best to separate them but was not strong enough. Mr Hyland said that he was pulled down to the ground when trying to separate the dogs. Mr Betteridge did not remember that Mr Hyland fell to the ground. He did not explain how, if she made no attempt to separate the dogs, the plaintiff suffered the wounds that Mr Nash saw when she arrived at his front door. 27Mr Betteridge was taken to a record of Maitland City Council made by a ranger who interviewed him on 15 January 2007. He agreed that his memory events would have been better two weeks after the incident that some four years later. 28The ranger's note read: At 3.15 pm on the 15/1/07 myself and ranger McMahon attended 28 Pitcairne St Ashtonfield re this attack and spoke to the person who was in control of the dog on the night in question a Mr Alfred Betteridge ... and when questioned as to what happened on the night of the attack he claimed that Mrs Penfolds dog was unleashed on the footpath area next door and his dog jumped the fence and the dogs started fighting in the street and that the fight moved into his front yard and when he tried to separate the dogs he was bitten on the left hand by Mrs Penfolds dog. 29Mr Betteridge denied that he made a statement to this effect and claimed that the record made by the ranger was a lie. He suggested that this was a version of events that was given to the ranger by the plaintiff. 30Having regard to the obvious inconsistencies I concluded that, although she denied it, Ms Betteridge coloured her evidence in an effort to assist her parents in their defence of the plaintiff's claim. I concluded that Mr Betteridge was dishonest in his evidence and that the version recorded by Maitland City Council's ranger correctly stated his recollection of the events surrounding the fight between the dogs. 31This version was entirely consistent with that of the plaintiff and Mr Hyland concerning the location at which the incident took place. 32I therefore accepted their evidence and I find that Buster attacked Sam when he was on the nature strip of Pitcairn Street and that in the course of the incident the dogs probably moved onto the drive of 28 Pitcairn Street.

Unlawful entry 33In Halliday v Nevill (1984) 155 CLR 1 the majority, when dealing with the extent to which a police officer might pursue a criminal onto private property stated the following as a general proposition: ... if the path or driveway leading to the entrance of a suburban dwelling-house is left unobstructed, with any entrance gate unlocked, and without indication by notice or otherwise that entry by visitors or some class of visitors is forbidden, the law will imply a licence in favour of any member of the public to go on that path or driveway for any legitimate purpose that in itself involves no interference with the occupier's possession or injury to the person or property of the occupier, or the occupier's guests. 34In Kuru v State of New South Wales (2008) 236 CLR 1, the High Court said: ... in the absence of any indication to the contrary, the implied or tacit licence to persons to go upon the open driveway of a suburban dwelling for legitimate purposes is not so confined as to exclude from its scope a member of the police force who goes upon the driveway in the ordinary course of his duty for the purpose of questioning or arresting a trespasser or a lawful visitor upon it. 35I considered that, if she did enter onto the open driveway of the defendants' suburban property for the purpose of defending Sam from attack by Buster, the plaintiff did so for a legitimate purpose and was not acting unlawfully.

Negligence 36In defence of this basis for the plaintiff's claim the defendants argued that the requirements of s 5B of the Civil Liability Act 2005 were not met because she failed to establish that a reasonable person in the defendants' position would have taken greater precautions than had already been put in place to guard against the risk of harm from attack by Buster. 37The plaintiff's claim was made against a background of evidence that established: 1 The defendants were aware that Buster presented a risk of harm. The plaintiff described an incident involving the two dogs that occurred 12 to 18 months prior to December 2006. On that occasion she was walking Sam on a leash when Buster came into the street and bit through Sam's collar. Mr Betteridge conceded that this event occurred. 2 The defendants were aware that Buster was able to escape from the rear yard of their property by jumping a four foot high fence on the boundary between 28 and 30 Pitcairn Street. 3 The defendants were aware that Buster was able to jump the gate of 30 Pitcairn Street that was 10 inches higher than the fence and gain access to the public road. 38To deal with the risk of escape Mr Betteridge claimed that he placed a strand of wire along the top of the fence at a height that was approximately level with the top of the gate at 30 Pitcairn Street. This measure, however, raised the height of the dividing fence only to the height of the gate. Mr Betteridge acknowledged that, since Buster was able to jump this gate, the addition of this height to the dividing fence would not be effective in impeding his passage over the fence. 39Although it was not known precisely how Buster gained access to the street on 31 December 2006, it was apparent that if he was contained in the rear yard of the defendants' property there were only two possible means by which he could have escaped. The first was that the garage door was left open or that he jumped the dividing fence and gate at 30 Pitcairn Street. 40The defendants denied that the garage door was left open. 41In either case, I considered the defendants liable to the plaintiff in negligence. The only precaution taken to prevent Buster from jumping over the fence and gate was clearly inadequate. It was not suggested that adequate precautions would be unduly burdensome. The precaution taken after the event was to remove him from the property.

Causation 42The defendants claimed that it was not possible to find with certainty which of the dogs was responsible for the injuries that the plaintiff suffered. 43The plaintiff was certain that Buster bit her. She denied that she was biased in favour of Sam to the point that she blamed Buster entirely for the incident and for the injuries that she suffered. 44I noted that s 25 of the Companion Animals Act imposed liability for injury caused both by a dog and by a dog's attacking a person. In Coleman v Barrat [2004] NSWCA 27, Justice Gzell cited a number of earlier authorities that established that it was not necessary that the wounding referred to in s 25 be directly inflicted by the animal that was responsible for the attack. It was sufficient if it was established that a person suffered injury as a result of an act of aggression by the animal. 45I was satisfied that the plaintiff's injuries were suffered in the course of the incident and that she therefore discharged the onus of establishing causation.

Contributory negligence 46The defendants' claim of contributory negligence on the part of the plaintiff was based on her failure to place Sam on a leash before she took him onto the street prior to the attack. 47The plaintiff said that, although it was her regular practice to put Sam on a leash, she did not do so on this occasion because she did not regard Sam as a threat in a quiet suburban street close to midnight. She said that, aside from his advanced age, he could not walk properly on his three remaining legs. 48The defendants were responsible for establishing that the plaintiff's failure to use a leash contributed to her damage and loss. Mr Betteridge agreed that Sam was on the public street on a leash on the prior occasion that Buster attacked him. 49Mr Nash described Sam as a gentle and non-aggressive dog. 50I was not persuaded that, having regard to Sam's nature, his age and crippled condition, the failure to place him on a leash on the occasion of this incident contributed to the occurrence of the attack or to the damage and loss suffered by the plaintiff. 51I make no finding on contributory negligence against the plaintiff.

Damages 52The plaintiff was 35 years old at the time of the incident. She is now 40. She claimed that, as a result of the incident, she suffered from scarring from the puncture wounds, ongoing pain and discomfort in her right arm and aggravation of her pre-existing psychological disorders. 53The scars on her right forearm and left hand were readily visible. Plastic surgeons agreed that revisionary surgery would not improve the appearance of the scars and was not warranted.

The hand and arm injuries 54The plaintiff said that she was aware that she had been bitten but did not appreciate the extent of her injuries until she returned to her home. There she noted puncture wounds to her right forearm and to the fingers on her left hand. Mr Hyland cleaned and dressed her wounds. 55She did not seek medical treatment until the following day when, after taking Sam to the veterinarian, she went to Maitland Hospital. At the direction of medical staff, she was driven to John Hunter Hospital for treatment to the wounds on her left hand. 56She was admitted to the John Hunter Hospital where, on 2 January 2007, surgery was performed to determine whether a tendon or the nerves in her left hand required repair. No damage was located and the plaintiff was discharged into the care of her general practitioner on 4 January 2007. The plaintiff said she was in severe pain prior to and after the surgery. 57The plaintiff conceded that the wounds on her left hand and right forearm healed shortly after the incident. She complained of continuing numbness in the lower part of the ring finger on her left hand and of pain at the finger tip. There was nothing in particular that aggravated the condition of this finger. 58The most significant physical problem appeared to be the plaintiff's right arm and hand. She is right hand dominant. She complained that she was unable to use her right hand at all for about one month and that she suffered constant pain for which she took pain killing medication. After that period her condition improved but her right hand continued to be painful when she undertook activities that put pressure on the hand and wrist. The aggravating activities included gardening, mowing, vacuum cleaning and cleaning windows. 59She said her right arm became painful and swelled in the area surrounding the scars left by the puncture wounds. She claimed that this discomfort continued for up to two days. 60She continued to take over the counter anti-inflammatory medication as well as prescribed pain killing medication and treated her right forearm with ice packs or strapping. 61The defendants challenged the plaintiff's complaint of ongoing pain and disability in the right arm. 62The plaintiff denied that the absence of reference to the right arm in some of the medical reports prepared close to the date of the incident indicated that the injuries to this arm were of little consequence. 63The defendants pointed out that Dr Walker, plastic surgeon, located no obvious muscle bulging in the area of the scars and remarked that it would be unusual for a dog bite of the size suffered by the plaintiff to cause significant underlying muscle damage. He disagreed with Dr Adendorff's suggestion that there was a possible muscle hernia in the right arm. 64Dr Walker recorded, however, that the right forearm was one centimetre in smaller than the left, suggesting that, as a right handed persons, the plaintiff was not using her right hand as much as her left. He considered that the plaintiff magnified her symptoms and he attributed this magnification to the psychosomatic effect of her psychological illness. 65Dr Walker reported a slight degree of neuropraxia to the digital nerves in the ring finger of the left hand that he thought was insufficient to cause significant functional loss of the use of the hand. He disagreed with Dr Adendorff that the lack of sensation in the ring finger created vulnerability to further trauma. 66The plaintiff's general practitioner removed the sutures in her wounds on 10 January 2007. She confirmed that the plaintiff complained that the wounds were painful, particularly in the right arm where the wound was oozing and required daily dressing changes, attended to by Mr Hyland. She also reported on the side effects of the injury. At the time of the incident the plaintiff was recovering from surgery, undertaken in October 2006 following an earlier fracture of her left wrist. As a result of the injury to the left hand she was unable to wear a splint that fitted over her ring finger and was suffering from pain in the left wrist. She suffered from side effects of the anti-biotic medication that was necessary following the dog bite and she had financial concerns in meeting the costs of additional medication and veterinarian's bills. 67Dr Middleton, general practitioner, treated the plaintiff from mid-2007. She confirmed the plaintiff's ongoing complaints of persisting soreness and pain around her scars and increased pain and tenderness on undertaking physical work at home or in her garden. She diagnosed a soft tissue injury in the right forearm.

Psychological injury 68The plaintiff conceded that she suffered from psychological illness prior to the incident. This appeared to be a generalised anxiety disorder that manifested in the form of panic attacks and agoraphobia. 69Dr Vickery referred to a chronology that indicated that the plaintiff displayed symptoms of agoraphobia as early as 1994 and that various events in her life caused her mental condition to fluctuate. He noted that her general practitioner reported that her psychological condition deteriorated after ankle surgery in mid 2005 so that she suffered from a crippling disorder that left her unable to leave her house for three months prior to October 2006. 70The plaintiff acknowledged these problems but said that by December 2006 her condition had improved to the point where she was able to walk the full length of Pitcairn Street, passing 15 houses before reaching a cross street. She achieved this improvement after adding one house at a time to her walk. 71The plaintiff said she was receiving no psychological treatment at the time of the incident, although it was apparent that she meant by this statement that she was receiving no specialised treatment. She was in fact receiving regular treatment from her general practitioner. 72She said that for the period of six months after the attack she was unable to walk beyond her immediate neighbour's house because beyond that she was required to walk past the defendants' property. During this six month period she was depressed, weeping and disinterested. She said she felt emotionally very low. She was frightened and her condition was much worse than before the incident. 73At her general practitioner's suggestion she contacted her local Baptist Church in May 2007. She became a Christian and joined the Church. This allowed her to feel that she had a family and she developed sufficient confidence to resume her walks. 74The plaintiff said that she recovered to her pre-incident psychological condition within six to seven months of her injury and that she had continued to improve to the point where at the time of the hearing her mental health was better than it had been for many years. She agreed that she worked in the Church bookshop twice a week, attend group Bible study meetings and undertake mission work. She agreed that she was able to drive a manual car for short distances. She was able to shop at the supermarket when accompanied by a friend. 75The reports of the plaintiff's general practitioners confirmed that her mental state was aggravated by the incident, with increases in the intensity and frequency of her panic attacks. Dr Sutton reported that the plaintiff was upset to acknowledge the deterioration in her condition because she had been proud of the progress that she previously made. 76At this point she was referred to a clinical psychologist, Ms Heitmeyer who also reported on the increase in intensity and frequency of the plaintiff's panic attacks after the incident. 77Dr Middleton confirmed in October 2010 that the plaintiff made good progress in dealing with her mental state.

Assessment - Non economic loss 78As a result of the analysis of this evidence I concluded that the plaintiff's scarring, although readily visible, was not significant. I noted that for a short period her left wrist was aggravated. I did not regard this aggravation as significant. 79In dealing with the physical injuries, I took into account the requirement for hospitalisation to treat the plaintiff's wounds and the evidence both of the plaintiff and her general practitioner of the considerable pain and discomfort suffered in the immediate aftermath of the incident. I accepted the diagnosis of soft tissue injury in the right arm with ongoing pain and discomfort. 80It was also apparent that the plaintiff was set back in the treatment of her psychological illness for a period of six months during which she was unable to leave her home. 81Having regard to these matters I assessed her non economic loss at 20% of a most extreme case and awarded her damages in the sum of $17,500.

Domestic care 82The plaintiff sought to recover compensation for gratuitous personal and domestic care she claimed was provided by Mr Hyland during the six months following the incident. She also claimed for the cost of future domestic care to be provided on a commercial basis. 83The evidence of the plaintiff and Mr Hyland was that prior to the incident they shared equally the housework and gardening required to maintain their household. 84For about one month after the incident Mr Hyland was required to attend to a number of aspects of her personal care because of her inability to use her hands. During that period he undertook almost all of the internal and external work. 85The plaintiff said that she gradually resumed light tasks as her condition improved until she progressed to the point after six months where she resumed her share of the work. She agreed that she was able to use her left hand normally since the wounds healed. She maintained that she suffered pain when using her right hand and that it took her longer to complete certain tasks because she carried out those tasks in stages. 86In mid-2009 Mr Hyland, now almost 73 years old, suffered a heart attack and pneumonia and was diagnosed with emphysema. Since then he has been unable to provide assistance with housework or gardening. 87Mr Hyland said that immediately after the incident the plaintiff refused to leave the house. He said her mental state was such that she was disinterested in housework or gardening over the initial period of six months. 88The plaintiff was not cross examined on the matter of personal or domestic care but Mr Hyland was questioned in detail about the time taken by him to perform various tasks. The purpose of these questions was to suggest that minimal time was required. 89I considered this exercise to be of little assistance since it dealt with only some of the tasks that Mr Hyland was required to undertake on behalf of the plaintiff. I preferred to assess the opinions and recommendations of the occupational therapists to determine the level of the plaintiff's reasonable needs during this period and the extent to which those needs were generated by the injuries suffered as a result of the incident. 90The plaintiff agreed that at the time of the incident she required some assistance with heavier housework because she was at that time recovering from surgery to her left wrist performed in October 2006. The defendants accepted that the plaintiff required some additional assistance following the incident but disputed that the plaintiff met the threshold requirements of s 15B of the Civil Liability Act. 91Mr Proctor agreed that during the month following the incident the plaintiff required the services assessed by Ms Walker. After that month, he considered that the plaintiff's needs gradually reduced so that before the end of the six month period prescribed by the Act she required less than six hours of care per week. 92Mr Proctor also accepted the claim for transport costs, with the exception of costs of transport to the psychologist on his understanding that this was a pre-existing treatment requirement. It was clear, however, from Dr Sutton's report that prior to the incident the plaintiff was adequately treated by her and that the psychologist was consulted as a result of the aggravation of the plaintiff's condition following the incident. 93The defendants submitted that the plaintiff did not require assistance in the future because she was in fact undertaking all necessary house and garden work, although, if accepted, with pain and discomfort and with the need to stage her activities so that she could cope with them. 94In my view this approach misapplied the law concerning the circumstances in which an injured party was entitled to compensation to cover the cost of domestic services. My task was to assess the assistance that was reasonably required as a result of her injuries. 95The plaintiff to date performed these tasks because she did not have the funds to pay for commercially available cleaning or gardening services. Her evidence was that, if funded, she would engage assistance. 96Mr Proctor considered that domestic help provided on a commercial basis would render the plaintiff dependent on external services and would therefore be detrimental to the maintenance of her independence. He recommended that she be supplied, on a one off basis, with some rudimentary items of equipment, such as a squeegee for window cleaning and a bucket and mop. He also proposed the one off provision of three hours of a gardening service to clear the overgrown weeds at the plaintiff's home on the basis that the plaintiff would then be able to manage by undertaking the weeding herself or by using a weed spray. 97Ms Walker's assessment of the plaintiff's future needs was modest. She recommended one hour per week for domestic care and two hours per week for gardening.

Assessment - past care 98Ordinarily I would accept that recovery from physical injuries of the type suffered by the plaintiff would involve a gradually reducing requirement for care. In this case, however, the plaintiff's unchallenged evidence was that her psychological condition was such that she was disinterested in domestic matters for six months. Mr Hyland confirmed that this was the plaintiff's condition in this period. 99During this period the plaintiff was confined by her illness to her home and required assistance not only with cleaning, meals, washing and gardening but also with shopping and transport to medical consultations. 100In the circumstances I considered the claim of 6.5 hours per week as reasonable. I have taken account of the plaintiff's pre-incident need for assistance generated to the surgery to her left wrist and have reduced the allowance for the first month by 1.5 hours per week. 101I allowed the plaintiff $4,517 for past personal and domestic care, inclusive of transport.

Assessment - future care 102I accepted that the plaintiff required assistance. Mr Proctor accepted that the plaintiff required some assistance although he differed from Ms Walker on how best to meet her needs. No medical expert suggested that the plaintiff did not suffer from the pain and discomfort in her right arm of which she complained. Her complaints in this regard have been consistent. 103Dr Walker could offer no physical explanation for these ongoing symptoms but he accepted that the plaintiff suffered from them. In his opinion they were psychosomatic and generated by the plaintiff's psychological problems. Dr Middleton's diagnosis of a soft tissue injury to the right arm was not challenged and I accepted it as the most probable explanation for the plaintiff's symptoms. 104I did not consider that Mr Proctor's recommendations would meet the need generated by this injury. They involved short-term assistance only and, even if provided on a continuing basis, I considered them inadequate to relieve the plaintiff of the heavier aspects of housework and gardening. 105I considered Ms Walker's recommendation to be reasonable but my view of the plaintiff's needs varied slightly. I considered that her needs would be more adequately met by the provision of 1.5 hours per week of domestic assistance and 1.5 hours per week of assistance with gardening and general maintenance. 106I allowed the plaintiff $115,202 for future domestic care, based on a weekly rate of $119.

Out of pocket expenses 107The plaintiff said that she continued to take medication to deal with her right arm pain. She obtained prescriptions for some of this medication. The balance she purchased over the counter. 108The defendant accepted her claim for a period of six months only, arguing that after that period there was no demonstrated need. 109Having already concluded that the plaintiff suffered soft tissue injury to her right arm that continued to cause pain and discomfort, I was satisfied that there was a past and ongoing need for medication. 110I therefore awarded her the sum claimed for the past of $494. 111The plaintiff said that she received prescriptions on a six monthly basis. I did not consider it appropriate to compensate her for the cost of consultations with her general practitioner for the purpose of obtaining this assistance since it was apparent that she attended on her doctor on a fortnightly basis for treatment of her psychological illness, a condition that, after June 2007, was not related to the incident. 112I allowed a modest buffer for future medication in the sum of $1,500.

ORDERS 113Verdict and judgment for the plaintiff in the sum of $139,213. 114The defendants are to pay the plaintiff's costs of the proceedings. This order is suspended for seven days to allow the parties to list the matter for further argument on the question of costs should they wish to do so. 115The exhibits are returned. 116My reasons are published.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2011