Cuschieri Te Puia v Sheerin

Nature of case

1. The plaintiff, Dejgaren Cuschieri Te Puia, a minor who is now aged 9 years, brings these proceedings by his mother, Ms Dodie Cuschieri, as his tutor. He claims damages for personal injury from the defendant, Ms Noella Jane Sheerin, after he was attacked and bitten by the defendant's two German Shepherd Pointer dogs on 9 November 2016. This occurred whilst he was in the backyard of private domestic premises that adjoined the defendant's property, which was fenced. At that time he was aged 5 years.
2. The liability component of the proceedings is governed by s 25 of the Companion Animals Act 1998 (NSW). The damages component of the proceedings is governed by the Civil Liability Act 2002 (NSW) ("CL Act").

Evidence overview

1. Other than the plaintiff, and another young child with whom he had been playing games in the backyard adjacent to the defendant's property, there were no eyewitnesses to the actual incident. That other child was not called to give evidence. No adverse inferences arise from that fact.
2. In the plaintiff's case, oral evidence was given by the plaintiff and his mother. In the defendant's case, the defendant was the only witness to give oral evidence. The defendant did not suggest that the plaintiff's evidence in which he described the events in question should not be accepted, or that his account of those events should be discounted.
3. The parties tendered medical reports, hospital records, photographs taken by ambulance personnel, and documents prepared by police officers who attended and investigated the incident. The defendant also took some photographs of the scene. Some of those photographs were tendered. Those documents will be referred to where it becomes relevant to do so.

Facts

1. The incident occurred at about 4.15pm on Monday 9 November 2016. At that time, the plaintiff was sequentially attacked and bitten by each of the defendant's two dogs at a dividing fence between two adjoining properties identified as 33 and 35 Killeen Street, Wentworthville, NSW.
2. The dividing fence comprised a six foot wooden paling fence with fixed timber capping attached at the top. The fence palings were nailed to horizontal rails or cross-beams from the premises at 33 Killeen Street. Those horizontal cross-beams were exposed at the side of the fence at the 35 Killeen Street premises and they provided a climbing point onto the fence.
3. The defendant is and was the occupier of the premises at 35 Killeen Street. The defendant's dogs were securely enclosed in the backyard of those premises before the attacks commenced. The defendant was not at her premises at the time her dogs attacked and bit the plaintiff. The dogs had been trained to protect the premises from intruders. The perimeter of the premises was enclosed so that the dogs would ordinarily remain behind the six foot paling fence.
4. The plaintiff and his mother were visiting the adjoining premises at 33 Killeen Street. The plaintiff was playing together with another young child in the backyard of the premises at 33 Killeen Street. In those events the plaintiff became aware of the presence of the defendant's two dogs located on the other side of the fence because the dogs were barking excitedly, and were making a lot of noise.
5. The plaintiff said that he climbed onto a tree stump which is shown in the image reproduced in paragraph [11] below, and he then climbed and stood upon a cross-beam of the dividing fence. He said that he did so with the intention of talking to the dogs to tell them that he and his friend were just playing, and he was thereby hoping to calm the dogs.
6. The photograph below shows the dividing fence when viewed from within the premises at 33 Killeen Street. That photograph also shows the position of a tree stump located near the dividing fence, and the horizontal cross-beam of that fence: [Exhibit "1", p 14]
7. For the purpose of these proceedings the parties have apparently assumed that the dividing fence between the two properties also marked the boundary which divided the two properties. It is not necessary for a dividing fence to be on the actual geological common boundary line that separates adjoining lands: s 3 of the Dividing Fences Act 1991 (NSW). The question of a fencing easement does not arise for consideration in this case: s 10 of the Dividing Fences Act 1991.
8. As I understand the plaintiff's evidence-in-chief, before the dogs attacked him, he was standing on the cross-beam of the fence on the 33 Killeen Street side of the fence. At that time, the tips of some of his fingers and his hands were located at a point at least six feet above ground level, on the top of the capped dividing fence. His hands appeared to have been in a cupped position at, or possibly just over, the top of the capping of the dividing fence. I infer the plaintiff placed his hands in that position in order to steady himself whilst he remained standing in what may be assumed to have been a precariously balanced position on the cross-beam of the fence.
9. The above description came from the plaintiff's uncontradicted evidence. The fence palings themselves appear to have been relatively thin, as is apparent from the photographs contained in Exhibit "B", at pages 58 - 65. The evidence suggested that the palings appeared to be standard fence palings. There was no evidence as to the width of the capping timber at the top of the fence.
10. The photograph below shows the dividing fence when viewed from the defendant's side of the fence at 35 Killeen Street: [Exhibit "1", p 15]
11. The photograph appearing below shows a closer view of the timber capping that formed part of the top of the dividing fence: [Exhibit "B", p 65]
12. A combined viewing of the above two photographs shows the horizontal capping timber to project over the width of the palings and slightly into the airspace over each of the two properties to an extent that is not capable of precise measurement. The evidence adduced did not include measurements or estimates of that kind.
13. However, using the vertical palings as a reference point, it is reasonable to broadly conclude that the overhang of the capping timber on the defendant's side of the dividing fence could be of the order of a few centimetres and the overhang of the capping timber on the side of the fence where the plaintiff was located involved a greater number of centimetres. That said, that entire structure formed part of the dividing fence between the two properties.
14. Absent any evidence of the measured width of the timber components of the fence, whatever the width of the flat capping timber might have been, it is difficult to see how the plaintiff's small 5-year-old hands, and even his 9-year-old hands for that matter, could have been cupped over the top of the fence in the manner which he demonstrated in his evidence, so that the tips of his fingers protruded over the fence and into the airspace of the defendant's premises.
15. The interpretation of the plaintiff's evidence in which he displayed a cupped appearance of his hands and fingers bears careful consideration.
16. A number of possibilities arise. First, the palm and fingers of at least one of the plaintiff's hands may have laid partly flat on the upper surface of the capping timber but bent at an approximate right angle at the most proximal palmar knuckle joints. Secondly, the whole of the plaintiff's right hand may have been laid flat on the timber capping with the distal fingertips being at or just over the edge of the capping timber. Thirdly, the plaintiff's fingers may have been cupped and bent downward from the knuckles and over the edge of the capping timber with the fingertips protruding over the edge of the capping timber and over the defendant's property.
17. In my view, the latter description seemed at odds with the explanatory demonstration that the plaintiff provided when he gave his evidence, and I therefore consider that aspect of his explanation to be unlikely to be correct. The state of the evidence does not assist in identifying which of the other two possible alternatives were more likely to have been the case.
18. At the time the plaintiff climbed onto the cross-beam of the dividing fence, the defendant's dogs were barking excitedly even before he came into their line of sight. Plainly, the subsequent appearance of the plaintiff's head, and possibly his fingertips, within the line of sight of the defendant's dogs, provided a further excitatory stimulus that attracted their attention. It is not known for how long this situation continued whilst the plaintiff remained standing in that position on the cross-beam of the fence.
19. In my view, although the dogs most probably became increasingly excited at seeing the plaintiff, in those circumstances I nevertheless find that the plaintiff's conduct did not constitute an action in the nature of an intentional provocation of the defendant's dogs so as to create an attack response by those dogs.
20. The ensuing attack, mauling and wounding of the plaintiff occurred rather quickly. The events started and concluded within a relatively short space of time.
21. One of the dogs leapt up and bit him on his right forearm, and possibly also on his right hand. The other dog leapt up and bit him on the face. Those bites exposed the plaintiff's flesh and underlying tissue structures. Those events left the plaintiff in a shocked and bleeding state. His reaction was to withdraw. Somehow he got himself off the fence and back onto the ground below where he then remained out of the reach of the dogs.
22. The plaintiff initially concealed his injuries from his mother when she subsequently entered the backyard. She did so after noticing that the dogs had stopped barking. After the plaintiff's injuries were revealed, an ambulance was called.
23. At about 16:23 hours an ambulance arrived at the scene. The plaintiff's wounds were immediately tended to and they were photographed by the attending ambulance personnel, who then transported him with some urgency to Westmead Children's Hospital, where he was assessed and treated, including by surgery: Exhibit "D", pp 2 - 8.
24. In the plaintiff's evidence-in-chief, he described the events of the attack as follows: "A. So like, I was - so, my mum - my mum drove to the place and then - and then she was getting her hairs plait and then the lady that was doing her - my mum's hair went to go get her daughter from school and then I was playing with her toys and then - then she got home and then we played at the back with some hula hoops and then I went on the stump and then my hand were on the fence and I - and I said, "It's okay, calm down", cause they were jumping on the fence and they were barking. Q. When did you hear the dogs bark first? A. When I was like inside, I think or like when I came outside. Q. Do you know how long you were outside for before you climbed on the stump? A. No. Q. Do you remember where the stump was? A. I think it was next to the - the shed. Q. How far from the shed? A. Not that far. Q. When you got onto the stump, what did you do? A. I put my hands onto the fence and then I peeked over. Q. How did you peek over? A. Like, I - I - like, I - like put my head over or something like that. Q. What do you mean you put your head over? A. Like - like I - like, I put it over like that. Q. You bent your head forward. A. (No verbal reply) Q. Where was the top of the fence when you did that? A. Here, like here. Q. Are you indicating at about the level of your chin? A. (No verbal reply) Q. Is that right? A. I think, yeah. Q. You used your hands to indicate where the fence was. A. Yeah. Q. Where were your hands when you peeked over the fence? A. It was just on the fence like that. Q. With your fingers holding onto the top of the fence. HIS HONOUR: Cupped over the top. SHELDON Q. Cupped over the top of the fence. A. Yeah." [T8.33 - T9.39]
25. The interpretation of the plaintiff's hands as being cupped was discerned from the plaintiff's demonstration in which he indicated that appearance when using the words "like that" in his secondlast answer, as cited above. In the context of that discussion, where the plaintiff acquiesced to the description, I give little weight to the proposition that any part of the plaintiff's hands protruded into the airspace over the defendant's property.
26. The above extract of the plaintiff's evidence-in-chief, in which he stated that he "like put his head over", indicated to me that his head was positioned heightwise over the level of the fence but not leaning forward and protruding over and into the airspace above the neighbouring property.
27. The plaintiff's evidence-in-chief in which he described the ensuing attack by the defendant's two dogs, was as follows: "Q. How long do you think you were peeking over the fence before you were bitten? A. I don't know. Q. Do you know which part of your body was bitten first? A. I think my arm. My arm. Q. What happened when you were bitten on the arm? A. Then the other one jumped on - jumped and hurt my face. Q. Whereabouts on your face? A. Here and here. Q. Beside your right eye on the temple-- A. Yeah. Q. --and to the left of your nose on your cheek. A. Yeah. Q. Did the dogs keep hold of you or what happened? A. Then they like - they let go, then I hopped off the - like, the stump and then I went behind the shed cause I didn't want to scare Mum, but then I came out. Q. What do you mean you didn't want to scare Mum? A. Like, I didn't want to like hurt her feelings and anything. Q. How were you when you got down off the stump? A. Like, shocked-- Q. What was-- A. --and scared. Q. I'm sorry? A. Shocked and scared. Q. What were you scared of? A. The - the dogs if, like, they wanted to hurt me again." [T10.33 - T11.19]
28. The plaintiff was cross-examined as to the circumstances of the incident: T17 - T27. Although I was satisfied the plaintiff understood the oath he had taken and could give evidence, it became a challenge for counsel for the defendant to cross-examine a child aged nine years regarding obviously traumatic events to which he had been subjected four years earlier.
29. Notwithstanding the challenging circumstances, the cross-examiner asked questions in a gentle and encouraging manner. In assessing the plaintiff's responses, some of which were hesitant or and non-committal, I consider that some allowance must be made for the plaintiff's bewilderment at being asked questions in what was for him an undoubtedly overwhelming, strange, if not intimidatory, formal circumstance comprising the environment and layout of the courtroom, where he was located alone and without a support person in the witness box.
30. The commencement of the questions asked of the plaintiff in cross-examination as to the circumstances of the incident introduced separate concepts, namely, that the plaintiff had stood in a position to "peek over the fence" (T18.48), and that he had done so to "look over the fence": T19.2; T20.15; T21.25. None of those expressions necessarily meant that any part of his body, face or limbs had protruded over the fence and into the airspace of the neighbouring property.
31. Naturally, the cross-examiner sought to obtain concessions from the plaintiff as to how the attack occurred. In that cross-examination, there was a discernible contextual shift of the sense in which the phrase "over the fence" was used by the cross-examiner, so as to ultimately imply that the plaintiff's arm had allegedly protruded over into the airspace of the neighbouring property.
32. This shift occurred when questions were asked as to the dogs barking "on the other side" (T22.10), at which time they "were completely on the other side of the fence"(T23.46 - T23.48), and the suggestion that they had "jumped up on the fence": T23.5.
33. In that context, the plaintiff emphatically denied that he had put his arm over the fence at the time the first dog bit him: T23.50 - T24.1.
34. In dealing with such questions, the plaintiff was clearly able to give a coherent spontaneous and credible account of the events, as appears from the following extract of his evidence: "HULL Q. When you saw the dogs on the other side of the fence, their heads and their paws were on the other side of the fence to the stump? A. No. Q. Where do you say their head was? A. Like their head - like their legs were still on the fence, but their head was like up here. HIS HONOUR Q. What do you mean by up here; you're pointing to your cuffed hand. A. Like this is the fence, and their head was like that. Q. So you're saying at the same level as the top of the fence; is that what you mean? A. Kind of, yeah. Q. Can you be a bit more clear about what you mean by kind of? A. Like-" [T23.17 - T23.77]
35. Unfortunately, the plaintiff's last answer was interrupted by the intervention of the cross-examiner before it was completed when it was cut-off by the cross-examiner's next question. The complex and somewhat convoluted question that then followed, introduced an element of uncertainty, as follows: "HULL Q. When you used this words, "Like kind of" and "maybe", you're not really sure, are you, where the dogs were when they hit you - when you say they bit you. You're not really sure, are you? A. I'm not really sure." [T23.39 - T23.44]
36. It is not clear as to which element of that convoluted question, which contained factual inaccuracies, attracted the plaintiff's "I'm not really sure" answer. In my view the uncertainty that he expressed was a natural response to that question.
37. The plaintiff plainly became daunted by a series of complex questions asked of him in cross-examination, as is evident from the following extract from his evidence: "HULL: I certainly want to make sure the witness understands. Q. What I'm suggesting to you is that the - if what you are saying is correct, and your hands are simply touching the top of the fence, and you're peering over with your head-- A. Yes. Q. --in order for the dog to bite your right arm, where your scar presently is, his head would have to have come over the top of the fence, and whatever length it is between the top of the fence and where your scars are; his head would have to have done that, wouldn't it? A. Yes. Q. And that didn't happen, did it? A. I forgot. I don't know." [T24.40 - T25.4]
38. A 9-year-old could be forgiven for forgetting the focus of that evolving question which became inherently confusing. It was not immediately clear as to which elements of the first component of those complicated questions should be considered to be the subject of the plaintiff's acquiescent answers, or his answer to the effect that he had forgotten and did not know.
39. In considering the first part of the question, the plaintiff appeared to have been agreeing with the proposition that his hands were simply touching the top of the fence, that is, the capping timber, which was consistent with his previous evidence.
40. It was further suggested to the plaintiff in cross-examination that he could not really tell where the dogs were when he was bitten: T25.19. The narrative of his subsequent answers indicated he had a clear, adequate, and reliable perception of those critical events which he had recounted.
41. The elements of the plaintiff's narrative were to the effect that he had not put his arm over onto the other side of the fence (T24.1), and that whilst his hands were on top of the fence (T24.4), the dogs "came … at the top" of the fence so that the first dog bit him on the wrist (T24.21), and the second dog later bit him on the face (T25.49), that is, the plaintiff thought the dogs had reached over the fence in order for those events to have occurred (T25.23), at which time the plaintiff thought the dogs may have pulled him towards the other side of the fence: T25.35 - T25.43.
42. There was nothing inherently unbelievable or improbable within the plaintiff's factual account of the events that comprised the attack and mauling to which he had been subjected.
43. After making all due allowances for the plaintiff's young age at the time of the attack and also having regard to the possibility that the passage of time since the attack may have caused his memory of the events to have faded, I nevertheless accept the plaintiff's account as truthful and unembellished. In my view the traumatic nature of the attack made it more likely that he would remember salient details of the events in question. Counsel for the defendant did not make submissions to the contrary.
44. After the plaintiff was taken from the scene to be transported to hospital, investigating police officers attended the scene. The records of the ensuing police investigation were tendered: Exhibit "B", pp 1 - 72.
45. The defendant also arrived at her premises after the events. There was nothing which emerged from within her evidence that materially contributed to the liability analysis that is required in this case.
46. The police report of the incident stated that the defendant arrived home after the police were already in attendance at the scene. The narrative within the police documents records that both dogs were barking and growling at police, and that in those circumstances the defendant had to restrain them by holding their collars to stop the dogs from running at the police officers: Exhibit "B", p 51.
47. The police observed that the dividing fence separating the two properties was in good working condition, with no holes, gaps or damage of any concern. The behaviour of the dogs was described by police as being very protective of the defendant's property: Exhibit "B", p 50. The police report also noted that the behaviour of the dogs appeared extremely agitated and aggressive at the time the police attended: Exhibit "B", p 45.
48. Essentially, the defendant's evidence was to the effect that when she had left her premises earlier that day, the dogs were securely contained within her premises behind a well-designed and constructed fence. She said that the dogs had been trained to protect the premises. The male dog was aged 7 years, the female dog was aged 6 years. Before the events in question, they had been de-sexed and they had undergone obedience training.
49. The defendant said she had never seen the dogs jump to a height or level where their heads had reached the top of the fence. She identified what she described as paw marks from the activity of the dogs having occasionally pawed or clawed at the fence at what is estimated to be a point that appeared to be about two-thirds of the height of the fence. This had apparently occurred when the neighbours on the other side were tending to their backyard.
50. The dogs in question were large dogs. There was no reliable evidence called as to the measured heights of the dogs as if they were to be standing upright or perpendicularly on their hind legs in juxtaposition to the fence.
51. Common human experience indicates that evidence is not required for proof of the proposition that dogs are capable of jumping off the ground if motivated to do so. It is also reasonable to infer that large and more powerful dogs are capable of jumping to a greater height than small dogs. In my view, both of those propositions involved reasonably foreseeable possible occurrences within the capabilities of the defendant's dogs.
52. In her evidence, the defendant showed an obviously empathetic attitude of concern over the plaintiff's injuries. She was also understandably defensive and nervous in answering questions asked of her in cross-examination about her dogs and the behaviour of her dogs. Nothing turns on her combative responses in that regard.

Plaintiff's injuries and initial treatment

1. The initial descriptions of the plaintiff's injuries as recorded by ambulance personnel referred to a large bite mark adjacent to the area around the right eye with exposed fat tissue, a 10cm - 12cm laceration around the right forearm wrapping around the arm just above the wrist with exposure of underlying fat tissue, a 3cm - 4cm wide laceration above the (right) forearm, and a minor laceration to the left side of the nose.
2. The Westmead Hospital clinical notes relating to the plaintiff were tendered: Exhibit "E", pp 1 - 217. The salient features of those notes appear to me to be contained within the discharge summary and in the treating surgeon's handwritten notes.
3. The hospital discharge summary for the period 9 November 2016 to 18 November 2016, identified the reason for admission to be "DOG BITE - FACE & HAND": Exhibit "E", p 11, p 43, p 45, p 62, p 64, p 66, p 163. The surgeon's note referred to the initial debridement and repair procedures being performed on the plaintiff's right forearm and to the face: Exhibit "E", p 19.
4. Photographs were taken by the ambulance personnel of the plaintiff's injuries: Exhibit "E", p 138. Those photographs were also tendered as part of Exhibit "B".
5. In her oral evidence, amongst other things, Mrs Cuschieri described the plaintiff as having had stitches to his fingertips following the attack. The tendered photographs appear to show what could possibly be teeth marks on the dorsum of the plaintiff's right hand. Bearing in mind the well-understood cautions that must be observed concerning the interpretation of photographs for the purpose of making findings of fact, it is not possible to definitively determine if the marks in question were teeth marks from a dog bite.

Subsequent medical and allied reviews

1. Apart from the hospital records described above, the other medical evidence tendered in the case comprised medico-legal reports, which are summarised in the paragraphs that follow.
2. On 15 January 2020, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Leonard Lee, a consultant psychiatrist. Dr Lee took a history of the plaintiff being bullied because of his scarring. Dr Lee obtained a history from the plaintiff of him being scared of big dogs. He considered that the plaintiff did not present as anxious, depressed or as having a psychiatric disorder. In his opinion, he considered that the plaintiff had made a good adjustment to his injury. Dr Lee said he did not believe the plaintiff to be suffering from "significant psychiatric injuries or disabilities": Exhibit "1", pp 1 - 5.
3. On 4 March 2020, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Michael McGlynn, a consultant plastic and reconstructive surgeon: Exhibit "D", pp 9 - 14. Dr McGlynn noted the plaintiff's behaviour of avoiding exposure of the scarring to his right forearm. He noted the scarring on the forearm was fragile and vulnerable to minor trauma and bleeding, and that it was prone to sunburn. He considered the plaintiff had resultant permanent facial and forearm disfigurement. He noted that the plaintiff had undergone three surgical procedures. He identified the plaintiff's need to apply daily moisturiser to his areas of scarring and skin grafting, and suggested three further surgical procedures be undertaken in the plaintiff's later teens.
4. On 16 April 2020, at the request of his solicitor, the plaintiff was examined by Dr Christopher Rikard-Bell, a consultant child and adolescent psychiatrist: Exhibit "D", pp 20 - 28. He identified the plaintiff's history of early experiences of flashbacks, nightmares and a present avoidance of new or large dogs, and less effective learning than should be the case, with ongoing occasional flashbacks, avoidance of dogs and increased anxiety. He identified a phobia about large dogs. He considered the plaintiff had an adjustment disorder with some PTSD features, with an associated fear of large dogs, and a fear of being harmed again. He expressed a concern over a possible problem in teenage years with some challenges over body image and developmental identity. He suggested the plaintiff needed some counselling sessions.
5. On 20 April 2020, at the request of his solicitor, the plaintiff was examined by Dr Howard de Torres, a consultant plastic and reconstructive surgeon. He identified and measured the plaintiff's scarring, which he described as permanently disfiguring. He identified the plaintiff's need for sunscreen and protective clothing to avoid sun exposure to his split skin grafts. He also identified the plaintiff's need for future surgery to seek to improve the appearance of his scarring. Dr de Torres described the plaintiff's wrist scars as indented, discoloured, adherent, and extremely visible. He also identified the donor site scarring on the right thigh as also being extremely visible: Exhibit "D", p 18.

Consideration of disparate medical opinions

1. There was a broad commonality of opinion within the reports of the respective plastic and reconstructive surgeons, Dr McGlynn and Dr de Torres. No further analysis of those reports is required as the opinions did not disclose a material conflict.
2. In considering the respective psychiatric opinions. I have preferred and accepted the opinions expressed in the report of Dr Rikard-Bell compared to the opinions in the report of Dr Lee. I have come to that conclusion because Dr Rikard-Bell's report contains more detailed explanatory reasons that accord with a common-sense analysis, whereas Dr Lee's report is expressed in more superficial, less reasoned, and generalised terms.
3. Given my acceptance of the plaintiff's credit as a witness, and given my acceptance of his evidence generally, in the absence of challenge on matters of history, I propose to treat the histories summarised by the medico-legal reporters as evidence of the plaintiff's early post-injury difficulties and treatment. Those histories were mostly the products of medically oriented questioning of the plaintiff in a less intimidating environment compared to the courtroom: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995 (NSW).

Issues

1. My review of the pleadings, the evidence, and the submissions of the parties indicated that the pivotal issues calling for decision in this case may be conveniently stated to be as follows: 1. Whether, and if so, to what extent and effect, the plaintiff was on the property occupied by the defendant at the time he was attacked by the defendant's dogs; 2. Whether, on the proper construction of s 25(2) of the Companion Animals Act 1998 as it applies to the facts of this case, the plaintiff was not lawfully on the property occupied by the defendant; 3. The assessment of the plaintiff's entitlement to damages.

Legislation

1. Section 25 of the Companion Animals Act 1998 provides as follows: 25 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 (b) damage to the personal property of a person (including clothing) caused by the dog in the course of attacking that person. (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, menacing dog or restricted dog at the time of the attack, or (b) an attack by a dog that is in immediate response to, and is wholly induced by, intentional provocation of the dog by a person other than the owner of the dog or the owner's employees or agents. (3) This section does not apply in respect of a police dog or a corrective services dog. (4) This section does not affect the liability apart from this section of any person for damage caused by a dog.
2. Sections 25(3) and (4) of that Act have no relevance to the proceedings.
3. Questions arose regarding the terms of s 25(2)(a) of that Act concerning the proper construction of the expression "on any property … of which the owner of the dog is an occupier" and the expression "not lawfully on the property".
4. The parties consulted Hansard for the second reading speeches of the parliamentary proceedings in the Legislative Assembly and the Legislative Council, together with the Explanatory Memorandum for the legislation as a potential source of assistance to interpreting the legislation. I accept the submission of the defendant that nothing of relevance emerges from within those materials to assist in the interpretation and construction of s 25 of the Act with regard to the present case.
5. There was no suggestion that the dogs which attacked the plaintiff should be considered to be dangerous, menacing, or restricted dogs: s 25(2)(a). Similarly, there was no evidence that the dog attack on the plaintiff was in response to, or had been induced by, an intentional provocation by the plaintiff, or by his play companion.

Issue 1 - Was the plaintiff attacked whilst on the defendant's property?

1. The first question to be addressed is whether the plaintiff was attacked by the defendant's dogs whilst he was on any property that was occupied by the defendant.
2. Taking a global view of the events, I find that at the time the plaintiff was attacked by the defendant's dogs he was not relevantly on the property occupied by the defendant. I have reached that conclusion for the following reasons.
3. First, the plaintiff's head, torso, lower limbs, and most if not all of his upper extremities, were behind the dividing fence and on the side of 33 Killeen Street. Whilst his hands were located on top of the fence capping, and it was possible that the tips of his fingers were on, and at the edge of that capping, that does not mean he was on the defendant's property. It means the plaintiff's hands were on the top of the dividing fence.
4. Secondly, to the extent that the plaintiff's finger tips were on the top of the fence capping, that area was also part of the jointly occupied dividing fence where there was no identifiable bright line of separation or demarcation between the two properties.
5. Thirdly, there is no evidence to reliably suggest that any part of the plaintiff's body was protruding into the airspace over the defendant's premises. The plaintiff's acquiescent concessions in answers to questions put to him in cross-examination that could possibly be interpreted as an acknowledgment of a protrusion into the airspace over the defendant's property were tentative and not persuasively convincing of that proposition.
6. Fourthly, to the extent that the plaintiff's head was positioned so he could "peek" into the defendant's yard in order for him to see and to speak to the dogs as he described, I do not interpret his evidence to mean his head, or any part of his head, or his hands had actually protruded over the fence, or that any part of his body had invaded or had constituted an incursion into the airspace of the defendant's property.
7. Fifthly, I do not interpret the plaintiff's evidence in which he described his action of peeking into the defendant's property as meaning that any part of his body was protruding into the defendant's airspace.
8. In examining the sequence of events that resulted in the plaintiff being attacked, mauled and injured by the defendant's dogs, I observe that a distinction resides within the disjunctive wording of s 25(1)(a) of the Act as to attacking or wounding, as the cause of bodily injury.
9. I find that all the plaintiff was doing when he was attacked by the defendant's dogs was that he was simply standing on the cross-beam of the fence and "peeking" by way of line-of-sight into the defendant's property, with his head above the top of the fence but still behind the alignment of the dividing fence, and he was not invading the airspace over the defendant's property when the first dog leapt up towards him.
10. When the first dog leapt up and bit the plaintiff, that leap constituted an attack within the ordinary and intended meaning of s 25(1)(a) of the Act. A mauling of the plaintiff then followed when that first dog took the plaintiff's upper right extremity into its mouth and bit him. This constituted a wounding of the plaintiff in the course of an attack on him within the meaning of s 25(1)(a) of the Act.
11. When the second dog followed suit and leapt up at the plaintiff in an attack ,and bit into the flesh of the plaintiff's face, that sequence of events constituted a further attack and wounding that continued on from the first attack on the plaintiff.
12. I consider that it is speculative for the defendant to suggest that the initiating attack or the wounding relevantly commenced and took place on the defendant's side of the fence on the property occupied by the defendant.
13. My interpretation of the plaintiff's evidence is that the plaintiff's right arm and his face were most likely pulled over into the airspace over the defendant's property, but I am not persuaded that those parts of him were protruding over into the defendant's property before he was attacked and mauled by the defendant's dogs.
14. I find that the description of the events as given by the plaintiff, and which I have accepted, leads me to infer that the dogs, whilst excited, must have respectively leapt up from a position where at least their two hind legs were on the ground and then separately propelled themselves forward and upwards so that their mouths and their teeth were in sufficiently close proximity to the plaintiff's forearm at the top of the fence to grip and bite those parts, with the second dog then performing the same action, which then resulted in the plaintiff's face being bitten by that second dog.
15. I find that in the agony of those moments, what most probably occurred was that the grip of the first dog pulled, or partly dragged, the plaintiff's hand or forearm over the airspace of the defendant's property. I do not construe such an occurrence as meaning that the attack on the plaintiff or the wounding of him, including the bites to his face, relevantly occurred on the property of the defendant.

Issue 2 - Whether plaintiff was not lawfully on the defendant's property

1. The second question to be addressed is whether or not within the meaning of the statute, the plaintiff was "not lawfully" on the defendant's property. This issue arises because counsel for the defendant argued that the plaintiff should be seen to have been a trespasser on the defendant's property at the relevant time.
2. In my view, it cannot be reasonably concluded that at the time the plaintiff was attacked, he was "not lawfully on the property": s 25(2)(a) of the Act. My reasons for that conclusion are as follows.
3. First, the attack preceded the first bite or physical contact between a dog and the plaintiff. At that time the plaintiff was on the 33 Killeen Street side of the fence and there was no part of him that was over the airspace of the defendant's property before the mauling took place.
4. Secondly, when the dogs each assumed an attitude in which they separately launched themselves at the plaintiff, those actions constituted the initial phases of the respective attacks. The first physical contact and maulings which later followed just formed part of the continuum of the attacks.
5. Thirdly, in my assessment, no part of the plaintiff's body was relevantly on the defendant's property before those events occurred. In my view, the only time a part of the plaintiff's body had protruded into the airspace over the defendant's property was when a dog pulled his arm over the fence into that airspace, following which, part of his face then leaned forward during the attack by the second of the defendant's dogs.
6. If, contrary to the above findings, there was such an incursion, such as by a protrusion of the tips of the plaintiff's fingers into the airspace of the defendant's property, this was in the nature of a casual, unintended or inadvertent incursion which should be characterised as de minimus non curat lex rather than an intentional trespass. Any such incursion, if it had in fact occurred, did not amount to a trespass. It did not relevantly interfere with the defendant's use of the premises.
7. Whilst an invasion of airspace above land may be a trespass, an intrusion of that kind is not to be automatically characterised as a trespass where the occupier remains able to continue to make full use of the land below: Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd (1987) 2 EGLR 173. In the present case, the defendant's use of her land was not the subject of interference by the plaintiff.
8. Whenever entry into or onto land occurs unintentionally without negligence, there is no liability in trespass. The position may well be different with overflying aircraft, overhead signage or the jib of a crane that invades airspace over a property.
9. Applying the above principles, in my view, it cannot be reasonably said that the plaintiff was "not lawfully" on the defendant's property.
10. The defendant sought to rely on a number of trespass cases to assert that there had been a relevant incursion of the plaintiff's body over the airspace of the defendant's property in the nature of a trespass.
11. The phrase "not lawfully" on the premises within the meaning of s 25(2) of the Companion Animals Act was considered in Simon v Condran [2013] NSWCA 388. The decision in that case, at [29], explained that the language of s 25 of the Act creates a liability on the part of the owner of a dog in the circumstances to which it applies. In that case, at [32], the expression "not lawfully on the property" was accepted as meaning no more than the absence of a positive authority or entitlement to be present on the land.
12. In cases where an animal attacks a person on property occupied by the owner of the animal, the claimant must show that his or her presence on the animal owner's property was lawful: Simon v Condran [2013] NSWCA 388, at [31].
13. In my view, the case cited by the defendant does not assist the defendant in this case because I am satisfied the plaintiff was not relevantly on the defendant's property when the defendant's dogs attacked and wounded him.
14. As a consequence, the statutory liability imposed by s 25(1) of the Act has not been shown to have been dis-applied by reason of s 25(2) of the Act.
15. I was referred to the decision in Simpson v Bannerman (1932) 47 CLR 378; [1932] HCA 43. The facts of that case are succinctly summarised in the headnote, as follows: "Whilst passing along a public street in search of some timber that had gone astray, the appellant stood and looked over the close wooden fence separating the respondent's premises from the street, and, in doing so, being unaware of any danger, he placed his hand on top of the fence. The respondent's dog, which was running loose within the premises, sprang up and seized the appellant's hand, inflicting injuries".
16. Those proceedings were governed by the Dog and Goat Act 1898. In that case, at p 383, the plurality stated: "… we are quite unable to adopt an interpretation of [s 19 of that Act which provided for absolute liability] which excludes liability to a person who does no more than thoughtlessly place part of his body within the close where the dog roams".
17. In considering whether a person was bitten by a dog whilst "on premises for no lawful purpose" (at p 384), in his separate reasons, Starke J stated: "A member of the public is not deprived of [the protection of absolute liability as conferred by the Statute] if he unwittingly places his hand upon the fence surrounding the place in which the dog is kept or any part of his body within the dog's reach." (p 385). This was in the context the owners of all dogs have responsibilities because all dogs are capable of causing harm to persons, especially to young children. The position is no different in the present case.
18. The defendant referred to the decision in Johnson v Buchanan [2012] VSC 195. That case involved a prosecution under s 29(4) of the Domestic Animals Act 1994 (Vic) which made it an offence punishable by a fine against the owner, for a non-dangerous dog to attack or bite a person causing death or serious injury, subject to an available defence if the incident occurred because the person injured was trespassing on the premises where the dog was kept.
19. A number of distinguishing features are apparent in that decision.
20. First, that case involved a criminal prosecution and not a claim for damages for compensation for injury and loss.
21. Secondly, the facts of that case involved a proven trespass over the airspace of the property where the dog was kept, albeit an inadvertent trespass by the victim of the dog bite, who was, by that trespass, held to be a wrongdoer: Johnson v Buchanan [2012] VSC 195, at [66]-[67].
22. Thirdly, that case at [88]-[89], recognised a hybrid characteristic of "what might be called a technical trespass… by placing one's hand on the top of a boundary fence" so that a non-trespassary incursion occurred, following Simpson v Bannerman (1932) 47 CLR 378; [1932] HCA 43.
23. I was also referred to the decision in LJP Investments Pty Ltd & Anor v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490. That case involved an application for a mandatory injunction. It concerned the determination of the question of whether a trespass occurred due to the erection of scaffolding that created an incursion into the airspace of adjoining land without the permission of the owner of that land. In that decision, at pp 495G - 496B, the relevant test was identified as being whether the incursion was of a nature and at a height which may interfere with any ordinary use of the land which the occupier may see fit to undertake.
24. If, contrary to my finding that the plaintiff was not relevantly on the defendant's property, the plaintiff's actions did in fact amount to an incursion, I nevertheless find that the height above the ground, and the nature of any such incursion, being minimal at best, did not relevantly interfere with the defendant's ordinary use of the land in any material way. In this instance, that use by the defendant included the keeping of dogs in the backyard. The plaintiff did not impede or interfere with that use: Bernstein of Leigh (Baron) v Skyview & General Ltd [1978] QB 479, at p 486.

Issue 3 - The assessment of damages

1. The plaintiff's claim for damages was limited to non-economic loss, probable future impairment of his earning capacity and future treatment expenses. There was no claim for special damages.

Non-economic loss

1. The plaintiff's damages for non-economic loss, which encompasses his past and future pain, suffering and loss of amenity of life, including the effects of cosmetic scarring and disfigurement to his face and right arm, stands to be assessed according to the comparator of a most extreme case: s 16 of the CL Act.
2. The plaintiff has undergone a horrific and scarifying experience that not only shocked, frightened, and wounded him, but these events have left him with disfiguring scars to his right forearm and to his face, as well as lasting psychological problems.
3. I accept Dr Rikard-Bell's diagnosis that the plaintiff has an adjustment disorder with features of post-traumatic stress disorder. Understandably, the plaintiff has a fear of large dogs, and he also has a fear of being bitten. These are not minor matters in the case of a child.
4. The plaintiff also has significant scarring which will not be substantially improved by future surgery, yet he will reasonably need such surgery. The plaintiff faces the prospect of several future surgeries which may to some degree lessen, but will not cure or remove, his disfiguring scars.
5. At the age of 9 years, he is yet to encounter some of the likely interpersonal difficulties that his disfigurement and the psychological sequelae of the dog attacks will create for him in his social, personal and working future. As a child he has already experienced the brunt of the cruel and psychologically painful interpersonal dealings amongst peers at school. That unfortunate phenomenon of bullying by other children was such that it was considered necessary for him to move from one school to another.
6. The plaintiff will need to be mindful of the need to take special care with sun exposure for the remainder of his life. This will most likely have an impact on his leisure and working life.
7. In my view, the past and likely future course of the plaintiff's experiences of the kind described call for a substantial assessment of a percentage of impairment measured against the comparator of a most extreme case, as is required by the terms of the Statute.
8. In this case, the process is an invidious one because the effect of the plaintiff's scarring has caused psychological but nevertheless real problems for him. This requires a degree of subjective consideration of the effect on him, as well as the more objective consideration that compares the plaintiff's particular detriments to those of an extreme case. The difficulty of applying that evaluative exercise to reach a percentage assessment is obvious, but it must nevertheless be undertaken.
9. Part of that evaluation requires recognition of the potential impact of contingencies and vicissitudes. It would be wrong to focus only on those vicissitudes that favour the defendant, such as the potential for the psychological effects on the plaintiff to recede or remit.
10. In my view, those considerations are counter-balanced and outweighed by the vicissitudes that will most likely impact adversely on the plaintiff, where, as he grows older, he will inevitably be confronted with a daily awareness of his facial disfigurement which has already had an adverse psychological impact upon him. That disfigurement will not recede or remit. Not all vicissitudes favour defendants: Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53, at [19].
11. The plaintiff submitted that the appropriate assessment of non-economic loss should be fixed at 40 per cent of a most extreme case. In contrast, the defendant submitted that in this case there is no evidence to support the proposition that the plaintiff will suffer any economic loss in the future: T62.48 - T62.50.
12. In fairness to the plaintiff whilst not being unfair to the defendant, I consider that the appropriate assessment is 35 per cent of a most extreme case. In monetary terms, that equates to $230,500. I therefore assess the plaintiff's damages for non-economic loss in the amount of $230,500.

Future loss of earning capacity

1. On behalf of the plaintiff, a claim is made for damages for future loss of earning capacity in the buffer amount of $100,000. In contrast, the defendant submitted that there is no evidence from any of the medical people to suggest any interference with the plaintiff's capacity for work: T62.40 - T63.9.
2. This is not a case where an identifiable weekly loss arises for projection on the actuarial tables according to identifiable assumptions: s 13 of the CL Act. Instead, this is the type of case which calls for the assessment of an appropriate buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
3. At the age of 9 years, no useful insights can be gained into the most likely pathway the plaintiff will follow in his working life. Very little can be inferred from the economic pathways followed by his parents. Despite those difficulties, an assessment must nevertheless be undertaken. For damages for economic loss to be assessed, it is necessary to be satisfied that there will be an impairment to his earning capacity that is likely to be productive of financial loss.
4. As the plaintiff has disfiguring scars to his face and right forearm it is reasonable to assume that he will be at a future disadvantage in competing for employment on the open labour market in a range of occupations. These include employment where his scarring will be exposed to the intrusive view of others where foreseeable reactions might ensue. He will have to be particularly careful to avoid excessive unprotected sun exposure of his scarring, which will also limit his otherwise unrestricted ability to pursue outdoor work.
5. I consider those intangible matters require the assessment of an economic buffer. Because of the plaintiff's age and the many imponderables, as well as the need to allow for both positive and negative vicissitudes, and for a deferral of the commencement of loss of earning capacity until he reaches adulthood, I consider the appropriate economic buffer to be in the amount of $75,000. I therefore assess the plaintiff's damages for loss of earning capacity in the amount of $75,000.

Future treatment expenses

1. The plaintiff makes a claim for future treatment expenses in the amount of $20,000.
2. Both of the plastic surgeons who examined the plaintiff have given opinions identifying costly future treatment recommendations aimed at reducing the plaintiff's disfigurement to some degree.
3. In addition to the likely cost of surgical treatments identified by Dr McGlynn and Dr de Torres, the plaintiff will also most likely need to see his general practitioner for occasional referrals, he will most likely incur additional expense in purchasing sun protection creams and it is likely that as he grows older there will be a need for him to obtain professional assistance to manage the psychological consequences of his disfigurement.
4. These are factors that do not enable precise calculations of likely expense. I consider the buffer sum of $10,000 to be fair and appropriate to meet the plaintiff's lifetime costs for such matters. I therefore assess the plaintiff's damages for future treatment in the amount of $10,000.

Summary of damages assessment

1. My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $230,500 (b) Future loss of earning capacity $75,000 (c) Future treatment expenses $10,000 Total $315,500

Disposition

1. The plaintiff has established his entitlement to a damages award for $315,500 and he should have a judgment for that amount.

Costs

1. As the plaintiff has succeeded in obtaining a judgment in his favour, he should have an order that the defendant should pay his costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

1. I make the following orders: 1. Verdict and judgment for the plaintiff in the amount of $315,500; 2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days' notice if further or other orders are required.

Amendments 14 September 2020 - Paragraph [122] - typographical - Deleted "Throughout the remainder of his life" and replaced the word "skin" with "sun". 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: 14 September 2020