Meimaropoulos v Cheum

Injuries and disabilities 6The plaintiff pleads that she has suffered the following injuries: (a)Injury to the right shoulder; (b)Injury to the right side of the face and eye; (c)Lacerations to the forehead; (d)Injury to the right hip; (e)Injury to the right knee; (f)Injury to the abdomen; (g)Head injury; (h)Injury to the right foot involving fracture to right fifth metatarsal bone; and (i)Shock. 7The following disabilities are particularised: (a)Pain and restricted movement to the right foot; (b)Pain and restricted movement to the right hip and knee; (c)Diminished visual acuity; (d)Altered sensation to the right side of the face; (e)Likely future requirement to undergo pinning and plating procedure to the right foot; (f)Requirement to undergo an operative procedure to the right shoulder (now performed); (g)Likely future requirement to undergo further operative procedures to the right shoulder; (h)Likely onset of early degenerative change to the right shoulder and right foot; (i)Difficulties walking or standing for long periods; (j)Difficulties kneeling, crouching or squatting; (k)Difficulties engaging in household activities; (l)Anxiety and depression; (m)Disturbed family relationships; (n)Increased moodiness and irritability. 8The plaintiff's claim for damages must be views in light of her complicated medical history and health problems unrelated to the accident. This includes a prior fall in 2003, where she suffered similar injuries. For these reasons, it is necessary to set out the plaintiff's history of medical consultations with care in the section of this judgment concerning the quantum of the claim.

The legislation applicable to accidents involving companion animals 9Who is an "owner" of a companion animal such as a dog or cat? Section 7 provides: "7 Meaning of "owner" (1) Each of the following persons is the "owner" of a companion animal for the purposes of this Act: (a) the owner of the animal (in the sense of being the owner of the animal as personal property), (b) the person by whom the animal is ordinarily kept, (c) the registered owner of the animal. (2) A reference in this Act to "the owner" of a companion animal is a reference to each and all owners of the animal. (5) When a companion animal is ordinarily kept by an employee on behalf of his or her employer, the animal is for the purposes of this Act taken to be ordinarily kept by the employer and not the employee. This subsection does not prevent an employee being the registered owner of an animal and does not prevent the employee being an owner if the employee is the registered owner. (6) In any prosecution of the owner of a companion animal for an offence against this Act it is a defence if the defendant establishes that: (a) another owner of the animal has been convicted of an offence arising out of the same circumstances, or the commission by another owner of the animal of an offence arising out of the same circumstances has been proved but a court has made an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of the offence, or (b) another owner of the animal has paid the amount of the penalty prescribed under section 92 (Penalty notices) for an alleged offence arising out of the same circumstances. 10In what circumstances is the owner of a dog liable? Section 25 of the Act provides: "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." 11In Hatch v Wood-Davies [2006] NSWDC 96 at [137] - [142], Neilson DCJ explained the history and construction of these definitions in the Act: "[137] I have been unable to find any particular explanation of the meaning of the words "to keep a dog". It is clear that the 1898 Act speaks of the dog "being found" on premises. That is it only extends to the actual physical placement of the dog on the property.[138] Of course "keep" can be used in many ways. It does not mean to have, but to hold onto something. One could always use the word to keep a dog or to keep a cat as meaning to care for it, to provide it with sustenance, shelter, food and drink, but in my view it should not be given too narrow a meaning in the Companion Animals Act 1998, bearing in mind previous legislative history.[139] It appears to me that the phraseology "keeping" a dog extends merely to maintaining its physical presence in a place or under that person's custody or power. It cannot extend as far as possession because the possessor of an animal is prima facie the owner of it, and therefore that person would fall within the provision of s 7(1)(a).[140] If para (b) required actual possession of the dog, para (a) would be otiose as has been submitted by learned counsel for the plaintiff.[141] A person in my view can keep a dog merely by permitting it to stay or rest upon his or her property, by feeding it, by providing it with water, by providing it with a place of shelter. If an animal comes to my house and I permit it to stay in it, one might be forgiven for thinking that I was keeping it. If someone asked me whether I had just acquired a new cat and I said, "No, it is a stray which has entered into my house and I have no intention of keeping it," one might be forgiven for thinking that my visitor was correct in thinking that I was stupid not to eject the cat from my house.[142] Again, I accept therefore that permitting an animal to stay on one's premises, to use it as a place of shelter or repose habitually, amounts to keeping it. It is now 6.15. I shall continue these reasons at 9.30 in the morning." 12How is s 7(1)(c) to be interpreted where the animals were not registered until after these proceedings commenced? At the time of the attack, neither of the dogs had been micro chipped or registered. One of the dogs had been found wandering in the street by the first defendant and brought home as a family pet, and the other had been a gift from a friend of the third defendant. After the statement of claim was served, these two animals were registered in the name of the third defendant only. 13The third defendant stated in her evidence that only she was the owner of the dogs. The first and second defendants deny ownership, both in the pleadings and in their evidence, although they and their daughters conceded the dogs were "family pets" and described activities they all performed that involved in the dogs' care. The third defendant was certainly responsible for feeding the dogs, but the first and second defendant each played an important part in their welfare. For example, the first defendant built an enclosure for the dogs, and was responsible for securing the gate that kept them in the back yard. The second defendant (the first defendant's wife) would buy the dogs' food if the third defendant asked her to. She and the first defendant were the jointly registered proprietor of the property on which the dogs were kept. Their daughters were responsible for taking the dogs for walks; the third defendant, who is aged 79, did not take the dogs for walks. In addition, the whole family would pat the dogs and play with them, hence their concessions that the dogs were family pets. 14The language of s 7(1)(b) of the Act picks up on the repealed legislation, s 4(2) Dog Act 1966 (NSW), the meaning of which is discussed in Porter v Cook [1971] 1 NSWLR 318 and Zappia v Allsop [1994] NSWCA 355. In Porter v Cook, supra, the dog in question was a stray dog who had been brought onto the defendant's premises some weeks prior to the date of the attack. In that case, as well as in Zappia v Allsop, supra, the dog in question was unregistered, as was the case here. 15All of the evidence points to all three defendants being the persons by whom these dogs were "ordinarily kept". As the animals were unregistered at the time of the incident, s 7(1)(c) does not apply. The fact that these animals were registered to the third defendant some years subsequent to the accident is irrelevant to the question of ownership at the time of the accident. The first and second defendant, who were the owners of the property on which the dogs resided, and who had materially contributed to their well-being and welfare as well as treating them as family pets, were persons by whom the animals were "ordinarily kept" in the sense of s 7(1)(b) and, in that sense, are also "owners". 16Having noted this finding, I now consider the circumstances of the accident.

The circumstances of the accident 17The plaintiff's evidence on all issues was coloured by exaggeration, and I have found her to be a witness whose evidence should not be accepted unless that evidence can be corroborated. Unfortunately, I have similar reservations about the evidence of the defendants. 18The plaintiff stated that, on the day of the incident, she was walking to the shops, along a route familiar to her, in that she passed that way several times a week. In the course of that journey, she walked past the address at which the defendants and their dogs lived. It was fairly early on a Saturday morning and there were few other people in the area. The plaintiff saw a young lady who she described as "the owners' daughter" in pyjamas at the front entrance of the defendants' home with a dog, which was yapping. Another dog, which was in the fenced yard to the defendants' premises, came then managed to get "outside, coming around, around, around, jumping on me", according to the plaintiff. 19The plaintiff had previously heard the dogs were barking when she came around the corner and was unconcerned as she was not afraid of dogs. The next thing she knew, she saw one dog (described in counsel for the plaintiff's opening as "a small fluffy beige dog") "at my feet". 20The plaintiff said, "I thought the dog was going to bite me". She was unable to say if she saw the dog's teeth. She described how the accident happened, namely that after the dog ran around her and jumped up: "I took a step, as I took a step I tripped over, had a fall". 21The plaintiff hit her head above her glasses, striking her right temporal and cheek, as well as her posterior. Her right hand was bleeding. Half her body was on the grass and the other half was below the footpath, next to a parked vehicle, on the concrete of the road. 22The plaintiff said that after she fell, the dog then "went in Number 3" but that she was unable to describe how this occurred, as she was on the ground and dizzy. The plaintiff said that she called out to the young woman who was starring at her, saying: "come here and see what your dog did to me" and "please help me", but that the young woman ran inside as soon as she saw the neighbour from the adjoining house come to help the plaintiff. 23The plaintiff was unable to get to her feet and had to be helped up by the neighbour of the defendants, who came out of his house. He told her the dogs were dangerous, that another person had also been attacked, and that he had had a bad relationship with the occupants of the defendants' house. He asked if she wanted an ambulance and, when she refused, drove her back to her home. 24The plaintiff also claimed that when she walked past the premises some weeks later, the same young woman was in the yard with the dogs. When she spoke to the young woman and reminded her about the incident, this young woman laughed and told the dogs to attack her. Ms Welsh has indicated in her closing submissions that this subsequent incident, as described by the plaintiff, does not form part of her case, but the fact that this claim was made is relevant to the plaintiff's credit. 25In cross-examination, the plaintiff agreed she had told Dr Glancey she had an "unreliable memory". However, the plaintiff was insistent that she had a good recollection of the events in question. She agreed that when she fell, she landed on the road rather than on the footpath or driveway, but on her description of events, it is clear that for her to travel from walking down the footpath to coming to rest beside the neighbour's parked motor vehicle, she must have moved in a backwards direction and slipped, or tripped, over the edge of the footpath. 26The plaintiff said she was unable to get up on her own, and that the neighbour who had come to give her assistance "told me to grab the bull bar of the car and pull myself up". The plaintiff said she had fallen forward behind the car, off the footpath, rather than on the footpath. There was a grass verge on the footpath, but she thought that there was no grass where she had fallen. 27The plaintiff said she had a cut hand, was very sore in her head, shoulder and posterior, and had broken her glasses in the fall. It was put to her that she had not consulted an optometrist until 9 October 2008, two months after the accident, asking for a new prescription, and that she said nothing about breaking her glasses on that occasion. It was also put to her that the occasion when she had broken her glasses was a previous accident on 14 March 2001 (described in more detail below), when she had similarly claimed to have broken her glasses. The plaintiff was adamant that she had broken her glasses on both occasions. 28There is no reference to the plaintiff complaining to her general practitioner at the time about breaking her glasses on this second occasion. She was referred to an optometrist by her general practitioner "complaining of distance blur with her current glasses" (Exhibit 7). Not only does the optometrist note that he considers she needs a new prescription for 6/9, but he notes that "her old glasses only gave R:6/30 6/45". He goes on to consider whether high sugar levels from the plaintiff's diabetes problem are the explanation. For both the doctor and the optometrist to fail to note that this very shortsighted lady had been managing without glasses for two months in circumstances where she had broken them in a fall is implausible. This was one of a series of claims made by the plaintiff for injuries and treatment which are relevant to issues of credit, and which are discussed in more detail in the section on quantum below. 29The plaintiff's description of the accident varies in two important particulars. Firstly, she referred to "dog" both in the singular and the plural in her evidence and in her complaint to the Council, which is set out in more detail below. The plaintiff was asked whether one or both dogs had attacked her. She answered that there were two dogs at the house, but that one was able to get out of the fenced garden, and ran around and jumped up on her. She repeated what she had said in examination in chief, namely that she had thought that nothing would happen when she first saw and heard the dogs, but that then she saw the dog "in front of my feet barking and attacking". 30Secondly, the plaintiff gave a different and more dramatic account of the accident in a complaint she made to Liverpool City Council. Her account of 16 October 2008 (recorded in Exhibit 9) contains a number of statements that are difficult to understand. Firstly, her explanation for her delay in reporting the dog attack is "her son and herself reported to Police as they are friends of hers". This cannot be correct as neither the defendants nor the police are friends of the plaintiff's. Secondly, the advice she was given was that she should seek expenses from the dog owner "and was advised to report to Council to get reimbursed". It is hard to believe that police would have given her such advice. Thirdly, the injuries she described to the Council were different to those described to her doctor and, indeed, in these proceedings. She claimed she suffered "dog bite to forehead, pain in right shoulder, cut in left hand, large bruise on top of right leg, bleeding on bottom". No mention was made of broken glasses. 31The plaintiff does not say in her evidence in court that the dog bit her on the forehead. The dog was too small to have reached her because, as is noted in the comments at the bottom of the Council report, these are "really small dogs", so small that it escaped under the gate. 32Fourthly, the plaintiff told the council the dog was "still getting out & Police have not followed up". The plaintiff said that she had told police about the attack, but there is no corroboration of this, as appears to be inferred from the notes of Mr Miller about the Green Valley Police. Nor is there any corroborative evidence of the dog (or dogs) continuing to get out. The plaintiff's evidence is that she went past their home very rarely after these events and on only one of these occasions (namely the time the young woman allegedly told the dogs to attack her) did she see the dogs at all. 33Exhibit 7 also contains an account of Mr Miller's meeting with a person described as "owner of dog". He describes their conversation as being that "they are unaware of this occurring, nor has any person approached or said anything to them". This evidence is discussed in more detail in relation to the evidence of the defendants.

Mr Bilal Raad's evidence 34The plaintiff's description of her encounter with one of the defendants' dogs receives some corroboration from the defendants' next-door neighbour, Mr Bilal Raad. Mr Raad had moved into these premises in August 2008, a few weeks before the accident, and lived there until 2011. 35Mr Raad described the properties in the street along which the plaintiff was walking when she had her accident. His house had no front fence but there was a high front fence in front of the defendants' property. He knew that the defendants kept dogs because he heard them in the backyard when they barked. He described them as "two small female Maltese terriers" which were generally looked after to his observation by one of the daughters of the defendants, who he described as "always there, I assumed she lived there". There was another small dog, which lived in the house behind Mr Raad. This house had no fence. 36On the day of the accident, Mr Raad was in bed asleep, when he was woken up by his wife who told him that she could hear someone was outside, crying. He went out into the street and saw the plaintiff "leaning on my car, crying, saying she had been "attacked by a dog", and he helped her to sit down on the low stone fence outside his home. Her palm was bleeding, so he obtained a band-aid for her. As she did not want an ambulance he offered to take her home and drove her to her home. 37Mr Raad did not see any dogs or any person in front of Number 3. Although his wife came out with him, she remained on the veranda, and there were no other people in the street. 38In cross-examination, Mr Raad confirmed his account of what he had seen. He gave evidence in a clear and straightforward manner, describing again where he had seen the plaintiff leaning against his car, and what conservation they had had. He was certain that she had not been lying in the street and that she was standing up and leaning on the car. 39Mr Raad was asked about the plaintiff's account of him telling her that a boy had been attacked by the dog at Number 3. He denied saying this. Given Mr Raad's honest and objective presentation of his evidence, I accept this, and regard the addition of a story about another person being attacked by a dog coming from the house as Number 3 as being an embellishment made by the plaintiff. Similarly, the plaintiff's claim that Mr Raad had told her about conflict between himself and the people at Number 3 was denied by him, and I find this was not said. As Mr Raad himself pointed out, he had only just moved into this house a few weeks before the incident. 40Mr Raad was certain he had never seen the dogs coming through the fence before, or seen the dogs in the front yard area other than accompanied by one of the residents, at any time before or since the accident. On the few occasions that he had seen the dogs in the front yard, they were accompanied by a young female. 41Mr Raad completed a statement on 5 April 2013, the relevant portions of which are as follows: "8. The accident occurred on a weekend morning between about 8 am and 12 noon. I was awoken by my partner Maya. We were both in bed. I heard someone crying. I got up and saw a lady leaning on my car crying. I went outside the [sic] spoke to her. She said something about the bloody dogs attacking her, and that the Owner had said nothing. 9. The lady's hand was bleeding. She sat down on a ledge. I went inside and got a Band-Aid, and came out again. I offered to call an ambulance. The lady did not want an ambulance. She said she lived down the street. She spoke again about how the dogs had attacked her and that the Owner was there and did nothing. 10. I then drove her home." 42Mr Raad agreed that his recollection would have been better then than at the present, but his recollection of events in the witness box are, I find, consistent with his statement. 43Mr Raad presented as an objective and honest witness doing his best to give evidence accurately. He has no connection of any kind with the plaintiff. He has not seen her since, or spoken to her or to any member of her family. 44The effect of Mr Raad's evidence is to confirm the plaintiff's contemporaneous claim of an accident involving a dog. The principal difference between his statement and his evidence in the witness box was that the plaintiff said something about "bloody dogs" attacking her, according to his statement. 45The evidence of the plaintiff in these proceedings at all relevant times had involved a description of one dog circling her and attempting to jump up on her while the other dog sat on the front yard of the defendants' home barking. The explanation of this apparent inconsistency is, I find, that the plaintiff regarded herself as being under attack by two barking dogs, notwithstanding the fact that one of them was barking at her from inside the defendants' premises. However, the reason that the plaintiff took a step backwards was because one of the dogs got out under the fence (which, as the third defendant stated in her evidence, they were able to do because they were so small they could fit underneath), run around her and attempted to jump up on her. This was the proximate cause of the accident, not the barking of the other dog.

The evidence of the defendants 46Mr Cheum and his wife, Ms Muy Lim Hay (the first and second defendants), were categorical in their statements that the dogs in question belonged to Ms Hay's mother, the third defendant, and not to them. They conceded the animals were family pets, and that one dog had been found by Mr Cheum in the streets and brought home as a family pet, and that the other was a gift from a friend of the third defendant. 47Mr Cheum's evidence was that the first he knew of these events was when his daughter told him that a representative from the Council had come to their home and told her that the plaintiff had complained to the Council. The Council representative had pointed out that neither of the dogs was registered. The dogs were micro chipped, but Mr Cheum played no part in this. He knew nothing about registration in 2011, three years later. 48Crucially, Mr Cheum agreed that the dogs only went into the front yard with someone in attendance "because they could get out under the fence". Both he and his wife, Ms Hay, agreed that the side gate had been put up to prevent the dogs getting into the front yard. This was, I find, because once the dogs were in the front yard, they were able to get under the front gate. 49The third defendant, who is aged 79, gave evidence that she regarded the dogs as belonging to her, and that she cleaned up after them as well as fed them. When asked where the dogs lived, she said, "Behind the house we made a two layer fence". She agreed that this fence was built by the first defendant and not by her. 50The third defendant said that she asked the first and second defendants' daughters to register the dogs in her name as they belonged to her, although the time at which she made this request was unclear. None of the defendants took any steps to register the dogs despite the Council's warning about fines being passed on by their daughter. 51The third defendant agreed that the first and second defendants' daughters walked the dogs and that they were regarded as family pets. She said, "the dogs can crawl under the fence but I never let them do that". She was asked, "How do you know the dogs could crawl under the fence?" and she replied that "the dogs have attempted to do so", to her observation. 52The first and second defendants' three daughters also gave evidence. The evidence of Cindy and Jessica related to their roles in relation to the dogs, which consisted of taking them for walks, and in relation to ownership of the dogs by the third defendant. 53The evidence of Jennifer Cheum included her conversation with the representative of the Council who came to the door in October 2008 and asked if she knew anything about a lady being attacked by a dog. Ms Cheum said she did not, and the Council representative said that the animal in question needed to be both microchipped and registered at a veterinary surgeon's office. Ms Cheum said that the third defendant gave her the money for microchipping, which is $150 for each dog, although conceding that either she or her sister had paid for this to be done, and stating that the third defendant had reimbursed her. 54However, the animals were not registered at the same time as the micro chipping, and remained unregistered for three years. Ms Cheum gave inconsistent explanations for this, namely that "We didn't know you had to register", and "I forgot to go to Council to get this done". It was put to Ms Cheum that the dogs were only registered in the name of the third defendant in order to help her parents evade responsibilities for the accident. Ms Cheum replied that this was untrue, as the third defendant did in fact own the dogs. However, the circumstances in which the dogs were registered in the name of the third defendant almost three years after the accident in question, and only after these proceedings were commenced, is indicative of such an intention having regard to the unpersuasive evidence of all of the defendants' witnesses to the effect that the dogs belonged to the 79 year old third defendant and that they played little or no part in the dogs' welfare. 55The third defendant is a frail 79 year old. All of the witnesses agreed that the third defendant did not take the dogs for walks; this activity was carried out by the first and second defendants' daughters. Although the third defendant said she fed and cleaned up after the dogs and paid for their food, it is clear from the concessions of the other defendants and their daughters that these were tasks in which other members of the family assisted to a very great degree. This is, to a degree, consistent with Exhibit 7, where Mr Miller records that he had a conversation with someone he calls "owner of dog". 56Some of the information Mr Miller was given by Jennifer Cheum was misleading. I am satisfied that someone was in the front yard, which makes it unlikely that the defendants and their daughters were unaware of the plaintiff's fall. In addition, the information supplied to Mr Miller about the ownership of the dogs was less than frank, and inconsistent with the evidence in these proceedings. Mr Miller noted that the two dogs at the property were a two year old Maltese beige terrier named Hugo, which "belongs to grandmother's friend and will be returned", and a three year old caramel terrier named Louis, described as "unregistered, unidentified". He noted: "7 days given for registration to occur, otherwise fines will be incurred". 57The explanations given by the first and second defendants and their daughters for failure to register the dogs until after these proceedings are implausible. These explanations are inconsistent. The information that Mr Miller was given about Hugo - namely that he belonged to a friend of the third defendant "and will be returned" was untruthful. There was no intention to return the dog. Nor was a description of Louis as an "unidentified" dog an accurate description of a family pet of some years' standing.

Conclusions concerning liability 58I am satisfied that the plaintiff was passing the defendants' home when one of their dogs, having got under the fence, run around her barking and attempted to jump up on her. The plaintiff had seen the dogs from a distance but had assumed, no doubt because they were small fluffy animals which did not appear dangerous, that she was not at any risk. She was frightened by the conduct of the dog, which was barking as well as attempting to jump up on her, took one or more steps backwards, and fell. 59The provisions of s 25 of the Act are clear. The question is whether a dog running around a person and attempting to jump up on them amounts to an "attack". 60The facts of this case are unlike the much more dramatic events of many of the decisions on s 25, such as Mason v Demasi [2009] NSWCA 227 at [15]. However, it is not necessary for a dog to make some form of wounding contact with a person for the requirement of "wounding or attacking" to be made out, as is explained by the New South Wales Court of Appeal in Sarkis v Morrison (2013) 64 MVR 433 at [7]-[9]: "[7] The critical feature for present purposes is the use of the word "wounding" in subs (1)(a). It was common ground in the present case that the term "wound", when used with respect to bodily injury, involved a breaking of the skin, such as a bite, tear or laceration. The plaintiff's case was founded on the proposition that the phrase "wounding or attacking" was disjunctive and it was sufficient for him to establish that the dog caused him to be wounded. The appellant, on the other hand, contended that what was sought to be characterised was not the consequence of the dog's act, but the action itself. Thus, liability did not attach to all forms of bodily injury "caused by the dog", but only to the circumstances in which the dog wounded or attacked the injured person. The appellant accepted that a wound is a form of bodily injury, but argued that it is neither a necessary nor sufficient condition for liability. [8] Much was sought to be made of anomalies flowing from the adoption of one or other construction. Thus, the appellant contended that if a person could recover damages for any wound caused by a dog it would be sufficient if the plaintiff tripped over a sleeping dog and suffered some form of laceration as a result. Further, there would be absolute liability for all parties who might suffer cuts (and other injuries) in the course of a motor vehicle accident caused by a dog chasing a cat across the road. On the other hand, the plaintiff contended that if liability only arose where the dog had attacked the plaintiff, nice questions would be raised as to the motive of the dog, which would be critical in the absence of a wound. The plaintiff accepted that the transitive form of the gerund, "wounding", may have implied active conduct on the part of the dog, but not necessarily conduct directed towards the plaintiff. Thus, liability should accrue where the dog attacked another person or animal and the plaintiff was wounded in attempting to save the victim, although the plaintiff was not attacked. Liability would also follow if a rider were injured by a dog chasing a cat across the road. [9] There are two aspects of the section which support the more limited reading of para (a) adopted by the appellant. First, para (b), dealing with damage to personal property including clothing, requires that the damage be caused by the dog "in the course of attacking that person". If the concept of "wounding" were thought to have an entirely separate operation involving no aggression on the part of the dog, it might be thought curious that if the consequence were bodily injury, liability would accrue, but not in respect of damage to property. Second, and in similar vein, there are exclusions in subs (2), each of which is identified by reference to "an attack by a dog". Thus, the owner will not be liable for an attack on a trespasser, unless the dog was a dangerous or a restricted dog: subs (2)(a). It would be curious if the owner were nevertheless liable to a trespasser on the owner's land where the trespasser was wounded, but the dog did not attack. The apparent intention of each limb of subs (2), when engaged, is to exclude the whole operation of subs (1), not merely a part. On that view "wounding" is a form of "attack"." 61As the Court of Appeal noted at [15], wounding and attacking are alternative bases of liability. For example, in Crump v Sharah t/as Sharah Henville & Co [1999] NSWSC 884, two dogs barking at a horse caused it to buck and throw the plaintiff to the ground. Davies AJ at [26] found that actual contact was not necessary to establish an attack. I note, however, that actual contact is alleged here by the plaintiff, and the explanation for her taking a step backwards was that the dog puts its paws onto her leg at about the knee level. I note the Court's explanation of the use of the word "chasing" (at [34]); although the conduct of the dog in running up to and around the plaintiff is perhaps explicable because the plaintiff is not a physically fit person who moves slowly, nevertheless this is a form of "chasing". 62Where a dog causes bodily injury due to aggressive or other deliberate intent on its part, liability will flow to the owner under s 25 of the Act (Sarkis v Morrison, supra, at [36]). The fact that the dog in question is small and fluffy, as opposed to large and aggressive-looking, does not mean that its conduct should be seen as being less aggressive or frightening, particularly if it makes physical contact with a person in circumstances such as the present. The plaintiff has established liability under s 25. 63Whether the plaintiff's response to the circumstances in which a small barking dog ran around and attempted to jump up on her was appropriate is a matter going to contributory negligence, rather than to liability.

Contributory negligence 64Section 28 of the Act provides: "28 Contributory negligence (1) When damage suffered by a person that gives rise to a liability on the part of the owner of a dog to pay damages under this Division is the result partly of contributory negligence on the part of the person who suffers the damage, the damage is, for the purposes of Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965 , taken to have been suffered as the result partly of a wrong by the owner of the dog and partly of the contributory negligence of the person who suffered the damage. (2) This section does not affect the operation of Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965 in respect of any liability for damage caused by a dog that arises otherwise than under this Division." 65The facts in these proceedings differ markedly from other actions for damages under the Act. The defendants' dog ran towards, and around, the plaintiff while barking, and then ran away. I have accepted the plaintiff's claim that the dog jumped up on her on one occasion, and I also accept that the dog ran around her while barking. The other dog, on the plaintiff's own admission, remained on the property, barking, and as the plaintiff's accident occurred because of "dogs", I must take into account that her accident was triggered in part because of a non-compensable event, namely that a dog barked at her from the confines of a property. However, the proximate cause of the accident was the dog running around her, barking, and jumping up once. 66The plaintiff did not fall because the dog knocked her over. She fell because she stepped back and fell over the kerb. This is why the neighbour who went to her assistance found her in the roadway leaning on his car. 67In stepping backwards the plaintiff failed to look where she was going: Czatyrko v Edith Cowan University [2005] 79 ALJR 839 at 840. This was the street on which the plaintiff lived, so she was not in unfamiliar territory: Knight v Tassal Ltd (Supreme Court of Tasmania, Wright J, 18 August 1993) at 6. In addition, although the plaintiff portrayed herself as being attacked by a dangerous dog, her description of the dog is of a small, fluffy animal, which ran around her barking, not of a dog, which attacked or bit her. 68Claims for contributory negligence in dog attack cases are rare, in part because the fact situation in most cases involves an actual attack or biting. A claim for contributory negligence was considered in Simon v Condran [2013] NSWCA 388 and Penfold v Betteridge [2011] NSWDC 146, where the plaintiff was injured when two dogs began fighting, but in both cases the court considered no issue of contributory negligence arose. 69Barking dogs are a feature of suburban life. The plaintiff had walked past the defendants' house on many occasions and was used to seeing dogs in the street. The presence on the street of a small dog off the leash, even if it was running around her, should not have prevented her from keeping a proper lookout and remaining on the street, rather than stepping back without looking, and tripping or falling over the curb. 70The plaintiff was not knocked over by the dog, but unwisely took a step backwards without looking. By doing so she contributed to the circumstances of her fall. A modest allowance of 15% for contributory negligence is appropriate in the circumstances. 71This brings me to the issue of quantum.

Quantum of the claim 72I shall first set out the circumstances in which the plaintiff sought treatment for her physical injuries.

The plaintiff's physical injuries 73Following the incident, the plaintiff's son took her to Fairfield Hospital, where she left after waiting for some hours. She then attended her general practitioner, Dr Patel, on 1 September 2008, giving a history of "dog attack" on 30 August 2008 (Exhibit A, report of Dr Patel, 17 August 2010). Dr Patel recorded that she had suffered injuries to her right shoulder, vaginal area, both knees and face. She had bruising in front of both knees and around her left eye but he did not note that her glasses had been broken. Her right shoulder was painful and movements were restricted. The plaintiff was also distressed due to trauma and "inability to get help" during the incident. 74The plaintiff attended a podiatrist and a physiotherapist about "better care of feet" and "relief of joint pains" on 5 September 2008. She attended Dr Ong and Dr Ho at the medical centre she attended, but two of these were for a gynaecological check up. There was no complaint of injuries relevant to these proceedings on these occasions. 75As noted above, on 9 October 2008 the plaintiff attended an optometrist complaining of distance blur with her current glasses. The optometrist considered that changes to her vision could be relevant to her sugar levels as she was a Type II Diabetic (Exhibit 10, p 92). 76The plaintiff consulted Dr Ong again on 18 October 2008 complaining of headaches, and on 28 November 2008 underwent a brain scan. This does appear to be related to injuries she complained of after the accident, in that she complained of headaches. 77The plaintiff's shoulder continued to trouble her and she was referred to Dr Davé on 31 October 2008. An MRI scan of the shoulder on 14 October 2008 confirmed a rotator cuff tear and some acromioclavicular joint arthritis. In December 2008 she underwent an arthroscope of her shoulder and the findings of large rotator cuff were confirmed. There can be no doubt that this complaint and injury are related to the accident. 78Dr Davé described the plaintiff's progress at this stage as follows: "She was nearly getting full forward flexion and this was pleasing [sic] she was asked to have physiotherapy and start on a gentle therapy program. She continued improving forward flexion range about 140 but weakness [sic] with overhead lifting. I saw her again on 25.03.2009. She represented with further pain and was recommended to have a subacromial injection of cortisone. She was now lifting her arm to about 90, she was seen again on 10.09.2009 and had irreparable rotator cuff [sic] she was injected with some cortisone with good result. She was asked to continue building her anterior deltoids." 79The plaintiff continued to complain of headaches. A CT brain scan on 28 November 2008 showed no intracranial abnormality. She continued to complain and was referred to Dr Neil Griffith, a neurologist. She told him she had only had headaches rarely prior to her fall but now suffer them regularly. His diagnosis was as follows: "Following initial assessment I found Antonia Meimaropoulos to have chronic daily headaches and dizziness. The latter likely secondary to associated anxiety. In addition to sensory change over the right 1st division trigeminal nerve. She was using a considerable amount of analgesic medication on a daily basis and this may have been contributing to her headaches producing chronic analgesic overuse induced headaches. I thus changed her from Panamax to Neurontin use building up from 100mg tds and organised a cerebral MRI scan and vestibular function tests." 80The vestibular investigations were normal. The MRI scan showed changes due to her age and known vascular risk factors, but these were not changes that would be expected to produce headaches. 81Dr Griffith considered that, as at 15 July 2009, the mild sensory impairment affecting the purely sensory 1st division of the trigeminal nerve were a direct result of her fall on 30 August 2008. There was however no evidence of trigeminal neuralgia and her headaches were not characteristic of pain due purely to trigeminal nerve injury. He considered she should see a psychiatrist in relation to her complaints of headache. 82The MRI performed on 23 October 2009 (Exhibit A and Exhibit 10, p 124) concludes there is no abnormal sign or thickening of the right trigeminal nerve and that no abnormal enhancement is demonstrated. As her headaches are stated by Dr Griffith to be "not characteristic of pain related purely to a trigeminal nerve injury" the most likely explanation is non-organic reasons. I note that Dr Griffith adds that "[w]hether the headaches and dizziness are permanent would [sic] best assessed at 2 years following the injury and following assessment by a psychiatrist." 83Although the plaintiff's medication was changed and she was warned not to take analgesics, she has continued to do so. Whether the headaches are the result of chronic analgesic abuse and if so over what period that abuse has taken place is discussed by the defendants' expert, Dr Harvey-Sutton but not commented upon by the experts retained by the plaintiff. This is one of many unsatisfactory aspects of the medical evidence in this case. The unsatisfactory nature of the psychologist's reports (the plaintiff not having consulted a psychiatrist) is dealt with in more detail below. 84If the headaches are not the product of trigeminal nerve damage, as seems clear, and any damage to the trigeminal nerve is slight, any claim in relation to trigeminal nerve damage would be of a minor nature. 85Another difficulty is the failure of the plaintiff's treating doctors, and the doctors who prepared her medico-legal reports, to be aware of, and take into account, her prior fall in March 2001.

The plaintiff's prior shoulder injury 86On 14 March 2001 the plaintiff tripped on an uneven footpath. Her injuries included an injury to her right arm, this being the site of her rotator cuff injury following the 2008 accident, as well as smashing her glasses. She was seen by Dr Mahony, who provided a reported dated 30 June 2003. Dr Harvey-Sutton (Exhibit 1) comments both about her condition and Dr Mahony's conclusions, at paragraph 1.6.3: "1.6.3 She noted that the case appears to have come before the court in 2004 and she believes that subsequently her condition improved. I note Dr Mahony indicates that she had symptoms referrable to capsulitis of the right should, right lateral and medial epicondylitis, low lumbar back strain with degenerative changes, with nerve irritation affecting the left lower limb and there was evidence of discogenic lesions at the L3/4, L4/5 and lumbosacral levels, as well as right S1 nerve root irritation. She also has symptoms referrable to bilateral chondromalacia patellae of the knees, and she does have evidence of Baker's cysts behind the knees, bilateral tendonitis of the tendoachilles, as well as bilateral plantar fasciitis." 87After her fall in August 2008 the plaintiff saw Dr Patel, who said that the plaintiff "recovered from soft tissue injuries but her should pain gradually got worse. An ultrasound scan of the right shoulder revealed a tear of the supraspinatus tendon. She continues to have ongoing pain and will need surgery in the future". 88Dr Harvey-Sutton notes that this tear is "consistent with her age" (p 9, Exhibit 1) and goes on to state: "I note on 10 May 2001 there was reference to slight instability in the left ankle. As noted above Dr Mahoney diagnosed injuries,

• capsulitis of the right shoulder,
• right lateral and medial epicondylitis,
• lower lumbar back strain with degenerative changes, with nerve irritation affecting the left lower limb and there was evidence of discogenic lesions at the L3/4, L4/5 and lumbosacral levels, as well as right S1 nerve root irritation. She also has symptoms referrable to
• bilateral chondromalacia patellae of the knees, and she does have evidence of Baker's cysts behind the knees,
• bilateral tendonitis of the tendoachilles, as well as
• bilateral plantar fasciitis and indicated a 15% permanent impairment of the nose, 20% permanent loss of efficient use of the right upper limb at and above the elbow, 25% permanent impairment of the back, 25% loss of efficient use of the right lower limb at and above the knee to include impairment below the knee, and also 25% permanent loss of efficient use of the left lower limb at and above the knee to include impairment below the knee. Dr Mahony recommended that she needed eight hours of domestic assistance per week following that accident Ms Meimaropoulos believes she improved from that accident of 2001 with time. The following replies to your specific questions are based on the history that was given to me, the clinical examination, special investigations, accompanying information, my training and experience and regular review of the current literature, as follows: 1. A history of the incident from which the claim arises, subsequent treatment and progress and any other history relevant to the plaintiff's complaints or disabilities. See para 1. 2. Comment upon any x-rays supplied by the plaintiff or that you may order, as appropriate. See para 2. 3. Examination of the plaintiff in light of the allegations of injury and disability in the statement of Claim and Particulars and the matters raised by the plaintiff in the course of your examination. See para 3. 4. Comment upon the plaintiff's condition in each areas of alleged injury or disability. Based on the accompanying documentation, the injury arising from the subject fall is
• Aggravation of underlying degenerative rotator cuff of the right shoulder. Her right shoulder continues to have restriction in movement, particularly elevation at and above shoulder height, with consequent difficulty with overhead activities." 89Dr Harvey-Sutton states that the plaintiff suffered an aggravation of an underlying degenerative rotator cuff of the right shoulder. She has restriction in movement, particularly elevation at and above shoulder height. 90The plaintiff's medical reports confirm the plaintiff's rotator cuff tear. Dr Peter Conrad describes the tear as "large" and "not repairable". Dr Harvey-Sutton notes in her follow-up report of 12 March 2013 (Exhibit 1) that Dr Conrad indicated under the heading "past injuries" that there were "nil relevant". This is clearly a mistake. 91Dr Mahony in his report of 30 June 2003 estimated 20% permanent loss of efficient use of the right upper limb at and above the elbow, on the basis that she had symptoms referrable to capsulitis of the right shoulder. There can be no doubt the plaintiff aggravated this injury in her fall, but the prior history of injury should be taken into account. 92I formally note that counsel for the plaintiff has withdrawn any claim in relation to the plaintiff's foot problems. Occurring in 2010, these are clearly unrelated to the accident. 93The plaintiff's physical injuries are, however, not the principal problem in relation to the plaintiff's claim for non-economic loss. The plaintiff also claims for ongoing depression, anxiety and related problems.

The plaintiff's ongoing psychiatric/psychological injuries and disabilities 94The plaintiff was referred by Dr Patel on 1 November 2010 to Dr Zareena Anantharaman, whom she first saw on 4 October 2010. This is two years and three months after the accident. 95The difficulties of analysis of claims arising from medical treatment first sought after a lengthy period of time has elapsed have been set out in The Nominal Defendant v Kostic [2007] NSWCA 14. It is, however, not uncommon for referrals for depression and anxiety problems to emerge as a result of injuries, or not to become apparent for some time after the accident, so I must be cautious not to place undue weight on a period of delay in reporting symptoms of this nature. Depression, anxiety and other problems of this nature not infrequently take some time to appear and be diagnosed. 96However, other aspects of the plaintiff's claim cast serious doubts upon her credibility, requiring me to reconcile inconsistencies between her evidence and contemporaneous medical reports, in the manner explained in Riley v The Owners of Strata Plan 73817 [2012] NSWCA 410 and McGlen-McLeod v Galloway [2012] NSWCA 388. In Riley v The Owners of Strata Plan 73817, supra, the plaintiff gave inconsistent evidence about where she had slipped on a ramp and the trial judge's findings concerning the plaintiff's lack of credit were undisturbed. In McGlen-McLeod v Galloway, supra, all of the contemporaneous medical records including X-rays referred to a minor injury to one leg but the medico-legal reports, written two years later, referred only to a significant injury to the other leg. The Court of Appeal held that findings as to credit were necessary and it was insufficient to find that the absence of contemporaneous treatment meant that the only injury the plaintiff suffered was the injury she complained about at the time and which was treated by the doctors at the time. 97It is necessary to set this material out in some detail, and to start with the plaintiff's treating doctors' reports as tendered to the court (Exhibit A). Dr Anantharaman has provided a report dated 29 April 2011 concerning the 26 individual sessions she had held with the plaintiff over six months. A provisional diagnosis of adjustment disorder with anxiety and depressed mood was made. The prognosis is described as "[n]ot good, due to the chronicity of the physical problems since the dog attack on 30.08.2008". 98Dr Anantharaman sets out her conclusions and recommendations in point form. Owing to the serious issues raised by the defendants in relation to this report, it is necessary to set these out in full: "Conclusions: - Antonia is battling with the crippling pain in her body especially in her legs, knees and feet since the dog attack on 30th August 2008. - Antonia sustained injury to her head for the first time during the fall when she was attacked by the neighbour's dog. - Antonia developed dizziness and fainting for the first time only after the head injury she sustained during the dog attack. - Antonia, prior to the dog attack / head injury, she was more independent and went out by herself everywhere. - Antonia was a confident person, enjoyed going out socializing with family and friends prior to the dog attack. - Antonia became house bound due to the fear of falling down again when alone only after the dog attack / injury to her head. - Antonia never experienced dizziness / fainting and falling down before the dog attack. - Antonia's problems with the head injury / blood clot was diagnosed following the dog attack / the injury she sustained to her head during the dog attack. - Antonia is very anxious about the constant aches and pains in her legs knees as well as the dizziness. - Antonia is unable to bear the pain in her feet any longer. - Antonia is keen to get the surgery done ASAP. - Antonia is desperate to have some relief form [sic] the constant pain. - Antonia has no capacity to return to her pre accident level of functioning physically or emotionally due to the prolonged delay in the interventions in her total recovery from the dog attack / fall. Impact on the family: - Antonia's son became concerned of his mother's physical / emotional well-being. - Antonia's son had to resign his job to become Antonia's full time carer after the dog attack. - Antonia's son has also developed depression due to the family situation. - Antonia's son is irritable / angry with his mother since 10 months. - Antonia is trying her best to remain calm at home. - Antonia is not happy about her son not working because of her injury / disability after the dog attack. - Antonia's son has lost the confidence in himself. - Antonia's son has stopped going out / socializing due to the fear of leaving Antonia home alone. - Antonia's son isolates / communicates minimally with Antonia. - Antonia's son gets very impatient with his mother. - Antonia's son becomes verbally abusive of her some times. - Antonia is upset with her son's rude behaviour towards her. - Antonia is concerned about her sons' [sic] future. - Antonia's son is anxious about her health / but finds it harder to express his emotions freely. - Antonia is keen for her son to go back to work ASAP. - Antonia's family is not coping well since the accident / dog attack due to the chronic nature of her physical / emotional problems in Antonia. - Antonia's physical deterioration is impacting her only son living with her. - Antonia is a loving, caring / genuine person who is affected greatly due to the dog attack / fall. Recommendations: - To continue to see Dr. Niranjana Patel for medical reviews. - To continue to attend all the specialists appointments when required. - To continue to attend Individual Counselling sessions: to further address issues that are concerning her mental health such as the injury / Stress, anxiety, and depression. - To improve her coping and problem solving strategies. - To improve her communication skills. - To manage the anxiety / stress better. - To be more active at home as well as outside the house. - To socialize more with friends outside of home. - To be able to communicate to the appropriate staff / people about the problems she is facing in her life - Antonia needs all the support form [sic] the insurance company to enable her to get the necessary medical / surgical interventions. - Antonia's case needs to be looked holistically and more sympathetically due to her age and fragility as well. - This family needs every possible support in stabilizing them physically / emotionally as well s [sic] financially." 99The precise status of this report is unclear. Was it a report to the general practitioner, or to the court? Counsel for the defendants points out that it is addressed and headed "To Whom It May Concern", and not to the plaintiff's treating doctor, Dr Patel. This would mean that it is a medicolegal report, albeit from a treating doctor, according to the submission of the plaintiff. If that is the case, the Code of Conduct should have been referred to, but this has not occurred. In fact, the contents of this report are a good example of the reasons for the Code of Conduct forming an essential part of medical reports provided for court purposes, as the following additional material will demonstrate. 100What has not been disclosed by Dr Anantharaman, although it must have been known to her at the time, was the list of main concerns provided to her both by Dr Patel and, more importantly, by the plaintiff, when the plaintiff commenced her treatment. These are set out in Dr Anantharaman's own notes of 4 November 2010, which have been tendered by the defendants. 101Counsel for the defendants informed me that these notes were not obtained from Dr Anantharaman but from another source, under subpoena. The failure of the plaintiff's general practitioner and Dr Anantharaman to answer a subpoena in relation to this issue has been demonstrated by the tender of the subpoenae. 102The "patient's main concerns" are identified by Dr Anantharamn, for the purposes of her treatment of the plaintiff, as being entirely different to those set out in her report "to whom it may concern". It is necessary to set out this document in full: "Patient's Main Concerns are: - Daughter with drug addiction. - Son in law too with drug addition. - Conflicts with daughter. - Daughter is not allowing her to see her kids. - Conflicts with sister/nephew. - Nephew with antisocial and drug related problems." 103The "patient's main goals" were stated as follows: "Patient's Main Goals are: - To stabilize the mood. - To be able to improve relationships with daughter. - To be able to see her grand kids. - To feel safe / secure in her home. - To feel normal and confident like before." 104Her current mediation is listed as "Efexor 75 mg / daily" and her presenting problems were as follows: "Presenting problems: - Depression: Unable to sleep due to preoccupied [sic] with conflicts with sister [? , before that] grand children. - Anxiety: On 10.10.10 incident happened on her sister's B'day party. Nephew got [? violent] and threatened to kill / destroy her things. Very insecure. - Stress: [There does not seem to be an entry for this] - Relationship Problems: Conflicts with daughter due to daughters drug addiction / neglect of her kids. DOCS are involved. Conflicts with her sister and her son threatening to hurt her or destroy her property. - Work Related Problems: [There does not seem to be an entry for this] - Health Related Problems: Chronic back pain NDDM Gout Hypotension Reflux and gastro-oesophageal Multiple injuries due to a fall when dog attacked 2008 [?] Blood clot / mild stroke" 105The sole reference to the dog attack is in the second-last line of this document. 106Many of the statements in this doctor's report to the court, when compared to the list she made when treating the plaintiff, must be untruthful to the knowledge of the doctor preparing the report. For example, there is no evidence that a bloody clot was diagnosed following the dog attack, or that the pain in her knees and feet or a stroke are connected. In addition, the very serious family and social problems set out in the notes of Dr Anantharaman of 4 November 2010 have not found their way into her report, which I am satisfied was prepared with the knowledge that it could be used in court proceedings. 107The plaintiff made a number of concessions in her cross-examination about the ongoing extent of these problems. Her daughter is now deceased and she has no contact with her grandchildren, mainly because of her damaged relationship with her son in law. She says that she has reconciled with her sister, and now enjoys a good relationship with her, although she gave no date as to when this reconciliation took place. She agreed that the Department of Community Services had been involved in relation to neglect issues for the children, but said that it was her son in law who was the drug user, rather than her daughter. 108The circumstances in which the report of Dr Anantharaman contains misleading and untruthful information do not reflect well on the plaintiff's credit. I have taken into account that the plaintiff, who cannot read or write English, would have played little part in the preparation of this report. It must materially undermine the claim that the plaintiff's emotional and psychological problems arise from the circumstances of the accident the subject of this claim. 109However, the plaintiff repeated these claims when she saw Mr Gerard Glancey for medicolegal purposes on 23 May 2011, and I must assume that the plaintiff played a greater role in the giving of information to this psychologist than may have been the case with Dr Anantharaman. Mr Glancey's reports of 23 May 2011, 6 July 2012 and 7 August 2013, contained in Exhibit A, contain similar findings, although Dr Anantharaman's report is referred to by him only in the third of these reports (7 August 2013). I shall discuss each in turn. 110The contents of the first and second reports tell a story not dissimilar to that which is contained in the report of Dr Anantharaman, namely a history of the plaintiff having had friends and a happy lifestyle, including relative independence from pain or ill health, prior to the injury. Following the injury the plaintiff told Mr Glancey she suffered black outs, a stroke, a right ankle injury requiring surgery, an injury to her left ankle and a loss of independence. The family problems were briefly identified as a "family dispute" which meant she had no contact with her daughter or grandchildren as a result (p 3, report of 23 May 2011). 111The description of the events set out in Dr Anantharaman's notes of 4 November 2010 as a "family dispute" is also similar to the plaintiff's complaints to Mr Glancey. When the plaintiff "laments the loss of her previous life" (p 5 of the report), Mr Glancey accepts at face value the assertions that her life prior to the accident was a happy one where she enjoyed good health. There is no reference to the 2001 injury, to the long period of time on which she had been on disability pension, or to the family issues which caused such serious concerns to her in the years leading up to November 2010, only six months beforehand. Not only has the plaintiff provided a slanted and selective history, but Mr Glancey has not sought to inquire. 112Mr Glancey's second report, dated 6 July 2012, again emphasises that the plaintiff blames her blackouts on the blow to her head sustained in the dog attack (p 2). This included suffering a stroke on 22 April 2012. She described the previous conflict with her daughter as "now resolved" and said she was having "frequent contact with her daughter and her three grandchildren" (p 2). She described her foot injuries as being a significant issue and complained of flashbacks in relation to the dog attack as well as nightmares which caused her to awake screaming about once every three weeks, persisting depression and irritability. Whereas prior to the accident she used to sing and dance, she is now depressed and feels her life has no meaning. Mr Glancey diagnosed major depressive disorder. He described the depression as "a consequence of the major stressors of her life". These stressors are the chronic pain and physical restrictions, her physical condition involving black outs and stroke and post traumatic stress disorder (p 6). She was concerned about the condition of her feet and the prospect of reliance on a wheelchair, as well as the possibility of further stroke and death. 113Mr Glancey concludes: "Her reports support the view that black outs which she claimed occurred following 29/6/2008 [sic] and subsequent stroke generated significant stress in her life which generated specific anxieties and compounded her depressive disturbance. If pressed to apportion, mental disturbance to injuries sustained in the dog attack of 29/6/08 [sic] and her history of blackouts and stroke, I would suggest that fifty percent of her anxiety is related to her experiences of blackout and stroke. In apportioning her depressive disturbance to the alternate stressors of her life, I would express the view that her depression is primarily related to the dog attack of 29/6/08 [sic] and would be evident in her mental functioning had she not experienced the blackouts and subsequent strokes. One must remember that depression is a neuro-chemical disorder. In my view her experience of dog attack and the injuries sustained in the attack established the neuro-chemical imbalance manifest [sic] by depression. The stress of her general health problems has served to reinforce depression and therefore could be considered responsible for thirty percent of her depressive disorder." 114Mr Glancey went on to comment that the plaintiff would benefit from continued psychological counselling. 115Mr Glancey's third report of 7 August 2013 is along similar lines. I note that he describes the plaintiff's son as being now self-employed and that he "spoke of juggling work demands and the demands of caring for his mother" (p 2). In fact, as is set out below, the plaintiff's son was put before me as her carer. In response to an enquiry about family relationship, the plaintiff told Dr Glancey that her daughter had died in 2012 and that she was having no contact with the children because of opposition from the daughter's husband. He commented that "little has changed", although this is inconsistent with the information in his previous report. He saw no basis upon which to speculate optimistically regarding her prognosis in respect of mental disturbance.

Analysis of the evidence of psychology/psychiatric disability 116No report has been provided by the defendants. However, the tendering of an expert report is not a necessary prerequisite to findings of fact on matters the subject of expertise. No alternative expert report was tendered by the defendant in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705. 117In Mason v Demasi, supra, at [123]ff, Simpson J set out the correct method of analysis of conflicting evidence as to psychiatric or psychological conditions. Her Honour commenced by noting that there were two questions for determination. These were firstly from what psychiatric or psychological condition (if any) did the plaintiff suffer? If such a condition existed, what were the causes of it? I have adopted the same approach here. 118The facts in Mason v Demasi, supra, were similar to the present in that the plaintiff was attacked by a dog and the issue of causation was a significant issue at the trial. The trial judge found that the plaintiff was an unreliable historian given to exaggeration of her complaints, minimising her pre-accident functioning to the psychiatrist, overstating the circumstances of the attack and treatment that followed and a witness whose credibility should not be accepted. 119Simpson J considered the report of the defendant's expert, Dr Samuell, to be unsatisfactory in that it "did not provide a proper basis for the trial judge to make the findings adverse to the appellant that he did" (at [131]). Trial judge's reliance upon the reports of Dr Samuell was "misplaced", as an analysis of these reports together with "other evidence" showed (at [131]). 120Some of the examples of exaggeration are set out at [126] of the judgment, these included telling Dr Samuell that she could not walk, that she had no prior history of alcohol or illicit drug abuse, that she had a "perfect life" before the injury, and that she had no past psychiatric history. Simpson J was critical of Dr Samuell's findings that most of her symptoms appeared to be on a continuum with what she experienced before the attack, including a reference to family history of psychological illness and personal vulnerability. 121The medical evidence for the plaintiff in those proceedings included a report (coincidentally also from Mr Glancey) describing symptoms of "hypomanic functioning". Mr Glancey concluded the plaintiff suffered from bipolar disorder. How this related to the dog attack was not explained; his diagnosis was challenged by Dr Robertson, who made a positive diagnosis of post-traumatic stress disorder (at 80). 122Simpson J was also critical of the trial judge's failure to give adequate attention to the general practitioner's notes, which her Honour considered provided "the most reliable guide to the "before and after" picture that was essential to the assessment of the appellant's claim". 123The trial judge in Mason v Demasi, supra, was in a difficult position. The diagnosis of bipolar disorder by Mr Glancey was contradicted by both Dr Robertson and Dr Samuell. The trial judge had to reconcile three different diagnoses of the plaintiff's psychological and psychiatric issues without the benefit of cross-examination, in circumstances where the plaintiff's own account in her evidence was, her Honour found, unreliable and exaggerated, both in her statements to the doctors (at [124]) and in the witness box (at [127]-[128]). 124The dog attack in Mason v Demasi, supra, was far more severe than the events in these proceedings. Ms Mason was walking with her youngest child and their dog in an area where the respondents lived when a Rottweiler ran from the driveway of the respondent's home towards Ms Mason and her son. In order to protect her child, Ms Mason took the force of the attack. The dog bit her on her legs and arms on many occasions before a neighbour came to her assistance. She was taken by ambulance to Liverpool Hospital when she underwent surgery and she suffered scarring. It was a significant and frightening attack. In the present case, there was a brief encounter which involved, at most, a very small dog jumping up as far as the plaintiff's knees. These circumstances are also of some relevance.

Conclusions concerning psychiatric/psychological evidence 125In the present case, as was the case in Mason v Demasi, supra, I have the benefit of a report and contemporaneous notes from Dr Patel. It is clear from the reports of Dr Patel, who saw the plaintiff on a regular basis, that any sign of psychiatric or psychological problem would have been acted upon promptly. However, Dr Patel's referral was not until 4 November 2010, two years and three months after the accident, and in circumstances where the matters for referral are set out in Exhibit 5. 126I am satisfied, from the failure of Dr Patel to refer the plaintiff prior to this date, and from the contents of Exhibit 5, that the reason for the referral to Dr Anantharaman were those set out in Exhibit 5 and that the dog attack played so small a part in this referral that it was put as the second last item on the list of problems. The plaintiff's long list of family and health problems resulted in her being referred to Dr Anantharaman. The report of Dr Anantharaman is so wholly inconsistent with her own referral notes as to amount to an attempt to mislead the court, a finding I reach with considerable reluctance, but one which must be made. The reports of Mr Glancey demonstrate a failure to inquire into the plaintiff's symptoms, with the result that they are of little or no assistance to the court. 127I am satisfied that the plaintiff suffered no psychiatric injury following her fall and that any distress she suffered was of short duration. Her headaches are due to analgesic abuse, and her emotional distress is due to the very significant family problems which occurred principally over the two years following the dog incident, as well as to the foot problems which play a significant role in her current health problems, but which are conceded to be unrelated to her injuries arising from the dog attack.

Injuries relevant to the non-economic loss claim 128As is set out in more detail below, I am also satisfied that there is no connection between the plaintiff's feet and ankle injuries and the accident. I note that Ms Welsh has effectively conceded that she makes no claim for these injuries and ongoing disabilities. This means that the assumptions by both psychologists that the plaintiff's knee and ankle problems relate to the accident are in error. Consequently, insofar as there is a reference at the end of Dr Anantharaman's list to physical injuries following the dog attack, this is in fact limited to her arm injury and, to a very minor extent, any impact caused by damage to the trigeminal nerve. In addition, unlike the plaintiff in Mason v Demasi, supra, the plaintiff in these proceedings was in receipt of a disability pension for long periods of time prior to the accident in August 2008. 129Taking all of the above into account, I am satisfied that the plaintiff was distressed about the events following the dog attack, but that her careful and attentive general practitioner saw no need to refer her for psychological/psychiatric assessment until November 2010, and then did so because of the very serious family problems described by Dr Anantharaman in Exhibit 5. The reference to the dog attack at the bottom of this form, and then in the context of physical problems including the feet and knee injuries which I have found not to be attributable to the accident, places the comparatively minor role of the dog attack in the plaintiff's list of problems in a more accurate context than does Dr Anantharaman's report. 130As I have indicated earlier, I have not accepted the plaintiff as a witness of credit in relation to her ongoing disabilities as being attributable to the dog attack. I am satisfied, from her demeanour in the witness box and from her minimising of her family problems to Dr Glancey, that she has exaggerated her claim of disabilities arising from the dog attack when the true cause of her problems was the sudden exacerbation of her longstanding family problems.

Non-economic loss 131The plaintiff sought an assessment of 28% of the most extreme case, which as at 1 October 2013 equates to an award of $77,210 (14% of $551,500). 132Counsel for the defendant referred me to Reece v Reece (1994) 19 MVR 103 at [5], concerning the assessment of non-economic loss for a person of the plaintiff's age. I am conscious, however, of the NSW Court of Appeal's warning in Varga v Galea [2011] NSWCA 76 at [72] - [76] as follows: "72 Reece v Reece states the uncontroversial proposition that the plaintiff's age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshall v Clarke (Court of Appeal, unreported 5 July 1994); see also Christalli v Cassar [1994] NSWCA 48 (at 3) where Kirby P (with whom Powell and Cole JJA agreed). 73 Age, however, is only one of the numerous matters the Court takes into account in its assessment of non-economic loss, which is defined in s 3 of the 2002 Act as follows: "'non-economic loss' means any one or more of the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement." 74 The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a "most extreme case". In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71 - 72) remain cogent: "Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables." As Handley JA observed in Dell v Dalton (1991) 23 NSWLR 528 (at 532), although Windeyer J was in dissent, this passage "reflected the previous law"." 133The defendants must take the plaintiff as they find her, and the fact that she is a person with health problems of long standing is to be seen in her favour. However the plaintiff is only able to claim damages for those injuries arising from the fall she suffered when frightened by the defendants' dog. For the reasons set out above, that is limited to the claim in relation to her shoulder injury and a claim for damage to the trigeminal nerve, the consequential disabilities of which appear to be insignificant. 134Issues relevant to the determination of non-economic loss are: (a)An accurate identification of the injuries the subject of the claim; (b)An assessment of the medical evidence taking into account that Drs Dave, Conrad and Bodel were not given an accurate history of prior injuries and claims; (c)The plaintiff's age: Reece v Reece (1994) 19 MVR 103; (d)In relation to claims of ongoing disabilities, the plaintiff's credit. 135In Coleman v Barrat [2004] NSWCA 27 the New South Wales Court of Appeal held that an assessment of 22% of a most extreme case for a similar injury was a reasonable award. The defendant submits that if I accept the plaintiff's injuries were suffered as alleged, the non-economic loss damages would be in the range of 20-22%. 136Taking all of the above into account, I consider an assessment of 22% to be appropriate. By multiplying $551,500 by 4.5% (s 16 Civil Liability Act 2002 (NSW)), this gives $24,817.50. Rounding this up to the nearest $500 would entitle the plaintiff to $25,000.

Past out-of-pocket expenses 137Although past out of pocket expenses are generally agreed, these were in dispute in this case. The following areas were challenged by the defendants: (a)Medicare: No details are provided by Plaintiff (b)Optometrists' costs: The plaintiff smashed her spectacles in her 2001 fall. The defendants have submitted, and I accept, that the delay in obtaining fresh glasses for a person with such poor uncorrected vision, the absence of reference in the optometrist's report to her glasses being smashed (it is not stated that he read her prescription, which increases the likelihood that he estimated her vision from her actual glasses) and the reference by the obstetrician to other information being provided as the reason for her visit confirm that the cost of new glasses is unrelated to the plaintiff's accident.On 8 September 2008 Dr Ong (Exhibit 10 are difficult to read) appears to have referred the plaintiff to Valley Plaza Optometrist after checking her blood sugar, not as a result of injury. On 9 October 2008, Valley Plaza Optometrist-Michael Jackson reported:"Thanks for asking me to see this lady who has been complaining of distance blur with her current classes. She is a type II diabetic but is not checked sugar levels recently."3 November 2008 - Claim for new spectacles provided by Irena Lombardi optometrist Merrylands.The Plaintiff said in evidence that she broke her glasses and then threw them in the bin when she got home. This is unbelievable and should be rejected in view of the evidence of Dr Ong and Michael Jackson (supra). (c)Sleep Advisory and Sales Services: this claim is withdrawn by the Plaintiff (letter Plaintiff's Counsel 3 February 2014 received in DX 6 February). (d)Dr Dave: The defendants agree that the following expenses from Dr Davé relate to the plaintiff's shoulder (see Dr Davé - Report 13 May 2010 part of Exhibit A):31 October 2008 referred by Dr Patel-new consult - $12014 November 2008 subsequent consultation - $505 December 2008 subsequent consultation - $5018 December 2008 see comments below $220021 January 2009 no tax invoice25 March 2009 subsequent consultation - $5022 April 2009 professional attendance specialist - $100The plaintiff claims that subsequent tax invoices between March 2010 and January 2012 do not appear to relate to shoulder injury. The following are the relevant entries in Exhibit 10:On 28 December 09 Dr Sorani refers the plaintiff to Dr Dave, noting that "Chronic pain both feet right is worse". In relation to "Current problems" there is no reference to injuries arising from the dog attack or indeed any injury. (Exhibit 10, p 99).5 February 10 Dr Davé notes: "Foot has caused her pain. Denies any twisting injuries, but has had spontaneous onset of pain mainly on lateral aspect of her feet" (Exhibit 10, p 121). The plaintiff's account leaves the dog attack out of the picture.12 February 10 Dr Davé noted: "Bone scan picks up stress fracture in fifth metatarsal" (Exhibit 10, p 120).On 12 April 10 Dr Davé noted "Treated fifth metatarsal fracture with boot" (Exhibit 10, p 117).On 11 May 10 Dr Davé noted "Some pain over fifth metatarsal. Walking unaided" (Exhibit 10, p 114).On 1 July 10 Dr Patel noted, as the reason for visit, "anxiety. Form for carer's allowance done" (Exhibit 10, p 48).On 1 July 10 Dr Davé noted: "Ongoing pain in foot" (Exhibit 10, p 113).On 2 February 11 Dr Davé reported: "Had internal fixation for non-union of fifth metatarsal" (Exhibit 10, p 59).On 10 March 11 Dr Davé reported: "Hardware removed. Needs a bit of podiatry to help with her planter fasciitis. Part of her pain I suspect is from some neuropathy from her diabetes" (Exhibit 10, p 62).On 4 May 11 Dr Davé reported: "Some pain in base of fifth metatarsal" (Exhibit 10, p 70).On 30 August 11, Dr Patel noted "Reference for counselling under mental health plan. Past history: chronic back pain, anxiety, depression, diabetes, gout, hypertension, reflux, sleep apnoea" (Exhibit 10, p 156).On 5 February 2010, Dr Davé noted: "Foot caused her pain. Spontaneous onset of pain mainly on the lateral aspect of feet. organised bone scan to look for any stress fractures" (Exhibit 10, pp 74, 121). (e)Dr Griffith: the defendants submit that neither this claim, nor the claim for trigeminal nerve generally, relate to the fall on 30 August 2008. He considers the plaintiff suffers from "chronic analgesic overuse induced headaches" (Exhibit A, report 13 July 2009) and adds: "There may be a component of chronic analgesic overuse and I have given her regime to change from Panamax to Neurontin building up to 100 mgs tds" (Exhibit 10 page 142). The plaintiff complains of headaches, but despite the Doctor's advice, she said that she continued to take Panamax. No Panamax boxers or receipts were produced nor any for Neurontin. The plaintiff does, however, claim $560 for three visits to the neurologist on 13 and 15 July 2009 and 28 October 2009 and I have allowed this. (f)Dr Sumich: this claim is withdrawn by the Plaintiff (letter Plaintiff's Counsel 3 February 2014). Dr Sumich was seen on 19 November 2008 on the referral of Irena Lombardi optometrist Merrylands. No report was provided. (g)Dr Thakkar: The defendants concede that this doctor, who assisted Dr Davé 18 December 2008, is entitled to be paid although his services are charged at $600 by the plaintiff. Dr Davé on Tax Invoice/Receipt number 51339 apparently charged $400 for the assistant for surgery in the operating theatre. The difference is unexplained. I shall allow for the lower amount. (h)Sydney Southwest Private Hospital: $5772. The defendants submit that this claim of $5772 appears to be made up of adding together a deposit in cash ($4231 - 18 December 2008) and "Patient Refund Accom" ($1541.30 - 30 January 2009). The actual cost of invoice number 151673 was $2689.70. This has been agreed to by Ms Welsh. (i)Ambulance Service of NSW: A receipt dated 27 May 2013 is provided, but there are no further details are provided relating this expense to the plaintiff's disabilities. It is not related to the events the subject of this litigation. (j)Green Valley Physiotherapy: The defendants submit that there is no referral from any doctor for this physiotherapy, nor is there any report from the physiotherapist, and that in these circumstances no allowance should be admitted.I do not accept that either of these complaints are of relevance. The plaintiff was advised to have physiotherapy, and did not need a referral to do so. Reports from physiotherapists are rarely provided, and generally of little assistance to the determination of issues. Between 28 January 2009 and 22 February 2010 there were 18 visits for a total sum of $900. The only notation on that "Attendance Report" is "shoulders-both multiple areas" but I am satisfied that the plaintiff attended complaining of her shoulder.There are a further 13 similar visits Between 8 April 2010 and 20 July 2011 except that on 7 April 2011, 31 March 2011 and 20 July 2011, there were consultations relating to "shoulder-right". The defendants submit that these three invoices appear to be the only physiotherapy in relation to the right shoulder.On 16 February 2010 Dr Patel (Exhibit 10 page 50) clinical notes-"having physiotherapy-known to have degenerative changes in multiple joints". On 23 September 2010 Dr Patel (Exhibit 10 page 45) clinical notes-"left ankle pain++, x-ray-normal, having physiotherapy, adv to continue physio". As is noted above, Dr. Patel's earlier clinical notes were not produced in answer to a subpoena.Some allowance should be made for the fact that the plaintiff's physiotherapy included her ankle and foot problems. (k)Physiotherapy Professionals: These two documents appear to be a statement and a receipt page each in the sum of $37. The first document number 93537 but they both refer to "initial hospital consultant" as a service provided and the area "mobility". I accept the defendants' submission that it appears that the receipt and the statement have been added together. (l)Pharmacy: This claim consists of a number of items. Ms Welsh has sensibly suggested that a small buffer only for analgesics should be allowed for, and I propose to take this step. (m)Purchase of a Rollator in 2012: This appears to be a 4-wheeled walking frame in relation to the plaintiff's foot problems. There is no evidence of it, or its use. Well prior to its purchase, on 19 May 2009, Dr Yiannikas reported that the Plaintiff "has dyspnoea after walking 10 to 15 minutes". (Exhibit 10 page 146 (Dyspnoea is shortness of breath).On 9 September 2010 Dr Yiannikas reported that the Plaintiff "since her last visit she has noted a retro sternal painful discomfort and breathlessness when she does her housework. She has dyspnoea walking 1/2 a kilometre." On 25 February 2012, Dr Hassan (at pages 5 and 6 of Exhibit 10) reports "She is able to go out to the shops and is independent with activities of daily living though she feels that her son needs to be with her for support." "She appears quite well and is able to ambulate without any walking aid." "Opinion and recommendations: the most recent symptom of rotational vertigo on head movements is that benign paroxysmal positional vertigo. Her more longstanding symptoms are quite non-specific and her subjective gait and balance impairment is not substantiated by any objective abnormality. In particular there is nothing on examination to preclude her from being able to mobilise independently without her son's help."On 27 March 2012 Dr Bazina (at page 21 of Exhibit 10) reported "MRI scan was performed and this does demonstrates (sic) multilevel degenerative disease." And "has restriction in range of movement of her left hip". On 7 July 2012. Dr Hassan (at page 7 of Exhibit 10) reports: "I reassured Mrs Meimaropoulos that there is no evidence of any neuropathology. I attributed her symptoms to 'lack of confidence' and pain due to degenerative disease of the spine."Ms Welsh has not pressed this claim. 138The amounts I propose to allow are: (1)Dr Davé $2670 (this includes an allowance for assistance for surgery in the operating theatre, but for the amount in Dr Dave's invoice); (2)Sydney Southwest Private Hospital - $2689.70; (3)Pharmacy $61.20 and a small buffer for analgesics ($500); (4)Physiotherapy: I propose to allow the claim for $900 for the 18 visits. I will round this figure up to $1,000 to allow for a small percentage of subsequent visits including shoulder physiotherapy. (5)Three visits to the neurologist (17 July 2009, $350; 15 July 2009, $105; 28 October 2009, $105) totalling $560. 139The total for past out of pocket expenses is $7,480.90. 140I am indebted to counsel for the defendants for his painstaking analysis of these accounts. The sum claimed by the plaintiff was more than twice this amount. Out of pocket expenses are rarely properly analysed, but where a defendant is able to demonstrate that items cannot or should not be claimed, the court must analyse these submissions and determine them accordingly: Dybka v McKenzie [2002] NSWCA 171.

Future out-of-pocket expenses 141The plaintiff's rotator cuff injury is not operable and requires no further treatment, as is the case with the injury to the trigeminal nerve. The plaintiff elects to take analgesics although she has been advised to use other medication. She is taking analgesics for other physical problems. 142A claim for medication for sleeping problems was abandoned. 143The plaintiff should be awarded a very modest cushion to allow for some of these future analgesic purchases. I have accordingly allowed $1,000.

Past and future care 144The plaintiff's son gave evidence that he gave up work in 2010 to become his mother's carer. All the evidence points to his having done so partly as a result of her requirement for foot surgery and partly because of the ongoing family problems. 145He agreed in cross-examination that the work he had done around the house before 2008 had not changed after the accident. The basis of the claim for home care is that he gave up work outside the home in 2010. As the plaintiff's list of concerns to her psychologist shows, this was not a decision welcomed by the plaintiff. 146According to statements the plaintiff's son made to doctors in the medical reports tendered, he is in fact running a business from home. He conceded in cross-examination that this was the case, and acknowledged the purchase of a considerable amount of equipment for his home-based business. 147Ms Welsh's submissions on this issue were made so faintly that I was unclear whether the claim had been abandoned. On the assumption that it was not abandoned, I formally note that I accept the submissions made on behalf of the defendants, and am satisfied that the plaintiff did not receive, and did not require, any home care for her accident-related injuries other than gratuitous assistance (such as performance of heavier housework) of the kind that might be expected from an adult son living at home. 148No allowance is made for past or future home care. 149As the amount of damages award falls below the threshold under r 42.35 Uniform Civil Procedure Rules 2005 (NSW) I have reserved the issue of costs. If no order is sought within 28 days, no costs orders will be made.

Summary of damages 150I summarise the damages as follows: (1)Non-economic loss (at 22%): $25,000 (2)Past out of pockets: $7,480.90 (3)Future out of pockets: $1,000 (4)Past and future home assistance: Nil (5)Less 15% contributory negligence (-$5,022.13) Total: $28,458.77.

Orders (1)Judgment for the plaintiff for $28,458.77. (2)Costs reserved with liberty to apply, to be exercised in 28 days. (3)Exhibits retained for 28 days.

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: 08 April 2014