PARTRIDGE v IRELAND [2002] NSWSC 654

New South Wales Supreme Court

CITATION : PARTRIDGE v IRELAND [2002] NSWSC 654 FILE NUMBER(S) : SC 20761/01 HEARING DATE(S) : 21-23 November 2001 JUDGMENT DATE : 26 July 2002

PARTIES : Plaintiff: Andrea Partridge Defendant: Wendy Ireland JUDGMENT OF : Hulme J at 1

COUNSEL : Plaintiff: A Hewitt SC Defendant: WK Dodd SC SOLICITORS : Plaintiff: Stanger & Ryan Defendant: Hunt & Hunt DECISION : Findings on liability and some issues of damages made; Matter adjourned for parties to carry out calculations.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION NO: 965/99

HULME J 26 July 2002 Andrea PARTRIDGE v Wendy IRELAND Judgment 1 His Honour: On 30 April 1999 the Plaintiff entered into a lease of premises at 37 Corlette Street, Newcastle. Later that day she sought to gain entry at the front of the premises but being unsuccessful commenced to walk down the driveway to No. 33 Corlette Street over which driveway there was a right-of-passageway in favour of the properties at 35-41 Corlette Street. 2 While on the driveway a dog owned by the Defendant, the occupier of No. 33, attacked the Plaintiff. The Plaintiff mounted a paling fence beside the driveway and then, in the course of getting off the fence, fell onto the far side. On striking the ground she injured her left knee. 3 She has brought action against the Defendant both in negligence and in reliance on Section 25 of the Companion Animals Act 1998. So far as is relevant that section provides:- 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 clothing of a person 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 at the time of the attack, 4 Presumably because of the existence of the right-of-way and the Plaintiff's position as tenant, it has not been suggested that sub-section (2) operates so as to exclude the application of sub-section (1). Thus, under sub-section (1) the Defendant is liable for the damage suffered by the Plaintiff. 5 The Plaintiff did not abandon the reliance on the claim in negligence, but adduced no or virtually no evidence directed to it. I am not satisfied that there was any negligence on the part of the Defendant. 6 The injury to the Plaintiff's knee was severe. She suffered an extensively comminuted fracture of the lateral tibial plateau. She was taken to hospital and operated on the following day after a night of "agony". She remained in hospital for about a week. During this time she suffered pain, alleviated by morphine, and stress, evidenced by her breaking out in cold sores. When she left hospital her leg from hip to ankle was in a hinged brace which, over time, was adjusted to give her an increasing degree of flexion in the knee joint. Initially, the brace was about as restrictive as a plaster cast. She was on crutches for about two and a half months and then used a stick for about another month. 7 In March 2000 the internal fixation hardware was removed under general anaesthetic. This operation involved an overnight stay in hospital followed by about another 3 weeks on crutches and a stick. 8 Given the extent of the fracture, the operation seems to have been carried out very well. Dr Kerridge, an orthopaedic surgeon who reviewed the Plaintiff on behalf of the Defendant was very complimentary about it. The Plaintiff still has full knee extension and only some 10 degrees loss of flexion. However, there remains extensive damage to the knee joint. One of the results of this is that there is excessive movement and often grinding of the joint on movement. Dr Kerridge opined that the joint would become at least a little worse and further surgery might be required. 9 However the balance of evidence was far more pessimistic. Dr Mitchell, who did the operation said that it was extremely likely that the Plaintiff would develop arthritis and almost certain that further surgery would be required. This would probably include arthroscopy and a 70 to 80% chance of, in the next 10 to 20 years, a total knee replacement. Because of the limited life of such replacements, a second replacement was a distinct, and a third also a, possibility although deterioration of the site of the first might make this impossible. Dr Ghabriel said that the Plaintiff was already developing osteoarthritis and gave a similar, albeit not identical, assessment as to the future treatment. Drs Engel and Hopcroft also thought a knee replacement to be likely. While Dr Kerridge was not unimpressive, the totality of the evidence leads me to the conclusion that one arthroscopy and 1 knee replacement are certain and there is a strong probability of a second knee replacement. In saying that I am conscious of the difference between "certain" and a 70-80% chance. In my view the totality of evidence supports the conclusions at which I have arrived. 10 The problems with her knee impact on the Plaintiff in a variety of ways. She can walk with no apparent limp but has to slow down somewhat to achieve this. Although her demonstrations of walking in the court-room were quite slow and tentative, she freely admitted that her normal manner of walking was not so. Also consistent with her not normally limping or walking tentatively was her concession made in cross examination that on one occasion at work she required assistance moving a table, and that the person providing assistance was unaware of any problem prior to this event. When asked to deny the proposition that people with whom she worked at the Council were unaware of her having any problems for 5 weeks earlier last year, she merely said she could not be sure. I accept that the Plaintiff does suffer pain and other difficulties in this activity, and while quite capable of incidental walking and walking for exercise for a kilometre or two or perhaps more, albeit usually with discomfort, her ability to walk has been significantly impeded by the accident. Carrying weights heavier than moderate – Dr Mitchell suggested a 20 kilogram limit – magnifies the problem. Wet weather tends to make the joint stiff. There is some wasting of the leg. 11 Stairs are also difficult, causing grinding in the joint. The Plaintiff at times adopts the practice of leading with one leg – in Dr Kerridge's words, "dot and carry". The knee gives way regularly and on two occasions the Plaintiff has fallen. Clearly there is potential for further injury in this area. 12 Other difficulties the knee injury has caused include kneeling and the Plaintiff has also experienced some difficulty with driving. She said that this activity caused her to become stiff as it required her to remain in a similar position for a period of time. However, when questioned about a number of reports seeming to suggest she could only drive for short periods, and that it was this reason that she and her partner shared the drive to work, she conceded this arrangement was not purely due to her injury but was largely for reasons of convenience. 13 The plaintiff has difficulty in wearing high-heeled shoes. Although conceding she does still wear such shoes she said that she could no longer do so with the same degree of regularity and that she was generally limited to one pair of boots that she wears when she can. She said that by the end of the day however this results in a fair amount of discomfort along with a lot of lower leg bruising. 14 Prior to her accident the Plaintiff participated in a wide range of physical activities. At John Paul College, which she attended for some of her senior schooling, she was age champion in athletics in every year until she left and was cross country champion for at least 2 years in a row. She recounted her participation in swimming carnivals and most sporting activities. She had played representative sport for the Navy and had snow and water skied. She recounted circuit work and cardiovascular exercises like kickboxing exercises and jogging at the gym as enjoyable forms of exercise but also gave evidence of having enjoyed team sports such as netball, softball and touch football. She swam and cycled and when working for Port Waratah Coal Services, she would cycle some 25 kilometres to and from work. 15 When asked as to which of these activities other than cycling she could now partake of, "swimming" was her only response. She can cycle for only about 20 minutes. She does some weight exercises at the gym but cannot do cardio-vascular exercises there. She has put on 8 to 10 kilograms. The Plaintiff gave evidence of missing the other activities and of feeling frustrated due to her reduced capacity to undertake sporting activities, one of the factors she said led her to consult a psychologist. It would seem this situation is somewhat magnified by the fact her partner is physically fit to a level that enables him to compete in iron-man competitions.