District Court New South Wales Medium Neutral Citation: Simon v Condran [2013] NSWDC 32 Hearing dates: 30 - 31 January, 1 & 4 February 2013 Decision date: 06 February 2013 Before: Neilson DCJ Decision: Verdict and judgment for the defendant. Plaintiff to pay the defendant's costs. Catchwords: PERSONAL INJURY - Dog bite - Plaintiff and defendant neighbours - Plaintiff and defendant both owned dogs who were antagonistic towards each other - Plaintiff bitten on hand by defendant's dog whilst breaking up fight between the two dogs - Wounding of plaintiff occurred on defendant's property STATUTORY CAUSE OF ACTION - Question of whether plaintiff was lawfully on defendant's property - Whether there was trespass on defendant's land when plaintiff's dog entered it - Whether plaintiff trespassed on defendant's land when she went under defendant's house - Whether technical trespass sufficient to oust statutory cause of action - Principle of necessity - Whether necessity was caused by the plaintiff's negligence or momentary inattention / mere inadvertence - Statutory provision that plaintiff who fears for injury to herself or her dog may lawfully seize, injure or destroy the dog in question - Question of whether this permits trespass to land TORT OF NEGLIGENCE - Foreseeability of risk - Whether risk was not insignificant - Whether a reasonable person would have taken those precautions - Burden of taking precautions to avoid the risk of harm - Whether causation of plaintiff's injury was factually related to defendant's alleged negligence Legislation Cited: Civil Liability Act 2002 ss 5B, 5C, 5D Companion Animals Act 1998 ss 12A, 22, 25 Cases Cited: Anderson Group Pty Limited v Tynan Motors Pty Limited (No 2) [2006] NSWCA 120 Herning v GWS Machinery Pty Limited (No 2) [2005] NSWCA 375 Hobartville Stud Pty Limited v Union Insurance Company Limited (1991) 25 NSWLR 358 League Against Cruel Sport Limited v Scott [1985] 2 All ER 489 Mead v Kerney [2012] NSWCA 215 Proudman v Allen [1954] SASR 336 Rigby v The Chief Constable of Northamptonshire [1985] 2 All ER 985 Shaw v Thomas [2010] NSWCA 169 Simpson v Bannerman (1932) 47 CLR 378 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Stuart v Walsh [2010] NSWCA 186 Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353 Category: Principal judgment Parties: Shari Leigh Simon (Plaintiff) Deborah Anne Condran (Defendant) Representation: Mr D Toomey (Plaintiff) Mr J Guihot (Defendant) Stacks/The Law Firm (Plaintiff) Moray & Agnew Lawyers (Defendant) File Number(s): 2010/429255 Judgment 1HIS HONOUR: The plaintiff, Ms Shari Leigh Simon, brings an action for damages for personal injury as a consequence of her being bitten by the defendant's dog, known as Mack, on Remembrance Day 2009. The defendant, Ms Deborah Anne Condran, was and still is the plaintiff's next-door neighbour. 2The plaintiff and the defendant have certain things in common. They both like living in Piggott Street, Nambucca Heads. They both work in the aged care profession. They both like dogs. 3The plaintiff has a dog known as Jake. Jake is a Staffordshire Bull Terrier/Blue Cattle Dog crossbreed. The defendant has two dogs. Mack is a Staffordshire Bull Terrier/Greyhound crossbreed and the defendant's other dog is known as Burgess, but he plays no relevant part in the facts which I must consider. The plaintiff said the defendant had a third dog but that third dog has not been identified by name and, according to the defendant, she only had the two dogs, Mack and Burgess. I accept the defendant's evidence in that regard. 4As at Remembrance Day 2009 the plaintiff was a young woman, twenty years old. The defendant was a more mature woman. She had a son who, she now says, is twenty-nine, who back then may have been in his mid twenties. If I might be so bold to say so, the defendant appeared to me to be younger than what the calendar would indicate is her age. 5The defendant has resided at 3 Piggott Street, Nambucca Heads for almost ten years. The inference to be drawn is that she purchased that property and moved in in 2003. She remains the occupier of those premises. The plaintiff took a lease of 5 Piggott Street, Nambucca Heads, which lease commenced on 6 March 2009. I assume that the lease was a normal residential lease. It was certainly for an initial period of six months. It appears that that lease was not renewed but the plaintiff remained in possession, no doubt holding on as a weekly or fortnightly tenant until more recently a fresh lease was granted to her. From her evidence, it would appear that the registered proprietor of 5 Piggott Street has changed and there is now a new landlord as far as the plaintiff is concerned. 6Each of 3 and 5 Piggott Street faces north. That is, this street forms the northern boundary of each lot. There were at all material times boundary fences on the eastern and southern boundaries of number 3, and the northern boundary of number 3 comprised the residence and fencing between the eastern side of the house and the eastern boundary fence. In 2003 the defendant erected a dividing fence along part of the western boundary of her lot, a fence dividing number 3 from number 5. That fence can be described as a pedestrian safety fence, a type of fencing which was formerly commonly found around schoolyards but which has been replaced in more recent times by a 6 foot spike topped fencing. The pedestrian safety fencing could be seen to be approximately waist high or a little higher. The pedestrian safety fencing on the western boundary of number 3 came up only to the line of the wall of the rear of the house on number 3. That is, it went from the southernmost boundary to approximately halfway along number 3, stopping parallel with the back of the residence. The defendant explained that the pedestrian safety fencing was not extended to the northern boundary of the lot because it would interfere with the trees and shrubs, which were planted along the western wall of the residence. 7The defendant and, I infer, members of her family installed further fencing from the final pole holding up the pedestrian safety fencing to the southwest corner at the back of the house. That fencing was in the form of iron reinforcing mesh commonly used in building sites and referred to in these proceedings as the "reo fence". The reo fence was made of horizontal and vertical metal rods, creating squares which were approximately 25 centimetres square or, to use imperial measurements, about 10 inches square. That reo fencing continued underneath the house of the defendant to the eastern side of the defendant's house, where it connected with the fencing that reached from the eastern side of the house to the eastern boundary fence. In other words, once the pedestrian safety fencing had been installed and the reo fencing had been installed, a medium or large sized dog could be easily contained within the rear yard of the defendant's premises. 8The defendant told me that she took possession of Mack in 2004, one would infer a short time after the pedestrian safety fencing and the reo fencing was installed on the defendant's premises. The evidence suggests that other than the fencing on the western side of number 3, that is, on the eastern side of number 5, there was no boundary fencing on 5 Piggott Street, Nambucca Heads. 9When the plaintiff took up her tenancy on 6 March 2009 she was accompanied by her dog, Jake. As Jake could not be confined by boundary fencing in number 5, the plaintiff erected a "run" for Jake. She put in two star pickets in the backyard and stretched a wire or the like between the two star pickets, to which Jake could be attached presumably by a collar and leash to the wire such that there was a "run" that could allow Jake to exercise in the backyard of number 5. The only other means of restraining Jake were by confining him to the house or by attaching him to a leash. The inference to be drawn from the evidence is that Jake was a housedog, as were Mack and Burgess. 10From the beginning Mack and Jake did not get on. It is of little surprise that no one called an animal psychologist to tell me why the two part Staffordshire Bull Terriers did not have a harmonious relationship. According to the plaintiff, Mack behaved aggressively towards Jake. She described him as "not a nice dog". She told me that Mack used to bark all day, but that was politician's speech, clear hyperbole. She meant by that not continuous barking day and night but intermittent and frequent barking. She told me that Mack would run up to the fence when Jake was present in her backyard. She had heard Mack snarl. Equally, one can infer that Jake himself ran up to the fencing between number 3 and number 5 and interacted other than in a friendly fashion towards Mack. 11The ill humour between Jake and Mack was obvious to both ladies. The defendant sought to have her dog Mack become friendly with Jake by taking Mack over to visit Jake, Mack being on his lead. However, the dogs were aggressive towards each other. They did not become friends but continued to be antagonistic towards each other. The plaintiff told me that, on that visit, the defendant brought with her Burgess, who bit out at Jake. That is denied by the defendant. In that regard I accept the evidence of the defendant. I do not accept that Burgess accompanied the defendant and Mack on their visit to number 5, nor do I accept that there was any biting by Burgess of Jake. Even if there had been, it would enable me to infer nothing relevant to the issue of liability. 12That meeting was clearly unsuccessful. The defendant at the meeting had invited the plaintiff over to her house for coffee, to have a chat. That subsequently occurred. The plaintiff described that visit for coffee and a chat as a pleasant and constructive one, but said that, inter alia, they discussed their mutual employment at the Riverside Gardens aged care facility, which was at the rear, at least, of number 3 and perhaps even at the rear of number 5, that is, on the southern side of number 3. That visit for coffee and a chat could only have occurred shortly after the plaintiff became the tenant at number 5 on 6 March 2009 and the plaintiff only started working for Riverside Gardens aged care facility on 19 August 2009, some five months later. That is, the plaintiff's recollection of what was discussed was faulty. 13The continued interaction of Mack and Jake led to the defendant's erecting some additional fencing along the western boundary of her property. On her side of both the western boundary, that is, where there was the pedestrian safety fencing, and on her side of the reo fencing between the corner post and the southwest angle of the house, a bamboo screen was erected. That would appear to be in excess of 6 feet in height. It was designed to try to block visual contact between Mack and Jake. However, it could have done nothing to block any perception of the presence of either dog by the dog's sense of smell. 14The plaintiff also took steps to prevent interaction between Mack and Jake by placing, on her side of the pedestrian safety fencing and the short length of reo fencing leading to the southwest corner of the defendant's house, sheets of corrugated iron laid on the long side of each sheet of iron, which created a further barrier between the two dogs over that length. This fencing, that is, the galvanised iron sheeting and bamboo sheeting, can be seen in the photograph exhibit R and more detailed photographs of the fencing can be seen in exhibit 5. 15The inference to be drawn is that each of the plaintiff and the defendant was aware of the antagonism between her respective dog and had taken steps to keep them apart at the boundary between number 3 and number 5. The evidence suggests that the defendant installed the bamboo fencing in a period between March 2009 and August 2009. Initially the defendant said it may have been in the period between March and June of 2009, but on reflection she thought it might be as late as August 2009. Unfortunately I have no note of when the plaintiff installed the corrugated iron fencing but it would appear to have been well in place by August 2009. 16On Remembrance Day 2009 the plaintiff did not go to work as she was suffering from what was subsequently diagnosed as a sebaceous cyst in her groin. However, she did arrange to go to lunch with her lady friend, Alex Baldwin. Towards the middle of the day the plaintiff was waiting for Alex to turn up at her place in order that they could go out to lunch together. Alex drove her car to the plaintiff's residence. Prior to Alex's arrival the plaintiff let Jake off the run to which he had been attached. The plaintiff herself was waiting for her friend at the southern end of her driveway, roughly in the position of the front of the car shown in the photograph which is exhibit 5. The inference to be drawn from her evidence is that she let Jake off the run in order that he could have a free run around in order to attend to any necessary call of nature. 17She saw Jake go over to the fence between number 3 and number 5. She saw Jake sniffing along the fence. The plaintiff observed Jake towards the southern end of the boundary fence and he was following it northwards, and, presumably, Mack was doing the same thing on the opposite side. The plaintiff's last relevant observation of her own dog is marked with a red circle on exhibit R. At that point Jake would have been less than a metre from the right-angled bend in the fencing on the western boundary, that is, from the fencing on the western boundary and the right-angled return that took the fencing to the southwestern corner of the defendant's house. 18The plaintiff then turned away from observing her dog. Her friend had arrived and distracted her attention such that the plaintiff looked not at Jake or onto her backyard but looked down her driveway northwards in the direction from which Alex was coming. Whilst she was doing that, the plaintiff heard a fight break out between two dogs, although it is clear from what she subsequently saw that it was a fight between Jake and Mack. When she turned back to look into her backyard the plaintiff said that she could see her dog underneath the house at number 3 and she then ran to where her dog had gone. It took her between ten and fifteen seconds to get there. She said she may have screamed out her dog's name but did not believe she screamed out more than once. When she went underneath the house she said that she could see her own dog. She also saw the defendant's son, Luke, on the opposite side of the reo fencing underneath the house and she saw Luke striking Mack with his fists. The plaintiff told me that she decided to copy doing to her dog what Luke was doing to Mack. 19In cross-examination, the plaintiff admitted that she did not seek anyone's permission to go under the house of the defendant. She agreed that she put herself at risk by going near to where the two dogs were fighting and she agreed that she had taken no steps to stop her dog going underneath her neighbour's house. She said that she did not take any steps to stop her dog going underneath her neighbour's house because that had not happened before. She agreed in cross-examination that she allowed her dog to wander about her yard, unrestrained. She agreed that, antecedent to the fight breaking out between the dogs, she observed the two dogs interacting on either side of the boundary fence. She also agreed that she had observed the two dogs moving from the southern end of each lot towards the northern end of each lot, that is, running up along the boundary fencing on the western side of the property. She also agreed that she stopped her observation of her own dog when her friend arrived at her property. 20It is clear that, when the plaintiff was underneath the defendant's house, she observed that Mack had her dog's head in his muzzle. There are in evidence two photographs of Jake showing injuries that that dog sustained. It is clear that it was the actions of the defendant's son, Luke, that caused Mack to let go of Jake. The defendant gave evidence that when she arrived at the scene she saw Luke dragging Mack out from underneath the house by his collar. After Mack let go of Jake it is clear that the plaintiff's hand must have been perilously close to Mack's head and to the reo fencing underneath the house, as Mack was able to bite the plaintiff's hand and there is in evidence a history that the dog bit the plaintiff for about forty seconds. Whether that is accurate or not I do not know, but the injuries suggest it was more than one short, fleeting, casual bite. 21One further piece of evidence needs to be considered on the question of liability. On Remembrance Day 2009 the defendant and her partner, Grant, and her son, Luke, were in the kitchen of number 3. One can see on exhibit R a window towards the southwest corner of the defendant's house, above the area where both Jake and the plaintiff must have gone under the defendant's house. That rear window is the window to a bedroom. The next room to the north of that bedroom is the kitchen. The defendant told me that she heard a lot of "banging noise" and then she heard dogs barking. She then heard a woman scream. The inference to be drawn is that the barking was from Jake and Mack, and the woman's scream was the plaintiff's, when she saw her dog underneath the defendant's house. 22The defendant started walking from her kitchen towards the rear of the house. Her partner, Grant, and her son, Luke, were in front of her. However, whilst she was walking she heard screaming and then ran. If this were further screaming it would indicate that it was at that point that the plaintiff was bitten. However, it seems unlikely from what the defendant says that Luke would have had time to reach the place where the two dogs were interacting and it would appear unlikely that Luke reached the scene of the fight between the dogs and was pulling Mack out when the plaintiff as bitten. However, these things probably happened very quickly and the scream which the defendant heard which prompted her to start running may have been the plaintiff's initial scream. In other words, that the defendant started moving before she first heard a scream resulting from a bite. Luke was not living at number 3 at the time. He was merely visiting his mother. However, he clearly was younger than the defendant, and no doubt her partner, and one might think that he would go more quickly to the scene of the noise emanating from underneath the defendant's house. 23I am prepared to accept that the plaintiff and Luke arrived at roughly the same time, perhaps Luke a short time before the plaintiff, at where the two dogs were fighting. I am prepared to accept that Luke started to try to draw Mack away and that the plaintiff copied what Luke was doing. However, for some reason, the plaintiff's hand got awfully close to where the two dogs were interacting and when Mack let go of Jake, he bit the plaintiff's hand. 24The plaintiff clearly was greatly perturbed by that. I accept that she screamed and she ran out from underneath the house and she went and lay down on the backyard of her property, where she was attended to by her friend Alex and by the defendant and her partner who had gone to the plaintiff's assistance by running through the house out the front door and then down the plaintiff's driveway. The plaintiff was driven in Alex's car to the Macksville District Hospital accompanied by the defendant. That was after the defendant's partner obtained a towel in which to wrap the plaintiff's injured left hand. 25The plaintiff's claim is based on two causes of action. The first cause of action is the statutory cause of an action constituted by s 25 of the Companion Animals Act 1998. That Act places dogs in one of a number of categories. One category is that of a "dangerous dog", which is defined in s 5 as meaning: "a dog for the time being the subject of a declaration by an authorised officer of a council or a court under this Act that the dog is dangerous". Neither Mack nor, I infer, Jake was a dangerous dog within the meaning of the Act. The Act also categorises some animals as "restricted dogs". Restricted dogs are defined in s 55 of the Act. There is no suggestion that either Mack or Jake was a restricted dog. 26The relevant provisions of s 25 are these: "(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, ... (2) This section does not apply in respect of: (a) an attack by a dog occurring on any property ... 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 ... and the dog was not a dangerous dog or restricted dog at the time of the attack, ..." Unlike its predecessors, the Dog and Goat Act 1898 and the Dog Act 1966, the s 25 creates a liability that may be called "strict" for wounding done by a dog unless certain things are established. Perhaps I have not expressed that felicitously. I will in due course return to this observation. 27There is no strict liability, however, if the wounding or attacking occurs on the property of which the owner of the dog is an occupier or on which the dog is ordinarily kept, but only if the person wounded was "not lawfully" on that property. It is common ground that the wounding of the plaintiff occurred on the defendant's property, that is, occurred on the property of which the defendant was the occupier and on which Mack was ordinarily kept. I have stressed "and" because the Act merely imposes a disjunctive test but here a conjunctive test is established. The question then becomes whether the plaintiff, the person wounded, was "not lawfully" on the defendant's property. This has been a major argument in the current proceedings. 28At the commencement of that section of the 10th edition of Fleming's "Law of Torts", which concerns trespass, the authors said this about the cause of action for trespass to land: "...the action of trespass also came to serve the wholly distinct function of an ordinary tort remedy for material damage sustained by the occupier as the direct result of another's activity involving an entry, whether personal or by means of animate or inanimate objects." The footnote which the authors use to support the proposition that trespass can be committed by the entry of an animate object is the principle of cattle trespass. However, the law has moved away from that concept. In League Against Cruel Sports Limited v Scott [1985] 2 All ER 489 Park J had to consider the circumstances in which an animal might commit trespass. The plaintiff in that case was an organisation opposed to blood sports. It owned unfenced areas of land on Exmoor, which were for the purposes of providing sanctuary for wild deer. The plaintiff company refused to allow the local hunt to enter onto its land. After seven separate incursions onto the plaintiff's land by the local hunt in 1982 and 1983, the plaintiff brought an action against the defendants, the joint masters of the hunt, seeking an injunction restraining them, their servants and agents from entering the defendant's land or causing or permitting the hunt's hounds to cross it. The defendants contended, amongst other things, that a master of hounds is not liable for trespass by his hunt hounds unless it was shown that he intended that they should trespass. His Lordship held that a master of hounds was only liable in trespass to the owner of land on which hunting was prohibited if, in deliberately taking a pack of hounds in pursuit of quarry, knowing that there was a real risk of hounds entering the prohibited land, the master actually intended to cause the hounds to enter the prohibited land, or if by his negligence in controlling the pack he failed to prevent the hounds from entering the land. If the master persisted in hunting in the vicinity of prohibited land, knowing that it was virtually impossible to prevent hounds from entering the land, whatever precautions might be taken, his indifference to the risk of trespass would be construed as an intention that the hounds should trespass. 29One of the arguments raised was whether there was trespass to the defendant's land when Jake entered it and went under the defendant's house. In light of that decision, which clearly draws attention to the fact that an action for trespass is an intentional tort, it could not be seen that Jake's going under the defendant's house amounted to a trespass by the plaintiff. It had never happened before. There was nothing done positively by the plaintiff to cause Jake to go underneath the defendant's house. Therefore the action of Jake did not constitute trespass. 30However, when the plaintiff went underneath the defendant's house there was technically trespass. She knew or must have known that underneath the next door neighbour's house was part of the next door neighbour's property and without permission she was not entitled to be there. 31Essentially the plaintiff relies upon the principle of necessity. In addition, the plaintiff relies on a proposition that a mere technical trespass was not sufficient to oust the statutory cause of action under s 25. The plaintiff cites as authority for that proposition par 17.140 of Professor Vine's work. The only authority which the plaintiff could refer me to in that regard is the decision of Simpson v Bannerman (1932) 47 CLR 378. However, the Court was there concerned with action under s 19 of the Dog and Goat Act 1989, the terms of which are not the same as the current s 25. In that case the appellant sustained injury through placing his hand on the top of a fence separating the respondent's premises from a public street while he was looking over the fence to search for some timber that had gone missing. The defendant's Alsatian dog was running loose within the defendant's premises and sprang up and seized the plaintiff's hand. 32The plaintiff was successful in this Court but was unsuccessful in the Full Court of the Supreme Court of New South Wales. The appellant's appeal to the High Court was successful. There was a majority judgment given by Gavan Duffy CJ, Dixon, Evatt and McTiernan JJ. Commencing at 383 their Honours said this: "Before us it was conceded that the Dog and Goat Act 1898 applied to the locality where the mischief occurred, and as we think that the appellant was entitled under s 19 of that enactment to recover damages for the injury, we find it unnecessary to consider the respondent's common law liability. Section 19 provides - "The owner of every dog shall be liable in damages for injury done to any person property or animal by his dog and it shall not be necessary for the party seeking such damages to show a previous mischievous propensity in such a dog or the owner's knowledge of such previous propensity, or that the injury was attributable to neglect on the part of such owner." The opening words of this provision express a liability without condition or qualification. It may be said that the very generality of the terms provokes attempts at restriction by implication. No doubt it is improbable that the Legislature meant that circumstances sufficient to justify or excuse the intentional infliction of harm by the owner should afford no answer to his statutory liability for injury done by his dog. Perhaps an even greater limitation than this is required upon the meaning of the provision. But, however this may be, we are quite unable to adopt an interpretation of the section which excludes liability to the person who does no more than thoughtlessly place part of his body within the close where the dog roams." Clearly the placing of a part of the plaintiff's body in that case within the close of the defendant would amount technically to trespass. However, the Dog and Goat Act did not provide the material which is now provided in s 25(2). Accordingly, I cannot accede to the proposition that a mere "technical trespass" is not sufficient to oust the statutory cause of action. 33I turn now to the question of necessity. I have been referred to three authorities, the first being that of Hannan AJ in Proudman v Allen [1954] SASR 336, Esso Petroleum Limited v Southport Corporation [1956] AC 218 and Rigby v The Chief Constable of Northamptonshire [1985] 2 All ER 985, a decision of Taylor J sitting in the Queen's Bench Division. Commencing at 994b his Lordship said this: "There is a surprising dearth of authority as to the nature and limits of necessity as a defence in tort. Counsel for the defendant referred me to three cases. Cope v Sharpe (No 2) [1912] 1 KB 496 was a case of alleged trespass where the defendant had sought to prevent a heather fire from spreading. Cresswell v Sirl [1948] 1 KB 241 was a case of alleged trespass to a dog which the defendant had shot to prevent it worrying sheep. In each case the defence prevailed. Esso Petroleum Co Ltd v Southport Corp [1955] 3 All ER 864 is the leading case on the topic and both counsel referred to it in detail. It concerned an oil tanker stranded in a river estuary. Her master jettisoned 400 tons of oil cargo to prevent the tanker breaking her back. The tide carried the oil slick on to a foreshore causing damage. The foreshore owners sued the ship owners in trespass, nuisance and negligence. However, the only negligence alleged on the pleadings was faulty navigation by the master for which it was said the owners were vicariously liable. The owners' case was that the stranding was due to faulty steering gear caused by a crack in the stern frame. The defence of necessity was raised inter alia and Devlin J upheld it ... The Court of Appeal ([1954] 2 All ER 561) reversed Devlin's J judgment but it was restored by the House of Lords. Earl Jowitt said ([1955] 3 All ER 864 at 866): 'Devlin J decided that the fact that it was necessary to discharge the oil in the interest of the safety of the crew afforded a sufficient answer to the claim based upon trespass or nuisance. I agree with him...' The case is therefore clear authority for the application of necessity as a defence to trespass especially where human life is at stake. However, counsel for the plaintiffs relies on dicta in their Lordships' speeches to support the proposition that the defence is not available if the necessity is brought about by the defendant's own negligence, and that the burden of negativing negligence lies on the defendant once the issue has been raised. The Court of Appeal took the view that the defendants had failed to discharge the burden of showing that the cracked frame causing a defect in the steering gear was not due to their negligence. Counsel for the plaintiffs says the House of Lords restored Devlin's J judgment solely on pleading grounds. There had been no allegation of negligence against the ship owners except in relation to the master's handling of the vessel. The two propositions of counsel for the plaintiffs are clearly right. Necessity is not a good defence if the need to act is brought about by the negligence on the part of the defendant. Once that issue is raised the defendant must show on the whole of the evidence that the necessity arose without negligence on his part. The more difficult question is as to what is meant by 'negligence' in this context. Counsel for the plaintiffs relies upon passages from the speeches of Lord Normand and Lord Radcliffe. Lord Normand said ([1955] 3 All ER 864 at 868-869): 'The majority of the Court of Appeal, however, held that the onus lay on the owners to show that the accident which caused the damage was inevitable, and to do this it would have been necessary to show that no reasonable care which they might have taken would have avoided the damage. As the appellants had made no attempt to lead evidence to discharge this onus, the majority of the Court of Appeal found them liable in damages.' Lord Radcliffe said ([1955] All ER 864 at 872): 'But, assuming that the event was itself prima facie evidence of negligence, and that the respondents had so framed their case, I do not doubt that the majority of the Court of Appeal were right in saying that the appellants would not have displaced that evidence by merely showing that their failure in navigation was due to a failure in the steering apparatus of the ship. They would have had to go further and show that they had not omitted any reasonable precaution to ensure that failures did not occur in that steering apparatus or in their control of the steering.' From the passages, counsel for the plaintiffs argues that in the present case, where the issue has been raised, unless the defendant can show that to have equipped himself with the Ferret would not have been a reasonable precaution, he fails to discharge the onus of proof. Necessity would therefore not avail him. I have already indicated that in my judgment the defendant was not negligent in exercising his discretion not to purchase the Ferret. However, counsel for the plaintiffs argues that notwithstanding that, if the purchase of the Ferret would have been a reasonable or a not unreasonable precaution then the necessity to use the CS canister would have been brought about by fault on the part of the defendant. I cannot accept this argument. The passages cited above were both in the context of a defence of inevitable accident as raised in The Merchant Prince [1892] P 179, [1891-4] All ER Rep 396 on which, as Lord Radcliffe said, much of the argument in the Esso Petroleum case turned. I do not think that the observations of Lord Normand and Lord Radcliffe, which were obiter in any event, were intended to lay down a higher duty than the duty in the tort of negligence as a condition precedent to the application of the defence of necessity. It would be most unfair to do so. Whether or not the defendant has been negligent prior to the occurrence of the alleged necessity must surely be viewed as at the time of the alleged negligence. If by ordinary criteria of negligence the defendant can show that at that time he was not at fault, it cannot be just when the necessity arises to impose retrospectively a higher duty on the defendant. Nor do I think the Esso Petroleum case is authority for that proposition. I am reinforced in this view by the statements in two of the leading textbooks on the law of tort. In Winfield and Jolowicz on Tort (12th edn, 1984) p 722, the matter is put thus: 'Necessity negatives liability in tort provided, of course, that the occasion of necessity does not arise from the defendants own negligence, though the authority on it is scanty.' In Salmond and Heuston on the Law of Torts (18th edn, 1981) p 465, the authors say: 'In any case, the defence [of necessity] is hardly available if the predicament in which the defendant found himself was brought about by his own negligence.' In each passage the authority cited is the Esso Petroleum case. I therefore hold that a defence of necessity is available in the absence of negligence on the part of the defendant creating or contributing to the necessity..." 34Here the argument is that the plaintiff went to the rescue of or to prevent harm or damage to her chattel, her dog Jake, and that was a matter of necessity. The defendant did not submit otherwise. It would have been churlish for the defendant to do so. After all, instead of the fight being between Mack and Jake, if a child or toddler had gone underneath the defendant's house one would permit any member of the public to go to the child's rescue underneath the defendant's house, whether there be a dog there or not. 35The question, therefore, which arises is did the conduct of the plaintiff amount to negligence creating or contributing to a necessity? To that the defendant says that the plaintiff was guilty of some negligence contributing to the necessity, indeed causing the necessity. The plaintiff says, on the contrary, what occurred was momentary inattention or mere inadvertence. The classic case in which that principle arose as a defence to an allegation of negligence was in Sungravure Pty Ltd v Meani (1964) 110 CLR 24, which arose out of the industrial accident where the defendant had a duty to provide not only a safe place of work but a safe system of work. Where an employer is required to provide a safe system of work, it follows that an employer must realise that momentary inattention or mere inadvertence is possible by members of the workforce and therefore must be something to be taken into account in devising a system of work. Therefore, if a worker does do something through momentary inattention or mere inadvertence he is not guilty, for example, of contributory negligence. However, the principle has gone further in the law now and it would appear to be a good defence to many causes of action which are not based on something like a system of work. Each case, of course, must be governed by its own facts. 36True it is that in the current case the plaintiff's attention was drawn away from Jake and the backyard by the arrival of her friend Alex. Her attention was taken away from Jake in the backyard for a relatively short period of time. However, that which the plaintiff had been observing was important. That which she was observing had the potential to change to an emergency. Nevertheless, she permitted herself to be distracted and the distraction achieved nothing. 37Sometimes in human affairs important points occur where it is necessary to keep one's eyes on the ball or one's eyes on the game and not to blink at the critical moment. It can be seen from exhibit R and from the evidence of the plaintiff that Jake had been following the western boundary fence of number 3 from its southern end to its northern end, and that Jake was less than a metre from the right-hand turn which takes the western boundary fence to the southwest corner of the defendant's property. For a dog of the type described by the plaintiff as her dog, one would expect a dog to take but a few seconds to round that right-hand corner and to follow the fence to the southwest corner of the defendant's house and then to go underneath the house. This is what actually occurred. This is what allowed Jake and Mack to confront each other through the reo wire where one or the other of the dogs could put his muzzle through the holes in the fencing and engage with the other dog. That is what occurred. 38The plaintiff in her evidence, which I have already quoted, admitted that, although that had not occurred before, she was aware that it was possible for Jake to go in underneath the defendant's house. Had she kept her eye on Jake at this critical time, she could have intervened to stop Jake going underneath the defendant's house or she could have called Jake in the pious expectation that he might answer her call and leave off his pursuit of Mack along the fence. When questioned about that, the plaintiff said she did not know whether Mack might respond. However, there was always the chance that he might. 39The position, of course, may have been otherwise if Jake were on the opposite side of number 5 or way down at the southern boundary where there was no possible position where there might be actual physical interaction, that is, touching and biting of the one dog by the other. It may have been otherwise, of course, if Jake was near the run in the backyard or, for example, sitting by the back door or the back steps of the plaintiff's property. 40I am unable to categorise the plaintiff's behaviour as either momentary inattention or mere inadvertence. She took her eye off her dog at a critical time, that is, when the dog was in a critical place pursuing a critical activity, the pursuit of Mack, on the other side of the boundary fence. She was aware that Jake could go under the defendant's house, and Jake did so. That created the emergency which gave rise to the necessity. 41Accordingly, in my view the defence of necessity is not available to excuse the plaintiff's trespass upon the defendant's land because the plaintiff's conduct contributed to the emergency which gave rise to the necessity. In other words, her negligent conduct permitted her dog Jake to go under the defendant's house, giving rise to the emergency which gave rise to the necessity. In other words, to use the language of s 25(2), I am not persuaded on the balance of probabilities that the plaintiff was lawfully on the defendant's property at the time she is bitten by the defendant's dog. 42Earlier in these reasons at [26] mentioned an infelicitous observation. It appears to me that the matter in s 25(2) of the Companion Animals Act 1988 is not a form of defence but is a necessary condition for the plaintiff to establish before the plaintiff can succeed in establishing liability under the statute. That is, the plaintiff must not only prove that she sustained bodily injury by being wounded by the defendant's dog but she must also establish that the attack by the dog did not occur on property of which the defendant was the occupier or on which the defendant's dog was ordinarily kept, and the plaintiff must prove that she was lawfully upon the defendant's property. 43In my view, the second limb of s 25(2)(a), the concatenation of words "but only if...was not lawfully on the property", contains a double negative that requires the plaintiff to prove that she was lawfully on the defendant's property at the time that she was bitten by the defendant's dog. In that respect, I am not persuaded on the balance of probabilities that the plaintiff has established that she was lawfully on the defendant's property at the time that she was bitten by the dog. 44In deference to the arguments of counsel, I should say two further things about the proper interpretation of the Companion Animals Act 1998. Section 12A creates a criminal offence. Subsection (1) is in the following terms: "The owner of a dog must take all reasonable precautions to prevent the dog from escaping from the property on which it is being kept." The maximum penalty for that offence is 8 penalty units except in the case of a dangerous or restricted dog or 50 penalty units in the case of a dangerous or restricted dog. A penalty unit is $110, so 8 penalty units amounts to $880. 50 penalty units amounts to $5,500. Of course, this provision only requires the owner of the dog to "take all reasonable precautions" and not to take "every precaution". It does not create a crime of strict liability but one that imports the concept of reasonableness. However, the policy behind a provision such as this is clearly to require owners of dogs to keep the dogs in the property on which they are normally kept. It is that very sort of concept which underlies the provision of s 25(2)(a), the idea that if the dog is kept within the yard of the property in which it is normally kept, that the owner ought escape liability unless the injured party was lawfully within that property. 45On the other hand, the plaintiff draws my attention to s 22(2). Section 22 concerns actions that may be taken to protect persons and property from dogs. Subsection (2) is in the following terms: "Any person may lawfully seize, injure or destroy a dog if that action is reasonable and necessary for the protection of any person or animal (other than vermin) from injury or death." The argument advanced very cleverly by Mr Toomey on behalf of the plaintiff is that this provision would permit a person such as the plaintiff who feared for injury to her from a dog to lawfully seize, injure or destroy the dog in question. The defendant submits, however, that this provision would permit trespass to the dog, that is, trespass to the chattel, the property of the owner of it, but would not justify trespass to land. In my view, the defendant's submission is correct. Earlier when quoting from the judgment in Rigby v The Chief Constable of Northamptonshire I drew attention to the fact that one of the authorities to which his Lordship had been referred was Cresswell v Sirl, which is a case of alleged trespass to a dog which the defendant had shot to prevent it worrying the farmer's sheep. One can see that factual scenario in s 22(2) but, more importantly, in s 22(5). 46I could not and cannot infer from subs (2) that it permits trespass to land, only that it permits trespass to goods. The common law has been based for century after century upon the protection of the landholding of a subject. It is trite law that every man's home is his castle, leading to that well-known Australian comedy film "The Castle". The principle is the same. Were Parliament to permit trespass to land to occur it would do so in positive terms and the law is such that I could not possibly construe s 22(2) as permitting trespass to land. 47TOOMEY: Would your Honour forgive me. I must excuse myself, avail myself of your Honour's earlier excusing me. Mr Stack is- HIS HONOUR: I'm about to adjourn anyway. TOOMEY: May it please your Honour, I'll stay. Thank you, your Honour. 48HIS HONOUR: Accordingly, on my view of the facts of this case the plaintiff's action under s 25 of the Companion Animals Act 1998 must fail. I shall deal with the plaintiff's action in the tort of negligence and the plaintiff's claim for damages tomorrow morning. 49Immediately prior to my adjourning yesterday I had announced my decision concerning the plaintiff's cause of action under s 25 of the Companion Animals Act 1998. In making that finding I did not overlook a submission put to me by the defendant pursuant to s 5D of the Civil Liability Act 2002 but I shall deal with that submission when I deal with the plaintiff's claim in the tort of negligence. 50Yesterday I also made certain findings of fact adverse to the plaintiff based on a conflict of evidence between the evidence of the plaintiff and the evidence of the defendant. I must say that I have had cause to view the plaintiff's evidence with some circumspection. Where there be any material difference between the evidence of the plaintiff and the defendant, I prefer the evidence of the defendant. The defendant has nothing to gain and nothing to lose by the outcome of these proceedings. It is clear that the defendant was insured for her liability to the plaintiff and therefore stands to lose nothing if there be an adverse finding against her. The position is otherwise as far as the plaintiff is concerned. 51One of the reasons which has caused me to view the plaintiff's evidence with some circumspection arises out of certain medical histories. For example, on 24 November 2010 the plaintiff was interviewed by Dr Frank Harvey, an orthopaedic surgeon, for the defendant. The commencement of the history given to Dr Harvey is this: "On 11/11/09 Miss Simon says that her dog was attacked by her neighbour's dog through a small gap in the dividing fence which would only take the head and neck of the dog. She says that she was trying to separate the dogs and had hit her dog on her side of the fence and the owner of the dog on the other side of the fence was hitting her dog. She says that her dog freed himself and then the other dog seized Ms Simon's left hand and pulled the hand back through the gap in the fence." That history is clearly incorrect as Mack's head did not protrude through a gap in the dividing fence itself. The reo fencing underneath the defendant's house could in no way be described as a dividing fence. On the following day the plaintiff was interviewed by Dr Alan Hopcroft, a general surgeon, at the request of her solicitors. The commencement of the history given to Dr Hopcroft is this: "She lives at No. 5 Piggott Street, Nambucca Heads and has a pet dog which is a Staffordshire cross red cattle dog that is three years old. Unfortunately her neighbour at No. 3 Piggott Street, Nambucca Heads also has a Staffordshire cross bullmastiff dog, each dog being separated by the neighbour [sic] boundary fence. In that fence there is a small segment that had been repaired using concrete reinforcing mesh. On the day in question the dogs began barking at each other through the fence and then attacked each other through the reo mesh area. She had gone to her dog to pull it away from the reo mesh as the dog on the other side of the fence had bitten it on the head and was holding it. A person in the neighbour's block began beating the dog on that side causing it to release this patient's dog. Suddenly and without expectation the neighbour's dog grabbed her by her left wrist, biting deeply into the left wrist and also biting the index finger." Again, this injury did not happen because of Mack putting his head through a segment of the boundary fence which had been reinforced with reo mesh. The history is plainly incorrect. 52These proceedings were commenced by a statement of claim filed on 24 December 2010, roughly a month later. Paragraph 3 of that pleading is this: "On 11 November 2009 the dog attacked and bit the Plaintiff through the dividing fence thereby causing bodily injury." That pleading is insupportable in light of the facts of the case. Indeed, the amended statement of claim which I granted leave to the plaintiff to rely upon on 30 January 2013 but which pleading was prepared on 22 June 2012, omits from par 3 the words "through the dividing fence". 53Shortly stated, the plaintiff gave a history of the event initially which was much more favourable to her than the actual facts of the case warranted and clearly would indicate that the plaintiff would be entitled to recover damages under the Companion Animals Act because the biting of her hand happened when she was on her side of the dividing fence. 54Furthermore, in evidence, the plaintiff was at pains at times to present the best possible picture of herself. When cross-examined about histories inconsistent with her assertions, the plaintiff eventually agreed on a number of occasions that what she told the doctor was correct but inconsistent with what she had originally told me. 55Furthermore, the plaintiff has had, both before and after the event now in question, the habit of smoking cannabis. Indeed, eventually she conceded in cross-examination that prior to the injury she had been smoking up to four cones of cannabis a day and indeed was still smoking up to four cones of cannabis a day. Nevertheless, the plaintiff did not admit any such history to any of the medical practitioners except to Dr Peter Ross, to whom she was sent for treatment, and the plaintiff made it clear that she was mortified when Dr Ross' records were subpoenaed by the defendant for the purposes of these proceedings. In other words, the plaintiff has done her best to hide matters which she might think did not paint her in the best possible light. Indeed, the plaintiff was often asked by medical practitioners whether she smoked, to which she made a negative response. The negative response, of course, would be generated by a medical practitioner who had asked the plaintiff whether she smoked tobacco, but the doctors clearly indicate they merely asked her if she smoked. She denied smoking but she was not a smoker of tobacco but was a smoker of cannabis. As I said, matters such as this cause me to approach the plaintiff's evidence with circumspection. 56I turn now to the plaintiff's claim in the tort of negligence. That tort is governed now by the Civil Liability Act 2002. Section 5B of that Act provides this: "(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 57The first question that I must ask myself is whether there was a foreseeable risk that a person might go under the defendant's house and approach the reo barrier that kept the defendant's dogs within the backyard of her property. The first thing to note is that there is no evidence that any person had previously gone under the defendant's house other than the defendant or those living with her. Someone must have gone under the house to put in the reo fencing that appears to have been about 1 metre back from the southern edge of the house. On one earlier occasion a puppy belonging to a previous tenant at number 5 had gone under the defendant's house and entered the backyard of the defendant's property by going through one of the gaps in the reo fencing but there is no suggestion that that puppy came to any harm. However, it is foreseeable that, for example, a wandering child or an inquisitive child might go under the defendant's house to see what might be there and in particular perhaps to take shelter underneath the house in case of a heavy downpour of rain. Accordingly, there was a foreseeable risk that some person or pet might go underneath the defendant's house and approach the reo fencing that kept the defendant's dogs within her backyard. 58The second consideration is whether the risk was "not insignificant". Normal rules of grammar and normal rules of logic epitomised by mathematics would indicate that the words "not insignificant" merely mean significant. However, Parliament did not use the word "significant" but the terminology "not insignificant". Therefore Parliament must have intended it to have some value falling somewhere between significant and insignificant. The Ipp report, which led to the enactment of the Civil Liability Act, commencing at par 7.14 was sympathetic to the view that the phrase "not far-fetched or fanciful" used in the case law should be replaced with a phrase indicating a risk that carried a higher degree of probability of harm. The difficulty for the committee was in determining what the appropriate form of words should be. In Shaw v Thomas [2010] NSWCA 169 Macfarlan JA, with whom Beazley and Tobias JJA concurred, said at [44]: "[44] In Wyong Shire Council v Shirt, Mason J referred to a risk 'which is not far-fetched or fanciful' as being 'real and therefore foreseeable' (at 48). The requirement in s 5B(1)(b) that the risk be 'not insignificant' imposes a more demanding standard but in my view not by very much." 59The submission put to me on behalf of the plaintiff was that the risk of being bitten by a dog could be said to be "not insignificant". Even the most placid of animals, if goaded or in special circumstances, might snarl and bear its teeth and might bite someone or some thing. For example, a mischievous child who got under the house might poke a stick at a dog and inflame it such that it might lash out. Accordingly, I am prepared to accept that the risk of being bitten by a dog in the circumstances was "not insignificant". 60In considering the provisions of s 5B(1)(c) I look to the provisions of subs (2). What was the probability that harm would occur if care were not taken? The probability in my view was extremely low. The defendant has been the occupier of these premises for almost ten years. Mack has been confined in the backyard of those premises since 2004, which would be getting on for nine years. This is the only occasion on which anything of this nature has occurred. The probability of harm in my view is extremely low. The local council and the police have taken no action whatever against the defendant. 61The next consideration is the likely seriousness of the harm. There is no potential here, for example, of a person being mauled to death or being mauled seriously because the only part of the dog which could get through the reo fence was its muzzle. A person or other animal could withdraw eventually. Again, the submission put to me by the defendant was that any dog bite is likely to cause serious harm but that is not necessarily so. 62The next question is the burden of taking precautions to avoid the risk of harm. The reo fencing underneath the defendant's house could be enhanced by, for example, a short bamboo screen being put over it as happened in the area of the dividing fence or as subsequently happened by lattice being put in front of it, that is, on the backyard side of the reo fencing underneath the house and that might in fact enhance the appearance of the backyard. That in fact occurred immediately after this event, on the very day it happened. Furthermore, after the event, the defendant caused chicken wire to be placed along the western side of her house to prevent anyone or anything going under the defendant's house. I hazard the observation, however, that a determined dog, particularly a determined Labrador or other dog prone to digging such as a terrier, might dig underneath the chicken wire to gain access beneath the defendant's house. 63I am also required to consider the provisions of s 5C of the Act. That provision is this: "In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." Accordingly, the provisions of s 5C(c) of the Act require me to disregard to an extent the steps subsequently taken by the defendant to obviate the risk which occurred on this occasion. 64I return then to the provisions of s 5B(1)(c). That requires me to consider whether, in the circumstances, a reasonable person in the defendant's position would have taken precautions. This must not be approached with the benefit of hindsight. Given that the probability of harm occurring was extremely low and had not previously occurred, and the defendant had taken what many would think to be all reasonable precautions to confine her dogs within her backyard, I am not persuaded on the balance of probabilities that the defendant has been negligent. 65As I mentioned at the commencement of these reasons this morning, the defendant also made a submission under s 5D. That section considers the question of causation and whether the causation of the plaintiff's injury was factually related to the defendant's alleged negligence. The submission essentially is that the plaintiff ought not to have approached anywhere near the two dogs as they were fighting because the defendant's son Luke had reached the dogs first and was attempting to break their grip on each other and that appears to have been in fact what occurred. Therefore, there was no need for the plaintiff to get near the two dogs and therefore there is no causal relationship between the plaintiff's injuries and the alleged negligence of the defendant. 66However, I accede to the submission put to me by Mr Toomey on behalf of the plaintiff. Confronted with the position which she saw, the plaintiff in the agony of the moment did something which was understandable and ought be linked to the event now in question. In particular, Mr Toomey referred me to the decision of the Court of Appeal in Stuart v Walsh [2012] NSWCA 186, in particular the judgment of Tobias AJA, with whom Bathurst CJ and Basten JA concurred. Mr Toomey directed my attention to that section of his Honour's judgment commencing at [61] and concluding at [64], which I will not recite but can be read by anyone wishing to enquire into the matter further. In my view, the defendant's submissions concerning the applicability of s 5D must be rejected and were I to have found that the defendant was negligent, I would certainly link the plaintiff's injury to the alleged negligence of the defendant. 67It follows from those findings that the plaintiff is not entitled to recover damages. However, the Court of Appeal has constantly adjured judges of this Court to assess damages in any event, lest there be a successful appeal, in order to obviate any need for a rehearing as to damages. I accordingly proceed on that basis. 68To understand the nature of the plaintiff's claim for damages and the nature of the injuries that she sustained, it is necessary to consider the plaintiff's background in some detail. The plaintiff was born on 12 December 1988. As I mentioned yesterday, she was twenty years old at the time of the injury in respect of which she has brought these proceedings. She is currently twenty-four years of age. She was born and spent her early years in Gosford. She was the youngest of three daughters. Her parents separated when the plaintiff was two years old and her parents have continued ever since to have an acrimonious relationship. 69The plaintiff's mother has been treated for obsessive-compulsive disorder and depression. Her father has been treated for obsessive-compulsive disorder, depression and attention deficit hyperactivity disorder. 70According to the history given by the plaintiff to Dr Parsonage, who was qualified by the plaintiff's solicitors, the plaintiff had difficulties in her childhood caused by antagonism between her parents and her feeling that whenever she was with her one parent she ought to be with the other. 71Her situation was compounded by the fact that she grew up in a residential area where there was significant drug and alcohol abuse. 72She began having panic attacks at the age of twelve. This would appear to be early in 2001. She was admitted to Gosford hospital on 21 February 2001, having a panic attack about commencing high school when she did not believe she was ready to do so because she was late returning from an access visit to her father who lived in Bowraville, and the plaintiff was to start her high schooling on the Central Coast. According to the history given to Dr Parsonage, the plaintiff became tearful and depressed and had suicidal thoughts. She spent about a week in Gosford hospital and was treated with the antidepressant Zoloft, 50mg daily. However, the Zoloft may not have commenced until May 2001. I take that from the plaintiff's chronology, which is MFI 1. There was a further admission to Gosford hospital on 5 June 2001, the plaintiff giving a history of being stalked by the father of another pupil at her school. This event has been variously reported as either bullying or as an attempt at abduction by a paedophile. 73In October 2001 the plaintiff moved from the Central Coast to live with her father at Bowraville. Her father, Jim, had either remarried or formed a relationship with a lady called Joanne, whom the plaintiff describes as her "stepmother". Between them Jim and Joanne have four children, the eldest of whom is about five years younger than the plaintiff and the youngest of whom is about twelve years younger than the plaintiff. 74The plaintiff's chronology tells me of a number of orthopaedic injuries that the plaintiff had between 2001 and 2004, but they are of no present moment except that some of the injuries were to the plaintiff's spine, which may cause her difficulty from time to time. 75On 10 February 2005 the plaintiff was interviewed by a nurse at Coffs Harbour Hospital whose surname is Brown. I apologise to the nurse if I mistake the nurse's sex but I will refer to her as "Ms Brown". According to exhibit 9, a questionnaire completed by Ms Brown, the plaintiff was referred both by her family and her general practitioner to the psychiatric unit at the Coffs Harbour Hospital for an "assessment for eating disorder". The history recorded is this: "Three years ago (age twelve) Shari was hospitalised in Gosford hospital for ? anorexia ? 'breakdown' apparently after two separate paedophiles approached Shari. She described these as nearly kidnapped." The questionnaire goes on to record that the plaintiff was still taking 50mg of Zoloft each morning. The plaintiff was then in year 11 at the Macksville High School and was reported to be an "above average scholar". The assessment of the personality of the plaintiff made by Ms Brown is this: "Very distressed with change. Gets very angry and nasty with sudden change." In discussing the interaction between Ms Brown and the plaintiff, Ms Brown recorded this: "Unwilling to engage for most of the interview. Avoided eye contact and spoke only when directly questioned. Became more co-operative towards end of interview but remained evasive and appeared disinterested." Ms Brown went on to record that the plaintiff admitted to suicidal ideation but denied any present intent. Ms Brown recorded the plaintiff worried at night, which made it difficult for her to get to sleep. When she was in high distress the plaintiff refused to eat. Under the heading "Affect and Mood", Ms Brown recorded this: "Stepmother reports displays of intense rage when Zoloft was ceased last year and now only when sudden change occurs. Tearful when disclosing a desire to suicide last year after fight with father." Ms Brown indicated that the plaintiff had poor insight. The nurse's clinical impression was this: "Difficult to formulate today due to scant history and evasiveness of Shari. The refusal to eat seems to be spasmodic and follows escalation of stress ? anxiety driven." 76Dr Parsonage in his report records this as to the plaintiff's psychological state prior to being bitten by the defendant's dog: "she had on-going difficulties such as low self-esteem, the point of hating herself because she felt she was 'too skinny and looked like a little girl'. Her moods tended to change quickly from being happy to being tearful or angry. She reported chronic feelings of emptiness and intermittent problems controlling anger. She was self-conscious and had tended to avoid situations when she could possibly embarrass herself, although since she moved to her own place she was feeling increasingly independent and preferred to be living by herself." It would appear that immediately prior to being bitten by the defendant's dog the plaintiff continued to take Zoloft, 50mg each morning. 77The plaintiff completed year 12 at the Macksville high school in late 2006. As a teenage schoolgirl, the plaintiff had worked at an IGA supermarket as a checkout assistant. It would appear that immediately after completing the HSC the plaintiff worked for IGA for about a month and then obtained work as a receptionist at a "leisure centre"/aquatic centre/swimming pool in Macksville. That job finished when the manager resigned suddenly and disappeared and there was no one to continue keeping the swimming pool open. In 2007 the plaintiff had started a TAFE course in aged care but did not complete it. She did find work at a macadamia farm at Yalla but that was only short-term employment. 78Some time in 2008 the plaintiff moved from Bowraville to Nambucca Heads, where she still continues to live. Things improved for the plaintiff in 2009. On 6 March 2009 she moved into 5 Piggott Street, Nambucca Heads. Before that she had lived in Lister Street and prior to that in Newan Street in that town. At both Newan Street and Lister Street she shared with flatmates or roommates. When the plaintiff moved into 5 Piggott Street she moved in by herself. The plaintiff described herself as "going good" in 2009. She had broken up with a former boyfriend and that appears to have given her a feeling of independence and self-belief. She then "got her own home" by moving into 5 Piggott Street. She completed her Aged Care training and on 8 July 2009 received a Certificate III in aged care from TAFE at Coffs Harbour. She then obtained a job. She commenced working at the Riverside Gardens aged care facility on 19 August 2009. She was working casually. Prior to the accident she was averaging 8.85 hours per week, earning on average $192 nett per week. One will recall that Riverside Gardens aged care facility is behind 3 Piggott Street, where the defendant lived, and may also be behind 5 Piggott Street, where the plaintiff lived. The defendant was working at Riverside Gardens aged care facility and I infer that she had been working there for some time prior to the plaintiff's commencing casual work there. The plaintiff's initial engagement was for a trial period of three months. 79As I mentioned yesterday, on Remembrance Day 2009 the plaintiff was unable to work because of a sebaceous cyst in her groin but made arrangements to have lunch with her friend, Alex Baldwin. It was on that day that the plaintiff was bitten by the defendant's dog. The plaintiff arrived at the Macksville Hospital for triage at 12.43pm. She was sent for an x-ray at 12.59pm and the x-ray of the plaintiff's left hand revealed no bony abnormality. At 2.44pm she saw a medical practitioner, Dr Andrew Lucas. Dr Lucas took a history of the plaintiff's left hand being grabbed by a "Staffy" dog, which dragged her. She complained of pins and needles in her fourth and fifth digits. The doctor recorded the plaintiff's past medical history as being "nil" and her medications as being "nil" and noted that generally the plaintiff was healthy. On examination he found a 2 centimetre puncture wound to the flexure of the wrist, which would appear to have been 5 millimetres deep. That wound was explored but was not found to penetrate the joint. The doctor found no involvement of any tendon. The doctor noticed a full range of movement of her fingers and thumb and noted the plaintiff was able to make a fist. There was two-point discrimination in her hand, which was normal, and extension and power in the hand were "intact". The doctor noted multiple other small wounds which were cleaned but none of them was deep. The impression recorded by the doctor was of multiple wounds from a dog bite with no obvious tendon or nerve damage but he did note some neurapraxia, no doubt to account for the hypo aesthesia in the fourth and fifth digits of the left hand. The plaintiff was prescribed Augmentin and Panadeine Forte and one suture was placed in the plaintiff's wrist. 80The nursing notes indicate washing and dressing of the plaintiff's left hand and the giving to her of bandages to take home and certain medications and scripts. The plaintiff was also advised that if she had any concerns or if the numbness in her left hand became worse, she should call the hospital or go back to the hospital. The plaintiff went back to the hospital on 12 November 2009 and her wounds were re-dressed. 81The plaintiff went again to the Macksville Hospital on 13 November and then saw Dr Daniel Ryan. Again, the plaintiff was prescribed painkilling medication and the wounds were treated with Betadine and dressed and covered. The doctor noted the plaintiff was to go back to see him on the following day if there was any increase in pain, swelling or redness. The doctor warned the plaintiff that antibiotics would not guarantee that her hand would not get infected. On that occasion Dr Ryan wrote a certificate of unfitness for work for the period commencing on 11 November 2009 and expiring on 20 November 2009. 82The plaintiff did not return to see Dr Ryan on 14 November but instead went to the Coffs Harbour Hospital. She arrived at the Coffs Harbour hospital triage at 1.01pm. The first complaint noted in the hospital notes is of a lump in the plaintiff's upper inner left thigh, which is clearly the sebaceous cyst. The plaintiff also gave a history of the dog bite of her left wrist on the previous Wednesday and the plaintiff complained of symptoms of a decreased range of movement and altered sensation to her fingers. She said that those were "ignored" by the staff at Macksville hospital. On this occasion the hospital noted a past history of depression and noted that the plaintiff was in receipt of antidepressant medication. The findings on examination show that the wounds were "nicely granulated". There was minimal oedema around the wounds. However, the plaintiff was tender to touch locally, that is, over the wounds. There was no sign of infection and no evidence of any spread of any condition and the lymph nodes in the plaintiff's left armpit were not tender. 83All told, both the records of the Macksville District Hospital and the Coffs Harbour Hospital indicate that there was little physically amiss with the plaintiff. However, it appears that her condition worsened rather than improved. 84On 20 November 2009 the plaintiff came under the care of Dr Win Thein, a general practitioner at Nambucca Heads. On that occasion the plaintiff was unable to make a fist with her left hand, which she was able to do on 13 November. There was also stiffness in the wrist and in the fourth and fifth digits. Again that was not present on 13 November. Dr Thein noted the plaintiff was teary, sad, depressed and in significant distress. The plaintiff told the doctor that she could not sleep due to the pain and because of nightmares. Dr Thein prescribed an antibiotic and a sleeping medication. 85The plaintiff returned to see the doctor on 24 November and told him that she was about 30 to 50 percent improved as far as pain was concerned. Nevertheless, she complained of an awful nauseating pain when there was any touching over the injured area. On 1 December Dr Thein noted the plaintiff was unchanged and that she was "very emotional, teary, sad and angry". Dr Thein noted the plaintiff was totally reliant on others, especially some close friends. He arranged for the plaintiff to see a visiting neurologist, Dr Andrew Loiselle, whom I understand practices from Kempsey. I understand that the plaintiff saw Dr Loiselle but there is no report from him. On 4 December the plaintiff saw Dr Thein, who gave her a certificate of unfitness for work for three months in order that the plaintiff could obtain sickness benefits. 86On 10 December 2009 Dr Thein noted that a "mental health interview was performed". He went on to indicate that as far as he was concerned the plaintiff's bites required the preparation of a "chronic disease management plan" and he organised for the plaintiff to see a physiotherapist in Nambucca Heads, Mrs Joanne Waller. On Christmas Eve the doctor noted the plaintiff's symptoms were unchanged. The plaintiff has remained under Dr Thein's care ever since. A large number of investigations were ordered and a number of referrals have been made. It would appear that Dr Thein has approached the plaintiff's complaints very sympathetically. 87I turn now to the physical condition of the plaintiff's left hand. Plain x-ray carried out on 7 December 2009 revealed no abnormality. An ultrasound of the left hand and wrist was carried out on 13 January 2010. Essentially that shows no abnormality. The radiologist's report contains this note: "I do, however, note the presentation, and it remains of concern. Shari informs us that she also has wasting of the forearm musculature and the musculature of the upper arm since the bite. Could this represent a reflex regional pain syndrome/reflex sympathetic dystrophy?" The condition originally known as reflex sympathetic dystrophy is now known as a complex regional pain syndrome. A true reflex sympathetic dystrophy is an obvious, real physical state which is poorly understood. Because it is poorly understood and there is much debate as to its causation, it has been renamed a complex regional pain syndrome. A complex regional pain syndrome must be contrasted with a regional pain syndrome, which is a euphemism to explain inexplicable pain in some limb of a body. Based on that quaere by Dr Welshman, the radiologist, it appears that Dr Thein was prepared to accede to a diagnosis of RSD/CRPS. 88On 13 January 2010, the day of the ultrasound of the left hand and wrist, the plaintiff was seen at the Coffs Harbour Health Campus by Dr Darren Marshall, an orthopaedic surgeon. The plaintiff was seen in consultation with the orthopaedic registrar, Dr S Campbell. The triage records have been endorsed by Dr Campbell. He noted no signs of any infection. However, he noticed a global decrease in the range of movement in the plaintiff's left hand and wrist. There would not appear to have been any problems with either the nerves or the tendons in the plaintiff's left lower upper limb. However, the doctor noted wasting of all the muscles of the hand and forearm. Such wasting, of course, is consistent with disuse. In a handwritten report addressed to Dr Thein, Dr Campbell noticed decreased sensation globally affecting the left hand but a global decrease in sensation cannot be explained by anyone. Such is often thought to be psychologically determined. However, the doctor pointed out that there was a generalised wasting of the hand and forearm musculature and the doctor went on to say that "we", by which I infer he means Dr Marshall and himself, felt that the plaintiff had CRPS and required aggressive physiotherapy. 89On the same day the plaintiff was referred for such therapy. It commenced on 15 February 2010 and was carried out by Ms Natalie Bond. Prior to that, however, there was an EMG of the plaintiff's left hand carried out by Dr Stephen Reddel, a neurologist at Kempsey. Essentially the EMG was normal. The doctor's summation of his investigation is this: "The nerve conduction study was normal including the recurrent branch to FDI and the dorsal ulnar cutaneous branch. I do note slight atrophy of the FDI. However, the motor amplitude to this muscle was normal and the Needle EMG did not show any denervation, although activation (a voluntary feature?) was reduced." Again one will note the finding of some muscular wasting consistent with disuse but otherwise a voluntary interference with testing by the plaintiff herself. 90The notes of Ms Bond are before me. They are exhibit Z and exhibit 7. The notes extend from 15 February 2010 to 16 May 2011. It is abundantly clear that Ms Bond believed the plaintiff to be suffering from CRPS and treated her accordingly. In a handwritten note addressed to Dr Thein dated 9 August 2010, Ms Bond said this: "Progress has been very slow with a lot of psychological overlay and feelings of low self-worth due to loss of employment and consequently loss of independence." The physiotherapist believed that the plaintiff ought be seen by a pain specialist but that appears never to have occurred, no doubt because there are no pain specialists available on the mid-north coast. In the same letter Ms Bond refers to "brain retraining for her sympathetic symptoms". 91As I mentioned earlier, on 24 November 2010 the plaintiff was seen by Dr Frank Harvey, an orthopaedic surgeon, and on the following day by Dr Hopcroft. Dr Harvey obtained a history that the plaintiff was taking 100 mg of Zoloft daily and that before the injury she was only taking 50 mg daily. However, the report of Dr Thein tells me that as at 24 September 2010 the plaintiff was still on 50 mg of Zoloft daily and it was not increased to 100 mg daily until 21 May 2011. There is no evidence to suggest that the plaintiff's increase of Zoloft to 100 mg a day after the dog bite was done at the request or direction of any medical practitioner. The only inference to be drawn, if the history be correct, is that the plaintiff voluntarily increased Zoloft by taking two tablets daily rather that one. 92On examination Dr Harvey noted that the right forearm was 1 centimetre more in circumference than the left forearm. Since the plaintiff is right-handed, that is hardly of any significance. Dr Harvey noted that movement of the left shoulder and left elbow were quite full. Pronation and supination of the left forearm were also full. The plaintiff said that rotation of her left forearm did not cause pain but made her feel nauseous. That is a very unusual complaint. The doctor carried out a range of movements of the wrist on both the right and the left hand. Flexion on the right was 70 degrees whilst on the left it was 60 degrees. The extension on the right was 80 degrees but only 70 degrees on the left. Both radial deviation and ulnar deviation on each side were the same. The doctor's report continues thus: "Ms Simon was very reluctant to fully flex the fingers, but with much encouragement she could actively flex the tips of the fingers down to the distal palmar crease. There were no problems passively flexing the fingers, and she says that when this was done the fingers felt uncomfortable, but she didn't complain of significant pain. Ms Simon did appear to have normal sensation over the whole of the left hand and the two-point discrimination over all the fingers was down to 5 mm. It was noted, however, that when the ulnar nerve was compressed behind the left medial epicondyle it was quite tender and she complained of paraesthesia extending down to the little and ring fingers. I couldn't demonstrate any localised muscle wasting in the left hand as a consequence of an ulnar nerve lesion. Although there was some global weakness with all movements of the fingers, she could spread the fingers and abduct the thumb and all the intrinsic muscle groups were functioning." 93Dr Harvey did not believe that there was "any structural abnormality in the left hand". He accepted that she did have some problems with regaining use of her left hand and he noted that the left hand appeared to be cooler than the right hand but he thought that with time the plaintiff would regain full function in the left hand with continuing active use. The doctor did not believe the plaintiff had suffered any injury to the left hand which was going to give rise to permanent impairment. The doctor noted the plaintiff was continuing to wear a glove on her left hand and he thought that to be counterproductive. He thought it was sending the wrong message to the patient that she had some significant persisting problem and it interfered with the activeness of the left hand. The prognosis, according to Dr Harvey, depended upon the plaintiff's attitude. The doctor did accept that there was some manifestation of ulnar nerve entrapment but he thought that the entrapment be at the elbow, not at the wrist. If the entrapment is at the elbow, which the doctor's findings on examination strongly suggest, it could not possibly be related to the dog bite. There is no evidence of any injury to the plaintiff's left elbow and ulnar neuritis is very common with many people, especially those of us who are prone to rest our elbows on benches. The doctor did not accept that there was a CRPS because there were no trophic changes. However, early in the notes of Ms Bond there is reference to colour changes in the plaintiff's left wrist and hand. 94On the following day the findings on examination of Dr Hopcroft were similar to those of Dr Harvey, although more pithily expressed. He said this: "She has a full range of movement of the wrist and fingers and on a detailed clinical examination today of each of the peripheral nerves (radial, median and ulnar) I could find no major deficit. She has some residual hyperhidrosis (excessive sweating) of the hand but no other changes of reflex sympathetic dystrophy. She has a full range of movement of her left elbow and left shoulder." Unlike Dr Harvey, Dr Hopcroft thought that the pins and needles in the patient's fourth and fifth digits could be the cause of the penetrating tooth bite near the plaintiff's left pisiform bone, which he thought may have caused some irritation of the ulnar nerve. However, he did not test the ulnar nerve at the elbow. Dr Harvey's expertise in this area is much greater than that of Dr Hopcroft. Somewhat infelicitously, Dr Hopcroft expressed this opinion: "I believe she has been left with significant and overwhelming psychological effects from this attack which have been exacerbated by the pre-existent psychological problems she has suffered. In that regard and to date no professional psychological counselling has been undertaken and I think that this would be extremely beneficial for her." Subsequent examinations of an orthopaedic or physical nature do not suggest that the plaintiff has any ongoing physical problem. 95I accept that the plaintiff did develop for a short period of time CRPS. I am prepared to accept that it was established by 13 January 2010 but had ceased to affect the plaintiff by 24 November 2010. It is hard to see how the dog bites could directly cause the CRPS, but looking at the evidence as a whole it appears to me it is likely that the plaintiff, perceiving herself to be badly injured, did not use the left hand at all and that led to the muscle wasting and other changes which ended up being diagnosed CRPS. 96The overwhelming effect of the evidence before me is that the plaintiff's presentation was caused by her psychiatric condition, which was aggravated or exacerbated by the dog bite. Consistent with how she had behaved before 11 November 2009, the plaintiff reacted to this sudden and unexpected change in her life adversely and angrily. The diagnosis of Dr Parsonage is this: "Miss Simon had significant pre-existing psychological problems. On the basis of the information available to me and using DSM IV criteria, I assess Miss Simon as having suffered from a Dysthymic Disorder, largely resolved Panic Disorder with Agoraphobia and significant obsessive compulsive, avoidant and borderline personality traits, prior to the dog attack. It appears that as Miss Simon was maturing and becoming more independent and her psychological symptoms and level of function were improving prior to the dog attack. As a result of the dog attack, Ms Simon developed symptoms of anxiety and depression, above what she had previously experienced. She had depressive symptoms sufficient to warrant an increase in antidepressant medication and she had symptoms of Post-traumatic Stress Disorder such as re-experiencing the event and phobic avoidance but she did not have quite enough symptoms to satisfy all the required criteria for a DSM IV diagnosis of Post-traumatic Stress Disorder. It is therefore my opinion that Miss Simon suffered an exacerbation of her Dysthymic Disorder and developed an Anxiety Disorder Not Otherwise Specified as a result of the dog attack." 97Following upon an examination of 18 April 2012, Dr Parsonage expressed the view that the plaintiff had a phobia about another dog attack which was likely to continue "for the foreseeable future". He went on to say this: "Ms Simon's psychological condition is likely to return to its pre-dog attack level once she can reengage in some meaningful employment. However, she will have difficulty regaining employment, partly due to the time she has had out of the workforce as a result of the dog attack and an associated loss of confidence. She will have some difficulty gaining employment because of pre-existing psychological problems as described in my previous report, although in my opinion, the problems associated with the dog attack are more significant because Ms Simon was able to work prior to the dog attack." 98There are some problems with that formulation, in my view. A phobia about another dog attack is gainsaid by the fact that the plaintiff continues to live next door to the defendant and had on many occasions the opportunity of giving up the leasehold at 5 Piggott Street, Nambucca Heads and moving elsewhere in that town. She continues to live next door to Mack. How that is consistent with a phobia is beyond me. Or if there be a phobia, it cannot have any great significance. The option about the plaintiff's regaining employment and that being inhibited because of the dog attack, because the plaintiff was able to work before the dog attack, ignores the fact the plaintiff was only working an average of 8.85 hours per week in aged care prior to the dog attack and had been doing that for less than three months. Otherwise it would appear that the plaintiff had spent most of 2008 and 2009 unemployed. 99In any event, that falls by the wayside when one notes that the plaintiff obtained work with Pacifica Care at Nambucca Heads on 23 October 2012 and remains with that employer providing aged care at a nursing home in Nambucca Heads. The plaintiff is now working up to 60 hours per fortnight. She has obviously held that job for well over three months. There is no suggestion that she has needed to take any time off work as a result of either the condition of her left hand or because of her psychological problems. In the last opinion of Dr Parsonage that I quoted, the doctor was of the view that the plaintiff's psychological condition was likely to return to its pre-dog attack level once the plaintiff could engage in some meaningful employment. She has, and on that prognosis the plaintiff's psychological condition would now be the same as it was before the plaintiff was bitten by Mack. However, the plaintiff was reviewed by Dr Parsonage on 23 November 2012, a month after she commenced work with Pacifica Care. The plaintiff told Dr Parsonage that the pain in her left hand was not as bad as it had been but that she still had ongoing anxiety symptoms in relation to the attack by the dog. Dr Parsonage appears to have accepted those assertions and provided a diagnosis that the plaintiff was continuing to experience an exacerbation of a pre-existing dysthymic disorder and continued to experience a post traumatic specific phobia of another dog attack. He makes no attempt, however, to reconcile that opinion with the opinion he expressed in his report of 18 April 2012. 100Bearing in mind the plaintiff's return to work for up to 30 hours per week on 23 October 2012, some three months ago, I am not persuaded that there is any ongoing sequela of the biting of the plaintiff's left wrist and hand by Mack on 11 November 2009. Any aggravation or exacerbation of the plaintiff's psychological condition, in my view, ceased by the time the plaintiff found the work that she found with Pacifica Care on 23 October 2012. In my view also, any physical problem had long gone away by that time. 101I turn then to the plaintiff's heads of damage. The plaintiff claims that her non-economic loss should be rated at 25 percent of a most extreme case. The defendant submits that her non-economic loss is less than 20 percent of a most extreme case, that is, 19 percent or less. The defendant must take the plaintiff as the defendant finds the plaintiff. The plaintiff, whilst not having the classic "eggshell skull", certainly had an eggshell psyche and the effect of something such as a dog bite could be seen to have affected her most adversely. In effect, the plaintiff between the ages of twenty and twenty-four, which are very significant for young adults, whether they be female or male, suffered and clearly she was thrown off her perceived path of progress which began developing in 2009. However, a most extreme case of non-economic loss includes, of course, quadriplegia or paraplegia in a teenager who can expect to live for some fifty or more years into the future. Doing the best I can, I accept that this case stands in proportion to a most extreme case in the ratio of 1:5, that is, 20 percent of a most extreme case, and the appropriate lump sum is $18,500. 102The plaintiff claims for past economic loss. Essentially the plaintiff claims her full economic loss from 11 November 2009 until 22 October 2012. Initially the plaintiff was only claiming full economic loss until the commencement of 2012 and thereafter a reduced ability to earn. I suggested to learned counsel for the plaintiff that the period of "partial incapacity" might properly be extended back to the middle of 2011. As on 8 March 2011 Ms Bond expressed the view that the plaintiff was "incredibly keen on returning to work". Ms Bond thought that the plaintiff should undergo a gradual reintroduction of working three-hour shifts with a one day off in between each shift, such as working three hours on Mondays, Wednesdays and Fridays, a total of nine hours per week. That opinion was reinforced by the fact that the plaintiff found voluntary work which is the subject of comment by Ms Bond in her note of 8 April 2011. 103However, Counsel then thought it appropriate to refer me to the decision of the Court of Appeal in Mead v Kerney [2012] NSWCA 215, where the principal judgment was given by Macfarlan JA, with whom McColl JA and Sackville AJA concurred. Essentially, it is up to the defendant to adduce evidence that the part-time work, which the defendant says the plaintiff was able to do, was available to her. That can be gleaned from [24] to [27] of his Honour's reasons for judgment. Not only did Counsel refer me to that decision, he then sought to amend the claim for damages to claim the plaintiff's full economic loss until 22 October 2012. Mr Toomey and I then, together, worked out what that full economic loss was and that is now being in the plaintiff's amended schedule of damages, which is MFI 3. The nett total economic loss was $100,219, ignoring the cents. 104In my view, there must be some discount on that sum. The discount is because of supervening events and supervening possibilities. For example, the plaintiff's sister Holly was diagnosed with leukaemia in the middle of 2009. That greatly upset the plaintiff. It also caused the plaintiff's family to concentrate their care and attention on Holly rather than on the plaintiff. When the plaintiff was injured, she told her mother that she should concentrate her care on her sister who was suffering from leukaemia. There are numerous references in the histories to the plaintiff's not having the assistance of her family after the dog bite incident, which may be another cause of psychic distress to the plaintiff. However, the fact remains that the plaintiff herself may at some stage have taken time off work, if she had work, to go to her sister's assistance, even to provide psychological support to her. Shortly prior to the dog bite, the plaintiff suffered the loss of a close personal friend who was the cousin of her boyfriend. When that death was mentioned in court the plaintiff burst into tears. About a year after the death of that friend, whose name was Jarryd, the plaintiff also lost another close male friend to suicide and that death again caused the plaintiff to break into tears. Even without the dog bite, the death of such a close friend in such tragic circumstances could well have destabilised the plaintiff and caused her to take time off work. There are two physical injuries during the period in question which also may have caused the plaintiff to take time off work. It has to be admitted also that the plaintiff may have had a flare-up of her psychiatric condition because of some stressor, something other than the dog bite, between Remembrance Day 2009 and October of 2012, a period of some three years. I accordingly allow for the plaintiff's past economic loss the sum of $90,000. I mentioned in the course of argument to Mr Toomey that I would propose to do that, and Mr Toomey thought it an appropriate deduction to make, although not a traditional reduction such as 15 percent. 105Past out-of-pocket expenses are agreed to be $3,984. Past loss of superannuation is 11 percent of $90,000, which, if my mathematics be correct, is $9,900. 106The plaintiff's claim then is under Griffith v Kerkemeyer. This was the subject of vigorous submission and active recalculation by Mr Toomey and me during the course of argument and necessary recalculation in light of further submissions put by Mr Guihot for the defendant in reply. Immediately after the plaintiff's dog bite she was assisted physically by her friend Alex Baldwin. Alex moved in and lived with the plaintiff and did things such as cooking and housework and assisted the plaintiff with her personal care. After a while Alex Baldwin moved out of the plaintiff's house but continued to give the plaintiff assistance by, for example, cooking food for her, doing some household chores, taking her to and from appointments and the like. There was then a falling out between the plaintiff and Alex. The inference to be drawn is that Alex thought that she was being used by the plaintiff. The plaintiff thought that event occurred some time in March of 2010. Both Mr Toomey and I believed it appropriate to allow for Alex providing care to the plaintiff from 11 November 2009 to 1 April 2010. Thereafter the plaintiff was assisted by another friend Carli but she did less for the plaintiff than had Alex. Carli later moved away. By reference to entries in Ms Bond's notes, Mr Toomey and I calculated that an appropriate period to end the assistance given by Carli was on 15 July 2010. 107The first period is for twenty weeks and the second period is for fifteen weeks. Mr Toomey claimed twenty hours per week for the first twenty weeks and initially ten hours per week for the second fifteen weeks, but later that was reduced to six hours in conformity with the opinion expressed by Ms Pamela Molloy, a registered nurse, who prepared a report on the need for domestic care, which became exhibit C. A submission was put by the defendant allowing for twenty hours per week for the first twenty weeks was outside the particulars and outside the formulation of Ms Molloy. That formulation can be found on p 9 of Ms Molloy's report of 15 September 2011. However, Ms Molloy said the plaintiff was entitled to thirty hours per week for the first seven weeks and twenty hours per week for the next four weeks and fourteen hours per week for the next four weeks and then 6.5 hours per week thereafter. That 6.5 hours per week included a half hour for pet care, which is not claimable. Suffice it to say that when one averages out the allowance made by Ms Molloy for the first twenty weeks one comes to an average of just a tad below twenty hours per week, so I believe that that is the appropriate way to proceed. Twenty hours per week for twenty weeks at $23 per hour is a lump sum of $9,200, and six hours per week for fifteen weeks at $23 per hour is a lump sum of $2,077, and the total of those is $11,270, and I allow that sum. 108The ultimate claim made by the plaintiff is for future out-of-pocket expenses. When the plaintiff was first seen by Dr Parsonage that practitioner estimated that the plaintiff should be reassessed and have treatment by a consultant psychiatrist, which would require four sessions amounting to $1,200 and that the plaintiff would also require twelve sessions with a clinical psychologist, which amounted to $2,400, the total sum being $3,600, and Mr Toomey was claiming $3,500, I think more by guesswork than calculation. The problem with that is that there has been no subsequent formulation and according to my findings the plaintiff recovered from the effects of a psychiatric reaction to the dog bite by the time she commenced work with Pacifica Care on 23 October 2012. I believe the only allowance I should make accordingly for future care is a final review by a psychiatrist which, on the figures presented by Dr Parsonage, would be $300. 109The final claim with which I shall deal is the penultimate claim made in the damages schedule, one for "future economic loss". During the course of submissions I was inclined to allow the sum claimed by the plaintiff, a buffer of $25,000. That is because the plaintiff is still only twenty-four years of age. She can expect to remain in the workforce until the age of sixty-seven, which is a further forty-three years. Any time that she might need to take off resulting from the effects of the injuries sustained when bitten by Mack would cause economic loss and even a few short periods each and every year could easily amount to some sum which would be covered by such a buffer. 110However, on reflection it appears to me that such a buffer is overly generous in light of the findings of fact that I have made that any physical problem the plaintiff had ceased essentially by late 2010 and certainly by the middle of 2012 and the plaintiff herself after coming to court on or about 14 June 2012 believed that she was fit to return to work. Furthermore, in my view the exacerbation of the plaintiff's pre-existing psychiatric condition subsided by the time she started working on 23 October 2012. It is hard to see how any future loss of income might causally be related to the effects of the dog bite accident. However, I suppose it is also always open, for example, if the plaintiff were confronted unexpectedly by a snarling dog that she could have a recurrence of symptoms referable to the attack by Mack. In the circumstances, it is appropriate to make some allowance. The allowance which I propose, however, is only a minor one and I allow for future economic loss in the sum of $5,000. 111If my mathematics be correct, which is always problematical, that amounts to $138,954. I will have my Associate check the figures. I hope you have checked them too. Is that sum right, Mr Stack? STACK: Yes, it does, your Honour. HIS HONOUR: It is? What about you, Ms Bright? Is that right? Or you need your calculator? My Associate confirms that $138,954 is correct. Do you accept that, Mister-- STACK: I do, your Honour. HIS HONOUR: Ms Bright? BRIGHT: Accepted. HIS HONOUR: All right, both my Associate and Mr Stack and Ms Bright now agree that the total of the sums I have announced is $138,954. That is the amount of damages that I would have allowed had the plaintiff been successful. 112Submissions have been put to me by the defendant that even were I to find for the plaintiff on either the statutory cause of action or in the tort of negligence there must be a diminution of any damages for contributory negligence. However, to me this is not such a case. This was very much an all-or-nothing case and I have approached it on that basis. 113Any further reasons for judgment required, Mr Stack? STACK: Not for the plaintiff's part, your Honour. HIS HONOUR: No. Ms Bright? BRIGHT: Your Honour, it'd just be some submissions regarding costs. HIS HONOUR: You don't need to. I only want reasons, all right. I've enquired of the solicitors for each of the parties if any further reasons for judgment are required, and none is so required. 114For those reasons, I give verdict and judgment for the defendant. I order the plaintiff to pay the defendant's costs. 115Now, did you want to make any further submissions about costs? The costs just follow the event. That's the ordinary order that I've announced. BRIGHT: That's right, your Honour. Beyond that there was an offer of compromise. HIS HONOUR: All right. Well, just let me write in the results. COUNSEL ADDRESSED ON COSTS 116HIS HONOUR: In accordance with UCPR 42.15A, the defendant seeks an order that the plaintiff pay the defendant's costs on an indemnity basis from 19 May 2012. However, it is clear that under the rule the Court has a discretion. The case law and principle demand consideration. The basic purpose of an offer of compromise is to encourage genuine compromise of proceedings by specifying the conditions in which special cost orders may be made. Consistent with that purpose both under the rules and under the general law, the offer must involve "a real and genuine element of compromise": Herning v GWS Machinery Pty Limited (No 2) [2005] NSWCA 375 and Anderson Group Pty Limited v Tynan Motors Pty Limited (No 2) [2006] NSWCA 120. Consequently, where the plaintiff's offer is in substance merely a demand for payment of the full amount claimed or a formal offer designed simply to trigger the entitlement to indemnity costs, wholly exceptional circumstances would be required to justify an indemnity order: Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353 at 355 and Hobartville Stud Pty Limited v Union Insurance Company Limited (1991) 25 NSWLR 358 at 368. 117The defendant has been successful and I have given a verdict and judgment for the defendant. The offer of compromise was that there be a verdict and judgment for the defendant. The only compromise involved is that the offer allowed each party to pay her own costs. Of course, the plaintiff will have to pay her own costs. The plaintiff in addition must now pay the defendant's costs. However, the actual ability of the plaintiff to pay anybody's costs is a moot point. She has only been working for three months now. The medical reports contain histories of a lack of funds, for example, with which to buy food and the evidence discloses the necessity of the plaintiff to sell her car to pay her water rates. The plaintiff has no assets and her ability to pay anybody is highly problematic. 118In the circumstances, the offer of compromise was not an offer at all. It was merely requiring the plaintiff to capitulate. The application for indemnity costs is refused. 119Any further applications? STACK: No, thank you, your Honour. ********** 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: 05 April 2013