Mason v Demasi  NSWCA 210
Judgment date: 13 July 2012
Jurisdiction: NSW Court of Appeal1
The Court of Appeal demonstrates that, in appropriate cases, it will be prepared to interfere with a lower court's assessment of damages when it finds fault with the primary judge's reasoning.
The plaintiff was attacked by a Rottweiler dog, owned by the defendants, on 12 November 2005, causing significant physical scarring and leading to post-traumatic stress disorder.
At the time of the dog attack the plaintiff was 35 years of age and had 3 children, the youngest of whom was 5 years old. Prior to the dog attack the plaintiff had a pre-existing history of a personality disorder which meant that she was prone to exaggeration and manipulation. Prior to the dog attack the plaintiff had not been in paid employment for about 17 years. She said at the time of the attack it was her intention after her youngest child had completed his first year of primary school to undertake child care study and work in child care on a full-time basis.
After the dog attack the plaintiff obtained a qualification in child care from TAFE and secured some casual part-time employment in different child care facilities. However, the plaintiff's employment was terminated in March 2010 due to behavioural issues, and she had not been in paid employment since.
The defendants admitted liability and the claim proceeded on an assessment of damages only. The matter first came before O'Connor DCJ in 2008. However, the Court of Appeal set aside that earlier judgment and ordered a new trial after holding that the damages awarded to the plaintiff were inadequate and had to be reassessed.
District Court Decision
The primary judge, Kearns DCJ, considered the plaintiff to be "an unreliable historian and an unreliable witness". The primary judge also found that the plaintiff's behaviour, which led to the termination of her employment in March 2010, was not a result of the dog attack. In this regard the primary judge found that the plaintiff was prone to "florid presentations of symptoms not occasioned by the dog attack".
The primary judge made the following award:
|Non-economic loss||$32,522.50 (25% of a most extreme case)|
|Past economic loss||$10,000.00|
|Future economic loss||$25,000.00|
Court of Appeal Decision
Meagher JA, who wrote the leading judgment on behalf of the unanimous Court of Appeal, firstly rejected the plaintiff's submission that the primary judge erred in rejecting certain aspects of the plaintiff's evidence as being false, holding that these findings were open on the evidence.
Meagher JA also rejected the ground of appeal in relation to the assessment for non-economic loss. His Honour reiterated that the Court of Appeal cannot interfere with an assessment for non-economic loss unless it is satisfied that it was "wholly erroneous": Crystal Wall Pty Limited v Pham 2 . In reaching this conclusion, his Honour stated that 25% of a most extreme case could not be deemed in any sense inadequate, noting that 100% of a most extreme case includes quadriplegia or total blindness with loss of limbs.
Meagher JA was also not prepared to interfere with the primary judge's award of $8,927 for out-of-pocket expenses including future expenses of $5,000.
The main issue on appeal was in relation to the award for economic loss. The plaintiff submitted that the primary judge erred in finding that the plaintiff's employment had ceased in March 2010 due to circumstances separate to the consequences of the dog attack, and also his finding that the plaintiff was prone to "florid presentations of symptoms not occasioned by the dog attack".
Meagher JA closely reviewed the findings of the primary judge, and noted that he had found the evidence of the plaintiff's former employer to be reliable and whose evidence he accepted. Part of the evidence of that witness was to the effect that the plaintiff did appear to be adversely affected as a result of the dog attack. Furthermore, the primary judge had accepted the opinion of Dr Robertson, a psychiatrist called in relation to the plaintiff's case, that the plaintiff had suffered post-traumatic stress disorder as a consequence of the dog attack. Meagher JA considered these findings of the primary judge to be inconsistent with his separate finding that the plaintiff may continue to be prone to "florid presentations of symptoms not occasioned by the dog attack".
Meagher JA also rejected the primary judge's findings that the plaintiff was unlikely to obtain significant future employment due to the fact that she had not been in paid employment for the last 17 years, and his belief that she had only obtained some paid employment subsequent to the dog attack to assist her claim for damages in these proceedings. In rejecting these findings, his Honour noted that the defendants themselves had not disputed that the plaintiff was intending to go back into the workforce before the dog attack.
Meagher JA was not satisfied that the primary judge erred in his award of $10,000 for past economic loss. However, on the basis of his criticisms of certain findings by the primary judge, Meagher JA considered the award of $25,000 for future economic loss, by way of a buffer, to be inadequate. His Honour held that the plaintiff's post-traumatic stress disorder carried with it the continued possibility of behaviour such as that which occurred when her employment was terminated in March 2010. In holding that the award of damages should take into account the difficulties that the plaintiff was likely to encounter over the remaining period of her working life, Meagher JA considered that the appropriate lump sum award for future economic loss was $125,000.
Whilst the plaintiff's only successful ground of appeal was in relation to future economic loss, with her award being increased by $100,000, she was also awarded the costs of the appeal.
Whilst this decision turned on its facts, it demonstrates that the Court of Appeal will be prepared to interfere with lower courts' assessments of damages, even if only relating to one head of damage. This is despite the fact that in this case two District Court judges, who had the benefit of observing the plaintiff give evidence, both reached the conclusion that the plaintiff was not a reliable witness and that no significant award for economic loss should be made.
The decision also illustrates that the Court will be prepared to award a significant lump sum buffer for future economic loss, notwithstanding that no specific findings were made in relation to the extent of the plaintiff's reduced future earning capacity. This is consistent with other recent decisions of the Court of Appeal when applying s 13 of the Civil Liability Act 2002 and s 126 of the Motor Accidents Compensation Act 1999: see Allianz Australian Insurance Ltd v Kerr 3 .
Defendants can, however, take something positive from the decision in that the Court of Appeal considered a finding of 25% of a most extreme case for non-economic loss damages to be adequate, despite the plaintiff suffering significant scarring and post-traumatic stress disorder.
1 Beazley, McColl and Meagher JJA
2  NSWCA 449
3  NSWCA 13
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