Australia: Dog Attack Victim Has Damages Substantially Reduced On Appeal

Last Updated: 17 September 2009
Article by Nicholas Gordon

Judgment date: 7 September 2009

Sretenovic v Reed [2009] NSWCA 280

Court of Appeal1

In Brief

  • The Court of Appeal significantly reduced the plaintiff's damages awarded at trial, in particular reducing the award for non-economic loss on the basis of a reduction from 35% to 20% of a most extreme case, notwithstanding the fact that the infant plaintiff received significant scarring from a dog bite and resulting psychiatric disabilities.


On 28 April 2005 the plaintiff who was 11 years old at the time was attacked by an unleashed dog belonging to the defendants.

The plaintiff, via his mother acting as his next friend, brought proceedings against the defendants to recover damages pursuant to s 25 of the Companion Animals Act 1998 (NSW). The defendants admitted liability at the outset of the trial. Accordingly the trial proceeded as an assessment of damages only.

District Court Decision

The trial judge, Judge Levy SC DCJ, noted that it was accepted that the plaintiff sustained ten lacerations and puncture wounds to his right forearm and a small puncture wound to the right knee. The trial judge found that the dog bites also caused the plaintiff to sustain dermatitis and itching of the right arm and led to the plaintiff putting on excess weight and leading an abnormal lifestyle. The trial judge however also accepted that "apart from having residual scarring from his dog bite wounds, the plaintiff has undergone a relatively uneventful physical recovery".

The trial judge noted that the main area of controversy was the claim of significant psychiatric disability. The plaintiff qualified Associate Professor Quadrio and the defendants qualified Dr Whan. The trial judge preferred Professor Quadrio's opinion, which the trial judge found was to the effect that the plaintiff was quite seriously affected by the injury and that his post-traumatic reaction was chronic rather than temporary. The trial judge found that the plaintiff had a more serious psychological condition, in the nature of major depression, and not the lesser picture that Dr Whan was describing in his initial analysis.

Despite the fact that trial counsel for the plaintiff only submitted that the plaintiff should be assessed at "at least 30%" of a most extreme case (the defendants' counsel contending for 18% - 20%), the trial judge assessed damages for non-economic loss at 35% of a most extreme case ($154,500).

In relation to the claim for future economic loss the trial judge found that the plaintiff's psychological symptoms would, on the balance of probabilities, impede his ability to obtain and maintain regular employment such that throughout his working life he would suffer a loss of earning capacity. The plaintiff's residual earning capacity was assessed at 30% of net average weekly earnings between the ages of 18 and 65 years, ie $288 net per week which, after allowing a 25% discount for contingencies but deferred for four years since the plaintiff was aged 14 years at the date of trial, resulted in an award for future economic loss of $170,923.

Court of Appeal Decision

The major grounds of the defendants' appeal concerned the damages awarded for non-economic loss and future economic loss.

In relation to non-economic loss McColl JA, who wrote the leading judgment and with whom Beazley JA agreed, confirmed the principle that unless it can be demonstrated that the trial judge has erred in the application of principle, in order to attract appellate review it will be necessary to show that the conclusion reached by the primary judge was "manifestly erroneous"; Ellis v Rantzo (t/as Rantzos Hairdressing)2. However McColl JA was satisfied that the trial judge made errors which were of such substance and that the conclusions reached by the trial judge were so manifestly erroneous, appellate review was justified. McColl JA held that 20% of a most extreme case was the appropriate assessment for non-economic loss.

In relation to the award for future economic loss McColl JA stated that the trial judge should have awarded a buffer as opposed to an ongoing weekly award. McColl JA referred to the case of Leichhardt Municipal Council v Montgomery 3 where Mason P opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future".

Having regard to the fact that the plaintiff suffers no physical limitations on his ability to work, that it is probable his psychological conditions will be ameliorated by treatment and that, even to the extent some aspect of his work life might be limited by the matters to which Professor Quadrio referred, her Honour found that that is not likely to be substantial and that the plaintiff's future earning capacity will not be substantially diminished. McColl JA found that an appropriate buffer, before the 25% discount for vicissitudes, was $50,000.

In reaching the above conclusions McColl JA made reference to the case of Strinic v Singh 4 which was also a case where the trial judge (who had extensive judicial experience in personal injury litigation) made findings of critical fact in which Beazley JA concluded were based on his own medical knowledge. In Strinic Beazley JA quoted Sir John Balcombe in the matter of Saunders v Adderley 5 who stated that:

"It is, of course, an error of law for a judge to make a finding of fact which there is no evidence to support, unless the matter is one of which the judge is entitled to take judicial notice."

McColl JA also quoted from the judgement of Ipp JA in the matter of Ohlstein bht Ohlstein v E & T Lloyd t/as Otford Farm Trail Rides 6 who stated that the risk to a young child in undertaking a guided horse ride and a child's ability to undertake the ride:

"... should not be determined by a personal judicial opinion, based on common knowledge and experience, that differs from the opinions expressed by experts ..."

McColl JA stated that the consequence in Strinic of the failure to afford procedural fairness was that the appellant was denied "his fundamental right to the determination of his claim based on the evidence". McColl JA went on to state that:

"Regrettably, in my view, the primary judge in this case appears either to have made findings of fact unsupported by evidence and/or (it matters not which) has applied his personal opinion concerning the respondent's present and future psychological condition."

McColl JA found that nowhere in Professor Quadrio's reports did she say that the plaintiff's depression might worsen as indicated by the primary judge nor did the reports support the primary judge's findings that the prospects of psychological treatment for the plaintiff were poor and had little prospect of succeeding. In her Honour's view there was no evidence to support the primary judge's conclusions that none of the plaintiff's psychological conditions would "recede or diminish" or indeed that his depression would worsen.

Her Honour further noted there was no evidence that the plaintiff was suffering from "major depression" from which there was little prospect of him recovering which was found by the primary judge.

Accordingly the defendant's appeal was allowed in respect of non-economic loss and future economic loss. The Court of Appeal did not interfere with the primary judge's award in respect of future treatment in the sum of $16,700.


This decision highlights the caution to be exercised by a trial judge in not making findings of fact where there is no evidence to support such a finding.

The decision should be of assistance to defendants in arguing for lower awards for non-economic loss before trial judges and may stem the trend of increased awards which of recent times the Court of Appeal has been disinclined to interfere with unless, as in this case the Court of Appeal considers the conclusion reached by the primary judge was "manifestly erroneous".

The decision also provides assistance to defendants in arguing for buffers for loss of earning capacity pursuant to s 13 of the Civil Liability Act, particularly in relation to children where there is no evidence to support that the plaintiff's condition will not be ameliorated by treatment and that the plaintiff's future earning capacity will be substantially diminished.


1 Beazley JA; McColl JA

2 [2005] NSWCA 266

3 [2005] NSWCA 432

4 [2009] NSWCA 15

5 [1999] 1 WLR 884

6 [2006] NSWCA 226

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.