Collins v Carey & Ors [2003] QCA 291

SUPREME COURT OF QUEENSLAND CITATION: Collins v Carey & Ors [2003] QCA 291 PARTIES: LANCE STANLEY COLLINS (plaintiff/respondent/cross-appellant) v PAULA JAYNE CAREY and GREGORY JAMES CAREY (first defendants/appellants/first cross-respondents) GRACE WORLDWIDE (AUSTRALIA) PTY LTD ACN 070 345 845 (second defendant/second cross-respondent) FILE NO/S: Appeal No 11745 of 2002 SC No 11531 of 2001 DIVISION: Court of Appeal PROCEEDING: Personal Injury - Liability & Quantum ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 18 July 2003 DELIVERED AT: Brisbane HEARING DATE: 4 July 2003 JUDGES: Davies, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: 1. Appeal dismissed with costs to be assessed 2. Cross-appeal dismissed with costs to be assessed CATCHWORDS: DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - REMOTENESS AND CAUSATION - FORESEEABILITY OF DAMAGE - PERSONAL INJURIES - PARTICULAR CASES - where plaintiff was a furniture removalist - where plaintiff bitten by first defendants' dog whilst working at first defendants' premises - where dog chained in back yard - where dog was a cattle dog cross-breed - where evidence adduced that cattle dog crosses are the most likely breed to attack people - whether first defendants' ought to have appreciated that there was a real risk that their dog may attack one of removalists TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - OTHER CASES - where plaintiff in vicinity of tethered dog - where plaintiff had back turned and was bent over - whether plaintiff contributorily negligent for injury -- 1 of 8 -- 2 DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN PERSONAL ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT - GENERALLY - where learned trial judge awarded damages for, inter alia, past economic loss, past assistance and future economic loss - whether learned trial judge's assessment and measure of arriving at assessment appropriate in each case ANIMALS - LIABILITY OF OWNERS AND KEEPERS IN RESPECT OF INJURIES BY ANIMALS - LIABILITY IN THE ABSENCE OF SCIENTER - FORESEEABILITY OF RISK - where trial judge found that prior to the incident, first defendants had no knowledge of any dangerous propensity of the dog - whether in absence of such knowledge, first defendants ought to have foreseen risk of injury and therefore could be liable in negligence Draper & Anor v Hodder [1972] 2 QB 556, considered COUNSEL: J A Griffin QC, with P W Hackett, for appellants/first cross- respondents M Grant-Taylor SC, with J B Rolls, for second cross- respondent R I M Lilley for respondent/cross-appellant SOLICITORS: HBM Lawyers for appellants/first cross-respondents Phillips Fox for second cross-respondent MurphySchmidt for respondent/cross-appellant DAVIES JA: 1. The appeal [1] These are an appeal and cross-appeal against a judgment in the Supreme Court for the plaintiff against the defendants in the sum of $130,062.05 damages for personal injury caused by the negligence of the defendants. The appeal is by the first defendants/appellants Gregory James Carey and Paula Jayne Carey against the finding of negligence against them and against that part of the award of damages which related to future economic loss. The cross-appeal is by the plaintiff Lance Stanley Collins against the amount of damages assessed, in particular the learned trial judge's assessments of past economic loss, future economic loss and the value of assistance provided to the plaintiff. The other defendant in the action Grace Worldwide (Australia) Pty Ltd is not an appellant but resists the plaintiff's cross- appeal. It is convenient in this judgment to refer to Mr Collins as the plaintiff, Mr and Mrs Carey as the first defendants and Grace Worldwide (Australia) Pty Ltd as the second defendant. 2. The plaintiff's accident [2] The plaintiff was bitten by the first defendants' dog on 23 November 1995 whilst working on their premises as a furniture removalist employed by the second defendant, the second defendant having been engaged by the first defendants for the purpose of transferring their belongings from their house at Alexander Avenue Kallangur to Cairns. Among the items to be removed was a cubby house in the backyard of the house. -- 2 of 8 -- 3 [3] At about 8.00 am on the day in question the plaintiff and two other employees of the second defendant Mr Gifkins, who was in charge of the operation, and Mr Gambling arrived at the first defendants' house to commence the removal operation. Shortly after they arrived it was observed that there was a dog on the premises. It was a cattle dog/Staffordshire bull terrier cross. As the learned trial judge found, one of the removalists asked Mr Carey whether the dog bit to which Mr Carey responded to the effect that it "shouldn't" but that he would tie it up if it was a hassle. This was done. [4] There was a discrepancy in the evidence as to where the dog was tied up but the learned trial judge in this respect preferred the evidence of the plaintiff that it was tied up, by means of a chain to a point somewhere beyond (the plaintiff said about three feet from) the cubby house in the backyard. It was common ground that, before the plaintiff and his fellow workers arrived on the day in question the cubby house had been dismantled. There was a discrepancy as to where the various parts of it were but her Honour accepted the evidence of the plaintiff and Mr Gifkins that some of the dismantled logs were, on the morning in question, lying in the vicinity of the cubby house. [5] Mr Gifkins recollection is that some of these logs had been carried to the removal truck and were being fixed to the truck by him and Mr Gambling while the plaintiff returned to pick up and carry the others to the truck. According to the plaintiff, immediately before he was bitten he was about to pick up one of those logs from the ground in the vicinity of the cubby house. At the time he was bitten, he had his back turned to the dog and he was bent over. The dog bit him on the upper left thigh. 3. The first defendants' negligence [6] The plaintiff's claim against the first defendants was based alternatively on scienter or on negligence. The learned trial judge rejected the scienter allegation, finding as a fact that, prior to the incident, the first defendants had no knowledge of any dangerous propensity of the dog. However she also found that they ought to have foreseen that there was a real risk of injury to one of the removalists by being bitten by the dog tied up as it was in the vicinity of where those workmen were required to work. [7] Expert evidence was given by Dr Day a veterinarian specialist in animal behaviour. He said that cattle dogs and cattle dog crosses are among the most likely breeds to attack people and are well-known for their protective territorial nature. He was of the opinion that Staffordshire bull terriers could also be aggressive. He also expressed the opinion that dogs can become more aggressive when chained, that a stranger turning his back on a dog and picking something up belonging to the dog's owner may trigger aggression in a dog and that cattle dog crosses are likely to attack from behind. His report which was tendered showed that, of all breeds of dog, cattle dogs are the commonest reported for aggression with bull terrier types, including Staffordshire bull terriers, being the second most common. When figures are adjusted for percentage of dog ownership cattle dogs and bull terriers are shown to be more aggressive than most other dogs. They are also reactive and require less challenge to elicit aggression than other dog breeds. Visitors to or pedestrians passing a dog's territory such as its garden are a challenge and cattle dogs and bull terriers can act aggressively in such situations. -- 3 of 8 -- 4 [8] By the time of this incident the incidence of attacks by cattle dogs, bull terriers and cattle dog crosses had been widely publicized. More than 20 articles in the Courier Mail and Sunday Mail published between 1990 and 1995 were tendered in evidence. Several of them included the opinions of Dr Day to which I have just referred. It would be fair to say that the dangerous nature of these breeds of dog was widely known in the Brisbane community. [9] The first defendants each said that they had not read any of these articles. That evidence was, of course, relevant to the question of scienter. But it was not relevant to the question of negligence. The question here was whether they ought to have known of the substance of what was stated in them, reflecting as they did the evidence of Dr Day. [10] Mr Griffin QC, for the appellant, referring to Draper v Hodder1 submitted that as a matter of principle, presumably legal principle, no distinction should be made, in determining foreseeability of risk, between different breeds of dogs. That is not a question of law and Draper v Hodder is not authority for the proposition that it is. It is one of fact and opinion; in this case, the statistical evidence to which Dr Day deposed and his opinions which I have already stated. And the question is whether the substance of these facts or opinions ought to have been known to the first defendants. Her Honour plainly thought that they ought and I agree. [11] In my opinion both of the first defendants ought to have appreciated that there was a real risk that their dog might attack one of the removalists unless properly restrained. They ought to have appreciated that theirs was the most dangerous breed of dog, that it was territorial in nature and that it might be easily provoked by observing a stranger interfering with or taking away its owner's property. That it was not properly restrained is evidenced by the fact that, on the evidence which the trial judge accepted, it bit the plaintiff whilst the plaintiff was performing work on the premises which he was required to do. [12] In the case of Mr Carey the evidence indicated, in my opinion, that he actually appreciated the risk that the dog might bite, even if his appreciation fell short of the knowledge necessary for scienter. When asked whether the dog bit he answered: "It shouldn't". And when later giving a statutory declaration, apparently intended to be an exculpatory one, he swore that "I told all three men that I would chain the dog to the cubby house and Not to touch anything there for that reason". (The word "not" was emphasized in the way I have indicated.) From those two statements, taken together, I would infer that Mr Carey knew that there was a real risk that the dog might bite one of the removalists during the course of their work unless properly restrained. [13] The first defendants' appeal against negligence must therefore fail. 4. Contributory negligence [14] The first defendants have not appealed against the learned trial judge's finding that there was no contributory negligence on the part of the plaintiff. However in their written outline they sought to raise this question and this Court permitted them to argue it. It may be disposed of summarily. 1 [1972] 2 QB 556. -- 4 of 8 -- 5 [15] The essential difference, in this respect, between the plaintiff on the one hand and the first defendants on the other is that the plaintiff was entitled to assume that, the dog having been tied some distance from the cubby house, it would be safe for him to lift the logs he was instructed to remove without fear of being attacked. In other words it was not necessary for him to consider whether or not the dog was dangerous. He was entitled to assume that it was sufficiently tethered as not to be a danger to him at the distance he was from it. As her Honour found, his mistake in that respect was mere inadvertence, not negligence. Her Honour's conclusion in that respect was, in my opinion, correct, and she was, accordingly, correct in declining to find contributory negligence. 5. Damages [16] Three aspects of the plaintiff's damages are put in issue by the appeal and the cross- appeal. The first is the amount awarded for past economic loss, put in issue only by the plaintiff's cross-appeal. The second, which is related to the first, is the amount awarded for past care, also put in issue by the cross-appeal. And the third is the amount assessed for future economic loss, put in issue by both the appeal and the cross-appeal. It is convenient to deal with those in that order. (a) past economic loss [17] The learned trial judge awarded under this head of damage $22,557.80 which included loss of superannuation for the period up to trial. This was made up as follows: $7,130 being for 31 weeks from 23 November 1995 to 24 June 1996 at $230 per week; the sum of $230 per week was the average of his weekly earnings for four years prior to the accident; $427.80 being superannuation on that sum; and $15,000 assessed as a lump sum for reduced employability as a courier/parcel delivery driver and loss of opportunity to pursue heavy labouring work, including a component for superannuation. The learned trial judge found that the plaintiff was fit to return to work such as that of a courier/parcel delivery driver from 24 June 1996. [18] The plaintiff contends that this should have been $367,953.13 made up as follows: Nett earnings the plaintiff would have received from 23 November 1995 to 9 September 2000 but for the injuries (133 weeks at $541.70 and 220 weeks at $1,395.51): $379,058.30 Less: actual earnings over this period $ 11,105.17 $367,953.13 In addition he claims $4,322.76 for loss of past superannuation entitlements (six per cent of $72,046.10). [19] The rate of $541.70 was the rate at which the plaintiff was earning at the date of his accident. The rate of $1,395.51 is the rate at which it is considered he would have earned had he, but for the accident, embarked upon a career as a trawler operator at the time at which he did in fact. [20] Detailed evidence was given of the plaintiff's employment from 1989 to the date of the accident. He had left school in about 1981 at Year 11. He had commenced an apprenticeship as a chef which he did not continue. However he stayed on in the food industry, then commenced doing roofing work, then worked for a glass company apparently until 1989 when he went to work for Ansett Ridgeways as a -- 5 of 8 -- 6 courier/parcel delivery driver. When Ansett collapsed in 1992 he returned to his parents' home at South West Rocks. Whilst there he worked as a deckhand on some boats for about 15 months and in the Fish Co-Operative for about a week. Thereafter he worked with John Holland on three short term contracts doing heavy labouring work and finally with the second defendant. [21] In my opinion the rate of $541.70 was unrealistic. His job with the second defendant was temporary and expected to finish at Christmas. A better indication of his pre-accident earning capacity, on a sustained basis, was the amount of $230 a week adopted by her Honour, reflecting as it did his average earnings over a substantial period before the accident. [22] After the accident the plaintiff returned to live with his parents at a fishing village called South West Rocks. He remained unemployed until May 1998 when he purchased a trawler by taking over a loan from its former owner. He had no trawling or professional fishing qualifications although he was a keen amateur fisherman and had worked for about 15 months as a deckhand on a trawler. He took approximately six months to qualify. He began operating the boat himself about Christmas 1998. Apart from some regular inquiries with John Holland, for whom he had worked on short term contracts on three occasions, he made no attempt to earn money until May 1998 when he embarked on his trawler venture. [23] The rate of $1,395 per week, on the assumption that, had he not been injured, the plaintiff would have embarked on the trawling venture which he in fact embarked on, is, in my opinion, even less realistic. But the plaintiff submits, in the alternative, that there is a chance that he may have done so and that some allowance should be made for that. [24] It was pointed out by Jerrard JA during the course of argument, that the acquisition by the plaintiff of the trawler in June 1998 was the result of a number of unusual circumstances coinciding. The possibility that those circumstances would also have coincided had the plaintiff not been injured is, in my opinion, remote. Moreover there is no indication in the plaintiff's pre-accident work history of any likelihood or even real possibility that he would even have entered into business on his own account if he had not been injured. In short, his acquisition of the trawler was the result of the peculiar circumstances in which the plaintiff found himself in June 1998. I do not think that her Honour erred in refusing to take into account even the possibility that, but for the accident, he may have embarked on any such venture. [25] Once that possibility is excluded, I think that the approach adopted by the learned trial judge was appropriate. I have already indicated that an allowance of $230 per week was appropriate up to June 1996. For the period between then and June 1998, apart from inquiries with John Holland Constructions, the plaintiff made no effort at all to obtain employment and he was fit to work in occupations such as that of a courier/parcel delivery driver and, no doubt, in other occupations. After June 1998 he made no inquiries about employment because by then he had embarked on his trawler venture. [26] It was therefore appropriate, as her Honour did, not to make any weekly allowance for loss of earning capacity after 24 June 1996 but to make some allowance for the plaintiff's reduced employability as a courier/parcel delivery driver, for loss of opportunity to pursue heavy labouring work and for a component for -- 6 of 8 -- 7 superannuation in respect of that additional loss. In the light of the circumstances which I have outlined, I think her Honour's assessment and manner of arriving at it was appropriate. [27] Accordingly I would reject the cross-appellant's contentions in this respect. (b) the claim for past assistance [28] The learned trial judge allowed $3,953 for past care. None of this was for services which the plaintiff's father provided by way of repair and maintenance work on the plaintiff's trawler. This had been claimed at five hours a week from December 1998 when the plaintiff commenced operating the trawler on his own. This came to $9,750, that is for 975 hours of unpaid assistance over 195 weeks at the rate of $10 per hour. Interest was claimed at five per cent for three and three-quarter years amounting to $1,828.12. [29] This claim was based on two assumptions. The first was that, in the circumstances which ensued in 1998, it was not unreasonable for the plaintiff to embark on his trawler venture and to purchase the trawler. The second is that, had he not been disabled by his accident, he would himself have done the work which his father did. [30] As to the first of these the learned trial judge made the following finding: "In the present case, the claim arises because the plaintiff chose to engage in an unprofitable financial venture in respect of which he was physically unsuited, rather than pursuing the type of employment he was physically able to. The defendants should not be visited with the costs of the plaintiff being assisted by his father with tasks he is unable to do himself in order to pursue that venture." [31] There is no doubt, in my opinion, that the evidence justified this conclusion. It was, in the circumstances an unreasonable course for the plaintiff to take to seek to engage in the business of operating a trawler in circumstances when it ought to have been obvious to him that he would not be able to do all of the work involved in that occupation. On the other hand there was no reason to believe that there was not work available for him as a courier or as a parcel delivery driver, work which it seems he was then capable of doing. [32] I think that her Honour's rejection of this claim was, in the circumstances, correct. (c) future economic loss [33] The learned trial judge allowed a total of $55,000 for future economic loss. Twenty thousand dollars of this she allowed for the plaintiff's reduced employability in the open labour market in respect of courier type work and $35,000, including a component for superannuation, she allowed for loss of opportunity to do the heavier type of work which the plaintiff had done for short periods with John Holland. (i) the first defendants' contention [34] The first defendants contend that this award was too high. They accept the allowance of $20,000 but submit that the effect of the allowance of the further sum of $35,000 was to compensate the plaintiff twice. In view of the finding of the learned trial judge that the prospect of getting further work from John Holland was poor the amount of $20,000, they submitted, adequately compensated the plaintiff for future economic loss. -- 7 of 8 -- 8 [35] I do not think that her Honour's award under this head of damage compensated the plaintiff twice as the first defendants contend. The sum of $20,000 was awarded on the assumption that the plaintiff would return to some work as a courier but that, if he did, on the open labour market he would be at a disadvantage as against other prospective employees. That amount was intended to compensate him for that disadvantage. [36] It is plain, however, that when he worked for John Holland Constructions, he was earning at a substantially higher rate than that which he could earn as a courier or parcel delivery driver. When he did so however he did so pursuant to three short term contracts and availability of work depended, it seemed, on what contracts John Holland succeeded in obtaining. [37] It was appropriate in the circumstances, however, for her Honour to make some allowance for the possibility that, but for his accident, the plaintiff would, from time to time, have obtained some work of this kind with John Holland. I think that $35,000 was a reasonable estimate of a sum which represented the chance of obtaining income at such at an additional rate for some period or periods. (ii) the plaintiff's contention [38] The plaintiff, on the other hand, contends that this assessment was manifestly inadequate. This was, he submitted, because the learned trial judge failed to include in the assessment an amount for loss of a chance of becoming a commercial fisherman. Substantial sums were put forward on the basis of which, it was contended, this loss of a chance should have been assessed. [39] For the reasons I have already given in respect of a similar claim for loss of earnings before trial, I do not think that her Honour erred failing to include any such sum. On the contrary I think that her Honour's assessment was upon the correct basis and was a reasonable one. [40] 6. Orders 1. Dismiss the appeal with costs to be assessed. 2. Dismiss the cross-appeal with costs to be assessed. [41] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Davies JA. I agree with those reasons and with the orders he has proposed. [42] JERRARD JA: I respectfully agree with the reasons for judgment and orders proposed by Davies JA. -- 8 of 8 --