Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Mason v Demasi [2012] NSWCA 210
• Hearing dates: 23 February 2012
• Decision date: 13 July 2012
• Before: Beazley JA at [1]; McColl JA at [2]; Meagher JA at [3]

Decision

(1) Appeal allowed.

(2) Judgment of the District Court of 24 March 2011 set aside.

(3) Judgment for the appellant in the sum of $176,459.50.

(4) Judgment to take effect as at 24 March 2011.

(5) Respondents to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951, if qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: DAMAGES - personal injury - psychological injury - whether when assessing diminution in earning capacity, primary judge correctly treated certain behaviour as not being a consequence of tortious act - whether awards of past and future economic loss inadequate
• Legislation Cited: Civil Liability Act 2002; Suitors' Fund Act 1951
• Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 60 MVR 194; Crystal Wall Pty Ltd v Pham [2005] NSWCA 449; Dell v Dalton (1991) 23 NSWLR 528; Graham v Baker [1961] HCA 48; 106 CLR 340; Mason v Demasi [2009] NSWCA 227; Medlin v State Government Insurance Commissioner [1995] HCA 5; 182 CLR 1; Moran v McMahon (1985) 3 NSWLR 700; Penrith City Council v Parks [2004] NSWCA 201; Southgate v Waterford (1990) 21 NSWLR 427
• Category: Principal judgment
• Parties: Penelope Jayne Mason (Appellant); Antonio Demasi (First Respondent); Giovannina Demasi (Second Respondent)
• Representation: Counsel: Ms S Norton SC, Ms M Fraser (Appellant); Mr P Deakin QC, Mr A Scotting (Respondents); Solicitors: Brydens Law Office (Appellant); Moray & Agnew (Respondents)
• File Number(s): CA 2011/102685

Decision under appeal

• Date of Decision: 2011-03-24 00:00:00
• Before: Kearns DCJ
• File Number(s): DC 2006/297150 (formerly 2006/5495)

Judgment

1 BEAZLEY JA: I agree with Meagher JA.

2 McCOLL JA: I agree with Meagher JA.

3 MEAGHER JA: This is an appeal from a judgment of Kearns DCJ (the primary judge) delivered on 24 March 2011 awarding the appellant damages for injuries sustained following an attack by a Rottweiler dog owned by the respondents. That attack occurred on 12 November 2005.

4 The respondents admitted liability and the claim proceeded as an assessment of damages, before O'Connor DCJ who delivered judgment on 3 April 2008. There was an appeal from that judgment. This Court set aside that earlier judgment and ordered a new trial limited to damages: Mason v Demasi [2009] NSWCA 227.

5 The primary judge awarded the appellant damages totalling $76,459.50 as follows:

Non-economic loss	$32,532.50
Past out-of-pocket expenses	$3,927.00
Future out-of-pocket expenses	$5,000.00
Past economic loss	$10,000.00
Future economic loss	$25,000.00

6 There were significant issues as to the appellant's emotional condition before and after the dog attack and as to whether her evidence as to asserted consequences of the attack was in a number of respects false or exaggerated.

7 The primary judge held, accepting the evidence of Drs Robertson and Samuell, that the appellant had a pre-existing histrionic personality disorder which meant that she was prone to exaggeration and manipulation. He also accepted the evidence of Dr Robertson that the appellant suffered from a post traumatic stress disorder as a result of the attack.

8 The primary judge rejected the appellant's evidence that following the incident in November 2005 she had experienced difficulties in walking and suffered falls, both at work and at home. He held that some of those falls were consciously produced, that her evidence about others was false and that any difficulties which she had in walking were intentionally produced. The primary judge did not accept that the appellant's behaviour involving falsities or exaggerations in describing her conditions, including when giving her evidence, was due to an hysterical conversion disorder resulting from the dog attack.

9 The appellant had a very limited employment history before November 2005. She had not been in paid employment for about 17 years. At that time she was 35 years old and the youngest of her three children was five years old. She said that at that time it was her intention, after he had completed his first year of primary school, to undertake childcare study and work in childcare on a full-time basis. Her partner, Mr Cazzy, also gave evidence that before the dog attack the appellant proposed to obtain further qualifications at TAFE so that she could work in childcare. The primary judge did not accept this evidence as an indicator of what was likely to have happened in the absence of the dog attack. He assessed damages on the basis that the appellant would not have sought or obtained permanent full or part-time employment at any time after 1 July 2006. His Honour accepted, however, that it was likely that some time after that date the appellant would have sought and obtained some casual, part-time employment.

10 After November 2005 the appellant obtained a qualification in childcare from TAFE and secured some casual, part-time employment in different childcare facilities. Between September 2009 and March 2010 she was employed at a facility known as Mini Graduates. Evidence was given by her supervisor, Ms Kirkpatrick, as to how she performed in that position. There was an issue as to whether her employment ceased because of behaviour due to the dog attack. The primary judge described that behaviour in terms of the appellant "manifesting florid symptoms". Before this Court there was a question as to what underlying symptoms this description referred to and as to whether they were symptoms which the primary judge had held, or should have held, were a consequence of the dog attack.

The issues on appeal

11 The appellant appeals against the assessments of non-economic and economic loss and the allowance for future out-of-pocket expenses.

12 The primary judge assessed the appellant's non-economic loss at 25 per cent of a most extreme case. That assessment entitled the appellant to $32,532.50, being 6.5 per cent of the amount for a most extreme case of $500,500. The appellant says that in making this assessment the primary judge failed to give sufficient weight to the effects of her post traumatic stress disorder (Ground 9). In support of this ground the appellant argues that the primary judge should have taken her falls and walking difficulties into account because those difficulties were not consciously produced. They were an aspect of the appellant's behaviour involving exaggeration and manipulation which was due to the aggravation by the dog attack of her pre-existing personality disorder. The appellant also says that this assessment was manifestly inadequate (Ground 8).

13 The appellant claimed $10,000 on account of future out-of-pocket expenses. As made, that claim included an amount of $6,000 for the cost of reconstructive plastic surgery for the scarring to the back of her left leg. The primary judge found that there was no need for such surgery. The appellant says that the allowance of $5000 made by the primary judge was inadequate (Ground 10).

14 The appellant claimed past economic loss for two periods. They were from 1 July 2006 to 1 July 2008, and from 17 March 2010 to the date of the hearing. It was said that but for the dog attack the appellant would have worked three days a week during each of these periods. In addition, an amount was claimed for lost superannuation benefits calculated as 11 per cent of lost net earnings. The primary judge awarded $10,000 inclusive of superannuation benefits for these periods.

15 Future economic loss was claimed for a period of 27 years on the assumption that but for her injuries, the appellant would have worked in childcare on a full-time basis. It was said that by reason of the dog attack she had lost a little more than half of that earning capacity. The primary judge rejected this claim on the basis that uninjured the appellant was only likely to seek work intermittently on a casual and part-time basis and that whilst there were likely to be occasions during which she would be unable to undertake work by reason of the injuries from the dog attack, the number and length of those periods was incapable of determination. The primary judge assessed damages by awarding a "buffer" of $25,000, inclusive of superannuation. It is settled that such an approach is not precluded by s 13 of the Civil Liability Act 2002: Penrith City Council v Parks [2004] NSWCA 201 and cases cited in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 60 MVR 194 at [30].

16 The appellant says that these awards for past and future economic loss were inadequate (Ground 5) and challenges two findings which are said to underpin them. The first is the finding that but for the injury she would not have sought or obtained permanent full or part-time employment (Grounds 6 and 7). The second is the finding that her pre-injury capacity to obtain and maintain employment was affected by her being prone to "florid presentations of symptoms", such as those which occurred during her employment at Mini Graduates (Grounds 1 to 4). The appellant argues that the primary judge erred in assessing damages on the basis that the behaviour at Mini Graduates to which he was referring was not a result of the dog attack. That argument requires consideration of the primary judge's earlier findings and the evidence of Ms Kirkpatrick. In a separate submission, the appellant argues that the primary judge was wrong not to treat this behaviour as due to the aggravation by the dog attack of her underlying histrionic personality disorder.

Non-economic loss

17 There are two bases for the appellant's attack upon this assessment.

18 The first is that the primary judge erred in finding that the appellant's falls and difficulties walking were either consciously produced or the subject of false evidence as to their having occurred. As I understand the appellant's argument, it is that she did experience falls and walking difficulties as a consequence of her exaggerated and manipulative behaviour, which was in turn due to the aggravation of her pre-existing personality disorder as a result of the dog attack. It is not said that the primary judge otherwise erred in identifying and making specific findings as to the matters to be considered when making this assessment. The heads of non-pecuniary damage to which those findings must be directed are defined in s 3 of the Civil Liability Act.

19 A number of the findings made by the primary judge as to the injuries sustained by the appellant, her subsequent treatment and continuing disabilities are not challenged on appeal. They include findings rejecting as "unsatisfactory" or "wrong" evidence of the appellant as to the extent of the injuries she suffered, as to the period of time that she underwent surgery, as to whether subsequently she spent periods of time "asleep for days and nights" and as to the extent of the pain she suffered from her wounds: [34], [35], [40], [42].

20 Overall, the primary judge considered the appellant to be "an unreliable historian and an unreliable witness": [79]. His Honour's findings that some of her falls were intentionally produced and that other falls and her walking disabilities were the subject of deliberately false evidence, were open on the evidence. That evidence was that the appellant related the falls to problems with her right leg, rather than her left leg, that any such problems were not explained by any physical injury or condition identified as due to the dog attack and that the falls that the appellant gave evidence about whilst at Mini Graduates were not observed by anyone else and were not the subject of any report or otherwise corroborated.

21 The appellant does not identify any respect in which these findings are inconsistent with established facts or glaringly improbable. The appellant described her falls as due to her "good leg". Ms Kirkpatrick had not seen or received any reports of falls whilst at work. The appellant reported to Dr Robertson, the psychiatrist called in her case, that she had had no falls since August 2010. In cross-examination, Dr Robertson, in response to the suggestion that the falls were deliberate exaggeration or malingering, suggested that they may be symptoms of an hysterical conversion disorder. However, in the subsequent joint report of Dr Robertson and Dr Samuell, he described that view as no more than an hypothesis and speculation and accepted that he could not exclude deliberate fabrication. Although Dr Robertson maintained that the appellant's pre-existing histrionic disorder made her liable to be animated, dramatic and loud with a tendency to exaggerate, he did not suggest that falls or walking difficulties for which there was no physical explanation could in some way be due to an aggravation of that condition by the dog attack.

22 The primary judge is not shown to have erred in finding that the falls were consciously produced and that the appellant's evidence about them was in some respects false.

23 The second basis on which the appellant challenges this award is that the assessment of 25 per cent of a most extreme case was manifestly inadequate. Because it is not argued that the primary judge otherwise misapprehended any relevant fact or acted upon a wrong principle of law, this Court cannot interfere with that assessment unless it is satisfied that it was wholly erroneous: Moran v McMahon (1985) 3 NSWLR 700; Southgate v Waterford (1990) 21 NSWLR 427; Dell v Dalton (1991) 23 NSWLR 528; and, more recently, Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 at [49], [53].

24 The primary judge described the appellant's injuries and their immediate and long term consequences for the appellant in some detail: see esp [30], [35]-[39], [81], [82], [123]-[127]. The appellant was subjected to a ferocious dog attack whilst walking with her young son. She suffered a deep bite wound to her left calf which has left permanent and unsightly scarring and some numbness around that scarring. She underwent surgery and remained overnight in hospital. She has suffered a post traumatic stress disorder which caused the impairments and emotional effects described at [82] and [125]. Whilst those symptoms have reduced over time, they remain likely to continue indefinitely at a relatively mild level.

25 Accepting that a "most extreme case" would include quadriplegia or total blindness with loss of limbs, the primary judge's conclusion that 25 per cent was the appropriate percentage for the appellant's injuries and their consequences is not by comparison in any sense inadequate. The appellant has put no argument that the primary judge's assessment, taking into account the various matters of opinion, impression, speculation and estimation which he was required to consider, was so unreasonable as to have necessarily involved some error. This ground of appeal must also be rejected.

Future out-of-pocket expenses

26 Before the primary judge the appellant argued that there should be an allowance for the reasonable cost of reconstructive plastic surgery directed to ameliorating the appearance of the scarring. The appellant relied upon the evidence of Dr Conrad which was that her scar could be improved by reconstructive surgery. (His first report uses the expression "may be improved" and his second report says that it "would be improved".) There was evidence from two other plastic surgeons. Dr Gibson's opinion was that there was "no indication for surgical revision of the scar as no worthwhile improvement could be achieved". Dr Giles' opinion was that it was "unlikely that this scar could be significantly improved by surgery". None of these witnesses was cross-examined. The primary judge preferred the opinion of Dr Gibson: [130]. No reason is advanced as to why his Honour erred in doing so.

27 In her written submissions, the appellant asserts that the primary judge's conclusion as to these expenses was "obviously influenced by his finding that the appellant's florid symptoms are not related to the dog attack". It is said that if that finding is overturned there should be a reassessment of future out-of-pocket expenses. As the discussion above demonstrates, this first proposition is not maintainable. The primary judge's rejection of the appellant's claim to expenses of $10,000 had nothing whatsoever to do with his finding as to her "florid symptoms".

28 This ground of appeal must be rejected.

Economic Loss

29 When considering whether the appellant was entitled to damages for economic loss the primary judge was required to consider not only whether there had been a diminution in her earning capacity but also whether that diminution had been or may be productive of financial loss: Graham v Baker [1961] HCA 48; 106 CLR 340 at 346-347; Medlin v State Government Insurance Commissioner [1995] HCA 5; 182 CLR 1 at 3, 16.

30 The appellant submits that the primary judge erred when assessing the diminution in her earning capacity and in assessing the likelihood that she would have sought to exploit her pre-accident earning capacity.

31 The appellant says that when assessing the diminution in her earning capacity, the primary judge erred in not treating her adverse behaviour whilst at Mini Graduates as due to the dog attack. His Honour referred to that behaviour when considering whether the evidence established that the appellant's employment at Mini Graduates had ceased because of the consequences of the dog attack:

"[135] ... Her last day of work was 17 March 2010. No witness gave any evidence about the cessation of her work, even though all evidence was taken after that date. It may be that her employment was still open when she gave evidence. This would seem to be so in light of Ms Kirkpatrick's evidence that she would like to keep her but did not think that that was going to happen. In view of the fact that at work the plaintiff was from time to time manifesting florid symptoms that, in my view, were not the result of the dog attack, in the absence of evidence given as to how and why the plaintiff's employment ceased, I am not satisfied that it ceased because of the consequences of the dog attack.

The primary judge also found, when assessing her future loss of income, that the appellant may continue to be prone to "florid presentations of symptoms not occasioned by the dog attack": [137].

32 There was some debate as to what the "florid symptoms" were. The appellant submitted that this was a reference to her "exaggeration and manipulation" which, whilst not necessarily a consequence of the dog attack as distinct from her pre-existing personality disorder, formed no part of her behaviour at Mini Graduates which led to Ms Kirkpatrick's evidence that she did not think the appellant's employment could continue, even on a part-time basis.

33 The respondents' position was not so clear. At first it was submitted that the symptoms were the appellant's inability to cope with change and her becoming anxious and flustered. It was said that Dr Robertson conceded that it was "equally possible" that those symptoms were due to her underlying personality disorder as distinct from her post traumatic stress disorder, and that the primary judge was justified, for that reason, in describing those symptoms as not being the result of the dog attack. Later, the respondents submitted that the "florid symptoms" were those which the primary judge had earlier found not to be a consequence of the dog attack; symptoms such as her exaggeration and manipulation and emotional lability.

34 These arguments make it necessary to consider the primary judge's findings in more detail. His Honour summarised the position in relation to the appellant's condition before and after the dog attack as follows:

"81. I think the best summary of the plaintiff's condition before the dog attack is to be found in one answer given by Ms Hudson. Ms Hudson was responsible for coordination of volunteers with the Benevolent Society. She said,

'Yeah, Penelope to me was a very responsible person. She always wanted to do things the right way, she was quite happy, she was chatty, she was friendly, she was talkative. She had a really - had a good attitude, a positive attitude. She had drive, she was looking towards the future of what she could do for herself and her children. She got on well with just about everybody I saw her in contact with and she was quite - she also was interested in people around her, mm.'

82. A summary of the plaintiff's condition after the dog attack is that she was anxious and overprotective of her children. Her thinking was not as coherent as it was. She could be unpredictable in what she was going to say. Her conversation could be inappropriate and go off on tangents. She would speak in a monotone. She was unreliable in keeping appointments and did not return phone calls. There is an issue as to whether these matters are the result of the dog attack or have a different cause." (emphasis added)

35 When addressing whether the matters described in [82] were the result of the dog attack, the primary judge considered the evidence of Ms Kirkpatrick who he described as a reliable witness and whose evidence he accepted. In the course of discussing her evidence he referred to one of the "episodes" at Mini Graduates which adversely affected the appellant's capacity to hold her employment:

85. Gail Kirkpatrick was the authorised supervisor of Mini Graduates. She interviewed the plaintiff for the job. She thought that she would not be up to the job, but the person who came with her to the interview assured Ms Kirkpatrick that she would be. Observations made in that interview included that there was not much eye-to-eye contact, that she seemed very flustered, that she seemed very anxious, that she was not fully understanding what she was being asked. She observed that the plaintiff did not cope very well with change. She did not think she was coping very well with the demands of the job. There was a suggestion at some point that she could go to five days a week, but it was not a realistic prospect. She thought that three days a week was not continuing as a real possibility. There was an episode where she had to speak to the plaintiff. She had the impression that the plaintiff was not there and was not concentrating on what she was saying. She was constantly looking at her watch. On this particular occasion, the plaintiff had been subjected to an attack of perspiration. There was a lot of sweating. This was so much so that she described that 'she looks almost like she's stepped out of a shower ... Her face is very, very flushed ... Her hair is dripping'. (emphasis added)

86. Ms Kirkpatrick said she would love to keep her, but she did not think it was going to happen.

36 The primary judge found, accepting Dr Robertson's opinion, that the matters described in [82] were consistent with the appellant having suffered post traumatic stress disorder and concluded that those matters were a consequence of the dog attack: [122], [123]. He summarised the emotional effects of the dog attack on the appellant as including:

125. ... The effects have included some social withdrawal. They include some broken sleep. They include some nightmares, but in view of the evidence of nightmares for nine months before the incident, I do not think these weigh heavily in the assessment. There is a phobic anxiety of others' dogs. There has been depression and anxiety. There is unhappiness. There have been difficulties with memory and concentration. Conversation has been unpredictable, inappropriate and tangential. (emphasis added)

37 The primary judge's description of Ms Kirkpatrick's evidence at [85] does not include any emotional effects or matters which are not the subject of the finding at [125] which is set out above. Reference to Ms Kirkpatrick's evidence confirms that the two related incidents which are referred to, involved the appellant becoming anxious and flustered, having difficulty with her concentration and engaging in inappropriate conversation. In the first incident, which occurred at lunchtime during a discussion with staff, the appellant became anxious and flustered, said she was not coping with the staff lunch schedule and engaged in inappropriate language. In the second incident, which occurred a short time later in the supervisor's office, there was a discussion between the appellant and Ms Kirkpatrick in which the appellant's behaviour was unpredictable and she appeared not to be concentrating on what Ms Kirkpatrick was saying, was continually looking at her watch and was sweating and fidgeting.

38 It follows that the primary judge erred in proceeding on the basis that the appellant's behaviour, which Ms Kirkpatrick described as adversely affecting her employment prospects, was not the result of the dog attack. That behaviour had earlier been the subject of express findings to the opposite effect. This makes it unnecessary to determine whether the primary judge's reference to "florid symptoms" was intended to be to other behaviour in which case he did not correctly identify the behaviour which caused Ms Kirkpatrick to say that it was unlikely that the appellant's employment would continue.

39 The appellant also submits that when assessing the possibilities as to whether she would have exploited her pre-accident earning capacity, the primary judge erred in proceeding on the basis that she would not have sought or obtained permanent full or part-time work. In reaching that view, his Honour rejected the appellant's evidence that she intended to seek full-time work when her younger son finished his first year of primary school which would have been in 2006, as indicating that there was some possibility that she would have done so.

40 The primary judge referred to a number of factors which he considered suggested otherwise. First, by the time of the dog attack the appellant had not been in paid employment for about 17 years. Secondly, she had not undertaken full-time work in 1998 when her second child had reached her first year of primary school. Thirdly, there was no reason why the appellant could not have undertaken paid employment from 2004 when she had commenced voluntary work with the Benevolent Society. Finally, although the appellant had been in paid employment since the dog attack, that fact should be discounted because in doing so she was motivated by the litigation which had been commenced in 2006.

41 The primary judge did not give as a reason for his conclusion that he did not accept the appellant's evidence that she ever had such an intention. That conclusion was not available in the light of Mr Cazzy's evidence that before the dog attack he had spoken with the appellant about enrolling in a childcare course at TAFE and that someone from the Benevolent Society was helping her do so. The primary judge accepted that evidence.

42 The appellant says that the primary judge's conclusion that there was no such possibility was not justified on the evidence which contained objective indications of conduct consistent with the existence of her stated intention of re-entering the workforce on a permanent basis.

43 The appellant's employment history showed that she had obtained her school certificate in 1986 and been employed in junior positions between March 1986 and January 1988. Her first child was born in 1988 and her second child in 1992. Between the births of these children, the appellant had undertaken some secretarial and clerical work. She gave evidence that after the birth of her second child she was interested in further study and obtained a tertiary preparation certificate from TAFE with a view to going to university as a mature age student. Her third child was born in 2000. In 2003 she completed a ten-week course with the Benevolent Society and commenced volunteer work. That work involved her supporting families with young children. During this period someone from the Benevolent Society was assisting the appellant to enrol in a course at TAFE.

44 Subsequent to the accident, the appellant completed a course at TAFE in Children's Services. In July 2008 she commenced working in childcare centres on a part-time basis. She worked at Mini Graduates for six months between September 2009 and March 2010. Ms Kirkpatrick's evidence indicated that her behaviour which the primary judge found was a consequence of the dog attack, could adversely affect her prospects of holding permanent employment on a full or part-time basis. The appellant did not work after March 2010.

45 One further matter which the appellant relies upon is that at no stage was it suggested to her in cross-examination that in attending the TAFE for over a year or more and subsequently undertaking paid employment with various childcare centres, she was motivated by the fact of the litigation. Indeed, in their final submissions to the primary judge, the respondents did not dispute that the appellant was, on the evidence of Mr Cazzy, intending to go back into the workforce.

46 The appellant's conduct before November 2005, having much earlier obtained the tertiary preparation certificate, in undertaking voluntary work with the Benevolent Society and seeking to enrol at TAFE is consistent with an intention to resume employment. The existence of such an intention was also corroborated by the evidence of Mr Cazzy. The fact that the appellant had not been in paid employment for about 17 years was not inconsistent with her intending to seek such employment after 2006. After all, the appellant had three children, at least one of whom was under school age during 14 of those 17 years. Little reliance could be placed on the fact that she did not undertake full-time work in the two years between 1998 and 2000 in circumstances where the cross-examination did not explore whether there were any good reasons why she may not have done so. The appellant's conduct in undertaking voluntary work for the Benevolent Society, rather than paid work elsewhere, was consistent with her stated intention to pursue paid employment in childcare because of her exposure to children as part of that voluntary work. Finally, the fact that after the dog attack the appellant had attended TAFE and engaged in paid employment could not be ignored as an indicator of what was possible. On the appellant's evidence and that of Mr Cazzy, she did not intend to study or return to employment before 2006. Therefore, she had no opportunity to go back to work, as she asserted she proposed to do, other than in the context of the litigation. Her having done so was consistent with that stated intention. When considering what may have happened on the hypothesis that she was not injured, there was no logical reason for disregarding that she had gone back to work on a part-time basis, particularly when it was not suggested by way of cross-examination that she had only done so because of her damages claim.

47 For these reasons the primary judge's conclusion (at [133]) that the appellant would not have sought or obtained permanent full or part-time employment after November 2005 was not justified on the evidence. There was a possibility that the appellant would have sought permanent rather than merely casual employment. There remained on the evidence significant uncertainty as to whether she was likely to have sought and obtained permanent full-time as distinct from part-time employment and, if so, for what periods of time.

48 These errors of the primary judge make it necessary to reconsider his Honour's assessment of the appellant's economic loss. That assessment is to be approached on the basis that her earning capacity was adversely affected by the fact that she was and may in the future be prone to behaviour, such as occurred whilst she was employed at Mini Graduates. It also has to be approached on the basis that there was a possibility that the appellant would have sought permanent work, more likely on a part-time rather than a full-time basis.

49 The appellant claimed past economic loss for the period from 1 July 2006 to 1 July 2008 and from 17 March 2010 to the date of the hearing, a period of 104 weeks. That claim was made on the basis that she would have worked during the whole of each of those periods for three days a week. There are a number of matters which produce uncertainty as to what might have happened in that period if the appellant had not been tortiously injured. It is also unclear whether the fact that the appellant was unemployed after 17 March 2010 was due to those injuries.

50 The claim assumes that the appellant would have commenced her TAFE course in early 2006 and completed it within six months, whereas the evidence indicates that she commenced the course in early to mid-2007 and did not complete it until mid-2008. The evidence showed that the appellant failed some subjects but did not provide a sound basis for assessing the likelihood of those failures occurring in the absence of the injury. The appellant's evidence was that in the period before August 2009 she had applied unsuccessfully for jobs and that she did not think that her injury had prevented her from obtaining work. In early September 2009 she obtained part-time work in a childcare centre and at the end of September commenced work at Mini Graduates for a period of six months. When the appellant concluded her employment there in March 2010, she said that she decided not to look for further work until the proceedings were resolved.

51 Although Ms Kirkpatrick said that the appellant's behaviour at Mini Graduates raised serious questions as to her ability to work three days a week, the primary judge correctly observed (at [135]) that neither the appellant nor any other witness gave evidence as to whether her ceasing to work at the end of March 2010 was due to her perceived unfitness to do so. In medical reports prepared after that date, Drs Robertson and Samuell recorded being told by the appellant that she had been "retrenched" (Dr Robertson) or that she was "no longer required" because they could not afford her (Dr Samuell). In the absence of any direct evidence as to why this employment ceased in March 2010, I am not satisfied that the primary judge erred in assessing past economic loss on the basis that it did not come to an end because of the consequences of the dog attack.

52 The primary judge's award of $10,000 inclusive of superannuation is equal to about six months employment at the net amount per week claimed for the period to July 2008. That amount was $350 net per week. Taking account particularly of the fact that for the first of these periods the appellant was re-entering the workforce after a number of years and that for the second it was not shown that her employment at Mini Graduates had come to an early end because of the attack, I am not satisfied that any different allowance should be made for past economic loss than was made by the primary judge.

53 The claim for future economic loss was made for a period of 27 years on the basis that but for the impairments suffered as a result of the dog attack the appellant would have worked in childcare on a full-time basis. The primary judge rejected that hypothesis as to the appellant's most likely future circumstances. His Honour proceeded on the basis that those circumstances were that she would have sought and obtained work of a casual, part-time nature intermittently during that period: [138]. His Honour also proceeded on the basis that the possibility of future adverse behaviour of the kind described by Ms Kirkpatrick was not to be taken into account when assessing future economic loss: [137].

54 Making allowance for the errors of the primary judge to which I have referred, the appellant's most likely future circumstances, absent the injury, were that she would have sought employment on a part-time basis during the remaining period and that she would not always have obtained that employment. It is likely that because of the dog attack there will be occasions during that remaining period when she is unable to obtain or maintain the employment she would otherwise have had. There remains much uncertainty as to the frequency and duration of those occasions and I agree that it is appropriate to award the appellant a lump sum to take account of those uncertainties.

55 The primary judge's lump sum award of $25,000 inclusive of superannuation is roughly equivalent to 10 months part-time employment at the rate claimed for the period immediately before the hearing. That amount was $550 net per week. I consider that lump sum to be inadequate. The primary judge's finding was that although the appellant's post traumatic stress disorder was in partial remission, it was likely to continue indefinitely at a relatively mild level. That disorder carried with it the continued possibility of behaviour such as that which occurred at Mini Graduates, which would adversely affect her capacity to obtain and maintain employment in childcare centres and more generally. That was so in relation to part-time work, whether casual or permanent and significantly reduced the possibility that the appellant could maintain full-time employment. The award of damages should take account of that continuing possibility coming to pass over the remaining period of the appellant's working life. Allowing for these matters, I consider that the lump sum should be increased to $125,000.

Conclusion

56 The appellant has succeeded in her challenge to the award of future economic loss and failed on the other grounds of appeal. The revised assessment of damages is $176,459.50, being:

Non-economic loss	$32,532.50
Past out-of-pocket expenses	$3,927.00
Future out-of-pocket expenses	$5,000.00
Past economic loss	$10,000.00
Future economic loss	$125,000.00
	$176,459.50

57 The appellant has been substantially successful on the appeal although her challenges to the awards for non-economic loss and future out-of-pocket expenses have failed. In these circumstances, she should recover her costs of the appeal.

58 Accordingly, the orders I propose are:

(1) Appeal allowed.

(2) Judgment of the District Court of 24 March 2011 set aside.

(3) Judgment for the appellant in the sum of $176,459.50.

(4) Judgment to take effect as at 24 March 2011.

(5) Respondents to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951, if qualified.

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Decision last updated: 18 July 2012