From morning run to mauling: $638,479.28 in damages for dog attack

Background

The Plaintiff, a 56-year-old education support worker, sustained serious injuries while running near her Winchelsea home, following a ‘horrific and terrifying mauling’ by two unrestrained dogs owned by the Defendants.

The Plaintiff was treated for multiple injuries, including to her ear, left and right upper arms, right buttock, left thigh, and right lower leg, along with psychiatric injury. She spent six weeks in hospital throughout her treatment.

Decision

The Court was to determine the Plaintiff’s claim for future medical and related expenses, future loss of earning capacity and general damages.

With regard to future medical and related expenses, the Court considered a claim for ketamine and lidocaine infusion therapies which totalled $95,284.93. The Court found that these treatments were only a mere possibility in the future and had not been recommended by a practitioner. The Court was not satisfied, on the balance of probabilities, that the treatment will proceed, and did not make allowances for it.

Similarly, the Court did not allow future pain psychologist fees given that there was no medical recommendation for such treatment. Additionally, the Plaintiff had not previously sought or received pain psychology, which contributed to the Court’s rejection of the claim.

The Court rejected the Plaintiff’s claim for future loss of earning capacity given that she had returned to her pre-injury employment, and no medical evidence had been provided to support the Plaintiff’s genuine concern that she would be unable to remain employed until retirement.

Damages were awarded for pain and suffering, past medical and related expenses, past loss of earnings, past and future gratuitous care, and limited future medical expenses, which were supported by medical evidence. In particular, the Court accepted that the Plaintiff had suffered catastrophic physical injuries, permanent disfigurement, chronic pain, ongoing functional limitations, and significant psychiatric consequences arising from the dog attack, warranting an award of $575,000 in general damages.

The Court also allowed future expenses for medications, general practitioner attendances, and pain management treatment because there was evidence demonstrating that those costs were reasonably likely to be incurred in the future.

The Plaintiff was awarded a total sum of $638,479.28.

Key takeaways

The decision in Shaw v Shergill provides the following key takeaways:

1. Future losses must be proven, not merely possible. The Court, when considering heads of damage, will use the balance of probabilities test to determine the reasonable foreseeability future loss.  
2. Objective medical evidence is critical. The Court will distinguish between loss that is established by the evidence, and loss that remains speculative, even in cases of severe injury.