Futter v Williams [2021] VCC 1198 (25 August 2021)

IN THE COUNTY COURT OF VICTORIA
AT BALLARAT
COMMON LAW DIVISION
GENERAL LIST

Revised
Not Restricted
Suitable for Publication

ERIN FUTTER	Plaintiff

v

MARGARET WILLIAMS	Defendant

JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Ballarat
DATE OF HEARING:	19, 20, 24, 25 & 26 May 2021
DATE OF JUDGMENT:	25 August 2021
CASE MAY BE CITED AS:	Futter v Williams
MEDIUM NEUTRAL CITATION:	[2021] VCC 1198

Catchwords: General damages - pain and suffering – negligence – safe workplace – dog bite at kennel – pens in which dogs housed inadequate – one dog pulled another dog from outside a pen into its pen – fight ensued - plaintiff outside pen and entered pen in an attempt to separate fighting dogs – knowledge of risk of injury – whether plaintiff failed to heed warnings by defendant not to enter pen where dogs were fighting – defendant’s credit – defendant’s account not accepted - contributory negligence

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison QC with Mr A Dimsey	Fortitude Legal

For the Defendant	Mr P Scanlon QC with Mr S Martin	IDP Lawyers

1. This was a Ballarat Circuit proceeding. It was heard as a Cause via Zoom with the consent of the parties.

2. The plaintiff was represented by Mr C Harrison QC together with Mr A Dimsey of counsel. The defendant was represented by Mr P A Scanlon QC together with Mr S Martin of counsel.

3. The plaintiff claims pain and suffering damages for negligence of the defendant that resulted in her being severely injured by a dog bite wound while working for the defendant who is a breeder of rottweilers. The dogs were ordinarily housed in separate pens. The plaintiff said that as part of her duties she would take a dog from its pen into an emptying yard while she returned to clean the pen and then return the dog to its pen and repeat the procedure for each dog. On
10 October 2015, when undertaking this process, a dog outside its pen gained access into the pen of another dog. A fight ensued between the two dogs. The plaintiff entered the pen in which the two dogs were fighting. She tried to separate them. She handled one dog. It bit her. She was badly wounded.
I received photographs of the wound and scarring.

4. At the trial of the action the defendant contested liability. However, Mr Scanlon recognised, sensibly, if I might say so, that it may prove futile to argue that the two dogs did not come together in the pen, and that being so, it might be a relatively straightforward exercise to conclude that a dog having gained access from the emptying yard into the pen of another dog, the defendant had failed to provide a safe working environment for the plaintiff and, therefore, was negligent. I agree with Mr Scanlon.

5. However, Mr Scanlon argued that if I found that the defendant breached her obligation to the plaintiff, it would still fall to her to prove that the cause of her loss and damage was the defendant’s negligence. It was largely on this question that the battle between the parties was joined.

6. Mr Scanlon contended that there was a break in the causal chain between liability and damage because the plaintiff decided to enter the pen in an effort to separate fighting dogs in circumstances where she was not required to do so and, moreover, when she knew that it was dangerous to do so.

7. Assuming I am satisfied of a breach of the defendant’s duty of care owed to the plaintiff, that is that the defendant employer failed to use reasonable care and exposed the plaintiff to unnecessary risks, Mr Scanlon contended that the plaintiff contributed to her injuries because she should reasonably have foreseen that if she did not act as a reasonable and prudent person would in the circumstances, she would expose herself to risk of injury. As
Mr Scanlon put it, the question is whether in the circumstances and under the conditions in which the plaintiff was required to work for the defendant, her conduct amounted to mere inadvertence, inattention or misjudgement or to negligence rendering her responsible in part for the damage.

8. By contrast, Mr Harrison argued that the plaintiff should not be found to have contributed to her injuries.

c. Failing to ensure that dogs were not permitted to gain access to areas where

d. Failing to provide the plaintiff with any or any adequate training in handling

11. By its Notice of Defence the defendant admitted the obligation to provide a safe workplace. It denied it failed to do so. Furthermore, it pleaded contributory negligence by the defendant. It relied on the following particulars of the plaintiff’s negligence in failing to have regard for her own safety:

(c) If the system of work was unsafe (which allegation is specifically denied), then

(d) Failing to follow specific instruction to never attempt to manually separate dogs

(e) Placing herself in a position of danger by entering the pen whilst there were two

(f) Failing to follow direct verbal instructions to remove herself from the pen.

12. Despite the plaintiff pleading a breach of the Domestic Animals Act, no argument was advanced about it. In opening the case for the plaintiff,
Mr Harrison referred to Henwood v Municipal Tramways Trust (SA)^[1] for the proposition that a breach of a legislative requirement establishing the requirement for the taking of specific precautions and an accompanying failure to do so can amount to evidence of a lack of reasonable care. In the circumstances it has not proved necessary for me to determine this part of the pleading. I add that neither the plaintiff nor the defendant addressed the operation of the Act.

16. I have considered all of the oral and documentary evidence upon which I was addressed by the parties. There was little dispute regarding the medicine and I have addressed the most pertinent of it.

17. A view was conducted with the parties at the defendant’s property at
626 Linton-Carngham Rd, Snake Valley, Victoria. The agreed observations made at the view and read into transcript upon resumption of the trial were:

A view was conducted on 19 May 2021 at the premises at which the plaintiff's injury occurred, being 626 Carngham-Linton Road, Snake Valley. The view was convened at the request of the court. The view was attended by the plaintiff and the defendant, together with senior and junior counsel for each party and instructing solicitors.

The view included the entrance from the entrance gate to the enclosure. The entrance gate at the time of the incident was made of wood. However at the view the wooden gate had been replaced by a metal gate. The remains of the wooden gate were placed up against another fence. It is approximately a 30 second walk from the entrance gate to the enclosure. The enclosure is also behind a fence which is entered through a fence door.

The court observed seven individual enclosures, including an emptying yard. It was agreed the enclosures would be called, "pens." The first pen without a hut' - sorry, I think I - now I've fallen into the very trap that I've been asked to rectify. 'The court observed seven individual enclosures.

There was adjacent to the seven enclosures an emptying yard. The seven enclosures, it was agreed, would be designated from left to right as P1 to P7.

Since the pictures were taken in 2016, the side of each pen and approximately at waist level appears to have been reinforced by a centre wooden railing, to which the steel-hatched enclosed fencing is attached.^[23]

18. The plaintiff completed her schooling at Loreto Ladies’ College, Ballarat in 2014. She commenced studying for a 3 year Bachelors’ Degree in Agriculture at the University of Melbourne in 2015. She hoped that once having completed it she would commence a 4 year veterinarian course in Werribee and qualify as a veterinarian.

19. The plaintiff was still a teenager and just shy of turning 19 when she commenced work with the defendant.

21. The defendant was a friend of Jordan’s family. The Bull and Williams’ properties are about 5 kilometres apart. The plaintiff said that it was through Jordan’s family connection with the defendant that she came to work with Ms Williams on her property.

22. The plaintiff said that it was not long before commencing work with the defendant that she and Jordan began stepping out together. Their relationship developed. They are parents to a baby boy named Thomas who was born in October 2020.

23. Ms Futter said she commenced employment with Ms Williams in September 2015. She said she was aware before commencing work that the defendant also ran some cattle on her property. The plaintiff said she knew that
Ms Williams had been injured by a bull and that it was because of her injury that she required assistance on her property in tending to her dogs.

24. Ms Futter said that the defendant bred rottweilers to be guard dogs. There is no corroborative evidence to support this assertion. It was denied by Ms Williams. I am not satisfied the plaintiff proved the defendant bred guard dogs. Whilst a purchaser of one or other of her dogs might have intended them for that purpose and subsequently tried to achieve that end, I accept Ms Williams evidence that she did not breed or train her dogs with that in mind. Consistent with intention, as opposed to purpose, Ms Futter testified that Jordan had bought a rottweiler from Ms Williams before she commenced working with her. The dog is named “Diesel”. The plaintiff said Diesel was purchased for use as a guard dog for the Bull family but in this guise Diesel was not a success and instead became a family pet. She described Diesel’s temperament as “friendly and
non-aggressive”.^[24]

25. Ms Futter said that the defendant’s rottweilers were “lovely one on one very friendly one on one”.^[25]

26. The plaintiff described the nature and frequency of her work with the defendant. She said she fed the dogs, cleaned their pens, and exercised them. She said she was engaged to work at the defendant’s property between 2 and 4 times a week with each shift lasting about 5 hours. It was not suggested that Ms Futter’s employment was regulated by a written agreement.

27. Ms Futter denied being instructed by Ms Williams what to do in the event of a dog fight.

28. The Bull family breeds and trains greyhounds. Ms Futter said she was familiar with the breed and had exercised, fed, and cleaned their pens. She said the greyhounds she had been exposed to, were friendly dogs and very excitable and wanted to play.

29. Ms Futter has undergone three procedures. She came under the care of
Mr Michael Bassett, Pain Specialist in 2017 on referral. She remains under his care. At the time of referral the plaintiff’s general practitioner was Dr Matthew Gibney. She said she found him somewhat unsympathetic and unhelpful and ultimately she came to be treated by Dr Al Abdali. She had a Ketamine infusion in late 2017. She found it of little assistance. She had a nerve block in March 2018 and again in October 2020. Neither had any long term benefit. There has been some discussion concerning a spinal implant but it is not something
Ms Futter wants.

30. Ms Futter endeavoured to return to various forms of employment after the attack including, working at a fish and chip shop through December 2015 and January 2016 but she found it very difficult work. She returned very briefly to the defendant’s kennel doing one day of work tending to some puppies in early 2016. She commenced part-time work with Kmart in August 2016. She last worked with Kmart in September 2020. She remains employed by Kmart but on maternity leave.

31. In 2019 the plaintiff undertook some disability support work for approximately eight months with an organisation called Melba.

32. In 2019 Ms Futter also commenced work with Ambulance Victoria as an community officer. Each shift requires her to travel one hour from her home to Lismore to act as a first responder when a callout occurs. She enjoys the work. It too was put on hold after the commencement of maternity leave.

33. When the accident occurred Ms Futter was undertaking a Bachelor of Agriculture. She was unable to persevere with it because of the need for hospital care and her use of crutches made navigation difficult and so she discontinued the course.

34. She subsequently enrolled in a double degree at the Australian Catholic University undertaking Nursing and Paramedicine and studying from the ACU campus in Ballarat. She had hoped to complete the four year course by 2020 but was unable to find a final placement. This was not due to any impediment caused by the bite injury but because of a combination of her pregnancy and Covid-19 that resulted in a reduction of available placements.

35. Prior to her pregnancy the plaintiff had been prescribed Seroquel and Palexia. She is taking the antidepressant Sertraline and Panadol. At the hearing
Ms Futter explained that she was still breastfeeding and restricted herself to Panadeine, heat packs and rest by way of pain management, as she had done throughout her pregnancy. She described the position in these terms:

“Some days are better than others, some days are really hard, and I can’t really leave the house, um, but I just need to push through it for my son.”^[26]

36. In about the middle of 2017 Ms Futter was referred to a psychologist Ms Julie Janet with whom she had 12 consultations. Ms Janet ceased practising and in about May 2018 the plaintiff commenced as a patient with Ms Virginia O’Loughlan on whom she continues to attend approximately every three weeks. She said she finds her sessions with Ms O’Loughlan helpful.

37. Ms Futter described her mood prior to the accident as “Happy, carefree, always willing to do and try anything.”^[27] She described her mood since the incident as one of “Depressive episodes, crying all the time, everything was just too hard. It was difficult just to do the most menial tasks.”^[28] With this latter description as a reference point, and asked how in comparison to it she would describe herself today she said, “Better. I am better now.”^[29] However, she added, that she didn’t think she was quite “there yet”^[30] by which I understood her to mean that she has not recovered her mood to the level it had been before the dog bite.

38. When asked about the extent that she socialised prior to the accident she said that she “recreationally played sport, so I’d socialise with that three or four times a week”.^[31] Her sport of choice was netball. She played for a team twice a week together with a training session. It was something she “really enjoyed”^[32]. She said she is no longer able to play netball because, “It hurts too much. Um, the stopping and starting on the change of direction, um, puts a lot of strain on my leg and I-it hurts too much.”^[33]

39. Ms Futter said she took up pole dancing for both self-confidence and exercise prior to the dog bite but she has been unable to continue with it.^[34]

40. She said she has put on a good deal of weight since the dog bite, perhaps an additional 15 kg. She attributes her weight gain to a lack of mobility and “comfort eating due to low mood as well”.^[35] She said the weight gain has had an adverse effect on her self-confidence. She described poor sleep whereas prior to the accident her sleep was good and she could remain asleep but this is not the case any longer. She describes being “woken up due to pain” and struggling “to fall asleep due to anxiety and my mind just racing”.^[36] She describes nightmares perhaps three or four times a week, half of them involving the dog bite.^[37]

41. She said that she used to socialise with friends, but since the incident she is not “overly social.”^[38] She said she tries to socialise with other mothers as part of the mothers’ group which she enjoys.

42. She can still manage domestic tasks although their performance “takes a long time and a lot out of me, especially with the mopping or the vacuuming... I still manage to do all my domestic tasks.”^[39] She says that she has difficulties with personal grooming and that shaving her legs is extremely painful, “especially in the inner side of my leg, it’s extremely painful so I rarely-rarely shave my legs.”^[40] She described how if someone touches the area of the scar she feels as if she wants to “throw up. It’s uncomfortable and painful and makes me feel physically sick.”^[41] She said the effects of the incident have had an adverse effect on her relationship with Jordan. She is self-conscious of her scar and indeed has been “stopped on the street... By complete strangers, so now I mostly wear clothes that cover my leg.”^[42] She largely wears pants although on the rare occasion she will wear shorts or a dress “but that’s very, very rare.”^[43] She said wearing tights or tight jeans and the compression effect provides her with some benefit.

43. Ms Futter said that her shifts at Kmart prior to maternity leave varied between 13 hours and full-time hours. She managed her work tasks. She is coping well with her work with Ambulance Victoria as she is with her nursing and paramedical degree that she hopes to complete successfully.^[44]

44. Ms Futter described increases in activity as commensurate with pain or the intensity of her symptoms.^[45] She said her comfortable walking tolerance is in the order of a kilometre and a half to two kilometres but after that “it becomes difficult and I am really sore for the rest of the day and the night.”^[46]

45. She described instances when Thomas accidentally hits her leg or kicks her and the pain is “excruciating” and that she can also experience difficulty getting up off the floor with Thomas.^[47]

46. She said that prior to the dog bite she used to run for exercise and she did this “a couple of times a week” but she is no longer able to do so.^[48]

47. Ms Futter said she could “not recall” which dog was in which pen on the day of the incident.^[49]

48. She did not agree that her weight gain occurred during her pregnancy and she had been unable to shed it.^[50]

49. She was directed to the content of her Serious Injury Affidavit and paragraph 8 where she deposed:

“I went to intervene as I was concerned that they would injure or even kill each other. I grabbed hold of one of the dogs by the collar and it suddenly turned on me and bit me on the middle of the shin of my left leg”.^[51]

50. Ms Futter was asked whether she still maintained that she grabbed a dog by the collar and said, “I believe I grabbed a dog by the hindquarters”.^[52]

51. The plaintiff was taken to an account in a report prepared by Mr Blomberry^[53] that she was working at dog kennels having commenced in September 2015 and that the defendant “bred Rottweilers to be used as guard dogs”. Ms Futter said she could not recall if she gave such an account to Mr Blomberry.^[54] She said that Ms Williams told her the dogs were bred to be guard dogs.^[55]

52. Ms Futter said that she was aware that the defendant’s dogs needed to be kept separate because “they didn’t play nice with each other, some of the dogs.”^[56] She said she understood that it was important for the defendant’s dogs to be kept apart because in part, two males or two bitches, could be aggressive and dangerous.^[57] Ms Futter agreed, “They had the potential to be dangerous yes.”^[58] She said she knew this from both her experience and from talking to
Ms Williams.^[59] She agreed Ms Williams was at pains to tell her, for example, that two males must be kept apart.^[60] When it was suggested to Ms Futter by
Mr Scanlon that she knew it was dangerous and likely to cause injury if she was to separate two fighting male dogs, she said, “I knew there was a potential, yes.”^[61]

53. Ms Futter said she kept the dogs separate and in the emptying yard on their own and one at a time. This was the practice that she had followed over the period of each day of the approximately three or four weeks that she worked with the defendant before the incident.^[62]

54. Ms Futter agreed that preceding the bite she had taken the first dog from the first pen to the adjacent emptying yard and had left that dog there when she returned to clean the first pen. Having completed that exercise she retrieved the first dog and returned him into the first pen. She then took the second dog from the second pen into the emptying yard. She said that before she had made her way to the second pen to clean it the second dog had forced its way under the wire fence and gained access into the first pen and that the first dog in the first pen dragged the second dog into the first pen. She said that the gate to gain access into the first pen was still closed when this occurred.^[63] This all happened while Ms Futter was at the gate at the emptying yard and heading back towards the second pen.^[64] She said she was “still at the top of the emptying yard when the fight broke out, but they were in pen 1 with the closed gate, yes.”^[65]

55. Ms Futter agreed that in the afternoon of the day of the incident she and
Ms Williams took lunch together in the homestead following which the plaintiff went to the pens to commence cleaning the enclosures.^[66]

56. Ms Futter disagreed that shortly before 2.00pm Ms Williams came over to see how she was progressing with her duties or that Ms Williams asked her whether or not there was anything she required.^[67]

57. Ms Futter said she had no idea where Ms Williams was when the dogs commenced fighting.^[68] Specifically she denied that upon hearing the commotion Ms Williams told her to “get out”.^[69] She denied when it was suggested to her that on being told to “get out” by Ms Williams she responded, “No, I want to help”.^[70] She agreed nonetheless that she did want to help. She denied that
Ms Williams on “numerous occasions, repeated to you that she wanted you to get out.”^[71]

58. Ms Futter was questioned about her approximate position within the length or run of the pen relative to the position at which the dogs were entangled and the distance she was required to walk to reach the dogs once she entered the pen from the entry gate. She estimated that she was required to walk some 4, 5 or 6 paces to reach the spot where she leaned forward and grabbed the dog by its hindquarters.^[72] She thought that distance was covered in “no more than 10 seconds possibly less”.^[73]

59. Ms Futter denied that Ms Williams was immediately by her side following the bite. Ms Futter said she was screaming for help. She said she is “fairly certain she screamed Margaret’s name”^[74]. She said, “Once I had been bitten she arrived at the pen.”^[75] In response to a question from me, the plaintiff thought that the amount of time that passed from her calling out for help and becoming aware that Ms Williams had come to her aid was “about 30 seconds”^[76]. She said Ms Williams “came into the pens and she grabbed hold of the metal pooper scooper and was hitting the dog that had me to let go”^[77]. She thought
Ms Williams hit the dog about three or four times before it let go of her.^[78]

60. Ms Futter denied that when Ms Williams got to her she called to one of the two dogs, named Bandit, to come away from the fight and to come to her and that is when the other dog, Jarra went for Bandit again and it was at that point when Ms Futter was bitten.

61. Ms Futter said she ran out of the pen ahead of Ms Williams who came after her and when they got to a seat she hosed Ms Futters’ injury and wrapped it with a tea towel as best she could.

62. Ms Futter could not remember if she told Ms Williams that she was sorry about the incident.^[79].

63. There was some cross-examination relating to an alleged offer of financial assistance of $500 from the defendant to the plaintiff for medical expenses.
Ms Futter disputed having initially refused the defendant’s offer of financial assistance or said to Ms Williams that her injury had been caused through her own fault.^[80] She said a subsequent offer from the defendant of $500 was made when she was back home from hospital.^[81] Ms Futter agreed that Ms Williams visited her in hospital on more than one occasion and also that ultimately she accepted the offer of money. The transaction and its varied account has not assisted me in reaching my findings on either the question of liability or of contributory negligence.

64. In re-examination, Ms Futter explained that she was moving with a “high sense of urgency” after hearing the dogs and going into the pen.^[82]

65. Mr Bull said that on the date of the incident he was working at his father’s property. He received a telephone call from the defendant. She told him that the plaintiff had been bitten by a dog. He went straight to the defendant’s property. When he arrived he saw Ms Williams. The plaintiff was on the ground with a towel wrapped around her leg. Ms Williams told him that “she was inside and she heard her name getting yelled out. So she said she went out there, yelled out the dog’s name, the dog let go and it continued to fight the other dog, and then she dragged Erin out, got her to the ground, tea towel around her leg then she rang me.”^[83]

66. Mr Bull took the plaintiff to hospital. The defendant arrived at the hospital later that evening. She stayed for some time. She then drove him home.^[84]

67. Mr Bull owns Diesel. He was purchased from the defendant about 10 months before the incident. He said his father needed a guard dog but Diesel proved himself not up to that task and so he became a pet.^[85]

68. Mr Bull described Ms Futter prior to the incident as “happy, wanted to do anything, go anywhere, she was playing full-time netball, enjoying life as an 18 year old was back then. Always out for adventure, didn’t matter what it was, could be walking, hiking, could be playing sport, could be swimming, could be doing any of those items.”^[86] Asked to describe her two years after the dog bite, he said, “Terrible, she was depressed, she didn’t want to be here anymore, she wanted to be gone. She couldn’t handle how she become after the dog bite. She was very aggressive towards me, very emotional. There was-just a completely different person, the person that didn’t really want to be around.”^[87]

69. Of his observations of Ms Futter’s current state he said, “She is getting better but she’s still very depressed. She has realised that nothing’s going to change, she can’t change it, she can’t fix it so she is trying to get on with her life as it is now. But yes, she still has her up and down days, she still sometimes can be very violent, you just sort of know when she’s upset is, you know what you’ve gotta do to care for her.”^[88]

70. Mr Bull said that Ms Futter’s nursing and paramedic course has been a boon. He said it has “completely changed her, it gave her a reason she had to get up, go to uni, try to be a better person and enjoy life knowing that one day she is going to be able to help people.”^[89]

72. Mr Bull estimated the plaintiff’s walking capacity to be about half-an-hour over which she covers a distance of perhaps a kilometre to a kilometre and a half after which her leg starts “really hurting” and she starts limping and it’s necessary for them to return home.^[90]

73. He said he cannot touch the area of the scar because of her adverse reaction to the sensation of touch.^[91]

75. Mr Bull said that to the best of his knowledge the plaintiff’s health was perfectly good in the year prior to the incident. He said that she suffered endometriosis and also that in earlier times they had shared some concern about conceiving.^[93]

76. He was asked about the plaintiff’s pre-injury fitness other that her involvement with netball. He said she used to jog for perhaps between 30 to 45 minutes. He said they take their dogs for a walk to the dog park located about 800 metres from their home, a journey of about 15 minutes. They do this most weekends.^[94]

77. He said the plaintiff gained weight prior to the pregnancy with Thomas and more weight after his birth.^[95]

79. Ms Shears is the plaintiff’s mother. She is a nurse. She was on duty as part of an operating team at the Ballarat Hospital when she received a phone call from Jordan that he was bringing her daughter into the hospital because she had been bitten by a dog.^[96] Ms Shears had been working in the operating suite with Mr John Dillon orthopaedic surgeon. She asked Mr Dillon to come down and have a look at her daughter and the x-rays that had been taken. Mr Dillon attended with an orthopaedic registrar. It was decided to take the plaintiff into surgery.^[97] The plaintiff told Ms Shears that she had been bitten by one of the defendant’s rottweilers and that one had gotten under the fence and attacked the other “and she gotten in the middle of it.”^[98]

80. Ms Shears recalled Ms Williams attended the hospital at some point and handed $100 to her daughter.^[99]

81. Ms Shears described her daughter prior to the incident as “a very happy-go-lucky child, she had lots and lots of friends, was always out going to the movies, going out-games, and all out all the time with all her friends.”^[100] She said she loved netball and the team in which she played.

82. Ms Shears did not think that in the first couple of years following the accident her daughter coped very well. She became withdrawn. She lost what had been a big circle of friends. She became “very much a homebody, just stay at home or come to family. She was very quiet, very depressed, anxious if she had to go out and do something if she didn’t have a family member with her.” ^[101]

83. Since recommencing study Ms Shears has seen a positive improvement in her daughter. She has made a few more friends and she is “getting out there, she is trying to improve her life again and get a good job. So she’s really trying hard but some days she really struggles.”^[102]

84. She said her daughter’s efforts to resume netball proved fruitless. She had been unable to keep up with the game. This left her daughter, “Very sad, very angry, frustrated.”^[103]

85. Ms Shears said that she has been on the receiving end of her daughter’s reaction of pain when she has inadvertently touched the area of the scarring.^[104]

86. Ms Shears said that for a considerable period of time following the incident her daughter no longer wanted to wear dresses or shorts because she was conscious of the scar but she is more willing to dress in shorts or skirts in summertime.^[105]

87. Ms Shears said that she sees her daughter about three days per week when she is not working at the hospital and helps with Thomas and with chores around the house as well as some baking.^[106]

88. Ms Shears doesn’t think her daughter’s scar is as red as previously.^[107]

89. She could not remember if Ms Williams had offered $500 to her daughter as opposed to $100.

90. Her daughter and she go for walks with Thomas to the park located a few blocks away.^[108]

91. Ms Shears said that her daughters principal outlets and pursuits before the incident as walking and netball.^[109]

92. Overall, I am satisfied that Ms Shears gave frank evidence. She was perhaps a little reluctant to acknowledge substantial improvement in her daughter in certain respects. For example, she said that her daughter’s withdrawal from social activity and connection with others had improved, but only “Very slowly”.^[110] Whilst she accepted that her daughter’s psychological state has improved she qualified the extent of improvement by adding that she had only been able to move on from the incident to a “small extent”.^[111]

93. Ms Williams said she had been involved in the ownership and breeding of rottweilers since 1980 and a registered breeder and seller of rottweilers since 1983.^[112]

96. She thought it was likely that in October 2015, there were in that “general block” about “three males and four females”.^[115]

97. Ms Williams identified the two dogs involved in the fight as “Bandit” and “Jarra”.

98. The area in which the plaintiff was working on the afternoon of the incident had 7 pens. Each pen housed a single dog. At the back of each pen was a hutch or enclosure in which the dog could sleep and shelter. Forward of each hut was a concrete run, fenced on each side, and with a gate providing entry into each pen.

99. Ms Williams said she had discussions with the plaintiff about working with dogs.^[116] Her evidence suggested that the conversations occurred after the plaintiff had commenced working with her. But that seems unlikely.

100. Ms Williams said that she had employed the plaintiff on many occasions before the work engagement in which the incident occurred in October 2015. She said, “Yes, she had been coming in on a Saturday because she wanted the experience with different breeds of dogs”.^[117] She thought that the plaintiff commenced working with her “about 15, 16 months before the accident, I think.”^[118]

101. Ms Williams was asked if she provided any instructions or advice to the plaintiff about appropriate dress. By way of example, Ms Williams said that on one occasion she saw the plaintiff wearing shorts at the Bull property where there were greyhounds and that perhaps “on one occasion I did say to her that, you know, she should be wearing long pants but I can’t recall whether that was when I first met her or whether it was a little bit further down the track”.^[119]

102. Ms Williams then proceeded to give evidence on a number of other matters that included, “Yes, she was asked to wear long pants, shorts are not appropriate to be working around animals, and also I went through and showed her how I did it in the way that I cleaned and how she could adjust it to her way but she must do it similar, and she was also told never to go into dogs that are aggressive or that are fighting. That is a standard thing that you are told it all can also before you’re employed.”^[120] Ms Williams said that on several occasions she told the plaintiff, “Please wear long pants”, only for the plaintiff to respond, “No, I’m alright.”^[121]

103. Ms Williams also said that she instructed the plaintiff about the method of going about her work duties. She said that she showed the plaintiff that she wanted her “to take all the dogs out and put them into the exercise-all the exercise yards so that she could just go through and clean. It is much quicker to do it that way than putting one dog in and out.”^[122]

104. Ms Williams recounted the events on the day of the incident. She said in the afternoon she went out to see how the plaintiff was going with her work. She said that the plaintiff had completed pen 1 and “she said to me that she was going to start pen 2, and I finished talking to her and I turned and walked out the little gate heading towards the main gate.”^[123] It is uncontroversial that the “main gate” refers to a timber gate that has since been altered and is now constructed of metal.

105. Ms Williams said that because of her injury from the bull, she could “hardly walk.”^[124]

106. She said that when she had finished talking to the plaintiff and was returning towards the house and had “just got through the wooden gate... I had actually opened the gate and was about to go through the gate when I heard the noise”.^[125] The noise she described was barking and growling of dogs and “carrying on which wasn’t normal”.^[126] She said she turned around and went back through the gate and yelled out “No.”^[127] She said she saw the plaintiff “heading into the first pen and I saw two dogs fighting, or carrying on outside the sleeping quarters” but they were inside the pen and that the plaintiff was “about to go in” the gate into the pen. Ms Williams said the plaintiff had “opened the gate and she was continuing to go in. So by the time I got to her she was actually in the gate, walking down towards the-half-way into the pen.”^[128] She said she went into the pen because she had been unsuccessful in having the plaintiff come out. She said she was standing in front of the plaintiff and told her to come out perhaps six times saying, “Erin, please get out.” She said she was “polite” for the first five requests but then just said, “Look, get out, please” but she wouldn’t and kept repeating, “No, I want to help, I want to help.” Ms Williams then said that she swore at the plaintiff and told her to “get the eff out, and she got such a shock she turned into the dog.”^[129] Ms Williams said they were “fighting in front of the pen and then they went into the room and continued to argue.”^[130] She explained that she had fed the dogs bones the night before and they were fighting over a bone.^[131] She said the dogs then had a break from carrying on and one of them (Bandit) came and sat beside her and “I was patting him and telling him to stay, and then Jarra, decided he would come back out and he went to have another go at Bandit, and with that, because I had yelled at Erin while Bandit was sitting beside me, as Jarra came out and grabbed Bandit, he went to turn his head and Erin had actually stepped into Bandit. Rather than walking out back along the pen, she actually turned into the dogs, and he got her”.^[132] Ms Williams said she yelled at Bandit and he let go of the plaintiff straightaway. She denied striking the dog with any object. She said after she yelled at Bandit, both dogs took off, Jarra went back into the room with Bandit going and sitting in the corner of the pen down near the hutch and she helped the plaintiff to get out.^[133]

107. Ms Williams said she went to the hospital and had a conversation with the plaintiff’s mother regarding medical costs. She said Ms Shears said words to the effect, “No, it’s all right, she is on my health card and it was Erin’s fault.”^[134] Ms Williams said she told the plaintiff that she would cover the costs and for them to let her know what they came to, and Erin said, “No, look, it was my fault.”^[135] Nonetheless, Ms Williams said that at some stage after the plaintiff had been discharged from hospital she gave her some money and had another conversation with the plaintiff’s mother in which money was refused.

108. Ms Williams said she was aware the plaintiff was staying at the Bull property after the incident and she often attended to see how she was faring and it was on one of her visits that she gave her $500 over the plaintiff’s protestations.^[136]

109. The defendant testified in short measure concerning alterations she made to the fencing approximately 8 months after the incident by placing some “pool fencing” material as she described it, “along the bottom of all the pens.”^[137] She added that in 2019 she pulled all the wire away from the pens and replaced it with “pool fencing” material together with some wire above that.^[138]

110. Ms Williams was questioned about her recollection of the length of time
Ms Futter had worked for her prior to the incident. In particular, Mr Harrison put to Ms Williams that Ms Futter’s unchallenged testimony was that Jordan and she had met at the end of April 2015, and that she commenced work with the defendant approximately four weeks before the incident and consequently,
Ms Futter could not have worked for Ms Williams for about 15 months prior to October 2015.

111. Ms Williams made a statement dated 26 October 2016^[139] to investigators that included, “I can’t estimate how many times Erin worked for me in the six month period I used her services.^[140]” Ms Williams oral evidence was at best equivocal. Her statement does not sit conformably with her oral evidence that the plaintiff had worked for her for approximately 15 months prior to the incident and I am not satisfied and do not accept her oral evidence on this point and prefer
Ms Futter’s evidence.

112. Ms Williams was questioned about postings and photographs from her Facebook account of a dog named “Trudy” depicted jumping over fencing after having escaped from her pen. Ms Williams explained that the particular dog “will jump or scale her fence to retrieve a ball from an adjacent pen and then go back into her pen to play with the ball”.^[141] Ms Williams was asked about another dog called “Ruby” although for some inexplicable reason she said “Ruby” was in fact “Trudy”. She was at a loss to explain why the name Ruby appeared as the name for Trudy on her Facebook account.^[142]

113. A matter of significance on which Ms Williams was cross-examined involved her whereabouts in the immediate period of time leading up to and when Ms Futter was bitten. Ms Williams denied that when asked by Jordan Bull what had happened, she told him that she had been inside and heard her name being yelled. She said it was a lie.^[143] She said she was not inside the house and she did not hear her name being called out. She said that her name was not called out because she was “standing with Erin when all this happened.”^[144]

114. In the course of their final addresses, Mr Scanlon and Mr Harrison took me on a “Cooks Tour” of decisions traversing the law of negligence but particularly as it pertains to a breach of duty on the part of a plaintiff for their own safety and of the circumstances in which a plaintiff’s negligence has either been found to sound in contribution or not. The authorities referred to by and large addressed established principles of law and all of them were factually very different from the circumstances of this incident.

115. Mr Scanlon referred to a discrepancy in the plaintiff’s account given in her oral evidence from the account she provided in her affidavit sworn in support of her Application for Serious Injury. In that affidavit, Ms Futter deposed how she had grabbed the dog by its collar^[145]. At trial, she said this is what she honestly and genuinely believed at the time, but she accepted it was incorrect and that she grabbed the dog by the hindquarters^[146].

116. Mr Scanlon submitted that I should not be swayed by any suggestion on the plaintiff’s part of an immaturity borne of youth. He observed that at the date of injury the plaintiff was within days of turning 19. He said that Ms Futter is a well-educated, intelligent young lady who “has seen a bit of life^[147]” as he put it, and at the time, was “old enough to drive, vote and go to war^[148]”. More pertinently, however, Mr Scanlon relied on the plaintiff being aware before the incident that “it is dangerous to enter a dog fight and that you're likely to be injured if you do enter a dog fight.”^[149]

117. Mr Scanlon relied upon the amount of time that the plaintiff had available to her leading to the attack. His account of the sequence of events is dependent to a considerable extent on me accepting the account given by Ms Williams. My findings as regards Ms Williams’ evidence follows in that part of my reasons addressing findings.

118. I note the evidence Ms Williams gave in answer to a series of questions asked of her by me and commencing at Transcript 235-236:

'Ms Williams, I have asked you this earlier, when you turned back' Answer: ‘Yes.’

Question: 'As you were at the wooden gate?' Answer: 'Yes.' Question: 'I asked you did you see Erin and did you see the dogs and I asked you where Erin was?' Answer: 'Yes.'

Question: 'As best you recall at that point, not when you have commenced to walk back, not when you have arrived back, but when you turned as a result of the noise that was being created, and when you turned back and you saw Erin, did you not?' Answer: 'Yes, I did.'

Question: 'And you saw Erin at that point you say Erin was not inside the pen, is that correct?' Answer: 'No, she was at the gate.'

Question: 'Not inside the pen?' Answer: 'No, that's right, she was at the gate.'

Question: 'And the gate, I think you said before, was slightly open, is that right?' Answer: 'Yes.'

Question: 'And she was holding the gate giving you the impression, as I would understand from your evidence, that she was intending to go into the - - -?’ 'Answer: 'Yes, which is what she did.'

Question: 'And you kept sight of her presumably, you did not lose sight of her, did you, between when you turned and saw her at that point to when you arrived yourself at the pen?' Answer: 'That's right.'

Question: 'And you had eyesight on her during the period of time from when you were at the gate and saw her at the pen to when you arrived at the pen, you never lost sight of her, did you?' Answer: 'No.'

Question: 'And so you then saw her as you were walking slowly because of your own injury, back to the pen, you observed her enter the pen, I presume?' Answer: 'Yes, I did.'

Question: 'And before she entered the pen, and you had eyes on her, did you yell at her not to go in?' Answer: 'I just yelled, "No."'

Question: 'And you saw both dogs throughout the transaction when you turned around at the wooden gate and when you maintained eyesight as you walked slowly due to your injury, back towards the pen, you never lost sight of Erin and you at all times were observant of the two dogs in the pen; is that right?' Answer: 'Yes, it is.'

119. Mr Scanlon submitted that if I accepted Ms Williams’ account of evidence then on no reasonable assessment was the plaintiff’s decision made in the agony of the moment. She was forewarned to halt her approach and entry into the pen and she made a conscious decision to act contrary to it.

120. Mr Scanlon further submitted that I should accept Ms Williams’ evidence because she had an opportunity to see all that occurred. He argued that if
Ms Williams had been in the homestead and far away at the time of the commotion and of the dog bite, then the time to get to the pen would have been inordinate. It would not be realistic to conclude, Mr Scanlon submitted, that she could have arrived at the plaintiff’s aid in the short period of time that seems to have been likely. Mr Scanlon argued that it is more probable than not that
Ms Williams cannot have been so far away given her inability to move quickly. Mr Scanlon also observed that Ms Futter said that she did not know where
Ms Williams was prior to arriving on the scene.

121. Mr Scanlon submitted that in the event I found the plaintiff was not called out to and warned by Ms Williams because Ms Williams was not where she said she was and neither did she make the observations of the plaintiff that she claimed, then the plaintiff’s contribution may well be reduced to the order of about 50 per cent. However, Mr Scanlon submitted that if I accept Ms Williams’ evidence of telling the plaintiff on one, two, three, four, five or six times to “get out”, then the plaintiff’s contribution must be significant and he suggested upwards of 80 to 90 per cent.

122. Mr Scanlon referred to the cross-examination of the plaintiff on her answers to the defendant’s interrogatories and her concession^[150] that she was aware on the day of the incident that it was dangerous to separate the dogs that were fighting. Mr Scanlon noted that the plaintiff agreed that at the date of the dog bite she knew that she risked being bitten if she tried to separate dogs whilst they were fighting^[151]. She said she entered the pen to try to separate the dogs because they were fighting.^[152] She acknowledged that it was necessary for her to open the gate in order to enter the pen in which the dog fight had commenced^[153]. She said that when she entered the pen the dogs were fighting and were positioned towards the bottom of the pen towards their hut and away from the gate she entered.^[154]

123. Mr Scanlon relied on the plaintiff accepting in cross-examination that it was necessary for her to walk into the yard, and walk beyond half the distance of the race again, in order to get to the dog fight.^[155] He referred to the plaintiff’s appreciation of the risk her actions posed to her safety when in answer to whether she knew it was dangerous and likely to cause injury to her if she separated the two male fighting dogs, she said, 'I know there was a potential'.^[156]

124. Mr Scanlon summarised the position of the plaintiff being outside the gate and approaching the gate and opening the gate, and once inside the pen, needing to walk some good number of paces to get to the dog fight. Mr Scanlon submitted that the plaintiff had ample opportunity to consider not entering the pen and she had an ample opportunity to leave the pen and that her decision to try and help was a conscious decision taken with the knowledge that to do so was potentially dangerous because of the known risk of being bitten.

125. The plaintiff said that she had been told as a child that dogs were dangerous. She said she knew it was dangerous to get involved in a dog fight.^[157] She said someone had told her when growing up, but she could not remember who, that it was dangerous to try and break up a dog fight.^[158]

126. Mr Scanlon submitted that the plaintiff’s decision to enter the pen and pull one dog away from the other was not akin to the action of a volunteer coming to the rescue of a person in danger or assisting an injured person and suffering an injury in the process. He argued that although the circumstances that allowed the dog from the emptying yard to infiltrate pen 1 may be negligent conduct, the plaintiff’s response to the negligent act, marked a conscious decision to embark upon a task which was not part of her employment.

127. Mr Scanlon relied on the following principles at common law that he submitted are relevant to the facts of this case. He commenced with Podrebersek v Australian Iron and Steel Pty Ltd^[159] in which the High Court said:

“A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer has failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage”.

128. Mr Scanlon referred to, but sought to distinguish, a series of well-known decisions such as McLean v Tedman^[160], Davies v Adelaide Chemical & Fertiliser ^[161] and Commissioner of Railways v Ruprecht^[162].

129. In McLean v Tedman the plaintiff was required to cross the road repetitively to pick up rubbish bins and one occasion he failed to see a motor vehicle coming towards him. The plurality of the High Court^[163] concluded that the job the plaintiff was required to do to perform his work was of such a repetitive nature that his negligence was inadvertent or born of repetition and, in such a case, there was no warrant for a finding of contributory negligence. The majority considered that the employer was bound to consider the risk of momentary inattention which was in fact not incompatible with the conduct of a prudent and reasonable man.

130. In Commissioner of Railways v Ruprecht,^[164] a railways worker was hit by a moving wagon when he stepped out in front of it without looking. He wasn’t expecting it to come along the line and didn’t look because he was too absorbed in his duties. The majority of the Court concluded there was no contributory negligence. It was necessary to look at the entirety of the circumstances in which the worker was doing his work and in which he was injured. The Court said, “inattention born of familiarity and repetition, and the man’s preoccupation with the matter in hand” should be considered in the context of deciding “whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of risk, or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man.”^[165]

131. In Czatyrko v Edith Cowan University^[166] the worker was injured when he stepped backwards while stacking boxes on the back of a truck fitted with a lifting platform. A co-worker had lowered the platform and had not informed the worker. The worker did not look to make sure the platform was there and was injured when he stepped off it and fell one metre to the ground. The evidence established that the worker had not disobeyed any direction, or warning from the employer, and in fact no instructions of any kind had been provided by the employer for using the platform. The Court said that cases involving repetitive work, provide fertile ground for inadvertence; the circumstances of the case were exactly the kind of situation which an employer must guard against as “it was not a remote risk that the (worker) might step back without looking behind him. His actions were neither deliberate, intentional nor in disregard of a direction or order from the (employer).”^[167]

132. Mr Scanlon noted that in each of the cases mentioned, a finding that there was no contributory negligence on the part of the workers, was arrived at despite the action having involved a momentary decision and a deliberate act by the workers. However, Mr Scanlon submitted that unlike the circumstances that prevailed in Mclean or Ruprecht or Cowan, each of the activities being performed by the workers at the relevant time comprised an aspect of their employment. As Senior Counsel put it, at the time of the relevant accident, that in which they were engaged, was sufficiently connected to the jobs for which they were engaged. By contrast, Mr Scanlon argued that it was not a part of the plaintiff's employment to go into the midst of a dog fight and separate one dog from another, and that Ms Futter’s conduct was not sufficiently connected with her employment.

133. Mr Scanlon pointed out that when he asked Ms Futter when she recalled first seeing the dogs physically at one another, she said that it was soon after the growling commenced and very quickly they were physically engaged with each other, with one dog having pulled the other dog’s head under the fence.^[168]
Mr Scanlon submitted that the plaintiff chose to enter the pen after what had already crystalised as a fully-blown dog fight. He added that for the plaintiff to then grab one of the dogs and place hands on its hindquarters was a dangerous act of which she was the sole author.

134. Mr Scanlon submitted that although the defendant denies her dogs were trained to be guard dogs, the plaintiff believed they were guard dogs and, therefore, a relevant additional consideration is that she involved herself with dogs that she believed were trained for aggression.

135. Mr Scanlon submitted that the plaintiff was presented with time, space and opportunity to not act as she did and that her conduct can be readily contrasted with inadvertence such as the plaintiff who injured his hand when he placed it in a moving belt because the exercise has become repetitive and routine.
Mr Scanlon referred to Davies v Adelaide Chemical and Fertiliser Co Ltd^[169] in which the High Court held at 551-552:

“... in following such a practice at the time of the accident the plaintiff was not guilty of such negligence as to disentitle him to recover, because he was not acting contrary to any rule, instruction, advice or practice made, given or established by the defendant as his employer or in his own interest or for his own convenience but, on the contrary, was performing his duties according to his habitual and long-standing practice for which he had the apparent, and, as I think, actual approval of the factorymanagement who treated it as part of his ordinary work”.

136. Mr Scanlon submitted that I should be satisfied and find negligent conduct on the part of the plaintiff by not having acted in a manner as a reasonable and prudent person would in the circumstances and that by doing so Ms Futter exposed herself to the risk of injury of which she was aware.

137. Mr Scanlon observed that the report of Professor Stephen Davis neurologist dated 25 February 2021 addressed to the plaintiff's solicitors represented a fair and complete summary of the injuries sustained by the plaintiff. Professor Davis concluded his report in the following terms:

“The biggest impact has probably been on her recreational activities, particularly the netball, which was a keen pursuit and also the pole dancing. She has put on lot of weight since the injuries and as previously indicated, depression has been a major feature.’^[170]

138. In the assessment of damages, Mr Scanlon urged me to be mindful of the evidence of Mr Bull, and Ms Sheales, to the effect that the plaintiff is progressing, things are on the improve, she is now more out and about, and she is now back to wearing shorts and shorter dresses in the summer time. She is part of a mothers’ group, she goes out, her mother visits her at home and they bake. She gets to the park with her partner and their dogs of a week.

“On the positive side she appears to be well-motivated, hard-working young woman who has been able to hold down two jobs while completing her university degrees. However the injury sustained have led to some long-term problems, both physical and mental and undoubtedly impacted on her quality of life”.^[171]

140. Mr Scanlon submitted that the level of improvement included that, but for COVID, the plaintiff would have completed the tasks required to have satisfactorily finished her double degree.

141. Mr Scanlon noted that the plaintiff remains in employment with Kmart and has the capacity to continue employment.

142. Mr Scanlon submitted that the plaintiff is not under the care of a psychiatrist but rather a psychologist.

143. For all these reasons, the defendant submitted that an appropriate figure by way of general damages would be $175,000 with that amount being reduced by reason of the plaintiff’s contributory negligence.

144. Mr Harrison submitted that that the incident with which the plaintiff was confronted was an unexpected drama that unfolded very quickly. Mr Harrison characterised the plaintiff’s conduct as an involuntary act that occurred as a result of her immediately going into the pen where a serious fight was in progress between two dogs.

145. Mr Harrison referred to the plaintiff’s evidence that she was outside pen 1, and next to the gate to the emptying yard. He highlighted as relevant evidence the plaintiff’s answers to questions put to her in the course of cross-examination by Mr Scanlon at Transcript 137:

“I want you to give an indication to His Honour, from the moment you stepped in the gate of the first pen to separate these dogs until - did you walk straight in, lean forward and grab the dog the hindquarter?' Answer: 'Yes, that's correct.' Question: 'So you would have walked a distance of what, four or five paces, or six paces or something like that?' Answer: 'Yes, about four or so. 'Question: 'So from the moment you entered the pen until the moment you were bitten you might have taken somewhere about four or five paces, five or six paces, whatever it may have been, something like six, seven or eight seconds?' Answer: 'I'm not sure what the time frame is, I'm sorry.' Question: 'Did you walk in the gate, walk towards the fighting dogs, reach to the hindquarter of the dog and then get bitten?' Answer: 'Yes, that's correct.' Question: 'So from the moment you entered the gate until the moment you are bitten it could be no more than ten seconds?' Answer: 'Yes, I would say less, but yes.”^[172]

146. Mr Harrison observed that the plaintiff gave similar evidence at Transcript 144:

Question: 'And you had a significant amount of time because you had to make the move from outside the pen, open the gate, enter the gate and walk to the dog fight?' Answer: 'This happened in a matter of less than ten seconds, it wasn't a significant - - - ',^[173]

147. Furthermore, at Transcrip149 addressing the question of how far in the pen the dogs were, the following exchange occurred:

Question: 'That might be 10 or 12 metres away?' Answer: 'I'm not sure, sorry.' Question, 'Okay. And so you don't know how long, so after you placed dog 2 in the emptying yard, how long is it before there is a ruckus or fight?' Answer: 'Pretty immediate.' Question: 'Had you got back into Pen 2 when the ruckus started?' Answer: 'No.' Question: 'How far were you from the gate to Pen 1 when the ruckus started?' Answer: 'I was still at the gate of the emptying yard.'^[174]

148. Mr Harrison next referred to the following response from the plaintiff at Transcript 40, when she was asked why she entered the pen:

Question: 'So, what did you do?' Answer: 'I immediately ran around without thinking and went into the first pen to try and separate the dogs as I was terrified they were going to either seriously injure or kill each other.' Question: 'And what did you do?' Answer: 'I grabbed the closest dog to me on the hindquarters ... just above his bum and his back legs.' Question: 'Yes?' Answer: 'And he turned around, let go of the first dog, turned around and latched on to my left leg.'^[175]

'So the position is this, that you knew it was dangerous, you knew it was a risk and you were happy to take it?' Answer: 'I knew there was a potential for a risk, yes.' Question: 'And you were happy to take it?' Answer: 'I wasn't thinking at the time of the risk.' Question: 'You knew of the risk and you were happy to take it?' Answer: 'I knew there was a potential for risk but I wasn't thinking of risk at the time.'^[176]

150. Mr Harrison submitted that the plaintiff’s evidence revealed that she was not thinking at the time, and that her actions in entering the pen and attempting to separate the dogs should be assessed as involuntary.

151. Mr Harrison submitted that it is relevant in assessing the reasonableness of the plaintiff’s actions to bear in mind that she had wanted to pursue a career in veterinary science and has an apparent affection for animals.

152. Mr Harrison submitted that it is also relevant in the assessment of the reasonableness of the circumstances informing the plaintiff’s conduct that her injury occurred within the remit of her employment. Mr Harrison submitted that the plaintiff was tasked with looking after the defendant’s dogs and their general welfare by exercising them and maintaining the condition of their pens. He submitted that it was an implied duty of that engagement in attending to the general welfare of the defendant’s dogs, and that it was consistent with her duties, that she responded as she did when she saw them in danger of injuring one another.

153. In developing his submission that the plaintiff’s conduct was consistent with a duty of care that devolved form her employment duties, Mr Harrison hypothesised that the plaintiff would have been reasonably expected by her employer to immediately respond to a case of a dog at risk of injuring itself, and he gave by way of examples, a dog stuck on wire fencing and at risk of disembowelling itself or that of a dog in a paddock with a bull likely to kick it.
Mr Harrison submitted that it would comprise part of the plaintiff’s implied duty of employment to try to remove the dog from the risk of the bull or to try to disentangle the dog from the wire if she could safely do so.

154. Mr Harrison submitted that whether the plaintiff was misguided in her actions, nonetheless, her conduct amounted to an understandable endeavour to fulfil her employment duties and to do so in a reasonable way.

155. I think there are two difficulties with Mr Harrison’s analysis. First, the evidence is silent if the plaintiff acted as she did for any reason that included a sense of obligation arising by way of employment obligations. The statement of claim is sparse in support of the contention that as part of the plaintiff’s duties as a general hand, there was an express or implied duty to separate fighting dogs. The extent of the pleading is to allege that at all material times the plaintiff was employed as a general hand and that at all material times she was acting within the course and scope of her employment with the defendant and at the direction of the defendant. I am not persuaded that even if it can be implied that as part of her employment by the defendant as a general hand with responsibility for walking the dogs and cleaning their pens, that it follows this amounted to a broader duty to separate fighting dogs.

156. The second difficulty is, that in the hypothetical examples used by Mr Harrison, they are each conditioned upon the action being taken by the actor if it was thought safe to do so. In this case, the evidence is that the plaintiff was conscious of the risk of injury if she acted as she did.

157. Mr Harrison urged me to find that Ms William has developed a false narrative in her own mind of what occurred that day and it is one that accords with her view that all animals on her property are well behaved and if they are not, it is as a result of human behaviour.

158. Mr Harrison contended that much of the defendant’s evidence is unreliable and should be rejected. He submitted that the unreliability is reflected in certain matters about which Ms Williams gave evidence that had not been put to
Ms Futter in the course of her cross-examination or Mr Bull and as well by reason of inconsistencies between her evidence in chief and her statement to investigators.

159. Mr Harrison submitted that the defendant’s evidence of turning around and seeing the plaintiff outside the pen before the plaintiff proceeded into the pen and warning the plaintiff not to go in and warning Ms Futter to “get out” on multiple occasions are not credible. Mr Harrison submitted that where the evidence of the plaintiff differs from the evidence of Ms Williams, I should prefer the evidence of the plaintiff.

160. Mr Harrison recognised that if I accept Ms Williams’ evidence that she called out to the plaintiff not to go in the pen but notwithstanding such caution the plaintiff proceeded to do so, and if, when the plaintiff having entered the pen, and while Ms Williams was slowly making her way towards the pen, the plaintiff remained in the pen for some minutes with Ms Williams telling her to “get out” repeatedly, but which the plaintiff did not do, then the plaintiff’s conduct would amount to “very significant contributory negligence.”^[177] By contrast
Mr Harrison submitted if I am satisfied that Ms Williams was not on the scene then there would be no occasion for contribution or it would be a minimal contribution.

161. Mr Harrison argued that Ms Williams was in the homestead as Jordan Bull said Ms Williams told him. He was not challenged in cross-examination. Mr Harrison said that the impression conveyed by Ms Williams’ statement to investigators is that she was somewhere about halfway between the pens and the house.
Mr Harrison submitted that the impression created by her statement is that
Ms Williams was out of eyeline until she got back to the wooden gate. Ultimately Mr Harrison contended that the probability is that if Ms Williams was not in the house, then she was about halfway to the pens but out of eyesight of the plaintiff.

162. Mr Harrison referred to the plaintiff’s evidence that she was initially unable to say how long the dog had its teeth into her before Ms Williams appeared. She concluded that it was about 30 seconds. Mr Harrison argued that on the assumption that Ms Williams was walking at maximum diminished speed, that some 30 seconds would likely place her as approaching the plaintiff either from the wooden gate or somewhere a bit further towards the house in order to get to the scene.

163. Mr Harrison urged me to reject Ms Williams' evidence that she and Stephen, Jordan and Kelly Bull had each specifically warned the plaintiff that “You never ever enter a pen or go near dogs while they’re fighting”.^[178]

164. Mr Harrison acknowledged the effect of the evidence is that the plaintiff knew that there could be a risk to her safety by her conduct, but he distinguished between the plaintiff’s general acquisition of knowledge of a risk concerning fighting dogs compared to an absence of warning being provided to the plaintiff by the defendant as her employer or of the risk to her safety in a kennel environment.

165. Mr Harrison endeavoured to counter the possible effect on the plaintiff’s conduct because she believed that the dogs were bred as guard dogs. He submitted that other aspects of the plaintiff’s evidence was relevant to the equation. At Transcript 37, Ms Futter was asked:

“Before the incident that we're all here about on 10 October, what were your experiences with Margaret's dogs?' Answer: 'They were all lovely dogs one-on-one. They would always bark at you, but when you were with them, they were friendly and they would play with their toys, very friendly one-on-one”.^[179]

166. In addition, in cross-examination, the plaintiff was asked in reference to the dogs, ‘...they were not aggressive, were they? She answered, “one-on-one, they were not.”^[180]

167. Mr Harrison referred to the further following additional exchange between the plaintiff and Mr Scanlon:

“Exactly. And one-on-one they were playful, non-assertive, non-aggressive dogs?' Answer: 'One-on-one they weren't after they had met me, no.' Question: 'One-on-one they were non-aggressive, playful dogs?' Answer: 'Yes. After they had met me.”^[181]

168. Thus in summary, Mr Harrison relied on the plaintiff's experience and knowledge up until the time of the incident that the defendant’s dogs were obedient and playful and not a problem together with her unchallenged evidence that she had successfully separated her own fighting dogs when growing up^[182] and that the defendant’s dogs had always been playful with her up until this occasion.

169. Mr Harrison submitted that I should not arrive at a finding of contributory negligence but if I did, that it should be minimal bearing in mind that the danger was created by the defendant and the decision taken by the plaintiff when looked at prospectively was one made very quickly and akin to an involuntary decision.

170. Mr Harrison relied on a number of authorities. I have not found them of great assistance in considering if or to what extent the plaintiff should be absolved or excused from her own breach of duty to care for her own welfare and safety. Nonetheless, I shall mention them briefly.

171. Mr Harrison referred to Upward & Others v Tomkinson & Anor^[183], (‘Tomkinson’) the headnote of which refers to Rule 7 in Bywell Castle^[184] that addressed the responsibility of Masters of Ships in which it was stated at 228 that:

“A man in charge of a vessel is not to be guilty of negligence, or as contributing to an accident, if in a sudden emergency, caused by the negligence or default of another vessel, he does something which he might under the circumstances as known to him reasonably think proper, although those before whom the case comes for adjudication are, with a knowledge of all the facts, and with time to consider them, able to see that the course which he adopted was not in fact the best”.

172. The facts in Tomkinson involved a car which came over the crest of a hill on the wrong side of the road. Tomkinson was on his correct side, he slowed down, he held his course and then he realised he was not in a position to get to the left and so opted for the right side and thus the wrong side of the road with his attempts at a final effort to come back to the right side being met with collision. No finding of negligence on the plaintiff’s part was made.

173. The authority is of limited assistance. Mr Tomkinson was in imminent danger, whereas the plaintiff was not in imminent danger until she entered the pen and having entered the pen, she had the opportunity to leave. Although I accept that the plaintiff was presented with a startling situation and was concerned for the safety of the two dogs, she was however, faced with a choice. Mr Harrison submitted that real though the choice was, it was not practical, as it was a choice to do nothing and allow the two dogs to possibly kill each other.

174. Mr Harrison also cited United Uranium NL v Fisher^[185]. The plaintiff was a passenger in a motorcar driven by Fisher which collided with another vehicle that was substantially on the wrong side of the road and Fisher on the correct side. Fisher reduced speed and sounded his horn and at a point very close to the point of collision Fisher who was unable to swing to his left because of a drain on that side of the road swung to his right to avoid the collision but at the same time the other driver swung her vehicle and they collided.

175. The trial judge held that the negligence of the other driver was substantial but not the whole cause of the collision and apportioned the blame 75 per cent against her and 25 per cent against Fisher. On appeal by Fisher against that finding it was held that Fisher had not acted negligently and that a person who creates a situation of danger cannot establish contributory negligence by minutely criticizing the behaviour in an emergency of those who have been involved in such a danger by that person.

176. The next authority Mr Harrison referred to is Shelley v Szelley^[186] The facts were that a car being driven on a road experienced a front wheel tyre blow out. The driver could not apply the brakes but allowed the car to run off the road on the right-hand side of the road with the intention of bringing it slowly to a stop. A passenger in the vehicle, thinking the vehicle was out of control, attempted to seize the steering wheel and steer the vehicle to the left with the result that the vehicle overturned and the passenger was injured. In an action by the passenger against the driver of the vehicle for damages the trial judge found the driver had been negligent in driving or allowing the car to travel over the gravel slope, but the passenger had not been guilty of any contributory negligence. On appeal it was held that on the facts the trial judge's findings should not be disturbed.

177. Mr Harrison referred to Bray CJ’s adoption of the general rule enunciated by Lord Blackburn in Stoomvaart Maatschappy Nederland v Peninsula and Oriental Steam Navigation Co^[187] that, “When a man is suddenly and without warning thrown into a critical position due allowance must be made for this but not too much” ....and....“The rule is subject to the important qualification that the emergency must not have been brought about by the negligence of the party whose conduct after it is under consideration”.

178. Mr Harrison contended that in Shelley’s case the plaintiff grabbed the steering wheel although it was not something that he was required to do or that was incumbent upon him to do. It had the effect of causing the accident, but nonetheless the emergency was created by the defendant allowing the vehicle to go to the wrong side of the road and not doing anything about it, nor warning the plaintiff that everything was under control. All of this rendered the plaintiff's action an essentially involuntarily reaction and not such as to amount to contributory negligence.

179. Mr Harrison also referred to Caterson v Commissioner for Railways.^[188] The plaintiff had driven a friend to a railway station so that the friend might catch a long distance train. The plaintiff carried the friend's luggage into a carriage leaving his son who had accompanied him on the platform, and as he was leaving the carriage he noticed that the train had begun to move. It was moving at no great speed when the plaintiff jumped onto the platform and was injured. There was evidence that no warning device had been heard by those in the carriage, that the next station was some 80 miles away, and that there was probably a communication cord in the carriage. The jury found for the plaintiff. The verdict was set aside by the Court of Appeal and the plaintiff appealed. It was held that it was open to the jury to find it was foreseeable that a person other than a passenger who found himself on an express train which started to move off without warning might jump from it even though he was in no danger by remaining on the train.

180. Mr Harrison relied on the fact that Mr Caterson did not have to jump from the train but he did so. He had the option of remaining on the train and doing nothing but he chose not to do so and the jury was well within its rights to find that that his conduct did not amount to contributory negligence. Mr Harrison argued that Ms Futter did not have to go into the pen but she did so. She had the option, as did Mr Caterson, to do nothing.

181. Mr Harrison also referred to Grills v Leighton Contractors^[189] in which a plaintiff police officer was held not to have been contributorily negligent when his motorbike hit an unexpected boom gate when travelling above speed while he was responding to an emergency situation during a visit to Sydney by the Vice President of the United States. One of the findings on appeal was that the trial judge was in error finding that the appellant was contributorily negligent for failing to keep a proper look out given the urgency of his duties and the competing demands on his attention. He was also not contributorily negligent in failing to take heed of closure signs on the motorway or of the speed he was travelling.

182. Mr Harrison referred to Liftronic Pty Ltd v Unver^[190] in which Kirby J was in the minority by not finding contributory negligence whereas the plurality considered that the finding of contributory negligence was appropriate and the Court of Appeal was wrong to have interfered with the juries apportionment of a 60% liability to the worker by substituting a 20% apportionment. There is nothing to be benefited in the determination of Ms Futter’s situation from reciting the dissent or the majority reasons.

183. Mr Harrison properly and fairly accepted the presence of a number of very positive aspects about the plaintiff's presentation.

184. Despite the plaintiff’s progress, Mr Harrison identified darker episodes that had occurred along the path to the improvement she has obtained. Her evidence included that for some years after the incident she experienced depressive episodes, staying home all the time, feeling everything was just too hard, explaining that 'It was difficult for me to do the most menial tasks.'^[191]

185. As to her present state she was asked by Mr Harrison, “How are you now?” to which she replied: “I'm better, I'm better now”. And then, “Are you back to where you were before the dog bite”? And her answer was, “No, I don't think I'm quite there yet.”^[192]

“Miss Futter still reports chronic nerve pain to her lower left leg, walks with a limp, she has not been able to return to netball or other sports due to her injuries. She has a significant scar to her left limb because of surgeries and requires ongoing treatment. The incident has had negative impacts on all areas of her current functioning. It is envisaged with the assistance of psychology, Miss Futter will become more empowered and feel more confident and less depressed. Miss Futter stated her goals were to stabilise her mood, find meaningful employment, and improve relationships with others”.

187. The plaintiff continues to consult Ms O’Loughlan and although it is now approaching six years from the incident, she said she still feels the need to do so, and derives benefit from psychological counselling with her.

188. The plaintiff has lost her ability to pursue her love of netball. She endeavoured to return to it but found herself unable to do so. I am satisfied this is a direct consequence of her injuries.

190. The plaintiff’s previous open nature of interacting with dogs has changed and she has expressed apprehension towards dogs with whom she is unfamiliar.^[195]

191. She manages to do her domestic tasks but finds that they take a long time to complete and take a lot out of her, especially mopping and vacuuming.^[196]

192. She experiences pain when putting on tights and jeans but she thought it was worthwhile because she found the compression of wearing tights helpful.^[197]

193. Her job at Kmart is of a supervisor. She managed the work by leaning on various things when needed. She found that after perhaps halfway through a shift she would be limping.^[198]

194. I am satisfied and accept Mr Harrison’s submission that other than endometriosis and some other non-relevant issues, the plaintiff’s pre-injury health was good and she was enjoying life.^[199] Motherhood has had an effect on the plaintiff’s pre-injury lifestyle and the plaintiff was candid about that.

195. The plaintiff continues to experience pain from time to time.^[200] She testified about her ongoing pain, and of the sensation of pins and needles, and of pain that is at times akin to a burning sensation that she described as “excruciating...electric shocks”.^[201] She has undergone surgeries and not without some complications including an infection^[202]. She has had a ketamine injection and two nerve blocks, neither of which appear to have provided any lasting relief. She continues to be treated by Mr Bassett.

196. The plaintiff was candid that the effects of her injury had nothing to do with her inability to complete her degree in 2020 but rather was attributable to the impact of the government imposed restrictions in response to Covid-19 as well as her pregnancy.

197. She moderated her medication as a result of her pregnancy.^[203] She said that “Some days are better than others, some days are really hard and I can't really leave the house but I need to push through it for my son”.^[204] She wants to avoid heavier medication and she would prefer not to be on them.^[205] She is still taking Sertraline for depression.^[206]

198. If she is inadvertently touched she suffers considerable pain.^[207] She has pain when shaving her legs.^[208] She is restricted in exercise.^[209] She has lost her netball^[210] and pole dancing^[211] because of pain and she has ongoing nightmares^[212] although not all of them are related to the dog bite but, nonetheless, she loses sleep as a result of them.^[213]

199. She has lost the prospect of becoming a vet. She is now studying paramedicine
that she envisages as an alternative and satisfying career path.^[214] Mr Harrison submitted that overall and taking all relevant matters into account, an appropriate figure for general damages for pain and suffering is in the order of $280,000.

200. The plaintiff has suffered a physical injury that has resulted in continuing and fluctuating pain that can at times be very severe. There remains the scarring and disfigurement together with an apparent and continuing psychological consequence from the attack. She is aged 24. She continues to be assisted by psychological treatment. The prospect of a spinal cord stimulator is not so remote that it should not be taken into account in my overall assessment.

201. John Dillon, treating surgeon operated on the plaintiff on the day of the injury. He recounts extensive skin loss and significant implications for the plaintiff in terms of employment, the psychological impact of the injury,the difficulty she has working^[215] and corroborated the plaintiff’s loss of the netball and of pole dancing.

202. The report of Matthew Gibney, the plaintiff’s former GP,^[216] addressed the case of pseudomembranous colitis which is caused by antibiotic use and which had to be treated in emergency, and also the onset of a post injury infection in November 2015, and the depressive illness of March 2016, all of which I am satisfied has been both unpleasant and directly referable to the plaintiff’s injury.

203. Dr Bassett diagnosed the plaintiff with chronic lower left limb neuropathic pain in the distribution of the saphenous and peroneal nerve and post-traumatic stress disorder.^[217]

'Erin is an extremely diligent person who tends to push through her barriers to reach her goals. This has been evident throughout her life. Erin will often try and ignore her pain, however, then tends to fall in a heap later. Erin becomes aware of this when she notices her mood is becoming short, becoming frustrated and angry, when overwhelmed Erin may become teary. An example of this would be recently when during her pregnancy Erin took herself off all her medications for her son Thomas's pregnancy and later when fatigued and overwhelmed, Erin reports a decline in her self-esteem and self-confidence with depressive symptoms and elevated levels of pain. 'Ms Futter has struggled with her university degree as a result of: (a) pain medications contributing to poor memory and concentration and has required supporting documents for special consideration; (b) has been negatively impacted by her need for Schedule 8 medications when attempting to place them as a paramedicine student. Unfortunately, whilst Erin is so diligent and determined to succeed in life, this at times has proven a barrier to her treatment.'^[219]

'Her condition unfortunately hasn't resolved but has been stable, currently she struggles with left lower leg neuropathic pain and ongoing anxiety and depression. Her neuropathic pain is likely to be permanent and the prognosis of her anxiety and depression is unclear.'^[220]

206. Dr Stapleton’s reporting is confirmatory of the plaintiff’s presentation as is that of Dr Blombery.

'She said that whilst she has better days, she feels low in mood most of the time. She said that she tends to either feel numb or down. On a visual analogue scale for mood she rates herself as 4 out of 10. She said that she has lost motivation and her usual interests are no longer pursued. She is much less able to enjoy herself and she said, ‘It’s hard now to be happy.’ She said that her libido is now non-existent and this has been putting some strain on her relationship with her partner... her energy level is now very low. She describes a sense of fatigue and lethargy. She is aware that her concentration and memory have not been particularly good. She is forgetful, at times is distracted but she can concentrate on a specific task when necessary. The claimant stated that ever since the injury, sleep had tended to be interrupted by pain. She stated that that pattern is ongoing but sleep is now further interrupted with her baby. The claimant stated that her appetite has fluctuated significantly. The claimant suggested that her confidence and self-esteem were both very low. She has started to feel that she cannot do anything right. She said that before the injury, she was never as negative as she now is... she is bothered by the appearance of her leg, in particular the scarring. She feels stressed and anxious and she worries about her son, the relationship with her partner and her future given her current walking difficulties. ...she is more irritable, frustrated and short-tempered than she had been premorbidly. The incident still comes to mind despite the claimant being reluctant to dwell on it. The sound of big dogs barking are a constant trigger.^[221]

208. Dr Serry diagnosed a moderately severe chronic adjustment disorder with anxious and depressed mood with features of traumatisation.

'The claimant's prognosis is mixed. She appears to have been quite well-adjusted premorbidly but she has struggled ever since the injury given a combination of physical and psychiatric symptomatology and a nexus which exists between the two. She is likely to require ongoing expert physical and mental health intervention.'

'There is unlikely to be a further deterioration in her condition but I similarly do not anticipate any marked improvement given the chronicity of both physical and psychiatric symptomatology.'

211. I was impressed by the plaintiff. In terms of her presentation, she did not attempt to visit all her prevailing issues on the dog bite. I am satisfied of her honesty and straightforwardness in her accounting of her ongoing complaints.

212. The defendant owed the plaintiff a duty of care. The High Court expressed the implied duty of care required of an employer in Hamilton v Nuroof (WA) Pty Ltd^[224] as a “duty to take reasonable care to avoid exposing the employees to unreasonable risks of injury.” The Court added that “the degree of care and foresight required from an employer must naturally vary with the circumstances of each case”.^[225]

213. The defendant did not discharge the duty of care she owed to the plaintiff as her employer to provide a safe workplace and a safe system of work. Such a system would have included ensuring that fencing was adequate to prevent a dog from accessing an adjoining or adjacent pen in which another other dog was held.

214. The defendant used pens the material of which and its securing proved incapable of preventing a dog from accessing an adjoining pen in which another other dog was housed. The construction did not prevent a dog outside pen 1 being pulled into pen 1 by another dog. The pen should have been constructed in a manner to have prevented one dog being able to intrude inside or outside its confines and so pull a dog in or allow a dog to push itself through. Rottweilers are large and strong animals. The pens did not achieve an important aspect of their purpose by providing a safe and secure holding bay. The risk of a fight occurring and a person of an employee in the position of the plaintiff either being in with a dog at the time of an intrusion by another dog or of attempting to remove one dog from the other preliminary to or whilst engaged in a fight, is not so remote as to not have been foreseeable by the defendant.

215. The plaintiff was at work and undertaking the duties of her employment when she was confronted with a scenario that arose because of the lack of security and strength of the construction of the pens. It was the defendant who had sole control over the safety and security for the housing of the dogs on site at her property. Ms Futter had no sway over that at all. It was the defendant who owed the plaintiff a positive duty.

216. I am also satisfied that the defendant failed to provide the plaintiff with training in handling her dogs and how to respond to dogs who might fight. I do not accept the defendant’s evidence that she did. It was reasonable for the defendant to have anticipated that the plaintiff might be exposed to the potential danger of dogs fighting. I do not accept that the defendant told the plaintiff not to wear shorts and to wear trousers.

217. The most difficult aspect of the evidence and about which I have given considerable thought is the evidence of where Ms Williams was and what she saw and what she said on the afternoon of the incident. The plaintiff’s evidence and the defendants are not reconcilable.

218. Ms Williams said she did not hear her name being called because it was not called as she was not inside because “I was standing with Erin when all this happened”^[226].

219. In assessing the defendant’s candour, I note Ms Williams at first denied any previous occasion that her dogs had fought with one another but then qualified her answer by adding, “To that extent, yes”.^[227] She was asked by Mr Harrison about an incident approximately 10 years ago while she had been away from her property and one of her dogs lunged at a young child who had hold of the dog’s food bowl and wouldn’t let it go and was bitten. She said her cousin had been left in charge in her absence. She said that “those children were told on several occasions they were never to go near my older dogs.^[228]” When asked why, Ms Williams said, “Because I didn’t trust the children, they wouldn’t listen, they wouldn’t do what they were told”^[229]. Ms Williams refused to accept that a risk of disobedient children in proximity to her older dogs was one of danger and of the dogs “having a go at them” as Mr Harrison characterised it. Ms Williams said, “No, it’s not. I trust my dogs.”^[230]

220. I do not accept the defendant’s evidence that she provided direct verbal instructions to the plaintiff to remove herself from the pen before the plaintiff was bitten. I do not accept that Ms Williams was in direct and continuous eyesight of the plaintiff from the moment, as she said, she turned back in the direction of the pens and observed the plaintiff enter the pen.

221. I found the defendant’s evidence of what was essentially a period of inaction on the part of her and Ms Futter when her evidence would have them together in the pen, while the dogs were fighting each other, and before they had exhausted themselves, and before Ms Futter was bitten, as implausible. Her account included that while she was in the pen with Ms Futter and repeatedly instructing her to come out she refused to do so because she said she wanted to help but was in fact doing nothing and, as Ms Williams said, “...we weren’t standing near the dogs...”^[231] When pressed on this part of her evidence by Mr Harrison,
Ms Williams said that Ms Futter was doing nothing other than saying that she wanted to help which Ms Williams interpreted as “she wanted to help separate the dogs, I presume, but I’m saying, “No, we’re not interfering with the dogs, we’re getting out”^[232]. I do not accept Ms Williams’ account of the events. I am satisfied that when Ms Williams entered the pen the plaintiff had been bitten.

222. I am also fortified in my finding that Ms Williams’ account in evidence was untrue by reference to her evidence and cross examination commencing at Transcript 243, to 245, in which she endeavoured to relate what she observed leading to Ms Futter being bitten. Her evidence was confused and unconvincing and reinforces my conclusion in rejecting it. Moreover, the oral evidence bore the hallmarks of reconstruction intended to convey actual knowledge derived from direct observation as opposed to the assumptions of how the bite occurred that are suggested by Ms Williams’ statement to investigators.

223. On balance I think it is more probable than not that Ms Williams was inside the house and was alerted by the noise of the dogs. It is to be recalled that the ruckus created by the dogs fighting occurred prior to the plaintiff entering the pen and, therefore, the account that Ms Futter gave of the elapse of some half a minute before being aware of Ms Williams’ presence with her in the pen is explicable if, as I believe to be the case, Ms Williams was already by then on her way to the pens. I appreciate that Ms Futter’s recollection is that the time between the dogs beginning to growl and fighting and her entry was not long but time and special assessments can be open to question. After considering all of the evidence I am satisfied on the balance of probabilities that this is the more likely account.

224. Why Ms Williams said she gave repeated warnings to Ms Futter when I am satisfied she did not is difficult but not impossible to fathom. I think it is more probable than not that had I accepted the defendant’s evidence of her giving repeated but unheeded warnings to a recalcitrant Ms Futter it would have justified her belief why Ms Futter was bitten and in a not dissimilar vein to her belief that it was because of the disobedience of the child to follow instructions that led to the incident a decade or so ago.

226. However, and despite my finding regarding Ms Williams, I am satisfied that the plaintiff contributed to her own injuries. In Fassbender v HW & MTA Bohlmann^[233] the Court of Appeal had this to say:

“As a matter of law the appellant was under an obligation to take reasonable care to avoid foreseeable risk of injury to himself while carrying out his duties. Whether the appellant failed to take reasonable care for his own safety was to be assessed on an objective standard, bearing in mind all the surrounding circumstances. The jury had to ask itself whether the appellant did something that a reasonably careful person would not have done in the circumstances or whether he failed to do something which a reasonably carefully person would have done in the circumstances.”

227. By reason of my finding of a lack of reasonable care by the plaintiff I must address the question of the extent of Ms Futter’s contribution for the injuries she suffered. In undertaking this exercise I am required to place myself in the position in which she found herself and seized with that which the plaintiff knew at the time and to assess whether her response to the incident with which she was confronted was a reasonable response.

228. The plaintiff’s knowledge at the time of the incident includes her belief that the defendant’s dogs were bred as guard dogs. Indeed, she understood that Diesel was purchased for the purpose of working as a guard dog by Jordan Bull’s father. On the other hand the plaintiff said that the defendant’s dogs had been happy and playful around her “one on one^[234]”.

229. Earlier I found that the plaintiff was not given any information by the defendant to be careful around her dogs or what to do in the event of a dog fight. I accept the plaintiff was told as a child that dogs were dangerous and also that someone had told her when she was growing up that it was dangerous to get involved in a dog fight and to try and break up a dog fight. Of course the advice and cautions or the admonishments received as a young child and as a youth are naturally enough prone to moderation, if not dilution, by advancing maturity and one’s individual experience. The plaintiff’s previous experience was with greyhounds. As regards rottweilers, her experience was limited to Diesel. Nonetheless, the plaintiff did place herself in a position of danger by entering the pen whilst there were two dogs present and being aggressive to each other. The aggression had commenced before Ms Futter entered the gate of the pen. She was conscious of the risk and ensuing danger. She failed to take reasonable care for her own safety.

230. However, I do not accept that Ms Futter failed to comply any system of work in place at the defendant’s kennel or that any non-compliance with a system of work was a cause of her injury. The extent of the evidence that was led of any system of work was limited at best to the defendant’s evidence that the dogs were to be all removed from their pens and taken to the emptying yard to permit the pens to be cleaned as a group rather than the process being performed one at a time by taking each the dog back and forth one at a time.

231. I do not accept Ms Williams’ oral evidence that she instructed the plaintiff to remove all dogs to the emptying yard so as to enable her to clean all pens as a group. Her evidence is, in my judgement, inconsistent with Exhibit P22 in which she said, “To clean an enclosure Erin was required to release the dog which then goes into a separate exercise area and the gate to this area is then closed. Erin would then clean the pen and when she had finished she would let the dog back into the enclosure, secure the dog and then go on to the next one”.^[235] That statement accords with the plaintiff’s evidence of the process she was engaged in on the day of the accident. I prefer the plaintiff’s account. I do not accept that there was a different system in operation for cleaning the pens or, if I am wrong, and such a system did operate, that Ms Williams instructed Ms Futter to
follow it.

232. In considering the various authorities to which Mr Harrison referred, on each occasion the plaintiffs were confronted by choices made in the agony of the moment and when they were in a position of danger or at risk. Even Mr Caterson made his decision almost immediately on becoming aware of the train leaving the platform and before the train had taken on such speed which if it had might have rendered it almost impossible for the defendant to have reasonably contemplated that a person in his position might jump from a moving train.

233. Ms Futter was not in danger or at risk until she chose to enter the pen. Unlike Mr Caterson who had no prior warning that the train was to depart the platform until the train commenced to move, Ms Futter was forewarned of risk because the dogs commenced to fight prior to her making her decision.

234. I am unable to assess the plaintiff’s conduct in entering the pen and trying to physically separate the two dogs as a part of her job or that I should treat her actions as incidental to her employment. But even if I am wrong about that, I am still satisfied that this obligation must be moderated and assessed in light of the circumstances known to Ms Futter at the time.

235. The plaintiff’s decision was a conscious one made with knowledge of a potential risk. However, I accept that Ms Futter’s decision was made from the best of intentions and was an instinctual response. But it was voluntary. I accept her evidence in cross-examination that “I wasn't thinking of risk at the time”. Nonetheless, I am satisfied that Ms Futter had time and space separating her from any risk to her own safety and that she was not, for example, forced into manhandling one of the dogs on the hindquarters in order to prevent being bitten.

236. I am satisfied that the plaintiff provided the Court with a genuine account of her experience with pain. I have accepted her evidence on material matters. In particular I have preferred her account of the events on the day. By comparison I found Ms Williams’ evidence was unsatisfactory and I have rejected it in important respects as identified.

237. Ms Futter was a young woman when the incident occurred. She is still young. The extent or degree of improvement she has experienced to date has been good but is certainly not complete. It may be that she has reached maximum recovery. It is difficult to know.

238. She has been left with a nasty scar. It serves as a reminder to her of the incident. She has been approached in the street by strangers who have asked her about her scar. In past times such personal intrusions by strangers would have been exceptional but nowadays, it seems to be unexceptional, and serves as a further reminder to the plaintiff of the events that occurred and of the residual physical consequences to her appearance. I have made allowance for the improvements that have followed since the incident including an improvement in the plaintiff’s outlook on life.

239. In all the circumstances I assess the plaintiff’s general damages at $270,000 and reduced by way 25% by way of contributory negligence.

240. I direct that the parties file a proposed form of final orders to give effect to my judgment and the award of damages within 7 days of today, failing which I will list the matter for mention.

County Court of Victoria

Futter v Williams [2021] VCC 1198 (25 August 2021)