Carretero v Ioannidis (No 3)

1. [1]

   BELL CJ: I agree with Stern JA.

2. [2]

   KIRK JA: I agree with Stern JA.

3. [3]

   STERN JA: On 24 April 2020, at around 6 pm, the respondent and her shih tzu dog Lexi were attacked while walking in Mortdale by a large greyhound staffordshire bull terrier cross dog owned by the appellant. In what was, on any view, a terrifying attack, Lexi’s paw was ripped off at the joint (requiring amputation of the leg at the shoulder) and the respondent was bitten on the neck, chin, arm and legs. The appellant’s dog was put down. The respondent sued the appellant under s 25 of the Companion Animals Act 1998 (NSW) (CAA).

4. [4]

   The circumstances of the attack are not in dispute. As the primary judge explained them:

5. [5]

   As was common ground before the primary judge, s 25(1)(a) of the CAA was thereby engaged. At all relevant times s 25(1)(a) provided:

6. [6]

   On 15 July 2025 the primary judge gave judgment for the respondent in the sum of $101,788.63 and ordered that the appellant pay the respondent’s costs. The damages comprised $49,500 for non-economic loss, $2,288.63 for past out of pocket expenses, $15,000 as a buffer for future out of pocket expenses and $35,000 as a buffer for past and future loss of earnings: Ioannidis v Carretero [2025] NSWDC 258. The primary judge found that the respondent suffered both physical and psychiatric injury in the form of post-traumatic stress disorder (PTSD) as a result of the attack in the context of pre-existing anxiety and depression.

7. [7]

   The appellant now appeals under s 75A of the Supreme Court Act 1970 (NSW) against the primary judge’s assessment of damages. She challenges the primary judge’s findings as to the causation and extent of the respondent’s psychiatric injury and loss of earning capacity and his Honour’s assessment of non-economic loss. She contends, in essence, that:

   1. (1)

      the primary judge did not properly consider the report of her psychiatric expert, Dr Leonard Lee (ground one);

   2. (2)

      the primary judge failed properly to evaluate potential contributing causes of the respondent’s symptoms other than the attack, which the appellant says was required of his Honour by s 5D of the Civil Liability Act 2002 (NSW) (CLA) (ground two);

   3. (3)

      the primary judge erred in finding that the respondent had little or no earning capacity (ground three);

   4. (4)

      the primary judge’s assessments of both economic and non-economic loss were manifestly excessive (ground four);

   5. (5)

      key factual findings made by the primary judge were inconsistent with the documentary and expert evidence (ground five);

   6. (6)

      fresh evidence demonstrates that the respondent had misled the primary judge regarding her capacity to work and the severity of her psychological condition (ground six); and

   7. (7)

      the primary judge failed adequately to consider other causes of the respondent’s symptoms (ground seven).

8. [8]

   By way of context, the appellant accepts that the respondent suffered some level of emotional reaction following the attack, which the appellant says was a confronting and upsetting event. It should be noted, however, that this description fails to reflect that, as the primary judge found, this was a violent and terrifying attack.

9. [9]

   For the reasons set out below, the appeal should be dismissed with costs.

The application to rely upon fresh evidence

1. [10]

   By notice of motion filed 26 November 2025, the appellant sought leave to adduce fresh evidence under s 75A(7) of the Supreme Court Act and Uniform Civil Procedure Rules 2005 (NSW), r 50.20. That application was considered, and dismissed, at the commencement of the hearing of the appeal and it follows that ground six falls away. Short-form reasons for that dismissal were given orally and it was noted that more fulsome reasons would be given in our judgment. Those reasons are set out below.

2. [11]

   Further evidence may be received in appeals to this Court: Supreme Court Act, s 75A(7). However, where, as here, an appeal is from a judgment after trial, the Court shall not receive such evidence except on special grounds: s 75A(8). That prohibition does not apply to evidence concerning matters occurring after the trial: s 75A(9), but it was common ground that the material sought to adduced by the appellant concerned matters occurring prior to the trial.

3. [12]

   The proper approach to these provisions was summarised in Dibb v Transport for New South Wales [2024] NSWCA 157 at [33]-[34]:

4. [13]

   The material that the appellant sought to adduce as fresh evidence comprised:

   1. (1)

      an article dated 13 June 2024, posted on a website www.ragtrader.com.au, reporting that an Australian swimwear label, Infamous Swim, had a group of new investors including the respondent and her partner, Matthew Child;

   2. (2)

      an article dated 21 May 2024, posted on a website www.smartcompany.com.au, describing the respondent and Mr Child as two members of a group of external investors coming on board to back Infamous Swim;

   3. (3)

      an article dated 12 June 2024, posted on a website www.insideretail.com.au, identifying new directors of Infamous Swim, including the respondent, Mr Child, and three others, and that the CEO of Infamous Swim would continue in her role;

   4. (4)

      an undated article, on a website www.revivalrunway.com, which the appellant says was published in 2024, reporting that Infamous Swim was one of Australia’s top swimwear and resortwear brands and that it had been brought out by a local group of self-funded entrepreneurs;

   5. (5)

      an article dated 3 October 2023, posted on a website www.smartcompany.com.au, reporting that Infamous Swim had generated $16.5 million in revenue in the past 12 months and was preparing to open up an offer to investors through a crowdfunding platform;

   6. (6)

      a video, posted on the @infamous_swim Instagram account on 2 June 2024, sharing the news that the respondent was a brand new partner of Infamous Swim, and depicting the respondent interacting with the Chief Executive Officer (CEO) of Infamous Swim and one other person and offering her opinion on swimwear in what appears to be a room with an Infamous Swim logo and a number of outfits in the background;

   7. (7)

      a video, posted on the @infamous_swim Instagram account on 20 August 2024, depicting the respondent interacting with models trying on swimwear in what looks like a dressing room but might be a fabricated background;

   8. (8)

      a video, posted on the @infamous_swim Instagram account on 31 October 2024, with the caption “[w]hen @maryioannidiscouture is in town”, depicting the respondent interacting animatedly with one other person in what looks to be the same room shown in the video at [13(6)] above;

   9. (9)

      an article dated 31 May 2023, posted on the website www.infamousswim.com.au, notifying of a Melbourne warehouse sale at 5/533 Frankston-Dandenong Road, South Dandenong, Victoria; and

   10. (10)

       an undated posting, on the website www.realcommercial.com.au, notifying that a unit at 5/533 Frankston-Dandenong Road, Dandenong South, Victoria, one photograph on which looks visually similar to the background in the videos at [13(6)] and [13(8)] above, is available for lease.

5. [14]

   The appellant submitted that this evidence was apparently credible and demonstrated that the respondent had engaged in sustained professional activity and had functional capacity that was inconsistent with both her evidence at trial and the primary judge’s findings. She submitted that this evidence showed that the respondent travelled repeatedly to Melbourne for professional purposes associated with Infamous Swim, engaged in sustained on-site work in Melbourne and presented as socially engaged, confident, directive and professionally groomed in the videos posted on Instagram. She also submitted that this evidence disclosed that the respondent had negotiated a deal with the CEO of Infamous Swim, which presented a different picture to that presented by the respondent at trial. She contended that this evidence would have led to a different assessment by the primary judge of the respondent’s credibility the weight to be given to the expert evidence upon which the respondent relied and on the issues of causation and damages.

6. [15]

   The appellant contended that this evidence was not available with reasonable diligence at the hearing before the primary judge. She said that this was because she was medically advised to minimise litigation involvement during pregnancy and the postpartum period and was not in a position to monitor social media or news publications at that time, the respondent did not disclose her involvement with Infamous Swim and, at the time of trial, she was managing full-time work and the sale of her home to fund her legal costs and relied upon her partner and legal representatives to manage communications. She submitted that:

7. [16]

   In support of this contention she relied upon:

   1. (1)

      a letter dated 4 November 2025 addressed to the “Supreme Court of NSW, Court of Appeal” from Michael Short, her solicitor-advocate in the first instance proceedings, indicating that on 28 and 30 June 2024 the appellant had sent emails to his office advising she would not take any calls “alone” moving forward to avoid getting upset, asking him to contact someone called Lachlan Williams for all required communication, and stating that the appellant had said this request was to protect both her mental health and the health and safety of her unborn child;

   2. (2)

      a letter dated 5 September 2024 from Dr Amy Edler at TasWomen stating that the appellant was pregnant with a due date of 5 January 2025 and asking for the trial to be deferred until July 2025 “to accommodate post-partum medical issues”; and

   3. (3)

      a letter dated 13 October 2025 from Kristina Suatoni, psychologist at Family Services Australia, identifying that she had been providing psychological treatment to the appellant since March 2024, that the appellant “reported experiencing significant emotional distress associated with ongoing court proceedings and the uncertainty surrounding their outcome” and that the appellant’s pregnancy, preparing for the sale of her home and “possible bankruptcy as a result of these legal matters” compounded this stress.

8. [17]

   There were two principal reasons why the application to adduce fresh evidence was dismissed, each of which was, individually, fatal to the success of the application. First, all of the material sought to be adduced pre-dated the hearing before the primary judge and could readily have been obtained with reasonable diligence for use at that hearing. It was all publicly available material, having been identified by the appellant from searches which she explained she undertook following delivery of the primary judgment. The evidence fell well short of establishing that the appellant could not, herself, have carried out those searches prior to the trial which took place on 24 and 25 March 2025, being two and a half months after the appellant’s baby was due. In any event, the appellant was represented by solicitors at trial, and she advanced no reason why her solicitors could not have undertaken searches sufficient to locate the material.

9. [18]

   It was, moreover, apparent that either the appellant, her solicitors, or someone else, did undertake Google and Instagram searches for the purpose of the respondent’s cross-examination at trial. Mr Short cross-examined the respondent by reference to posts on Instagram, media articles about her business and what was described as a “social media publication” posted on the website www.stuff.co.nz. Mr Short put to the respondent during cross-examination that he could show her “dozens of internet posts” through 2022 to the current time. This demonstrated that at that time the appellant, whether through her legal team or otherwise, was well able to undertake searches such as those which yielded the material now sought to be tendered as fresh evidence.

10. [19]

    Second, the material was not of a character that, if adduced, it would likely have had an important influence on the result of the case. The respondent was candid in her evidence at trial that she was still actively in business and it was clear that, at that time, her business (in the fashion industry) remained active and remunerative. The fact that the respondent was one of a number of investors in Infamous Swim was not inconsistent with the respondent’s evidence before the primary judge that went to her inability to work five days a week at her business. The respondent also gave evidence at trial that the nature of her business was such that she had to post frequently on social media as she was conscious of the importance of media exposure to her business. The depiction of the respondent in the Instagram posts that the appellant sought to adduce was consistent with that evidence. Even if it were accepted that the videos posted on Instagram were recorded at Infamous Swim’s premises, and thus that the material now sought to be adduced showed that the respondent travelled to Melbourne on at least one occasion (noting that it is not apparent whether the videos were filmed on one, or more, occasion), that would not undermine the credibility of the respondent’s evidence that she could no longer work full time nor would it diminish the weight that could be given to the report dated 24 February 2023 of Dr Frank Chow, psychiatrist, on which the respondent relied. Nor would any of the material sought to be adduced undermine the primary judge’s finding that the respondent had some impairment to her earning capacity by reason of her injuries (albeit less than she claimed).

11. [20]

    It was also of some significance that (as already noted) the primary judge found that there was some unreliability in the respondent’s evidence, albeit that his Honour did not think that that was a product of a conscious attempt to mislead. His Honour found that the respondent probably had greater earning capacity, and did work more, than her evidence suggested. In these circumstances, the material sought to be adduced would not have materially impacted the primary judge’s assessment of damages.

12. [21]

    Given this conclusion, the appellant should bear the costs of the application to adduce fresh evidence.

13. [22]

    Several steps were taken by the respondent apparently seeking to counter the application to adduce fresh evidence. The respondent issued subpoenas to Veritas Pty Ltd, Family Services Australia and TasWomen, and on 16 March 2026 Free JA abridged the time for service of those subpoenas. His Honour ordered that the costs of that motion be costs in the appeal.

14. [23]

    The respondent also issued subpoenas to attend to give evidence to Mr Short, Puja Payal of Veritas Law Firm and Gemma Crowe of Infamous Swim. This was a disproportionate response to the appellant’s motion. No order should be made for the costs of, or associated with, these subpoenas.

15. [24]

    For the avoidance of doubt, the costs of the application to adduce fresh evidence (which the appellant is to bear) do not include any costs of, or consequential upon, the issuing of the subpoenas at [22]-[23] above.

Factual background

1. [25]

   Given that the appellant challenges the primary judge’s factual findings and his Honour’s evaluation of the causation and extent of the respondent’s psychiatric injury and impairment, it is necessary to set out the factual background to the appeal by reference to oral evidence of the respondent and Mr Child and to the documentary evidence tendered at trial.

2. [26]

   The respondent’s physical injuries involved pain associated with the attack and feeling sore for a few months afterwards. She acknowledged that she had no ongoing physical problems and only very minor scarring. She said, however, that she was traumatised by the incident and continued to struggle emotionally. She also described difficulty walking outside with her new dogs (Lexi having died in September 2024) and that, after the incident, she found it “really hard to leave the house” and “didn’t want to have to deal with any people”. She said that before the incident she would go out for dinner most nights but no longer had a social life. She also said that she used to play soccer but that “mentally” she could not do that any more. She still went to the gym in the mornings, and saw gym people there, but apart from that did not see friends. She also said that she used to be very house proud and did the shopping, cleaning, laundry, and most of the cooking but that, since the attack, her partner looked after all of these tasks. She said that she would still attend “weddings with family” but found that these exacerbated her anxiety.

3. [27]

   The respondent gave evidence that she had had some mental health issues prior to the attack, including a history of anxiety, and also had migraines (which affected her sleep). She was under the care of her local doctor for this. She had consulted her doctor on account of a variety of matters including anxiety on 9 March 2020, approximately six weeks before the attack. She said, however, that after the attack her anxiety was “completely different”, explaining that prior to the attack she would “live [her] life”, leaving the house, meeting friends, going to dinner, and going to work every day.

4. [28]

   Mr Child largely confirmed this evidence, explaining that his relationship with the respondent “changed quite dramatically on [24 April 2020]”. He said that after the attack she “doesn't want to leave the house, go anywhere, do anything, whereas she used to have pretty much normal time doing that sort of thing”. He agreed that the respondent had had issues with anxiety prior to the attack but that he “didn’t see it as really too bad” and she had “lived her normal life”. By contrast, he said that “now” she locked herself in the house and it was very hard to persuade her to leave.

5. [29]

   The respondent ran her own business designing couture high-end bridal and evening wear (and that business continued at the time of trial). She set that business up in 1995 and she was the sole shareholder and sole director. She employed one contractor. She explained that she dressed a lot of celebrities. At the time of the attack, restrictions associated with the COVID-19 pandemic had impacted her business as weddings were shut down. She said prior to that she would go into work most days from Tuesday to Saturday and she had thought she would work until she was 70 or 80 years old. She said that at the time of trial, she tried to get into work maybe eight hours a week and did not know if she would still manage to work until the age at which she had previously anticipated retiring, as she struggled to go in for two half days a week. She said in her evidence that her business was “definitely active” but had suffered a downturn.

6. [30]

   Mr Child said that at the time of trial he did things to assist the respondent with her work, such as driving her to her work in Balmain and staying there for five to six hours while she works on a Saturday and organising to get her to work or get her home if she had to work on a Friday. He said that when the respondent worked from home, he made her appointments and her business emails went to his personal inbox.

7. [31]

   Financial records tendered at trial, and on which the respondent was cross-examined, showed that the respondent’s business was more successful in the period between 2022 and 2024 than it had been prior to COVID-19 restrictions. In 2019 her total sales were $106,440, but in 2022, 2023 and 2024 they were, respectively, $164,925, $147,014 and $142,845. When it was put to her in cross-examination that this showed significant increases in total sales since the attack she said:

8. [32]

   A number of posts from the respondent’s Instagram profile were put to her in cross-examination. She said that she frequently posted to social media for her business. She said that she had to try to get media exposure, explaining, “How will I survive if I don’t go in there?”.

9. [33]

   It was put to the respondent that her evidence as to her reduced capacity to work was a fabrication. She denied that.

10. [34]

    The respondent’s clinical records from three different medical centres were tendered at trial. Given the grounds of appeal, these are of some significance on the appeal.

11. [35]

    On 25 April 2020, the day following the attack, the respondent sought treatment from Dr Fauzia Rehan at MedFirst Medical Centre, Hurstville. This was recorded as being the respondent’s first visit to that practice. Dr Rehan recorded a history of the attack and described the reason for visit as “[d]epression/Anxiety” and “[d]og scratch”. The respondent was given prescriptions for Keflex (an antibiotic) and temazepam (a benzodiazepine).

12. [36]

    On 30 April 2020 the respondent saw Dr Mina Habashi at Hurstville Highpoint Medical Centre where she had been a patient since at least 2018. Dr Habashi recorded that the respondent had gone to see another general practitioner “on Saturday as this clinic was closed” (25 April 2020 having been a Saturday). He recorded that she had “witnessed a very traumatic [scene]”, described what she saw and then noted that, since then she had not been able to sleep. Dr Habashi advised the respondent to see a psychologist and completed a Mental Health Care Plan. The Mental Health Care Plan noted a history of anxiety, chronic migraine, cluster headache and SVT (which I presume refers to supraventricular tachycardia), that the presenting issue was “[s]ituational crisis witnessed her dog being viciously attacked”, and recorded a diagnosis of situational crisis and anxiety.

13. [37]

    On 7 May 2020 the respondent saw Wai Lun Fu, psychologist. In a letter of that date to Dr Habashi, Mr Fu said:

14. [38]

    The notes of a telephone consultation with Dr Habashi on 9 July 2020 record that the respondent had been seeing a psychologist “to good effect” and a diagnosis of migraine and anxiety. On 24 June 2021 the respondent attended a consultation with Dr Wang. The notes of that consultation include reference to a “[history] of anxiety/panic attack” and a discussion about anxiety. The reasons for the visit were anxiety and to get a COVID-19 vaccination.

15. [39]

    The respondent saw Dr Siyu Liu on 27 October 2021. Dr Liu’s notes record that the respondent had chronic anxiety which had been worse in the past two years since a dog attack in early 2020 and that the respondent also seemed to have “PTSD-like symptoms”. Dr Liu referred the respondent to Dr Wendy Orlay, psychiatrist and prescribed a trial of 50mg daily of Zoloft (an antidepressant). In the referral of 27 October 2021 to Dr Orlay, Dr Liu wrote:

16. [40]

    On 3 March 2022 the respondent saw Dr Monica Therese Tay complaining of chronic headaches, hyperhidrosis (excessive sweating) and poor sleep which were both said to be “likely in context of anxiety”, and anxiety which she reported as having happened after the attack. She had not taken up the previous referral to Dr Orlay and reported that she did not feel that she “clicked” with the psychologist who she had been seeing. There was a discussion about her returning for a Mental Health Care Plan.

17. [41]

    On 14 March 2022 the respondent saw Dr Mark Wong who recorded a history, including reference to the attack and “[t]rauma”, and that the respondent “won[’]t leave house”, “won[’]t travel”. He wrote a letter addressed “[t]o whom it may concern”, in which he described the respondent as suffering from PTSD and said that Lexi should be designated the respondent’s “companion animal”. At a further consultation with Dr Wong on 30 March 2022 the respondent is recorded as saying that her anxiety/depression was “already a lot better with [P]ristiq”.

18. [42]

    The notes of a further consultation with Dr Wong on 7 September 2022 record that the respondent’s anxiety was “very bad” and that she was struggling to get out of the house but “[o]k getting to work, with difficulty”. Even walking down the street she was “constantly … on edge”. The notes refer to the attack and that “even seeing a dog freaks [the respondent] out”. Her dose of Pristiq was increased and Dr Wong wrote a letter of referral to a psychologist, giving a history of “PTSD with intense flashbacks, since her dog was grievously mauled 4f20” and describing “[w]orsening symptoms with agoraphobia developing. Hypervigilance, poor sleep – poor concentration, struggling at her own work”. He also said that the respondent reported that she was “able to still go to her own workplace but it can be hard with her ptsd”. Under the heading “Past History”, there is no mention of any psychiatric illness until April 2020, where “PTSD – Dog attack” is noted.

19. [43]

    The respondent had another consultation with Dr Wong on 7 October 2022. The notes record the respondent was “[c]oping” and was still able to go to her own workplace, but that “it can be hard with her ptsd”.

20. [44]

    The respondent attended Dr Wong on 6 February 2023. Dr Wong noted that the respondent still “gets triggered ptsd” was “becoming obsessed with Lexi 12 year old”, “cant go overseas” and “still manages to get to work, struggles to get there”. The notes of a further consultation with Dr Wong on 24 August 2023 include reference to “nausea”, “tiredness”, and “shakiness” and said that she “gets depressed when home [alone]” and “goes to gym, work without trouble”. The records of a further consultation with Dr Wong on 13 September 2023 include, under the heading, “Reason for visit”, “PTSD” and also that the respondent “hates meeting new people”. Dr Wong wrote a letter “re. Names of psychologists” and recorded “for mha again once appt made”. On that day Dr Wong wrote a letter of referral to Dr Sim Gulati, consultant psychiatrist, asking him to please “consider all options including some of the newer treatments” and describing the respondent as suffering from “SEVERE PTSD”. He noted that the DASS-21 had indicated extremely severe D (depression), A (anxiety), and S (stress). Dr Gulati saw the respondent on 14 February 2023 and recorded that his impression was:

21. [45]

    Throughout this period, the respondent also had medical attendances unrelated to psychological or psychiatric symptoms.

22. [46]

    Dr Chow’s report, and a report dated 29 April 2024 from Dr Leonard Lee, consultant forensic psychiatrist instructed by the appellant, were tendered before the primary judge. Neither psychiatrist gave oral evidence.

23. [47]

    Dr Chow’s report included a detailed history of the respondent’s symptoms since the attack, including that she had been trying to work three days a week but struggled with that, often staying in the studio for a few hours at a time then going home. He also noted that the respondent told him that she had a past history of depression and anxiety, having taken antidepressants three times, for six months’ duration on each occasion, within the last 20 years “during life stressors”. He set out his findings on mental state examination, including that the respondent’s affect was restricted and that she reported “ongoing sleeping disturbance, flashbacks, nightmares, avoidance behaviours, triggers of psychological symptoms, depressed mood, anxiety, poor appetite, reduced interest in hobbies or activities, fluctuating motivation and energy with feeling of guilt”. His opinion was that the respondent suffered from a “psychiatric injury of trauma nature” caused by the attack and that she continued to suffer significant psychological symptoms from the attack which warranted the diagnosis of PTSD. He considered that she needed further psychological and psychiatric treatment and her condition was likely to remain ongoing. He also said that the respondent’s ability to work had been affected by the injury and that her partial incapacity was likely to remain ongoing.

24. [48]

    Dr Lee also took a detailed history from the respondent and reported his findings on mental state examination, including that the respondent’s anxiety seemed to settle with an empathic approach. He said that on clinical examination the respondent “presented as extremely anxious and disabled”. He administered the Structured Inventory of Malingered Symptomatology (SIMS) which he described as being guided by the idea that naïve respondents are “likely to endorse bizarre, rare, atypical, or extreme symptoms on a questionnaire when they attempt to feign or exaggerate symptoms”. He explained that the SIMS generates heightened scores in groups that are known to have a raised prevalence of feigning. He said that the respondent’s score on the SIMS indicated “diagnostic certainty of feigned psychopathy”. He also administered the Memory Complaints Inventory (MCI) which he described as a “symptom validity test”. He said that the respondent’s score on the MCI indicated that it was “very likely that symptom exaggeration [was] present”. He also said that a further inventory that he administered, the Minnesota Multiphasic Personality Inventory 2 revised format, indicated that the respondent’s symptoms were “markedly exaggerated and non-credible”.

25. [49]

    Dr Lee referred to the record of the respondent’s attendance on Dr Rehan on 25 April 2020. He makes no mention of Dr Rehan’s note that the reason for the visit was depression/anxiety. He said:

26. [50]

    Dr Lee made no mention of the respondent’s medical records from Highpoint Medical Centre. This is a significant omission given the matters summarised at [35]-[44] above. Dr Lee attached significance to the fact that the respondent presented to the MedFirst Medical Centre on 16 September 2020 complaining of an ant bite and bruises in her finger “with no mention of the dog bite”. He commented that it was “remarkable that she did not appear to be traumatized five months after the incident. Delayed onset PTSD is implausible”. In fact, however, in addition to the attendance on 25 April 2020 the respondent was diagnosed with “situational crisis and anxiety” on 30 April 2020, was referred to a psychologist on account of this, and on 7 May 2020 saw Dr Fu who diagnosed Acute Stress Disorder caused by the attack.

27. [51]

    Dr Lee referred to Dr Wong’s referral to Dr Gulati on 6 February 2023. As to this, Dr Lee commented that the DASS-21 “is a sel[f-]report instrument that does not detect exaggeration”.

28. [52]

    Dr Lee summarised and commented on Dr Chow’s report, including observing that the respondent’s “failure on symptom validity testing means that the accuracy of her history and reported symptoms is uncertain”. Curiously, given the content of the respondent’s medical records, Dr Lee commented that:

29. [53]

    Ultimately, Dr Lee’s opinion was that “it is impossible to reject the possibility of malingering which affects my ability to provide diagnosis and prognosis”. He said that “[s]ymptom validity testing reveals marked exaggeration to the extent that I cannot agree with Dr Chow’s diagnosis of posttraumatic stress disorder”. He considered that the respondent’s “current complaints” were referable to “her pre-existing condition and magnified by litigation”.

The findings of the primary judge

1. [54]

   Liability under s 25 of the CAA was not in dispute before the primary judge: [10].

2. [55]

   As to causation, the primary judge made three key findings. First, that the respondent suffered a genuine psychiatric condition as a result of the attack: [43]. In reaching this finding, the primary judge relied upon the “nature of the attack, the contemporaneous complaints of psychological trauma, the prescription of psychotropic medication, the referral to a psychologist early on, and the treating histories referencing psychological problems following on from the attack”: [43]. The primary judge observed that there was “a conspicuous absence of any real clinical observations of the [respondent] by Dr Lee, whose conclusions are firmly rooted in the results of the testing he undertook”: [44], and that “the opinion of Dr Chow [was] more consistent with the treating clinical records and … share[d] a symmetry with the opinions expressed by the treating psychiatrist, Dr Gulati”: [45]. This led the primary judge to reject the opinion of Dr Lee that the respondent was “feigning”, noting that “[t]hat opinion was based predominantly, if not entirely, on symptom validity and other testing which, as Dr Lee’s report acknowledges, is not definitive”: [46]. His Honour added at [46]:

3. [56]

   The primary judge found that the attack caused the respondent to suffer PTSD against the background of a prior history of anxiety and depression: [51]. The primary judge characterised Dr Lee’s views as to causation as “out of step with the evidence”: [66].

4. [57]

   Second, the primary judge held that, as liability under s 25 of the CAA is not liability “in negligence”, the issue of causation was to be determined according to the common law and not pursuant to s 5D of the CLA: [57]-[59]. His Honour observed, however, that this was of little moment as the two approaches would not yield a different outcome on the facts of this case: [59].

5. [58]

   Third, the primary judge addressed the issue of “disentangling” the psychiatric injury caused by the attack on the respondent from the psychiatric injury associated with the injuries to Lexi. This was because the primary judge interpreted s 25(1)(a) of the CAA as conferring a right to damages only for physical and psychiatric injury consequent upon an attack on “a person”: [60], and the respondent does not now seek to challenge his Honour’s construction. As to this, the primary judge found that “the attack upon the [respondent] and the attack upon Lexi are inextricably linked”: [72]. His Honour found that there was no evidence before him which would enable “a reasoned evaluation of the psychological effects of the trauma associated with the attack on Lexi, independently of the attack on the [respondent]”, nor any reliable evidence “to dilute the causal link between the attack on the [respondent] and the PTSD [his Honour was] satisfied she suffered as a result”: [75]-[78]. His Honour held that, in these circumstances, the appellant had not discharged the evidentiary burden on her to show that part of the respondent’s injury was traceable to causes other than the attack on her: Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [104]-[105] (Ipp JA).

6. [59]

   Underlying the primary judge’s assessment of damages was his Honour’s finding that the respondent was a credible witness who had suffered a genuine psychiatric injury but that her complaints were “in some respects potentially unreliable”: [47], [82], [106]. His Honour attributed this to her preoccupation with the attack and the emotional turmoil it caused: [82]. He also considered that there was cause to expect some improvement in her symptoms with the intervention of counselling, medication and the passage of time: [82]. Both of these matters led to some caution when his Honour was considering the respondent’s claim for damages for loss of earning capacity: [106].

7. [60]

   The primary judge’s assessment of the respondent’s non-economic loss of $49,500 was based upon his Honour’s evaluation that she was 25% of a most extreme case: [83].

8. [61]

   The $2,288.63 awarded to the respondent for past out of pocket expenses was agreed by the appellant at trial and allowed by his Honour: [85], [88].

9. [62]

   The award of a $15,000 buffer for future treatment expenses was predicated upon the respondent’s need for future medication and the possibility of her availing herself of psychiatric or psychological treatment in the future: [99].

10. [63]

    In awarding a $35,000 buffer for past and future loss of earning capacity the primary judge noted that the respondent’s evidence as to the extent of her incapacity sat uncomfortably with the frequency of her gym attendance, her failure to avail herself of treatment, the substantial income her business had generated since the COVID-19 pandemic, Dr Wong’s clinical note that the respondent “goes to gym, work without trouble”, and Mr Child’s evidence that he would wait five or six hours for the respondent at her work on a Saturday: [110], [119], [121], [122]. His Honour also observed that the respondent’s pre-existing psychological problems may have “come against her in any event”: [124]. He found that the respondent “probably does more work than her evidence suggests”: [123]. Notwithstanding these matters, however, the primary judge was satisfied that the respondent had suffered some loss of earning capacity as a result of the psychological injury caused by the attack, albeit that the extent of that loss was uncertain: [118], [124].

11. [64]

    No award was made for domestic assistance: [137].

The standard of appellate review

1. [65]

   Neither party directly addressed the standard of appellate review applicable to the appellant’s challenges to the primary judge’s assessments of non-economic and economic loss. As to this, in Harper v Bangalow Motors Pty Ltd [1990] NSWCA 85, Clarke JA explained that the same standard of appellate review will not automatically be applied to all elements, economic and non-economic, of a claim for damages. His Honour held that there was no reason why the rule in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 should not apply to essential factual determinations whereas an approach akin to that in House v The King (1936) 55 CLR 499; [1936] HCA 40 (which his Honour referred to by reference to the decision in Miller v Jennings (1954) 92 CLR 190; [1954] HCA 65) should apply where “the decision reflects a degree of judicial prophesy or speculation”. In Diamond v Simpson (No 1) [2003] NSWCA 67 at [15], the Court described Clarke JA in Harper as having “accurately and conveniently expressed” the principles which govern the task of an appellate court in determining an appeal from an assessment of damages in personal injury cases. Having regard to Harper and Diamond, it is appropriate to identify the standard of appellate review on a challenge to an assessment of damages by reference to the character of the particular finding being challenged.

2. [66]

   As regards the appellant’s challenges to findings of fact, such as the primary judge’s finding that the respondent genuinely suffered from ongoing psychological symptoms and that these impacted her earning capacity, the proper standard of appellate review is the correctness standard, albeit informed by the principles in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29] and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. The challenge to the primary judge’s finding of causation similarly attracts a correctness standard of appellate review, as it reflects an enquiry to which there is only one legally correct outcome: GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [16].

3. [67]

   As regards an assessment of non-economic loss, as was explained by Griffiths AJA in Stanberg v State of New South Wales [2025] NSWCA 127 at [109]-[110] (Mitchelmore and McHugh JJA agreeing) there may be some tension between the statement by Leeming JA in Hall v State of New South Wales [2014] NSWCA 154 at [31]-[32] and the more recent analysis of Gleeson and White JJA in White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 at [61] and [96] respectively. In the former, Leeming JA held that “[o]rdinary principles of appellate review” apply to a finding of fact as to the severity of non-economic loss by reference to the proportion of a most extreme case. In the latter, Gleeson JA, having referred to Leeming JA’s analysis in Hall, said that a finding as to the severity of non-economic loss “does not call for a unique outcome” and thus the test for appellate intervention reflects that described in House v The King. White JA similarly held that such a decision attracts the House v The King standard of appellate review.

4. [68]

   As Gageler J explained in Minister for Immigration v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [49], and has subsequently been confirmed in GLJ at [15] (Kiefel CJ, Gageler and Jagot JJ) and Moore (a pseudonym) v The King [2024] HCA 30; 98 ALJR 1119 at [15] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ), the correctness standard of review is apt where the legal criterion applied demand a unique answer but the House v The King standard applies where the conclusion tolerates a range of outcomes, albeit that the line between the two is “not bright”. Consistent with the careful and persuasive analysis of Gleeson and White JJA in White, the characterisation of a plaintiff’s injuries by reference to a proportion of a most extreme case, so as to assess damages for non-economic loss, is a necessarily imprecise and impressionistic exercise. It would be wholly artificial to treat such an exercise as one in which there is only one legally correct answer or a unique outcome (see by analogy, Motor Accident Commission v Raccanello [2025] SASCA 146 at [123]-[125] (Livesey P) and [1117] (S Doyle JA) and Transport Accident Commission v Pastuch [2025] SASCA 120 at [44], (S Doyle JA, Livesey P and Bleby JA agreeing)). In these circumstances, the House v The King standard of appellate review should apply to challenges where it is alleged that the primary judge has erred in that characterisation. Having said that, however, I am satisfied that the primary judge’s assessment of non-economic loss was correct here, so my conclusion does not depend upon which standard of appellate review applies.

5. [69]

   As regards the appellant’s challenge to the primary judge’s award for loss of earning capacity, there is a line of authority that indicates that the question for the appellate court is whether the amount awarded was within the range available to the trial judge or within “a reasonable range”: Loxton v State of New South Wales [2002] NSWCA 194 at [46] (Sheller JA, Campbell AJA agreeing); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [82] (McColl JA, Mason P and Beazley JA agreeing); Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 at [51] (White JA, Griffiths AJA and Weinstein J agreeing); see also Langdon v Carnival PLC [2024] NSWCA 168 at [163] (Ward P, Kirk JA and Basten AJA agreeing). This reflects the “necessarily impressionistic” nature of the exercise: Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388; [2000] NSWCA 352 at [49] (Mason P, Spigelman CJ and Priestley JA agreeing), which is “imprecise and indeterminate” with wide parameters: Loxton at [41]. However, again, even if the correctness standard were to apply, it would make no difference to the outcome of this appeal.

Consideration of the grounds of appeal

1. [70]

   The appellant’s ultimate contention on ground one is that the primary judge erred in preferring the opinion of Dr Chow to that of Dr Lee. She submits that Dr Chow’s report failed to expose the reasoning linking his specialised knowledge to the conclusion reached, or to consider alternative causes of the appellant’s symptoms, and thus failed to comply with the requirements of s 79 of the Evidence Act 1995 (NSW) and as set out by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [67]. She also contends that Dr Chow’s opinion is undermined by his reliance upon the respondent’s self-reported history and symptoms and the respondent’s results on the DASS-21 assessment tool. By contrast, the appellant contends, Dr Lee conducted symptom validity testing and explained how his specialised knowledge was applied to the facts.

2. [71]

   Those contentions should be rejected. The primary judge was correct to prefer Dr Chow’s opinion over that of Dr Lee. The primary judge was also correct to describe, at [44], Dr Lee’s opinion that the respondent was feigning her symptoms as an opinion that was predicated more on his testing for malingering and feigning of symptoms than upon his own examination and assessment of the respondent (as noted above at [55]). Further, as the primary judge observed at [38] and [41]-[42], the respondent’s medical records significantly undermine Dr Lee’s observations that the respondent made no complaints of symptoms consistent with PTSD for some time after the attack.

3. [72]

   As the primary judge correctly observed at [43], “[t]he nature of the attack, the contemporaneous complaints of psychological trauma, the prescription of psychotropic medication, the referral to a psychologist early on, and the treating histories referencing psychological problems following on from the attack” all supported a finding that the respondent suffered a genuine psychiatric condition as a result of the attack. The primary judge also relied in this regard upon his own impression of the respondent in the witness box (as supported by Mr Child’s evidence), and in this way it is apparent that the primary judge had considerable advantages over this Court.

4. [73]

   The appellant’s criticisms of Dr Chow’s report should also be rejected. Dr Chow’s expertise was not questioned either before the primary judge or before this Court. He set out what he regarded to be relevant history and his findings on mental state examination. He referred to the respondent’s history of depression and anxiety which at times required medication. He incorporated relevant extracts from the respondent’s medical records into his summary of the background to his opinion. On a natural reading of Dr Chow’s report, his summary and opinion drew upon those matters in reasoning to an assessment of the veracity of the respondent’s symptoms and to his opinion as to diagnosis and prognosis. Both the facts relied upon and the process of reasoning leading to his opinion were sufficiently disclosed: Australian Securities & Investment Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [105] (Spigelman CJ, Giles and Ipp JJA agreeing). If the primary judge had not agreed that the respondent’s symptoms were genuine and were caused by the attack, having regard to all of the evidence, then Dr Chow’s opinions may have been of little or no value: Ramsay v Watson (1961) 108 CLR 642 at 649 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ); [1961] HCA 65.

5. [74]

   Dr Chow’s opinions as to diagnosis and causation implicitly reject any suggestion that the respondent was feigning her symptoms or that pre-existing factors caused her current symptoms. He did not need to detail his process of reasoning as it is readily apparent from both the structure and content of his report. Nor did he need to administer symptom validity testing in order to support those opinions. It is well within the expertise of a consultant psychiatrist to carry out assessments (whether therapeutic or medico-legal) on the basis of the account given by the person being assessed and to form a view as to the extent to which the person being assessed genuinely suffers from the symptoms or impairment they describe. That, together with mental state assessment, may be an important element of psychiatric assessments and decisions to recommend or prescribe medication or other treatment, with a view to avoiding any unnecessary administration of costly and potentially harmful medication. Whilst the psychiatrist’s assessment in no way binds the Court, it is not irrelevant to the Court’s own assessment as to whether or not symptoms described by a plaintiff (or here by the respondent) are genuinely experienced or reflect a psychiatric condition.

6. [75]

   Ground one should be dismissed.

7. [76]

   The appellant’s overarching contention in ground two is that the primary judge failed to perform any analysis separating the effects of the attack from other significant stressors in the respondent’s life, both before and after the attack. She submits that the primary judge erroneously proceeded largely on the basis of temporal association and that this materially affected the outcome at trial.

8. [77]

   In this regard, the appellant contends that s 5D of the CLA was applicable and required the primary judge to determine whether the attack “was the only necessary condition of the harm” and whether responsibility for the harm should be imposed. She submits that even if s 5D did not apply, the primary judge should have undertaken a structured causation analysis and distinguished the attack from other contemporaneous stressors. She identifies a range of matters which she contends were capable of producing the respondent’s psychological symptoms independently of the attack, including COVID-19 lockdowns, the suspension of weddings due to the lockdowns which affected the respondent’s business, the respondent’s history of anxiety and depression, the breakdown of the respondent’s prior intimate relationship in 2016 against a background of serious allegations against her former partner in 2012 (involving nieces of the respondent) and the death of the respondent’s father in November 2024. She contends these competing causes should have been, but were not, evaluated by the primary judge.

9. [78]

   The appellant’s contentions begin from the erroneous starting point that s 5D of the CLA applies in the context of the claim under s 25 of the CAA which the primary judge upheld against her. Leeming JA (Macfarlan JA and Sackville AJA agreeing) held in Simon v Condran (2013) 85 NSWLR 768; [2013] NSWCA 388 at [28] that liability under s 25 of the CAA is not regulated by Pt 1A of the CLA (within which s 5D is found) as it is not dependent upon any breach of duty on the part of the dog owner. As a matter of substance, however, this does not undermine the appellant’s contention that the determination of causation involves both a question of historical fact (the “but for” question) and a normative question as to whether legal responsibility for a particular harm occurring should be attributed to a particular person: Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [11], [16]. In this regard, the primary judge was correct to reject the appellant’s contention below (repeated in this Court) that s 5D of the CLA applies. It should also be observed in this regard that in Wallace v Kam it was held at [16] that factual causation (which was the causation question in issue on the appeal) under s 5D(1)(a) of the CLA involves “nothing more or less than” the application of a ‘but for’ test of causation.

10. [79]

    Under s 25(1)(a) of the CAA an owner’s liability is in respect of “bodily injury to a person caused by the dog wounding or attacking that person” (emphasis added). The approach to causation under s 25(1)(a) should be determined by reference to the text and purpose of the CAA: Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43 at [42]; see also Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32 at [105]. I am satisfied that, for the purpose of the issues of factual causation arising in this case, the test under s 25(1)(a) should be informed by the common law principles of causation. Thus, whilst the primary judge erred in holding that the common law rather than the statutory test for causation under s 25(1)(a) of the CAA applied, that error is not material as, in the context of this case, the primary judge applied the correct principles to resolve the issues of causation arising.

11. [80]

    The primary judge considered the issue of factual causation first by asking whether the attack caused the respondent to suffer both from a psychiatric condition and from ongoing symptoms of that condition (above at [56]). The medical records that the primary judge relied upon to reach the conclusion that it did strongly support his Honour’s conclusion. Those records disclose initial anxiety related to the attack and then a series of attendances on general practitioners, a psychologist and a psychiatrist, in which the development of her symptoms since the attack, her symptoms reflecting anxiety and a stress disorder or situational crisis and the link between her symptoms and the attack, were noted (albeit that not all of these matters are identified in each of the clinical notes): Dr Rehan on 25 April 2020, Dr Habashi on 30 April 2020, Mr Fu on 7 May 2020, Dr Habashi on 9 July 2020, Dr Wang on 24June 2021, Dr Liu on 27 October 2021, Dr Tay on 3 March 2022, Dr Wong on 14 March 2022, Dr Wong on 7 September 2022, Dr Wong on 7 October 2022, Dr Wong on 6 February 2023 and Dr Gulati on 14 February 2023 (summarised above at [34]-[45]). The opinion of Dr Chow also supports the primary judge’s assessment.

12. [81]

    The primary judge’s analysis of causation is also supported by the absence of any suggestion in the medical records that the respondent’s symptoms were consequent upon any of the events which the appellant posits as possible alternative causes or her psychological symptoms or impairment. It is also supported by the respondent’s oral evidence (which is supported by Mr Child’s oral evidence) that her previous anxiety and stress was “very different” to what happened after the attack and that her anxiety as at the time of trial was also very different to how it had been before the attack. Further, it was not put to the respondent in cross-examination that she had suffered symptoms of stress and anxiety by reason of the matters that the appellant now contends the primary judge should have considered as alternative causes or contributors to her psychological symptoms after the attack.

13. [82]

    In this context, the primary judge’s analysis of the issue of causation was both adequate and correct. It was not incumbent upon the primary judge to scrutinise the material before him to ascertain whether there might have been events in the respondent’s life, other than the attack, which could potentially have led to anxiety or a stress reaction in circumstances where these were neither put to the respondent and neither of the experts suggested that any of the posited competing causes had caused or contributed to the respondent’s PTSD (although Dr Lee did suggest, as a matter of generality and not with respect to the respondent, that one thing which can result in misreporting and simulation of clinical disorders is a dysfunctional life and he referred in his report to the impact of the COVID-19 pandemic on her business in the context of his opinion that it was impossible to reject the possibility of malingering).

14. [83]

    Ground two should be dismissed.

15. [84]

    In ground three, the appellant contends that the evidence before the primary judge did not support a finding that the respondent had suffered impairment of her earning capacity by reason of her psychiatric symptoms, “as opposed to experiencing subjective difficulty or reduced preference for working longer hours”. In support of this contention the appellant relies upon the respondent’s continuation of substantive work activities in the period after COVID-19 restrictions were lifted, the increasing revenue generated by her business over this period in circumstances where the respondent was the only substantive contributor to the business, the respondent’s continuing ability to go to the gym after the attack and the lack of any reasoned analysis in Dr Chow’s report in support of his conclusion that the respondent “continues to struggle and [is] only able to remain working partially”. She submits that it was not open to his Honour to make an award of damages as a buffer for loss of earning capacity in these circumstances.

16. [85]

    Ultimately, as noted above, the primary judge accepted some, but not all, of the respondent’s evidence as to her ongoing impairment of earning capacity. That finding was clearly influenced by the primary judge’s assessment of the oral evidence of both the respondent and Mr Child, albeit that that evidence was assessed in the context of the medical and financial records and the expert evidence. Whilst demeanour was not adverted to by the primary judge as a factor in his evaluation of the evidence, it is inevitable that his impression of the witnesses and his immersion in the milieu of the trial played a part in his assessment of the evidence: J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 at [214] (Stern JA, Mitchelmore JA agreeing). Given this, the primary judge’s finding that the respondent’s earning capacity was impaired is one that attracts the principles of appellate restraint set out in Fox v Percy and Lee v Lee. As this finding is neither glaringly improbable nor contrary to the established facts, the appellant’s contention of error should be rejected.

17. [86]

    In any event, the primary judge’s finding is amply supported by the respondent’s oral evidence, supported as it was by Mr Child, and in a general sense by the medical records noted above. It is also supported by Dr Chow’s opinion as to causation.

18. [87]

    Contrary to the appellant’s submission, the primary judge was not required to identify specific functions which the respondent could not undertake in circumstances where her impairment was consequent upon a more general inability on occasion to leave the house, her need for the support of Mr Child when doing so, anxiety, lack of motivation and energy, and depression.

19. [88]

    Ground three should be dismissed.

20. [89]

    In large measure, the appellant’s contentions of error in the assessment of damages rely upon her contentions in grounds one to three. I have already explained why those contentions do not lead to a conclusion of error. In particular, the appellant’s contentions that the primary judge erred in his assessments of non-economic loss or in his allowance for future treatment costs were consequential upon her contention that his Honour erred in his findings as to causation and earning capacity.

21. [90]

    The appellant also contends that the awards of damages were manifestly excessive in circumstances where the primary judge acknowledged uncertainty regarding the respondent’s financial position and that the available financial records were incomplete.

22. [91]

    The evidence before the primary judge included personal tax records from 1 July 2014 to 30 June 2019, company taxation records from 1 July 2014 to 30 June 2023, and Business Activity Statements from July 2017 to March 2024. As the appellant submits, the primary judge acknowledged that there was uncertainty as to whether, and to what extent, the respondent had suffered economic loss having regard to the documents available and the concession made by the respondent that she was earning more per month in 2025 than she had earned per month in 2019 and that gross receipts were a gauge for how busy the business was: [113], [114], [119]. In part the uncertainty was due to gaps in the available financial records and in part it was due to the complexities of factoring in the effects of the pandemic: [117]. Notwithstanding that uncertainty, however, given the primary judge’s finding that the respondent’s earning capacity was impaired, there is no error in the primary judge having concluded on the balance of probabilities that that impairment of earning capacity led to financial loss both in the past and ongoing.

23. [92]

    Once that is accepted, the issue raised by ground four is whether the primary judge erred in his assessment that the respondent’s impairment of earning capacity should be reflected in the award of a buffer in the sum of $35,000 or otherwise erred in his assessment of non-economic loss or in his allowance for future treatment. As to the buffer, irrespective of whether the question is one of correctness, or whether the award was within a reasonable range: see above at [65]-[69], I am not satisfied that the primary judge’s assessment was erroneous. The respondent was born in October 1970 and said that she had anticipated working until she was 70 or 80 years old. The attack occurred when she was aged 49. That resulted in about 20 to 30 years of impaired earning capacity, although the COVID-19 restrictions impacted for probably one to two of those years. In that context, the primary judge’s award of $35,000 to reflect both past and future loss of earning capacity is, if anything, conservative. It more than adequately gave effect to the uncertainties which he identified. It also reflected the fact that the respondent’s business was clearly successful and capable of generating significant income and might have been even more successful if the respondent had not suffered PTSD by reason of the attack. Nor did his Honour err in his assessment of non-economic loss or in his allowance for the costs of future treatment.

24. [93]

    Ground four should be dismissed.

25. [94]

    In ground five the appellant contends that the errors that she identifies in grounds one to four cumulatively produce findings that are unsafe and that a miscarriage of justice has occurred. For the reasons I have already given, that contention cannot succeed. None of grounds one to four establish error in the primary judge’s findings.

26. [95]

    The matters raised in ground seven duplicate those raised in ground two.

Conclusion

1. [96]

   It follows that the appeal should be dismissed. Neither party contended other than that costs should follow the event.

2. [97]

   The orders I propose are:

   1. (1)

      Appeal dismissed.

   2. (2)

      Appellant to pay the respondent’s costs of the appeal.