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HCPI 1187/2000
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 1187 OF 2000
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BETWEEN
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GRACE CHIN |
1st Plaintiff |
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EUGENE OH |
2nd Plaintiff |
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and |
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KATE RICHDALE |
1st Defendant |
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YAN SU ZHER |
2nd Defendant |
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Before: Deputy High Court Judge Carlson in Court
Dates of Hearing: 11-15 & 18-21 April 2005 and 18 & 25 June 2005
Date of Judgment (Handed Down): 15 August 2005
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J U D G M E N T
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Introduction
1. This case concerns the killing of one of the Plaintiffs’ pet dogs by two dogs belonging to the Defendants’, a neighbouring family. That brief description of what this action is all about would perhaps suggest that the trial itself and the preparation for it would have been relatively short and uncomplicated. Nothing could be further from the truth. Irrespective of who is right or wrong, this unhappy incident has been allowed to escalate to such an extent that for the Plaintiffs’, at all events, it has become the all-consuming pre-occupation of their lives for the past five years and, for the Defendants it must also have become a very major source of concern and anxiety, as well as expense. They are having to defend what now must have become very expensive litigation, the cost of which, in the event of a successful outcome for them, may not be recoverable from the Plaintiffs’ who are now likely to be running short of funds.
2. This brief incident has resulted in two High Court actions (including this one), the other action for malicious prosecution already having been the subject of an inconclusive interlocutory appeal in the Court of Appeal, with a further hearing in that court listed shortly; the criminal prosecution and conviction of the 2nd Plaintiff over the course of a 24-day trial in the Magistrates’ Court and 6 private prosecutions against the Defendants, subsequently withdrawn by the Plaintiffs. During the course of his criminal trial, the 2nd Plaintiff collapsed with chest pains and had to be hospitalised for 56 days. The whole thing has become a nightmare. Any sense of reason, proportion or good judgment has been suspended.
The parties and their dogs
3. The Plaintiffs are husband and wife, as are the Defendants. All are highly educated and accomplished people. The 1st Plaintiff is aged 43. She is a Singaporean and was educated there and in Canada. She is a trained psychologist and is employed in the Department of Psychology at the University of Hong Kong. Her husband, the 2nd Plaintiff, is aged 49. He is Korean, born in that country where he grew up, but then went to Canada where he went to High School and University. He took a degree in Engineering at the University of Toronto and worked briefly as an engineer. He then switched to law after he and his wife married in 1986, obtaining a law degree and an MBA in Canada. He practised law in Canada and Korea before coming to live in Hong Kong in 1990. He has worked for major international law firms here and subsequently set up on his own as a solicitor. The Plaintiffs have three children.
4. The 1st Defendant is British. She was born in Hong Kong and went to school both here and in the United Kingdom where she also went to University. She has enjoyed a very successful career with a major international bank and currently holds a senior position in that bank in Singapore where she, her husband and their three children now live. The 2nd Defendant is originally from Mainland China. He was educated in North America and went to University there. He is also employed in the field of international banking and finance.
5. The Plaintiffs were the first to move to Wong Tong Kung Village (in the Clearwater Bay area), where all of this happened, in 1994. At first, they rented a house and then purchased their home at House 3F, Mang Kong Uk Road. In mid-1996, the Defendants purchased House 3, which is two houses down from the Plaintiffs’ home. Between them is the home of the Chan family. Both properties (as well as the Chan’s house) appear in the photographs which form part of the evidence in the case. It will presently become necessary for me to say more about the Defendants’ house with particular reference to the height of the wall and the gate which is at the front of the property.
6. In April 1996, the Plaintiffs acquired a pair of Shih-Tzu dogs; Sha-sha, a male dog, who had been born in 1992 and Muffin, a female of, I believe, similar age. The Plaintiffs and their children came to love these two dogs very much, as so many pet-owners do. They became an integral part of the family and were fussed over and gave much pleasure and happiness to the Plaintiffs and their children.
7. In 1997, the Defendants acquired Lady, the first of their two dogs, as a puppy. In September the following year, they adopted Jasper from their next door neighbour. He was a puppy who was in a bad way when they got him. He had serious skin problems which the Defendants treated themselves and nursed him back to good health. Both of these dogs are large animals. They are mongrels of the type one frequently finds in New Territories villages or at building sites where they can act as guard dogs. This having been said both Defendants say, and I accept, that despite perhaps, being a little short on good looks, they and their children have great affection for their two dogs. They also are loved family pets who have grown up with the Defendants’ children. Nevertheless as the 2nd Defendant, in particular, has said they also had another function which, given their size and bark, was to deter potential burglars, many of whom are illegal immigrants from the Mainland, there having been a relatively high incidence of break-in’s or attempted break-in’s by such individuals in the vicinity of their home during the period of their ownership of the two dogs.
8. Given the importance of this in the case, I will have more to say about the known characteristics of both sets of dogs in due course having first related the event that has given rise to this action.
9. The personality of the two Plaintiffs, particularly that of the husband, the 2nd Plaintiff, must figure large in the outcome of this case. I propose to say something about this now, which I will have to develop further when I make specific reference to the psychiatric evidence called by the Plaintiffs and the Defendants. There is no doubt that the Plaintiffs are a couple who are very devoted and supportive of each other and of their children. The 1st Plaintiff, in particular, is a committed Christian who lays great store by her deeply held religious convictions. This mutual support for each other, which is admirable in itself and the foundation to a happy, harmonious marriage and family life has had, in my judgment, in an unexpected way, a very damaging influence so far as their whole approach towards the Defendants is concerned, their dogs and this litigation, which has had its genesis in the events of 19 June 2000 and a subsequent incident, which is also relevant, on 9 September 2000.
10. Both Plaintiffs have approached these matters with a single-minded obsessive determination which is quite irrational. The sad death of a pet dog has been allowed to change the whole course of their lives which, on a most basic level, now threatens them with financial ruin. Nothing will deter them from bringing all of this to a conclusion whatever the consequences. Both give the other wholehearted support and encouragement. That is the nature of their relationship. Had, one or the other, been able or prepared to bring some sense of objectivity to bear on what is happening to them, then perhaps some sort of brake might have been applied. Quite the opposite is the case, with one encouraging and supporting the other in this life-consuming pursuit for justice, as they see it, which can only be achieved by a total or, at the very least, a substantial success in this action. In making these remarks, I am not to be taken as having formed any prematurely adverse view of the merits of the Plaintiffs’ action. I am merely reflecting what any reasonably well-informed neutral observer would have to say about their approach to this case. The irony is that they both rely on this parlous state of affairs – this obsessive irrational behaviour – in framing their claim for damages against the Defendants. Both say that as a result of the death of Sha-sha, they are suffering from Post Traumatic Stress Disorder [“PTSD”] and it is this aspect of the case that has taken up a substantial amount of time in the consideration of the evidence of two psychiatrists and a psychologist. The Plaintiffs’ case is that, to a large measure, their apparently irrational and abnormal behaviour is the manifestation of their PTSD which has been caused by the Defendants’ negligence in having allowed their dogs to kill Sha-sha, and in what they would describe as a callous disregard for what had happened and their failure to do anything about this after the event to ensure that there would not be a repetition of the same thing.
11. In my judgment, there was a certain pre-disposition in the 2nd Plaintiff, although nothing on this scale, to act with an unflinching single-mindedness of purpose in respect of anything that he might feel strongly about. Examples of this include his willingness to engage in correspondence with numerous public authorities about the state of the roads in the village, or the public lighting which he was prepared to pursue until something was done about it. Whilst this may well be considered admirable, the truth of the matter is that most residents of the village were and had been prepared to put up with the previous state of affairs on the basis that this is how things are in the rural areas of Hong Kong. This sense of righteousness was to be given full expression after the death of Sha-sha, as I will come to demonstrate shortly.
12. There is also another matter that I should mention. Although perhaps both sides have played this down, there already was an element of “needle” between the parties even before Sha-sha had been killed. The Defendants had decided to build a conservatory on the roof of their house together with a canvas canopy, which provided shade for those sitting underneath it. I do not know to what extent either of these improvements to the Defendants’ home complied with local planning or building regulations, with which I am not concerned, but the 2nd Plaintiff was quick to complain by letter to the Defendants that the canopy was obstructing his view of the sea, including a demand that it be removed lest the matter be taken further. The canopy was removed, the conservatory has stayed and, it is said, that this was the end of the matter. Nevertheless, I am persuaded that this was one of those “niggles” which had stayed with the parties below the surface, at all events, which perhaps made it easier for both sides to dislike each other after Sha-sha’s death. It also provides a further insight into the 2nd Plaintiff’s character that he should find it necessary to complain that his view of the sea, some distance away and only partial at best, was being obstructed although, in fairness, he had also pointed out the risks of damage to property and to people in the event of a typhoon blowing the canopy off.
13. The Defendants appear to be a more ‘laid back’ couple. They both have had to combine busy working lives with family life bringing up what were then two, young children. Without all the pressures that litigation on this scale brings and the animosity that it has engendered, the Defendants appear to have been people who were and are more easygoing, although prepared to stand their ground once the 2nd Plaintiff, in particular, decided to make strong demands of them following the death of his family pet before the issue of the writ and even more so, of course, after the writ had been served.
The death of Sha-sha
14. It is against this background of sharply contrasting personalities, in the setting of a small village, that this distressing litigation was to come into being. It all started peacefully enough with the 1st Plaintiff taking Sha-sha and Muffin for an early evening walk on 19 June 2000. Both of them, she says, were on a leash. As she walked back home with them past the Defendants’ house, in the area of the carpark immediately in front of the front gate to the house, Sha-sha broke loose from his leash and ran towards the Defendants’ house. He was sniffing by the front wall that is shown in so many of the photographs. She says that she called him back, but he did not obey her. She tried but could not get close to him because by now, Jasper and Lady were at the aluminium gate through which one enters into the Defendants’ garden barking loudly and aggressively. Both dogs were on their hind legs standing up over the gate. Her evidence is that as Sha-sha got close to the foot of the gate Jasper dragged him through the bars of the gate into the garden of the house. He had been ‘shot through’ the gate. Her attempts at rescuing him were futile. Lady, the female dog, was up on her hind legs and barring her teeth, barking at her. She described how the female dog’s ‘eyes locked’ onto her’s so that she felt very frightened for her own safety. She could not get close. Sha-sha was then attacked by both animals. He was savaged by them. It is plain from the photograph of his dead body that his stomach had been mauled and bitten into in the course of a frenzied attack by both animals as a result of which he died very shortly afterwards.
15. Having heard the 1st Plaintiff’s shouts and the commotion, Mr Chan, the next door neighbour, came round armed with a spade and he was able to drive the Defendants’ dogs away, so that the limp body of Sha-sha could be retrieved. The Plaintiff then went home and about thirty minutes later returned with her children, and took photographs of Sha-sha soaked in his own blood.
My approach to the evidence
16. It is right to say that the only person who has been able to give direct evidence of this is the 1st Plaintiff. The Defendants do not accept that this is what happened, and whilst having the distinct disadvantage of not being able to call contradictory evidence to support a positive case of their own, Mr Duncan, S.C. for the Defendants, has addressed a number of submissions to me with a view to persuading me that I should not find that Sha-sha’s death was caused in the way that the 1st Plaintiff has described. She, of course, bears the burden of showing, on a balance of probabilities, that the account that she has provided is truthful and accurate. If she cannot carry that burden, Mr Duncan submits that the very foundation of the Plaintiffs’ case must go, with the result that they will have failed to make out any of the causes of action that they have pleaded. Without direct evidence of his own to contradict that of the 1st Plaintiff, Mr Duncan has relied on a number of aspects of the incident which the 1st Plaintiff has described, which he says make it unlikely that her version is truthful or, at the very least, credible and, in a more general way, he has drawn attention to the bigger picture in terms of the way in which both Plaintiffs have conducted the litigation. He has referred to their evidence in respect of a number of other factual issues, their disturbed mental state, albeit short of a diagnosis of PTSD, the obsessive vindictiveness and irrational sense of indignation that they have displayed towards his clients and, indeed, towards the various authorities, public bodies and persons to whom they have turned for assistance and from whom they did not get the response that they had expected or hoped for. All of this, submits Mr Duncan, should cause me to be very careful before I accept a word of what either Plaintiff has told me. Although he has not put it as high as this, he really would wish me to say that it would be unsafe to accept the evidence of either Plaintiff on any important issue in the case unless their evidence is independently corroborated by other evidence which I am prepared to accept.
17. A court’s approach to how it assesses the credibility of the various witnesses called before it must vary from case to case, having regard to the nature of the evidential contest before it and, from witness to witness, having regard to the importance of the witnesses’ evidence and the motive, if any, for a witness to give deliberately untruthful evidence or, having regard to the risk that a witness may not be in a position to provide reliable evidence in the particular circumstances in which the witness finds himself. In this particular matter, although, of course, the Defendants do not enjoy any premium as to credibility as between themselves and the Plaintiffs, I have decided that the animosity, the irrational hostility displayed by the Plaintiffs and their disturbed emotional state make it necessary for me to approach their evidence with particular care. There is no requirement that their evidence should, of course, be independently corroborated before it can be accepted by me, and I do not propose to look for such corroboration before I feel able to act on their evidence nevertheless, their inability to embrace any sense of objectivity about this matter must, as a matter of good sense, require me to be very cautious in my assessment of their evidence. That is not to say that I can drop my guard so far as the Defendants’ evidence is concerned, particularly where so much ill-will exists, in assessing what they have told me. I must adjust my approach to the evidence so as to have regard to the poisoned atmosphere which forms the backdrop to the trial and approach what they, as well, have told me with caution.
18. This being the situation, I propose to have regard to all of the evidence first, where some aspects of the evidence will affect the credit that I feel able to give to other parts of what the parties have said, before I will be able to make any findings of fact on the material aspects of their evidence as it bears on the various issues, be they on liability or on damages. What this means, therefore, is that having described what the 1st Plaintiff has said about the death of Sha-sha, I will not able to make any finding at that stage as to whether I consider what she has said about this is more probable than not. I propose to defer my conclusion until after I have reviewed the evidence as a whole.
The immediate aftermath of the killing of Sha-sha
19. The 1stPlaintiff says that she was in a state of fear, distress and shock immediately following what she had seen happen to her much loved pet. It was in this state that she telephoned her husband to tell him what had occurred. He was in a coffee shop in Central at the time checking some paper work. The shock of this bad news caused him to spill his coffee onto an affidavit that he was working on. He then returned home and was also much distressed by the sight of the corpse of Sha-sha. Given what had happened, the reaction of both Plaintiffs – sadness, shock, fear, distress and anxiety – was to be expected. The 1st Plaintiff has emphasised how she feared for the safety of their children as well, which in my judgment would have been a perfectly normal reaction particularly given the size of the dogs, the ferocity of the attack on Sha-sha and the proximity of the Defendants’ house to their own house.
20. When this happened, the Defendants and their children were on holiday in London. They learnt of the incident by telephone from their Filipina domestic helper. She had not been at home when the two dogs attacked Sha-sha, but she returned very soon afterwards from the supermarket to find what had happened and she was also able to speak to the 1st Plaintiff. Given that the Defendants were so far away, there was very little that they could do until their return to Hong Kong but I accept the 1st Defendant’s evidence that they had decided to offer to buy the Plaintiffs a replacement dog.
21. The next day, the 2nd Plaintiff began what can only be described as a campaign to have the Defendants’ dogs put down. The whole focus of the 2nd Plaintiff’s complaint was that these dogs had already displayed a dangerous disposition to other members of the public, and that they had been inadequately contained by the Defendants in their home. The wall and gate at the front of the house was such that they could very easily get out. To set out, even in summary form, the correspondence by the 2nd Plaintiff would make this judgment unmanageably long. What I am able to do is to refer to a document entitled “Chronology of Plaintiffs’ Activities” starting at page 5 to the middle of page 12 which has summarised the correspondence by the 2nd Plaintiff to various bodies and organisations about this matter. This document has been prepared by the Defendants’ solicitors. Whilst I am all too aware that it is a highly ‘forensic’ document, it can be used neutrally at this stage as providing a record of how the 2nd Plaintiff set about putting matters right as he saw it and that is how I now wish to make use of this document.
22. This chronology includes a letter dated 26 June 2000 by the 2nd Plaintiff on his own solicitors firm’s letterhead [F117] which can only be said to be hostile in the extreme, although when asked about it in cross-examination, the 2nd Plaintiff considered it to be perfectly reasonable in the circumstances. He demanded that both dogs to be put down within 28 days and that he and his wife should be paid $200,000.00 in damages within 7 days, failing which proceedings would be issued in negligence for the wrongful death of the pet and for emotional distress as well as for an order that the dogs should be put down and for damages of $300,000.00. I regard this letter as important because, as events have turned out, it set the tone for what has followed. The Defendants were not prepared to capitulate to these demands which served to produce an escalation of the 2nd Plaintiff’s hostility and determination to see the matter through to the conclusion that he was demanding. Five years on and millions of dollars in legal fees later, he has yet to achieve his purpose.
23. As one reads the correspondence and the responses of the various public authorities and less official organisations, such as the SPCA, it is very clear that they were prepared to give the matter serious attention, time, resources and effort into investigating the complaints made by the 2nd Plaintiff about the Defendants’ dogs. This included the police who regularly dispatched a police officer to ride past the Defendants’ house on many occasions in order to discover how Jasper and Lady were behaving and whether the 2nd Plaintiff’s reports to them that these were dangerous animals had any substance. His report was that all was well and that the dogs had displayed no dangerous traits, that he could discover, as he rode past the Defendants’ home.
24. The 2ndPlaintiff was told by all of these organisations, the AFCD being one of the most involved, that the assistance that they could give was limited having regard to their findings and their powers under the Ordinances that governed what they could do. This was greatly resented by both Plaintiffs who felt that everybody had gone soft, if I can so express it, on the Defendants who they considered had manipulated the situation to their advantage. The letters of complaint were directed to the highest government officials, including the Office of the Chief Executive. Lesser officials at the AFCD and the Department of Justice were branded incompetent for failing to produce the results which the Plaintiffs were demanding. Particular vitriol was directed to the AFCD who had originally required the Defendants to take a number of strong measures as to the control of their dogs which included making structural changes to the boundary walls and to the gate of their property. This the Defendants were able to resist successfully by a process of negotiation with the result that the measures that they were ultimately required to take were of a fairly limited type. The Plaintiffs were particularly upset that this should have been allowed to happen. The tone of their correspondence with the AFCD is particularly unpleasant.
25. I have already mentioned the involvement of the police in this matter, who had taken a lot of time over what would not normally be characterised as mainstream police work and Inspector Stone, the senior officer who became involved was referred to as corrupt by the 2nd Plaintiff when he gave no satisfaction.
26. The Plaintiffs had also mounted a signature campaign against the Defendants and their dogs. In the event, their success was very limited. The 1st Defendant was prosecuted and fined modestly for allowing a rabies vaccination to lapse on one of the dogs, and as I have already related, they were required to take very limited measures designed to contain their dogs within the curtillage of their property and to have them under proper restraint when taken in public places.
27. Given their failure to have the authorities do something about the dogs and the Defendants, the 2nd Plaintiff took the law into his own hands, in a perfectly lawful way, by bringing six private prosecutions by summons against the Defendants. Before these summonses could be heard, the Defendants had accepted other appointments to work in Singapore. They sold their home, and took the dogs with them to Singapore where they continue to live. The dogs, according to the 1st Defendant, behaving perfectly well and causing nobody any concern in Singapore. The Plaintiffs became particularly upset that the dogs were removed. They considered that this had been done in a clandestine way to deliberately avoid the consequences of the private prosecutions. As the summons had sought, inter alia, orders against the dogs themselves, proceeding with the summonses would have been pointless as they were outside the jurisdiction of the Hong Kong courts and so, the Plaintiffs decided to withdraw them. This episode is part of the broad picture which caused matters to become further inflamed.
28. Because the Plaintiffs perceived the Defendants to be refusing to do anything that was remotely sufficient to assuage their sense of injustice, grief and anxiety as to a possible repetition of a dog attack by their dogs, the stress and pressure of living in the vicinity of the Defendants had become too great to bear. In the summer of 2000, the 1st Plaintiff took the children with her and stayed with her family in Singapore to get away from the source of danger as they saw it, leaving the 2nd Plaintiff to continue the battle with the Defendants and the various public bodies and organisations whose assistance he was demanding. Eventually, on medical advice, they left their home and moved to another location away from the village. This in itself provides for a head of damage because the Plaintiffs say that they sold their house at less than they would have done but for the problems caused by the Defendants and their dogs.
29. I have said enough to indicate the nature of the dispute through the course of 2000 into 2001 which ended with the removal of both families from the village in the way that I have just described. During this time, the medical and psychological condition of both Plaintiffs began to deteriorate. This aspect will form a separate part of the judgment which I will turn to presently. Before I refer to this I need to address two separate issues both of which have assumed considerable importance in the trial. Firstly, the events of 9 September 2000 and secondly, I will need to traverse the evidence as to the character of the Defendants’ dogs as well as to say something about the behaviour or characteristics of Sha-sha and Muffin, because this must also have a bearing on the crucial incident of 19 June.
9th September 2000
30. This needs to be put into proper perspective. It does not give rise to any cause of action but it had consequences for the 2nd Plaintiff which go to the medical/psychiatric aspects of the case as well as going to matters of credibility as I must demonstrate in due course. Put shortly what happened was that on this day the 2nd Plaintiff was looking at some building work that was going on in the village. He saw Jasper and Lady there with one of the Defendants’ helper’s and he says that he was by now so affected [to put it at its lowest] by the events of 19 June and the Defendants’ attitude thereafter together with his fear that these dogs might do the same sort of thing again to other dogs or to people, that he became “hyperaroused”. It has been put in slightly differing ways, but what it comes to is that on seeing these dogs, he thought that they were going to harm him so he threw a stone at the dogs which missed and damaged a nearby car. His precise description of the event has changed over time. In the amended statement of claim dated 13 November 2000 the plea is that the dogs “chased and terrorized the 2ndPlaintiff”. In his second affidavit of 17 November 2000 (paragraph 6 viii) the dogs “menacingly growled at and lunged at me...” In a written statement in the malicious prosecution action that he has brought against the 1st Plaintiff arising out of this incident he says that “mongrels menacingly growled, and lunged at me...”. And later in the statement, “the dangerous mongrels rushed towards me growling menacingly with teeth barred and terrorized me.” Lastly, in his re-amended pleading on 31 March 2004 it is pleaded as follows:
“... the ...sight and sound of the dogs so disturbed the 2nd Plaintiff, that acting out of fear and anxiety and hyperarousal, he threw a stone at the dogs, ...”
This latter account represents a far more toned down version of events. Mr Duncan has sought to make the point that his milder version which was pleaded on the eve of the original trial date, was deliberately tailored to fit in with the case of his having imagined an attack by the dogs prior to attacking him which is entirely consistent with his case that this was one of the symptoms that he was exhibiting as a result of having PTSD. Notwithstanding this plea, Mr Duncan reminds me that this version was not persisted in, in the trial, because the 2nd Plaintiff’s evidence was that, in fact, the dogs did make to attack him and that is why he threw the stone at them.
31. These matters go more to credit and to the medical aspects of the case but, I have to set them out here to describe the nature of the issue which arises from this incident as well as the incident itself. This escalated further because the 2nd Plaintiff carried on the argument with the 1st Defendant close to her home when he was said to have assaulted her thereby giving rise to a charge of criminal damage and two charges of common assault.
32. The unpleasantness resulted in the police being called with the eventual charging of the 2nd Plaintiff. It is right to say that it was not until 15 February 2001 that he was charged in connection with these matters and brought before the Kwun Tong Magistrates’ Court. It is difficult to imagine how a relatively brief set of circumstances, as I have described them, were to result in a 24-day trial before the Magistrates’ Court spread over a series of days. The trial started on 6 August 2001 and finished on 22 November 2001. On 16 October the 2nd Plaintiff collapsed with chest pains during the course of the trial and spent 56 days in the psychiatric ward at the United Christian Hospital. On 22 November he was convicted on one charge of common assault and on the charge of criminal damage. All of this had plainly taken its toll on both Plaintiffs in terms of stress and anxiety. Not surprisingly the case attracted much embarrassing publicity for the 2nd Plaintiff and his family. More was to come of this which I will leave over for consideration with the medical and psychiatric aspects of the case.
The character of the Defendants’ dogs
33. This part of the evidence is fundamental to all aspects of liability be it in respect of scienter, negligence, nuisance or breach of statutory duty all of which are relied on by the Plaintiffs. Central to this action is the Plaintiffs assertion that these were dogs of bad character. They had previously attacked people in the village including a young child, Stephanie who was a friend of the Defendants’ children; as well as a member of the next door Chan family. In view of this, so goes the Plaintiffs’ case, the Defendants knew or ought to have known that their dogs were dangerous and should have taken precautions, commensurate to the risk that these dogs presented, to ensure that they did not harm anybody. The claim in scienter is even more strict. I will deal with it presently.
34. Although it puts matters the other way round, as it were, I think it is more helpful to describe first what the Defendants have to say about their two dogs. I have already set out the circumstances in which they acquired these two animals, primarily as family pets who, by virtue of size and bark, had their uses as guard dogs to deter burglars. This aspect was co-incidental They are affectionate pets much loved by the adults and children in the family as they still are in Singapore. They have never bitten anybody. They play with the children. I have been shown photographs of them walking with the children and their grandmother. Usually they are walked on a leash. They give no trouble. It is accepted that, being territorial, as all dogs are, they barked when strangers approached the area at the front of the garden and were apt to put their front paws over the gate. They had never escaped from the garden. They had never attacked other dogs in the way that happened on 9 June.
35. As to the incident involving the little girl Stephanie that was an accidental scratch. Both of the Defendants investigated the incident thoroughly once it was reported to them. It was not a bite as alleged by the Plaintiffs. The child’s parents were reassured about this and accepted the explanation. The lst Defendant, in particular has stressed the importance that she attached to the safety of other people’s children and to her own children’s well-being so that if there was any doubt about the matter she would have taken appropriate measures. This simply did not arise. There was no hostile intent by the dog. An accidental scratch of this type in the event gave her no cause for concern.
36. Unsurprisingly, the Plaintiffs’ case is diametrically opposed to this. These are described as killer dogs. The Plaintiffs rely on evidence from the Chan family including their daughter Trammy and a young man called Benny Tsang who lives in the village as well as the incident with Stephanie.
The Chan family’s evidence
37. The evidence of the Chan family is of importance to the Plaintiffs. Their witness statements were served in good time in the expectation that they would be called to give that evidence in the usual way. They had given evidence at the 2nd Plaintiff’s criminal trial. On the morning of the first day before me, Mr Barretto S.C. indicated that the Chan’s felt that they had had enough of this matter and did not wish to give evidence again, accordingly, they have not been called. Mr Barretto submits that I am able to have regard to their evidence and it is then a matter for me as to what credence and weight I am prepared to give to it. Mr Duncan says that it would not be right to have their evidence admitted. From the outset, it had been represented to the Defendants’ solicitors that these witnesses would be called when their evidence would have been under the sharpest challenge in cross-examination. Because it had been indicated that they would be called, the Defendants’ solicitors did not put in a counter-notice requiring their attendance. The sudden and unexpected decision that they would not be called has wrong-footed the defence. In fairness therefore I should not allow that evidence to be put in.
38. It seems to me that I have a wide discretion in a matter such as this. The witness statements come in under cover of a hearsay notice. As a precaution a counter-notice could, and it seems to me should, have been put in by the Defendants’ solicitors. I propose to let the evidence in. It therefore becomes a question of weight. In deciding what weight should attach, the first matter to have regard to is that their evidence has not been tested in cross-examination. In a case such as this where so much is keenly disputed the lack of opportunity to cross-examine by the Defendants counsel is a substantial feature in the weighing exercise. Additionally, this evidence goes to a central issue is the action. Had the evidence been marginal, perhaps less significance could have been attached to the lack of opportunity to cross-examine. This is also compounded by the fact that the Chan’s and the Defendants did not get on. They had fallen out in the past. A motive therefore exists for their evidence to be less than frank. All of these factors have persuaded me to attach no weight to their evidence. The choice could have been made by the Plaintiffs to require their attendance under a witness summons; although an unpleasant option it was an available course. Whilst I appreciate that asking other people to come and give evidence in a private dispute is not an easy thing to do, the risk is always present that if the witnesses are not called, the court will attach no weight to witness statements alone, which is what I have decided to do in this instance.
Stephanie’s Injury
39. I am entirely satisfied that in her case this was no more than an accidental scratch. Naturally when a child is injured by a dog, no matter how minor the incident, parents will become very concerned. I accept the Defendants’ evidence about this. They of course were directly involved once they were told about the incident and they are therefore in a position to know what happened. The 2nd Defendant saw the injury and confirms that it was a scratch. The Plaintiffs’ have tried to elevate this incident into something far more dramatic than it actually was for the purpose of effect, in the context of this action. That being my view this incident can have no bearing on whether the Defendants’ dogs were of a dangerous disposition prior to the 9 June and that the Defendants knew or ought to have known that to be so.
Benny Tsang
40. Mr Tsang’s evidence does have a direct, first hand and relevant bearing on this issue. The incident that he has described as to how one of the dogs went for him and he was able to throw one of his slippers to scare it off is not one that the Defendants were able to speak to with any conviction. They did not recall it although they do not accept that it happened. Mr Duncan has reminded me that in assessing Mr Tsang’s credibility I should remember that he too resented the Defendants. He admits this to be so, hence a motive for untruthfulness. Further, that he has described this single incident in three different ways on three different occasions. First, in his witness statement [E629 para.3]; “I took off my slippers and pretended to throw them to the mongrel ...” . Before the Magistrate at the 2nd Plaintiff’s trial [H369]; “I tried to get one of the slippers and throw it at the dog .... It left until I got another slipper and throw it ....”. And then in the trial before me; “I throw one [slipper] ... and hit with the other”.
41. In his witness statement [E630 para.4] he says that he and his family reported this incident to the village chief Mr Shing, nevertheless this did not appear in a previous statement to the AFCD [28 October 2000 F275] nor in the statement that he had provided to the Plaintiffs in support of the private prosecution [G420] nor as a defence witness in the criminal prosecution of the 2nd Plaintiff [H402]. Finally, this contradicts Mr Shing’s report to the police when he had told the police that he knew of no complaints against the Defendants’ dogs [E531]. Mr Tsang himself was asked why, had this incident really happened, he had not reported this to the police or other responsible body and he replied that he had no time.
42. For all of these reasons it is submitted by Mr Duncan that it would be difficult to have sufficient confidence in Mr Tsang to accept his evidence. I agree. All the matters that I have drawn attention to, when taken in combination, so weaken Mr Tsang’s credibility that it would not be right to accept his evidence even on the civil standard. And in any event, even if I am wrong about that, the incident that he has described, isolated as it is, would be insufficient to mark out these dogs as having a dangerous propensity.
Miscellaneous reports
43. These appear in paragraphs 3(iv), (v) and (ix) of the Statement of Claim [A9] but are completely unsupported by any evidence in the trial, with the result that they remain unproven. By way of conclusion it should also be observed that save for Mr Tsang’s evidence, of which I am not persuaded, there is no other evidence of the Defendants’ dogs ever escaping from the Defendants’ home. It should also be observed that the Plaintiffs themselves never made any report of the dogs being dangerous until after 19 June.
Conclusion on dangerous propensity
44. Based on the evidence I am quite unable to make a finding that these dogs had the requisite dangerous propensity to cause injury or damage to human beings, let alone that the Defendants knew of such a propensity.
Scienter
45. Having come to that conclusion I am, even at this stage, able to say that any action based on scienter, lacking as it does of its fundamental constituents, must fail. This then leaves the Plaintiffs with their case on negligence, nuisance and breach of statutory duty.
Characteristics of the Plaintiffs dogs
46. I need to refer to this having regard to the fact that the Defendants do not accept that Sha-sha suddenly broke loose from his leash and was dragged in by the Defendant’s dogs through the bars of the garden gate. The defence case is that these, no doubt, charming small dogs would regularly be allowed to roam free without a leash in the village when taken on walks by the Plaintiffs and by their domestic helper. They were well liked by the residents of the village who would on occasion treat them to tit-bits. Being small and friendly and having regard to a relatively traffic-free environment they were allowed to roam. The Plaintiffs do not accept this. Mr Sykes, a resident, has given evidence that this is what would happen and on one occasion one of the Plaintiffs dogs had run past him in his garden and into his house. He had frequently seen these two dogs running about unrestrained and he had warned the Plaintiffs helper that she should take care about that because there was a risk that the dogs might be run over by a passing vehicle. The 2nd Defendant has also given evidence that he found one of the Plaintiffs dogs in his garden, it having been allowed to roam off the leash. He had no particular gripe about that or about the Plaintiffs dogs in general, except that on occasions Sha-sha would urinate against the tyres of his motorcar.
47. I am persuaded on the evidence that the Plaintiffs dogs would frequently be allowed to roam off the leash on walks through the village. The effect, if any, of this finding I will return to when I indicate what my findings are as to the circumstances of Sha-sha’s death.
Barking Dogs
48. I should also indicate that I accept the evidence of Mr Sykes about the frequency of barking by dogs in the village. He said that this was going on all the time and that it is an accepted part of village life. This evidence was led for the Defendants to refute the suggestion that their dogs were mean and aggressive and would bark whenever anybody approached the vicinity of the parking area at the front of their house. Perhaps surprisingly, in a case such as this, neither side has called an expert on the behaviour of dogs with particular reference to the guarding of their territory. Nevertheless, it seems perfectly plain, based on common experience that dogs do guard their “territory” by barking whenever strangers approach it. In this respect I find nothing unusual or mischievous in the behaviour of the Defendants dogs in barking when people approached nor in their habit of getting up onto their hind legs and standing up against the top of the gate. This no doubt to get a better look at the persons or other animals approaching the house.
Psychiatric evidence
49. In the more usual case I would have completed my finding on liability before dealing with evidence which goes only to damages, but in view of the fact, as I have already explained, that this case is so wound up with the credibility of the Plaintiffs it is necessary to go to this part of the evidence now because my findings on this will materially impact on what I am prepared to accept of the Plaintiffs’ evidence as a whole. This subject is related to the question of whether the Plaintiffs have suffered PTSD. The Plaintiffs’ expert is Dr Lo Chun Wai, a distinguished psychiatrist in Hong Kong and they also rely on Mr Li Shing Yuen, a psychologist. The Defendants have called Professor Felice Lieh Mak of Hong Kong University, whose academic and professional credentials are of the highest order and who is also well able to speak to these matters.
50. In many ways this aspect of the evidence has come to dominate the case. Mr Barretto and Mr Jones who appears with him, have clearly invested much research and effort into this subject and I hope that Mr Duncan and those who instruct him won’t mind my saying so but nobody could have done more for the Plaintiffs’ in the conduct of their case. Apart from drawing my attention to all of the relevant learning on the subject of PTSD, Mr Barretto has presented me with over 200 pages of closely-typed argument in support of his case on both liability and damages supported by a very substantial number of cases from Hong Kong and other leading common law jurisdictions. I wish to express my profound gratitude to him for the assistance that he has given me. I have had regard to everything that he has had to say and to what he has presented in writing. The absence of direct reference to everything that he has said or may have put in by way of written document does not reflect any disregard for what he seeks to address to the court. To have made specific reference to anything like all that he has presented would have made this judgment quite unwieldy.
51. In respect of PTSD, the Plaintiffs’ cases require separate consideration although there are aspects, particularly in terms of classification that are common to both. This is a subject that is a developing one as I follow the literature. Recent wars starting with Vietnam in the late 1960’s and early 1970’s and the 1991 Gulf War have heightened awareness of this condition although this had already been well known in the early 20th century in the aftermath of the Great War in Europe when people spoke of shell-shock rather than the present modern term.
The 1st Plaintiff
52. As to the 1st Plaintiff, Mr Duncan submits that on a proper understanding of the evidence she does not suffer from PTSD and that in any event any psychiatric or recognised mental condition that she may prove to be suffering from is not related to the conduct of the Defendants or their dogs.
53. The main protagonist for the 1st Plaintiff, as he is for the 2nd Plaintiff, is Dr Lo. The guide to this condition must be DSM-IV [B247] the Diagnostic and Statistical Manual of Mental Disorder. Paragraph 309.81 [page 424] sets out the diagnostic features which I need to recite here:
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The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity. |
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witnessing an event that involves death, injury, or a threat to the physical integrity of another person; |
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learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1). |
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Traumatic events that are experienced directly include, but are not limited to, military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness. For children, sexually traumatic events may include developmentally inappropriate sexual experiences without threatened or actual violence or injury. Witnessed events include, but are not limited to, observing the serious injury or unnatural death of another person due to violent assault, accident, war, or disaster or unexpectedly witnessing a dead body or body parts. Events experienced by others that are learned about include, but are not limited to, violent personal assault, serious accident, or serious injury experienced by a family member or a close friend; learning about the sudden, unexpected death of a family member or a close friend; or learning that one’s child has a life-threatening disease. The disorder may be especially severe or long lasting when the stressor is of human design (e.g., torture, rape). The likelihood of developing this disorder may increase as the intensity of and physical proximity to the stressor increase.” |
54. From this citation it can be seen that the only basis for the 1st Plaintiff to have suffered PTSD is that witnessing Sha-sha’s death was an “extreme traumatic stressor”. involving either:
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direct personal experience of an event that involved actual or threatened death or serious injury, or other threat to one’s physical integrity; or |
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witnessing an event that involves death, injury or threat to the physical integrity of another person.” |
(ii) can have no part to play in this matter. The 1st Plaintiff’s case is predicated on the basis of (i). It should be noted that Dr Lo did not put it on the basis of (i) in his initial report on 6 November 2000 [B75] when he said that she suffered PTSD as a “… direct result of witnessing the tragic scene that caused her mental problems and suffering”. At that stage no reference or reliance was placed on having fear for her own safety.
55. Professor Mak has concluded that when judged against the DSM criteria the events of 19 June and the 1st Plaintiff’s part in those events do not qualify for inclusion in the criteria for PTSD. In her first report of 9 April 2003 Professor Mak at para. 10.7 [B221] had regard to what the 1st Plaintiff had told her, that “… she tried to save Sha-sha but was frightened by the ferocity of the two dogs. She was also afraid that the dogs would either cause the latch of the gate to be undone or jump over the wall to attack her and Muffin …” at para. 19.1 [B226] she observed that the situation faced by the 1st Plaintiff was distressing but “… she was not under any real threat nor was she attacked.” It seems clear from those references that Professor Mak was clear about the full import of this lady’s situation at the time of Sha-sha’s death. Nevertheless, she concluded that these circumstances did not supply the necessary “extreme traumatic stressor”. Seeing the violent death of a much loved pet does not come within any of the qualifying criteria. Whilst Professor Mak accepts, as I think she must, that this would have caused great anxiety and that it was frightening and indeed shocking for the 1st Plaintiff, she disagrees that a feeling of intensive fear would have overcome her. There is a danger that this becomes an exercise in semantics. Nevertheless, Professor Mak’s opinion is that these circumstances are not capable of placing the 1st Plaintiff within the range of individual for whom PTSD can be an outcome. She has relied on the fact that immediately following the event the 1st Plaintiff was able to go to see Mr Chan in his house. Discuss the incident with him, return to her home and then bring two of her children with her, and photograph Sha-sha’s corpse. None of these reactions would apply to somebody who has been traumatised by an event such as this.
56. Dr Lo is adamant that what was witnessed by the 1st Plaintiff is not only sufficiently traumatic to have caused PTSD but that she also falls within the category of victim. Unhappily, in order to do so he is driven to say that witnessing the death of “another person” and “other” in ICD 10 which refers to witnessing “the violent death of others” would be wide enough to include an animal. To do this is to stretch the criteria beyond anything that the authors intended. This simply will not work.
57. Mr Duncan has sought to downgrade the evidence of Dr Lo by virtue of the fact that he had prescribed medication to the 1st Plaintiff and in this way became her treating psychologist and so perhaps compromised his objectivity as an expert. I do not believe that the limited assistance that he offered her could really be said to have altered his status or compromised his position as “expert” before me.
58. I take Mr Li’s, the psychologist’s evidence more shortly. Where he purports to speak of PTSD, which is a medical condition, he has strayed outside the purview of his expertise. He was the “treating psychologist” in the true sense so the weight that one can attach to his evidence is greatly reduced. He is also inexperienced, never having given expert evidence before but it can be said that every successful court expert’s career has to start with his first case. I do not believe this to be particularly significant – I am more concerned with the content of his evidence and the fact that he is not qualified to speak on the matter, although I readily accept that a psychologist can have a very full role to play in treating somebody with PTSD under the lead of a psychriatrist.
59. I fully accept that this lady underwent a very stressful and distressing experience but that Professor Mak is unquestionably correct in her conclusion that she has not suffered from PTSD. It is helpful to reflect on the fact that the 1st Plaintiff did not consult a doctor until very nearly a year after this incident, that is to say until 10 May 2001 when she consulted Dr Harris, the General Practitioner at the University Health Service. It is also right to observe that by then she would have had the added stress of having to cope with the fact that the 2nd Plaintiff had been charged with these criminal offences and preparations for the defence of those charges was underway. She had seen Dr Lo before that on 27 October 2000 but that was not in connection with her getting any treatment but in the context of this action against the Defendants. Mr Duncan has also pointed out that as a witness, she has come over as an altogether more calm individual than the 2nd Plaintiff who on occasions displayed quite unbalanced attitudes in the course of his evidence.
60. It is also right to observe that she has been able to continue her employment with the university and notwithstanding the difficulties which, she says, she has had to put up with.
61. In coming to this conclusion, I have not left out of account the evidence of her friend who observed changes in her outlook on life but I am satisfied that these changes were not symptomatic of PTSD but more related to the very great anxiety and stress that all of this has brought on her.
62. It is sad to reflect that, in my judgment, all of this emotional hardship has been self-inflicted having regard to how she and, also the 2nd Plaintiff, have chosen to conduct themselves following the sad death of Sha-sha.
The 2nd Plaintiff
63. He must be even less of a candidate for PTSD because he was nowhere near the incident of 19 June. In such circumstances, the only possible way into a diagnosis of PTSD according to in DSM-IV as the “extreme traumatic stressor” would be on the basis of “learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate”.
64. I have found the 2nd Plaintiff’s case based on the DSM very difficult to follow.
65. Dr Lo’s first report on him dated 6 November 2000 refers to the report made to him that Sha-sha had been violently killed and the fairly understandable comment appears in Dr Lo’s report that as he had not witnessed the killing himself, he could have no recollection or vivid imagery of the incident. His pleaded case would appear to be that the start of his problems came with the loss of Sha-sha and not from the experience that his wife had gone through. The DSM refers to “learned about” experiences by others which include violent personal assaults, serious accidents or serious injury experienced by a family member or a close friend or learning about the sudden unexpected death of a family member or a close friend or learning that one’s child has a life threatening disease. Learning about the death of even a much loved pet dog palls by comparison. It is also worth remembering that the definition of an “extreme traumatic stressor”in ICD-10 refers to a stressful event or situation of an exceptionally threatening or catastrophic nature which is likely to cause pervasive distress in almost anyone. Examples are given of natural or man-made disasters, combat, serious accident, witnessing the violent death of others or being the victim of torture, terrorism, rape or other crime. Learning of Sha-sha’s death comes nowhere near within what ICD-10 contemplates.
66. Although other reports which are in the evidence venture a diagnosis of PTSD, Dr Lo’s first report dated 6 November 2000 has described the 2nd Plaintiff as suffering from a psychiatric condition called Adjustment Disorder with Anxiety. Dr Lo makes the point that it borders on PTSD but, very fairly, makes the concession that as he had not witnessed the killing, there would be no recollection and vivid imagery of the incident as I already have indicated (B110). It seems to me that any subsequent to attempt by Dr Lo to pull the 2nd Plaintiff back within the DSM criteria is bound to fail.
67. As to Mr Li’s psychological evidence little can be derived from this and the contention by him that the description of an “associate” referred to in the DSM could include an injury suffered by a pet dog, quite frankly, defies belief.
68. I prefer the evidence of Dr Mak and her diagnosis. There is no question at all that the 2nd Plaintiff’s personality is such that he will respond aggressively whenever he cannot get his own way in relation to anything that he considers unjust or requiring rectification. I have already drawn attention to his reaction to relatively mundane matters such as the state of the roads and the lighting in the village as an example.
69. Here Mr Duncan has, correctly in my view, drawn attention to no less than 16 separate factors which would have imposed great stresses on the 2nd Plaintiff resulting in his present psychological and psychiatric state. These appear at pages 47 and 48 of the note to his final speech. I don’t propose to repeat all of them but by way of illustration I mention the following:
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His unsuccessful attempts to have the Defendants’ dogs destroyed by way of six private prosecutions against the 2nd Defendant. |
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The incident of 9 September cumulating in his arrest and removal in police transport. |
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The Plaintiffs’ involvement in the long police investigation into that incident. |
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His being charged with 2 offences of assault and one of criminal damage. |
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His 24-day trial for those defences described by him as “the most painful and demeaning of my life”. |
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His conviction. |
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Negative media publicity surrounding those convictions. |
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The cost of conducting his defence and appeal in respect of the criminal matter. |
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His and his wife’s financial problems caused by all of these matters. |
70. It is all of this which has borne down on him and brought him to his present parlous situation. It is all about the man and how he chooses to react to circumstances which finds him in this situation. I am entirely satisfied on the basis of all of the evidence that he has not suffered from PTSD. Professor Mak’s analysis is the correct one.
The Plaintiffs attempt to remove Professor Mak from the case
71. Although Mr Barretto has characterised the writing of the letters by both Plaintiffs to Professor Mak telling her that they would not be coming to see her, so that she might prepare an updated report on their condition on behalf of the Defendants, as a symptom and manifestation of their PTSD, I am perfectly satisfied that this is no such thing. Apart from the disgraceful tone of both of these letters this merely indicates the manipulative nature of their personalities.
72. In my judgment, this is just the two of them, doing their best to try and have it their way by employing rather crude tactics in order to manoeuvre Professor Mak into a position where she might feel that it would not be right to continue in the case.
73. In the event, Professor Mak’s broad shoulders have been well capable of bearing the quite scandalous and unjustified criticism that both of these Plaintiffs have levelled at her. This in my judgment is something that I am entitled to and will hold against them in assessing the overall credibility of their evidence in the case.
My finding on the evidence
74. As to the crucial event of 19 June, Mr Duncan’s primary submission is that I ought not to accept the 1st Plaintiff’s version as to how Sha-sha found herself on the other side of the garden gate in the Defendants’ garden where she was mauled and killed by Jasper and Lady. This despite the fact that he is unable to place before me any contradictory evidence. His analysis bears close examination particularly in the context that it is the 1st Plaintiff who bears the burden of showing that it is more likely than not that her account is the correct one. A convenient starting point is that, as I have already found, Sha-sha and Muffin were frequently allowed to roam about the village off the leash.
75. On this occasion, and for the first time ever, it is said that Sha-sha’s leash gave way and he was able to run loose and towards of the front wall and gate of the Defendants’ house. This apparently had never occurred before and Mr Duncan submits that there is really no good reason why a leash that had done such good service in the past should have suddenly failed on this occasion. The leash itself has never been produced to the Defendants’ solicitors for examination. Pre-trial requests by letters dated February and March 2004 and by an application for specific discovery in February this year resulted in an explanation that it had been disposed of a few days after 19 June 2000 because it reminded the Plaintiffs of Sha-sha. If that were true, comments Mr Duncan, that explanation could have been forthcoming somewhat sooner than the last working day before the start of the trial in the 1st Plaintiff’s affidavit of the 8 April 2005. It seems to me that the time to provide that explanation would have been in either February or March 2004 when the first letter of request was made. I regard that chronology as suspicious.
76. The other matter which merits close consideration is the description given by the 1st Plaintiff as to how this happened. The evidence is that the gaps between the bars of the Defendants’ garden gate were 4.25 inches wide. The 1st Plaintiff’s evidence is that Jasper somehow was able to put his head through those bars, grasp Sha-sha by the head, and pull him through without any apparent obstruction or difficulty.
77. Such an event which would have been sudden, quick and violent as Sha-sha was pulled through the bars by the head must inevitably have caused Sha-sha to sustain visible injuries to his head. The whole thrust of the Plaintiffs’ case as to Sha-sha injuries have focused on the fatal wounds inflicted to his abdomen. There is no indication of him having suffered any head injury and the photograph of his corpse, whilst I appreciate not conclusive, certainly shows no apparent head injuries.
78. The 1st Plaintiff has described how she had a good view of the incident. That needs to be judged against the background that her view would have been obstructed by one of the Defendants’ car’s parked in the parking area and an overhanging lime tree and fading light albeit, that this was close to the longest day of the year.
79. Mr Duncan has also drawn attention to the inherent unlikelihood of Sha-sha’s sniffing close to the garden gate when the two dogs would have been barking and growling in an aggressive manner but the question remains as to how Sha-sha found himself inside the Defendants’ garden. The suggestion is certainly advanced on behalf of the Defendants that this dog had in the past made its way into Mr Sykes’ garden and indeed had been found by the 2nd Defendant, as he told me in evidence, in their garden as well. The question remains therefore whether this pleasant and inquisitive small dog had insinuated his way through the bars and into the garden whereupon he was set about by Jasper and Lady who caused his violent death.
80. This entirely plausible version, albeit unsupported by direct evidence, needs to be set against what the 1st Plaintiff has told me. In assessing the truth of her account I cannot take this in isolation from all the other evidence given by her and by her husband. These are two witnesses whose evidence I approach with the greatest trepidation.
81. It is simply impossible to discount the prospect of concoction or gross exaggeration by her and him in order to put up an account capable of supporting some sort of case based on wrongdoing by the Plaintiffs. Standing back, as I must, and looking at the evidence in this case as a whole I have come to the conclusion that it would be unsafe to accept the version of how Sha-sha came to be killed as described by the 1st Plaintiff. In terms of the burden and standard of proof, she has failed to carry the burden to the required standard. This being so I cannot see how it can be said that the Defendants, who I have already discharged in relation to the case brought against them under the strict scienter rule can be said to have been guilty of negligence, nuisance or indeed breach of statutory duty on the basis of an unproven allegation.
82. In these circumstances, the Plaintiffs are left with a situation that their dog had somehow found itself within the confines of the Defendants’ garden where it was mauled to death by their dogs. This would amount to an unforeseeable accident for which no civil liability can attach in circumstances where to say otherwise would impose a far greater duty of care than the law reasonably requires.
83. This being my view of the evidence, the action must fail and there must therefore be judgment to the Defendants.
What if the 1st Plaintiff is correct as to how Sha-sha was killed?
84. It seems to me that one needs to start with the proposition that these two dogs, belonging to the Defendants, had never before manifested any menacing or aggressive characteristics. They had harmed nobody and no animal in the past. Secondly, one needs to examine the precautions taken by the Defendants to ensure that they did not get out of the confines of their garden. It is right to observe that there had never been an incident of either of them escaping over the walls that surrounded their property nor over the gate. The photograph showing what the Plaintiffs’ say was one of the Defendants’ dogs sitting on the top of the wall does not in fact show either of the Defendants’ dogs.
85. I am satisfied so that I am sure that this was one of their neighbour’s dogs. One therefore proceeds on the basis that these dogs gave all the appearance of being under good control, friendly to children, adults and other animals. No complaint had ever been received about them prior to 19 June. They were behind secure walls contained in their owners’ garden.
86. Is the fact that on this occasion, if one were to accept the 1st Plaintiff’s account, that Sha-sha had been taken hold of by his head and yanked through the bars of the gate, evidence of negligence, nuisance or breach of statutory duty, however one may wish to frame the cause of the action?
87. Such an event would in my judgment have been wholly unexpected, or to put it in the language of the law of the negligence, unforeseeable. Although the Defendants were subsequently required to put wire mesh across the bars to their gates that was a precaution which came with all the benefit of hindsight. That is not to say that this is what the Defendants’ should have done at the outset.
88. The law required them to take reasonable precautions in all the circumstances. Those circumstances would have included the known characteristics of their animals and the foreseeable risk of injury that was likely by their keeping of these animals. I am entirely satisfied that the structure of the walls and the gate in terms of height and durability was entirely adequate given the past and the likely behaviour of their dogs based on everything that was known about them.
89. This particular incident as described by the 1st Plaintiff, if true, would have been so wholly unexpected as to the course it took and the mechanics that is followed that no sensible householder could properly be expected to guard against.
90. In such circumstances, I would have held that the case based on negligence and nuisance would have failed, even on this basis. As to breach of statutory duty, in the circumstances of this action the ordinance relied on by the Plaintiffs does not, I am satisfied, create civil liability of the type relied on by them and in any event it adds nothing to the case on negligence and nuisance which I have held against.
91. And even if I am wrong to have ruled in this way, I simply cannot see how any Defendant held to be liable in negligence and/or nuisance could find himself liable for the psychiatric injuries which both these Plaintiffs seek to recover for. I have already held that they do not suffer from Post Traumatic Stress Disorder and even if I were wrong about that and the conclusion should have been that they suffer from that condition, it must be right that no recovery can be possible on the ground that such loss would be far too remote.
92. This whole action has been brought on an entirely unreal basis which the law cannot support. These Defendants have been forced to endure litigation at the hands of Plaintiffs who are out of control. On any view of the matter, this action must stand dismissed and there must therefore be judgment to the Defendants.
93. I do not propose to consider, as frequently happens in a personal injury action, what the damages might have been had the Plaintiffs succeeded and I do not do so because the whole exercise would be entirely artificial in the circumstances.
94. This action should never have been brought or, once it had, I would have expected it to have been settled on a realistic basis given the risks that come with litigation and which are carried by both Plaintiff and Defendant. That comment, of course, is predicated on the basis that reasonableness has a place in the conduct of the litigation on both sides. Clearly, such a notion is absent on the Plaintiffs’ side of the fence.
Costs
95. This being the result it must follow that the Defendants must have their costs of the action to be taxed on a party and party basis. The order will be an order nisi in the usual way. I will leave it to the Defendants to make any application that they see fit as to whether their costs should be taxed on a more generous basis having regard to the terms of this judgment and the manner in which the Plaintiffs have chosen to conduct themselves.
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(Ian Carlson)
Deputy High Court Judge |
Mr Ruy Barretto, SC and Mr Douglas Jones, instructed by Messrs Wong & Fok, for the Plaintiffs
Mr Peter Duncan, SC, instructed by Deacons, for the Defendants
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