JACKSON IVAN O'NEIL AMROL v. MARISOL RIVERA

DCPI 267/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 267 OF 2007

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BETWEEN

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Judgment

1.  This case is about a collision between a boy called “Jack” and a dog called “Coco” that happened on 1^st May 2006 in the open area of Discovery Bay Plaza. 

2.  Jack was 4 years old at the time of the incident.  He suffered a fracture of the right temporal bone and a traumatic perforation in his right ear as a result.  Jack, through his mother and next friend, commenced this action against the Defendant for damages for personal injuries and other loss and damage. 

3.  The Defendant is the owner of Coco.  Coco was about 2 years old and weighed about 25 kg at the time of the incident.  Both liability and quantum are disputed.

Preliminary matters

4.  Before I embark on a discussion on liability and quantum, I need to deal with two matters that arose in the course of the trial.

(a)    Admissibility of Ms. Skellham’s witness statement

5.  First, the Plaintiff applied to admit the witness statement of Ms. Skellham as evidence without calling her.

6.  Ms. Skellham is a witness for the Plaintiff.  Her statement was served on the Defendant in last September.  Ms. Skellham has since returned to the United States.  Jack’s mother said she had intended to call Ms. Skellham to testify at trial but was only informed recently that the witness could not return to Hong Kong because her husband was away and she needed to look after the children.  So, the Plaintiff served a hearsay notice on the Defendant two days before the trial was due to commence intending to adduce Ms. Skellham’s statement as hearsay evidence.

7.  The Defendant objected to the admission of Ms. Shellham’s statement.  Both counsel invited me to defer argument to accommodate the busy schedule of the other witnesses.  After hearing submission at the conclusion of the proceeding, I excluded Ms. Skellham’s statement on the ground that it was hearsay.  I said I would give my reason for the ruling in this judgment.

8.  The starting point of the consideration lies in section 47 of the Evidence Ordinance.  That section provides that evidence in civil proceedings shall not be excluded on the ground that it is hearsay unless:

(a)         a party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b)        the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.

9.  Section 49 then sets out the considerations relevant to weighing of hearsay evidence.  Although that section primarily deals with the weight to be given to hearsay evidence, it does have an indirect bearing on the assessment as to whether the exclusion of a piece of hearsay evidence would be prejudicial to the interests of justice: per Lam J in Cheung Wei Man Vivien v. Centaline Property Agency Ltd., HCA 286/2000, para.12.

10.  The Defendant has objected to Ms. Skellham’s statement.  So, I need to consider whether I am satisfied that its exclusion is not prejudicial to the interests of justice.

11.  Ms. Skellham states in her statement that she witnessed the collision.  There are other witnesses from both sides (namely, Ms. Menzies for the Plaintiff, and Ms. Samija and Mr. Burden for the Defendant) who can testify in this regard.  The exclusion of this aspect of the statement will not, in my view, prejudice the interests of justice. 

12.  There is, however, more to Ms. Skellham’s statement.  It is stated that Ms. Skellham approached the Defendant after the collision and:

“At that time, [the Defendant] told me that she would take responsibility of the accident.  However, I believe that she was just trying to impress on me that she was concerned about Jack’s injury.  [The Defendant] in fact claimed to me that “my dog ran into kids all the time”.  Perhaps, this is the reason why she looked rather nonchalant to the incident which was quite terrifying to me.”

13.  The Defendant strenuously denies having made the alleged admission.  Counsel for the Defendant objects to the statement principally on the ground that the Defendant will be deprived of an opportunity to test such evidence by means of cross-examination if the statement were to be received as hearsay evidence. 

14.  Ms. Skellham’s statement is dated 22^nd August 2007, some 15 months after the incident.  It does not appear that Ms. Skellham has made a more contemporaneous statement.  The only reason put forward by the Plaintiff for not producing Ms. Skellham as a witness is Ms. Skellham’s own family reason.  The Plaintiff is not otherwise suggesting that it is not reasonable or practical to call her.  The Plaintiff does not offer to take Ms. Shellham’s evidence by video-link or apply for an adjournment to enable her to attend. 

15.  In my view, there are very pertinent and legitimate questions which the Defendant is entitled to ask Ms. Skellham.  The Plaintiff’s counsel does not dispute that.  He, however, suggests that I can first examine the Defendant’s denial and then go on to consider Ms. Skellham evidence if I have decided to reject the denial.  I do not think that is desirable.  Both Ms. Skellham and the Defendant are referring to the same conversation.  It is not practicable to assess the Defendant’s denial without reference to Ms. Skellham’s evidence.  The Defendant will be prejudiced if she were deprived of an opportunity to cross-examine Ms. Skellham.

16.  Given its controversial character, I am satisfied that the exclusion of Ms. Skellham’s statement is not prejudicial to the interests of justice.   I therefore excluded Ms. Shellham’s statement.

17.  In any event, I would have given no weight to Ms. Shellham’s statement for the reasons stated above even if I had ruled it in.  So it really makes no difference at the end of the day.

(b)    Admissibility of a video recording filmed in December 2007

18.  Secondly, there was the Defendant’s application to adduce a video recording in the form of a DVD. 

19.  On the third day of the trial, the Defendant sought to adduce a video recording through her last witness Mr. Burden.  The Plaintiff objected to such evidence on the ground that the DVD had not been disclosed before.  The Plaintiff’s counsel submitted it was a classic case of ambush.  After hearing submission, I excluded the DVD.  Again, I said I would explain my ruling in this judgment.

20.  Mr. Burden went to Discovery Bay in December 2007 to film Jack.  According to him, the recording shows how well Jack was at that time.  The Defendant’s counsel said a decision had been made in a conference with the Defendant that the recording would only be produced if the Plaintiff adduced evidence on any residual effect suffered by Jack. 

21.  In my view, the conduct of the defence in relation to the DVD is unacceptable. 

22.  It is clear from the Revised Statement of Damages that the Plaintiff is claiming damages for loss of earning capacity and future medical expenses.  The claim for future medical expenses was only abandoned on the first day of the trial.  It should also be apparent from the witness statement of Jack’s mother that she will testify as to some residual effect Jack is suffering.  So the Defendant knew all along that Jack’s present condition and whether the collision has had any residual effect on Jack would be live issues at the trial. 

23.  The defence is suggesting that it was a conscious decision on the part of the defence to withhold such evidence.  The only discernable reason for such a tactical move was a desire to trap Jack’s mother in what the Defendant perceived to be lies. 

24.  In a similar case Cheung Wei Man Vivien v Centaline Property Agency Ltd., HCA 286/2000, the plaintiffs there had chosen to withhold some taped recordings and to administer interrogatories regarding matters which were evidenced by those tapes with a view to discredit the defendant by answers inconsistent with the tapes. 

25.  Lam J has this to say about such conduct at paragraph 28 of his judgment:

“The Plaintiffs had attempted to explain the late discovery as a tactical move to expose what they perceived to be the lies of the Defendants.  It was a deliberate decision and regrettably a solicitor was said to be involved.  In my judgment, this is not an acceptable excuse.  Concealment of documents would not assist the court in making a fair assessment of a witness.  A party is entitled to conduct litigation on the basis that his opponent gives proper discovery as required by the rules.  All litigants and those advising them should familiarize themselves with the duty relating to discovery.  Any forensic manoeuvre that smacks of ambush has no place in modern litigation and this court will not hesitate in voicing a strong disapproval for such conduct.  A witness should have the chance to consider the relevant documents before he reduces his evidence into witness statement.  The duty of discovery requires full discovery being given and withholding materials with a view to gain some forensic advantage in terms of trapping the opponents is an abuse of process.  This court must take a firm stance to discourage such improper conduct of litigation.”

26.  In my view, what was said by Lam J in Cheung Wei Man Vivien applies equally to this case.  It matters not that the Defendant only came into possession of the DVD after Jack’s mother had already reduced her evidence into a witness statement. 

27.  Jack’s recovery is a continuing process.  The DVD came into being last December.  By Mr. Burden’s account, the DVD contains relevant evidence on Jack’s condition.  There is a continuing obligation on litigants under Order 24, rule 1 of the Rules of the District Court to disclose all relevant documents: see Hong Kong Civil Procedure 2008, para.24/2/16.  The meaning of “documents” is not restricted to paper writings, and video recordings of evidence are clearly covered: see Hong Kong Civil Procedure 2008, para.24/2/2.

28.  Instead of disclosing the DVD as soon as it came into the Defendant’s possession, the Defendant elected to conceal it.  Worse still, the DVD was not put to Jack’s mother during cross-examination.  She was not offered an opportunity to explain any inconsistency there may be between her testimony and what is recorded in the DVD. 

29.  Most regrettably, as in Cheung Wei Man Vivien, the Defendant’s counsel hinted that the decision to withhold such evidence was made with the benefit of legal advice.  I think it is high time that legal practitioners pay heed to the stern warning of Lam J and to familiarize themselves with their duty relating to discovery.  The courts will not tolerate such improper conduct.

30.  For the above reasons, I refused the Defendant’s application to adduce the DVD into evidence.

Liability

31.  I now turn to the question of liability.

32.  Ms. Menzies for the Plaintiff, and Ms. Samija and Mr. Burden for the Defendant all claim to have witnessed the collision.  However, their accounts of how Jack came to collide with Coco are very different.

33.  Both counsel agree that the main focuses on the question of liability are:

(a)         Whether Coco was on leash at the time of the incident?

(b)        Whether the Defendant threw a tennis ball towards the open area for Coco to retrieve?

(c)         How did Jack collide with Coco?

(a)    The Plaintiff’ case

34.  Jack’s mother and Ms. Menzies testified for the Plaintiff.

35.  According to Jack’s mother, she took Jack and Jack’s friend Andrew to a movie in Tung Chung on the day in question.  After the movie, they returned to Discovery Bay to meet up with Andrew’s mother Ms. Skellham.  The boys had bought toys at the cinema and were playing in the open area of Discovery Bay Plaza when Jack’s mother and Ms. Skellham were talking to each other at the perimeter. 

36.  Ms. Skellham complained about some irritant in her eyes and Jack’s mother was looking at it when they suddenly heard Jack screaming.  Jack’s mother then had her back towards the open area and so did not see what happened.  When she turned, she saw Jack stood up, wobbled and was screaming. 

37.  Jack was holding his head and ear.  When Jack’s mother checked on him, she saw blood gushing out from his ear.  Ms. Skellham got some ice from Solid Rock Café nearby and put it on Jack’s head.  Jack did not calm down but continued crying.  Jack’s mother and Ms. Skellham then took Jack to Discovery Bay Medical Centre for preliminary treatment and then to Canossa Hospital.

38.  Ms. Menzies was present at Discovery Bay Plaza and witnessed the incident.  She did not know Jack’s mother or Jack at that time.  She and Jack’s mother have a common friend called Kathy.  After the incident, Ms. Menzies told Kathy about it and Kathy relayed to Jack’s mother.  Eventually, Jack’s mother asked the Plaintiff’s solicitors to take a statement from Ms. Menzies after confirming with Ms. Menzies that she was willing to testify. 

39.  According to Ms. Menzies, she first noticed the Defendant and Coco on the day in question as she was walking past Solid Rock Café with her partner and their 5 to 6 months old baby boy.  She noticed the Defendant and some people sitting at a table outside the café.  She saw Coco approaching the Defendant with a tennis ball in her mouth.  She then saw the Defendant throwing the tennis ball towards the centre of the open area for Coco to retrieve.  Coco was not on a leash. 

40.  After Ms. Menzies was seated, she saw the Defendant throwing the tennis ball towards the open area again for Coco to retrieve.  Jack and another child were running about in the open area.  As Coco was running towards the open area for the ball, she collided with Jack.  Ms. Menzies can no longer recall how exactly they collided with each other.

(b)    The Defendant’s case

41.  The Defendant, Mr. Burden and Ms. Samija testified at the trial.  They say they were having brunch with some other friends at a table outside Solid Rock Café at the time of the incident.

42.  Coco was lying under the table beside the Defendant.  They say Coco was on a leash and the Defendant was holding the leash with her left hand.  Suddenly, something caught Coco’s attention.  She got up and trotted towards the open area.  Mr. Burden immediately went after her.  The Defendant’s view towards the open area was blocked, but Mr. Burden and Ms. Samija were able to see what happened.

43.  According to Mr. Burden and Ms. Samija, Mr. Burden called to Coco when she was about halfway across the open area.  Coco turned and trotted back.  Jack was then running backwards in the open area and he fell over Coco.  Jack seemed all right after the collision.  He got up and went to other children nearby.  Mr. Burden checked on Coco’s hip as Coco was suffering from hip dysplaxia.  He noticed a ball in Coco’s mouth and ordered her to drop it before they returned to the table.

44.  Twenty to thirty minutes later, a lady came over to their table and asked for Coco’s owner.  The Defendant acknowledged that she was the owner and the lady told them Jack had been taken to hospital.  The Defendant asked if a report should be made to the police but the lady said that was not necessary.  The Defendant then volunteered her name and telephone number to the lady and asked the lady to tell Jack’s parents to call her.  The lady then left without giving her name.

(c)    Finding of fact

45.  I find the Defendant’s case artificial and not believable.

(a)         The Defendant and her two witnesses are adamant that the Defendant was holding Coco’s leash with her left hand whilst eating with her right hand.  However, they had somehow all omitted to mention this important fact in their respective witness statement, which were taken by lawyers.

(b)        The Defendant demonstrated at the trial how she had held Coco’s leash.  There was a loop at the end of the leash.  She put the loop around her writ and was also holding the leash with her left fist.  I do not think the Defendant has offered a satisfactory account as to how the leash could have slipped out of the her hand if she had indeed hold the leash in the way alleged.  Coco could not have dashed off as, according to the defence, Coco has hip problem.  So it is not the Defendant’s case that the lead was pulled off by sudden force.

(c)         The Defendant said all Coco’s leashes were about 60 in long.  It is the Defendant’s case that the open area was very crowded at the time, with adults, children and dogs.  Mr. Burden even said he had to go round a few people in order to get to Coco.  Under those circumstances, it was rather unlikely for Coco (with a loose 60-inch lead attached to her) could have trotted half way across the open area without inconveniencing others.

(d)        Mr. Burden had just witnessed Jack falling over Coco.  It is unbelievable that he would still order Coco to drop the ball in the open area, leaving it to be stepped on by other children. 

(e)         The Defendant has emphasized how much she cares for Coco.  On the day in question, she had meant to keep Coco under control but Coco still managed to break loose.  However, she did not follow Coco with her eyes but had to require Mr. Burden later to tell her about the collision.  The Defendant tries to explain that there were many people moving about in the open area and there was a tree in front of their table blocking her view.  However, Ms. Samija, who was just sitting beside the Defendant and facing the same direction, had no difficulty in observing what happened.  In my view, it is artificial to truncate the incident into segments and asking the Defendant to testify as to what happened before and after the collision, but leaving it to Ms. Samija and Mr. Burden to account for the collision.  Having seen the Defendant testifying, I think it is fair to say that she did not perform well as a witness.  Even her counsel describes her as an “emotional lady” with some of her responses in cross-examination “argumentative and not quite to the point”.  I cannot help but think that it was a deliberate decision to leave it to Ms. Samija and Mr. Burden to talk about the collision.

46.  Both the Defendant and Mr. Burden say they always put Coco on a leash when they take her out for a walk and the only time they would take the leash off is when Coco does her toileting.  However, this is contradicted by the video recordings adduced by the Plaintiff, which show the Defendant and Mr. Burden respectively walking Coco without a leash.

47.  The Defendant relies on some veterinary records and claims that Coco has been suffering from hip dysplaxia.  She suggests that Coco was so disabled at the time of the incident that she could not have run to retrieve the tennis ball as described by Ms. Menzies.  However, the video recordings adduced by the Plaintiff confirm that Coco was quite capable of running, playing around and even jumping over a low fence.  There is no sign of any disability.  All witnesses confirm that there was not much difference in Coco as seen on 1^st May 2006 and on the video.  Whether Coco could have run as fast as other golden retrievers of her age is beside the point.  I am left in no doubt that Coco was capable of going after and retrieving the tennis ball in the way described by Ms. Menzies.

48.  Ms. Menzies demonstrated the Defendant throwing the tennis ball over her shoulder for Coco to retrieve.  The Defendant says she is suffering from a bad shoulder and was unable to throw a tennis ball as demonstrated.  No medical evidence is adduced to confirm the Defendant’s shoulder problem.  The Defendant is a flight attendant by profession.  Given her duties as a flight attendant, I find it unlikely that she could not lift her arm just to throw a tennis ball. 

49.  The Plaintiff puts forward Ms. Menzies as an independent witness.  The defence has submitted that she is a dishonest witness deliberately tailoring her evidence to help the Plaintiff.  None of the arguments put forward by the defence, however, has cast any doubt on Ms. Menzies’ credibility. 

(a)         Ms. Menzies was cross-examined on her identification of the Defendant as the ball-thrower.  Ms. Menzies says she first noticed the Defendant throwing a tennis ball for Coco to retrieve when she walked past Solid Rock Café.  She says she was concerned and later remarked to her partner that an accident was about to happen.  She says after she and her partner were seated, she was able to observe the Defendant’s face clearly as she had meant to go over to speak to her, but was told by her partner to mind her own business.  So, Ms. Menzies did not just have a fleeting glance of the Defendant.  She had observed the Defendant for some time and had her reasons for doing so.  I think it was natural for her to feel concerned as a mother, as she was with her own baby at the time.  I am satisfied with her identification of the Defendant as the ball thrower.   

(b)        Ms. Menzies was also challenged on her ability to observe what had happened from where she was seated.  Ms. Menzies says when she was seated she was facing the centre of the open area, which was about 30 m away.  The distance between her and where the Defendant was seated was about 40 m.  Ms. Menzies does not wear corrective lens.  According to her, it was a fine day and there were only about 10 odd people spreaded out in the open area.  Photographs adduced at the trial show that trees were sparsely planted in that area.  In those circumstances, there is really nothing to cast doubt on her ability to see what she said she saw. 

(c)         Ms. Menzies was criticized for not going over to Jack’s mother immediately after the collision to tell her what had happened.  But Ms. Menzies did not know Jack’s mother then.  She did not realize then that Jack’s mother had not seen the collision.  And she had just been told by her partner to mind her own business.  In those circumstances, it is understandable that Ms. Menzies did not approach Jack’s mother there and then.

(d)        Ms. Menzies was also criticized for not making a contemporaneous note of the incident.  It was a public holiday for Ms. Menzies and her partner, and they were strolling with their baby.  I would be very surprised if they had brought along pen and paper as if they had anticipated an accident.  After the collision, Ms. Menzies did not know she would have anything further to do with the incident, not until she was approached by Jack’s mother for assistance.  Jack’s mother told Ms. Menzies that the Plaintiff’s solicitors would take a statement from her (as opposed to asking Ms. Menzies to write down what she saw).  All these explain why there is not a more contemporaneous account of the incident and why Ms. Menzies cannot now recall some of the details (e.g. how Jack actually collided with Coco) given the time elapsed.  If Ms. Menzies had been so eager to help the Plaintiff as alleged, Ms. Menzies would have memorized her statement by heart and regurgitate such evidence at the trial.

(e)         The Defendant’s counsel submitted that Ms. Menzies changed her evidence several times and he quoted a number of examples.  It is said that Ms. Menzies has omitted to mention in her witness statement that her partner had asked her to mind her own business when she told him that an accident was about to happen.  Ms. Menzies was examined and cross-examined at length.  She was led to recall the incident frame by frame.  I am not surprised that she could recall the conversation.  The Defendant’s counsel also said that Ms. Menzies stated in her statement that Jack and Andrew were “strolling” across the open area, whereas she testified in court that they were “running” just like little boys would.  But it is common ground that Jack was indeed “running” in the open area.  The difference between the parties is whether Jack was running forward or backward.  The Defendant’s counsel has also cross-examined Ms. Menzies on the choice of the word “frenetically” in her statement.  The witness statement was drafted by the Plaintiff’s solicitors based on Ms. Menzies’ account of the incident.  So it was the lawyer’s choice of word.  In my view, whether Coco was “running fast” or “frenetically running” is immaterial.  I do not regard such semantic difference as significant so as to discredit Ms. Menzies.  All in all, I consider Ms. Menzies’ testimony in court as consistent with her statement.

(f)          Mr. Burden is the Defendant’s fiancé.  Ms. Menzies was cross-examined on a dispute between her partner and Mr. Burden.  The Defendant is hinting that Ms. Menzies may bear a grudge against the Defendant and Mr. Burden.  However, this has been denied by Ms. Menzies and the facts of that dispute have never been established by the defence.  There is no basis to suggest that Ms. Menzies has her own axe to grind in testifying against the Defendant.

50.  There is a letter from the police confirming what Jack’s mother had told the police when she filed a report of the incident on 16^th May 2006.  The Defendant’s counsel noted from the letter that Jack’s mother had not mentioned any ball throwing activity to the police.  He submits that the Plaintiff must have then taken legal advice and Ms. Menzies evidence is calculated to meet the legal test of negligence.  I do not think this criticism is justified.  It has all along been the testimony of Jack’s mother that she did not witness the collision.  That explains why she did not mention any ball throwing to the police.  She only came to know about Ms. Menzies afterwards through their common friend.  She then asked the Plaintiff’s solicitors to take a statement from Ms. Menzies.  Ms. Menzies’ statement is dated 14^th September 2007.

51.  For the above reasons, I consider the Plaintiff’s case more believable and find that:

(a)         Coco was not on a leash at the time of the incident.

(b)        The Defendant did throw a tennis ball towards the open area for Coco to retrieve.

(c)         Jack collided with Coco as Coco was retrieving the ball thrown by the Defendant, although how exactly Jack collided with Coco has not been clearly established by evidence adduced by the parties.

(d)    The Defendant’s liability

52.  The Plaintiff’s counsel submits that the Defendant is liable on four distinct bases:

(a)         strict liability under the scienter rule;

(b)        negligence;

(c)         nuisance; and

(d)        breach of duty imposed by regulation 9 of the Dangerous Dogs Regulations.

He is no longer relying on the doctrine of res ipsa loquitur.  I shall now discuss each of these bases in turn, based on my above findings.

53.  The Plaintiff has not succeeded in establishing liability based on scienter.  The owner or keeper of an animal is strictly liable for the injury caused by the animal:

(a)         if the species of animal is classified as dangerous (ferae naturae); or

(b)        if the species of animal is classified as tame (mansuetae naturae) but the individual animal has a mischievous propensity known to the keeper, and damage is caused by the animal’s propensity.

See Tort Law and Practice in Hong Kong (2005), Chapter 8, para.8.4.

54.  It is not the Plaintiff’s case that Coco, a golden retriever, belongs to a species of animal classified as dangerous.  Rather, the Plaintiff’s counsel is relying on the second limb.  He submits that the Defendant is liable because the Defendant knew Coco had the propensity to retrieve things, such as the tennis ball thrown by the Defendant.  In my view, it is not enough to rely on the ordinary nature of golden retrievers.  In order to establish liability, the propensity being relied upon must be one that is really likely to be dangerous and involves the idea of an attack: see Tort Law and Practice in Hong Kong, supra, para.8.14. 

55.  At common law, “… quite apart from the liability imposed upon the owner of animals or the person having control of them by reason of knowledge of their propensities, there is the ordinary duty of a person to take care either that his animal or his chattels is not put to such a use as is likely to injure his neighbour – the ordinary duty to take care in the cases put upon negligence”: per Lord Atkin in Fardon v. Harcourt-Rivington (1932) 48 TLR 215 at 217.  This much is admitted by the Defendant: see Amended Defence, para.4.

56.  By bringing Coco to the open area of Discovery Bay Plaza, the Defendant owed a duty of care to the people there to put Coco under proper and effective control so as not to allow Coco to cause injury to them.  This is particularly so where there are children playing in that area.  That is why the Discovery Bay City Rules provides that:

“Dogs must be kept under strict control at all times in public and residential areas.  They must not be left unaccompanied in public areas.  No dogs are permitted at any time anywhere within school site, children’s play area, on Tai Pak beach or along the beach promenade.”

There are also brackets installed on the walls in Discovery Bay Plaza for use by pet owners.

57.  The Plaintiff says Coco knocked Jack down as she was retrieving the ball: see Amended Statement of Claim, para.5(d).  The Defendant says Jack fell over Coco as he was running backwards: see Amended Defence, para.10.  I have rejected the accounts of Ms. Samija and Mr. Burden as to what happened.  Ms. Menzies cannot remember how Jack collided with Coco.  So it is not clear from the evidence how exactly Jack collided with Coco.  In my view, it does not matter whether Jack was knocked down by Coco or fell over Coco.  The damage caused by the collision was a foreseeable consequence of the Defendant sending Coco into the open area to retrieve the tennis ball. 

58.  1^st May 2006 was a public holiday.  It was a sunny day and there were adults and children making use of the public area.  The Defendant did not just fail her duty as a dog owner to take reasonable care to control Coco.  The Defendant’s conduct in throwing a tennis ball into the open area for Coco to retrieve when she knew or ought to have known that there were children playing in that area is, in my view, most negligent.  She is therefore liable.

59.  The Plaintiff’s counsel has also relied on Pitcher v Martin [1937] 3 All ER 918 and submitted that the Defendant is liable on nuisance.  In the case cited, the owner was held liable for the nuisance created by allowing a dog with a 50-inch long loose lead running about in the streets of London.  In the present case, I have found as a fact that Coco was not on a leash at the material time.  That authority would have been relevant if I had found for the Plaintiff’s alternative case that Coco was on a leash but the Defendant failed to exercise proper control over Coco.

60.  The Plaintiff’s counsel also submits that the Defendant was in breach of regulation 9(1) of the Dangerous Dogs Regulations which gives rise to a separate cause of action.  Regulation 9, insofar as it is relevant to this case, provides that:

“(1)    No person shall cause, suffer or permit a large dog to enter or remain in a public place unless the dog–

(2) …

(3) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 3 months.”

61.  The Defendant admits that Coco is a “large dog” and that the open area is a “public place” within the definition of the regulation.  However, the Defendant denies that a breach of the regulation would give rise to any civil liability.  The Defendant’s counsel cites Li Yuk Lan v Lau Kit Ling, CACV 133/2988, 10/2/1989, Court of Appeal (Cons VP, Hunter JA, & Mortimer J), and Tang Lo Lai-chun v Yim Ho Wai-lin alias Ho Wai-lin, HCA 2017/1972, 20/11/1975 (Cons J) in support of his contention.

62.  Given my above ruling that the Defendant is negligent, it is not necessary for me to decide whether a breach of regulation 9 would give rise to any civil liability.  However, I will still express my view since this issue has been argued.

63.  Li Yuk Lan and Tang Lo Lai-chun were both concerned with regulation 19(1) of the Dogs and Cats Regulations, made pursuant to the then Dogs and Cats Ordinance.  The said ordinance has since been overhauled and that particular regulation repealed.  Since the Plaintiff is relying on a different regulation which is not discussed in the cases cited, those cases afford no direct authority on the issue under consideration and we must turn to the basics.

64.  The basic proposition is the general rule reasserted by Lord Diplock in Lonrho Ltd v Shell Petroleum Co Ltd (No.2) [1982] AC 173 at 185 that:

“… where an Act creates an obligation, and enforces the performance in a specified manner … that performance cannot be enforced in any other manner … Where the only manner of enforcing performance for which the Act provides is prosecution for the criminal offence of failure to perform the statutory prohibition for which the Act provides, there are two classes of exception to this general rule.”

65.  The first exception is where on the true construction of the Act it is apparent that the obligation or prohibition was imposed for the benefit or protection of a particular class of individuals.  The second exception arises where the statute creates a public right and a particular member of the public suffers particular direct and substantial damage other and different from that which was common to all the rest of the public.  See Clerk and Lindsell, 19^th Edition (2006), para.9-12.

66.  Regulation 9(3) creates a criminal offence for the contravention of regulation 9(1).  The regulation does not provide for any civil remedy for its breach. 

67.  The Dangerous Dogs Regulations were made under section 3 of the Dogs and Cats Ordinance.  The said ordinance is enacted to “provide for the keeping, regulation and control of dogs and cats, for the prohibition of the slaughter of dogs and cats, and for related matters”: see the preamble.  Section 3 provides that the Chief Executive may by regulation provide for, inter alia, “the control of dogs and cats”, “the classification of dogs”, “the keeping of any dog or class of dogs under effective control”, and “the control of the bringing of any dogs or class of dogs into any specified place”.  In moving the regulations in the Legislative Council, the Secretary for the Environment and Food explained that the regulations aimed to safeguard the public from attacks by dangerous dogs through more focused control.  The regulations suggested that dangerous dogs be classified into three categories, namely, “fighting dogs”, “known dangerous dogs” and “large dogs” and stipulated the control measures to be applied to each of these categories.  See p.6472 of the official record of LegCo proceedings on 17^th May 2000.  In my view, regulation 9 is designed to control “large dogs” for the protection of the general public.  It is not designed for the benefit or protection of any particular class of individuals. 

68.  Anyone who is aggrieved by a breach of regulation 9 may seek compensation by an action in negligence.  The existence of this common law remedy also weighs against the creation of a public right.  In any event, section 3 does not empower the Chief Executive to make regulations conferring private right of action.

69.  The only remedy afforded by the ordinance for breach of regulation 9 is the criminal process.  It cannot be enforced in any other manner.  The Plaintiff has not succeeded in bringing himself within the exceptions. 

70.  I now turn to the defence alleged.  The Defendant says the Plaintiff was also negligent.  I do not agree. 

71.  The Defendant’s counsel submits that Jack was obviously at some risk of harming himself by running around, probably sometimes turning and running backwards and screaming occasionally.  I have rejected the evidence of Ms. Samija and Mr. Burden and there is no other evidence to show that Jack was running backward.  Even if Jack was running backwards as alleged, he was merely playing in a way a 4 year-old child would.  I do not think Jack was of such an age at the time of the incident as would reasonably be expected to take precautions for his own safety: see Clerk and Lindsell, supra, para.3-55.  The collision was caused by the Defendant’s negligence and Jack cannot be guilty of contributory negligence.

72.  The Defendant’s counsel has also criticized Jack’s mother for not paying attention to Jack at the material time.  I do not think the criticism is justified.  Jack was playing in a public area which is free of vehicular traffic.  Jack’s mother was merely a stone throw away.  There was simply nothing that should raise her concern about Jack’s safety.

Quantum

73.  The Plaintiff has withdrawn the claim for future medical expenses and the claim for the costs of the cancelled airplane tickets.  Accrued medical expenses have been agreed at $30,037.

74.  The parties continue to dispute on the following heads of damages:

(a) pain, suffering and loss of amenities;

(b) loss of earning capacity;

(c) traveling expenses;

(d) Jack’s cancelled activities;

(e) tonic food;

(f) the cost of the airplane ticket for Jack’s grandmother to fly to Hong Kong to visit Jack; and

(g) the value of the service of Jack’s mother to Jack.

(a)    PSLA

75.  After the collision, Jack was screaming for pain and was holding his head and ear.  There was blood gushing out from Jack’s ear.

76.  Jack was immediately taken to Discovery Bay Medical Centre for treatment.  Dr. Patty Yuen packed Jack’s right ear canal with normal saline soaked gauze to try to stop the bleeding.  As his right ear canal continued to bleed, Jack was referred to Canossa Hospital for further treatment.

77.  When Jack was examined by Dr. Kenneth Tsui at Canossa Hospital, his right ear was still bleeding and he was found to be drowsy and nauseating.  The attending nurse noted the presence of pain.  CT scan of the brain and skull showed right temporal bone fracture.  Examination by ENT surgeon Dr. Martin Pak revealed small traumatic perforation in Jack’s right ear and continuous oozing of fresh blood from the perforation.  The diagnosis was traumatic drum perforation of the right ear and right temporal bone fracture.  Jack’s ear was gently cleansed and the bleeding was controlled.  Oral antibiotics and analgesics were given.  Jack was discharged from hospital on 3^rd May 2006.

78.  When Jack attended follow-up treatment at Dr. Pak’s clinic on 6^th May 2006, his right eardrum perforation had healed up but there was retained blood clot in the middle ear.  Jack was noticed to have impaired registration of memory and was referred to neurologist Dr. Chan Chok-Wan for assessment.

79.  Detailed examination by Dr. Chan on 12^th May 2006 did not show any focal neurologic signs and Comprehensive Development Assessment revealed findings compatible with Jack’s chronologic age.  CT scans and Electroencephalograph (EEG) showed that the temporal bone fracture was in the process of healing.  The doctor noted steady improvements in the follow-up consultations on 17^th May and 13^th June 2006 and Jack was eventually discharged without the need for medication.

80.  Jack underwent pure tone audiometry on 22^nd May 2006 and the result showed normal hearing threshold in both ears.  When Jack attended Dr. Pak’s clinic for follow-up on 13^th July 2006, the blood clot in the right middle ear had resolved.

81.  Dr. Pak opined that Jack had enjoyed a smooth and speedy recovery and the prognosis of the injury was excellent.  Jack was advised to attend follow-up with CT scan of the temporal bone at regular intervals until full recovery.

82.  According to Jack’s mother, Jack has been experiencing difficulty in sleeping, lethargic body condition and fears dogs.  Jack is still receiving medical treatment and seeking consultation from a private paediatric psychologist.

83.  The Plaintiff’s counsel suggests an award in the region of $220,000.  He relies on Leung Fun Hing, HCPI 57/2001, 24/9/02 (Burrell J); Ng Ka Ho, DCPI 28/2004, 4/5/05 (Deputy District Judge P Li); Lee Yuk Man, DCPI 1988/2006, 6/6/07 (Deputy District Judge K Lo); Wong Fung Nui, DCPI 455/2006, 2/11/07 (HH Judge Chow); and Tse Parc Ki, DCPI 1981/2006, 11/12/07, my judgment.

84.  The Defendant’s counsel, on the other hand, relies on Mak Kwong Woo, HCA 1777/1981, 17/5/94 (Mantell J); Ng Kam, HCA 4882/1981, 27/3/85 (Penlington J); Lee Chung, HCA 2764/85, 6/11/85 (Master Suttill); Chan Tsz Sing, CACV 176/04, 31/1/05 (Woo VP, Cheung JA & Stone J); Wong Shing Kam, DCPI 171/2005, 24/1/06 (Deputy District Judge ST Poon); and Limbu Saram Kumar, HCPI 382/2003, 4/4/06 (Deputy High Court Judge Gill) and pitches the award at $30,000.

85.  I do not derive much assistance from the cases cited.  Some of these cases relate to injuries of a different nature and some relate to injuries which are much more serious.

(a) The plaintiff in Leung Fun Hing sustained a severe blow on the side of his head with his right eardrum damaged.  That had resulted in tinnitus and moderate right-sided deafness.  PSLA was agreed at $350,000.

(b) In Ng Ka Ho, the plaintiff was diagnosed by experts to have suffered from Post Traumatic Distress Symptoms and subjective memory loss.  The accident had also aggravated the symptoms of “Pervasive Developmental Disorders Not Otherwise Specified” albeit not substantially.  The learned Judge awarded PSLA at $250,000. 

(c) In Lee Yuk Man, the plaintiff slipped with the right side of his body landing on his right wrist.  The learned Judge awarded $160,000 for the right chest contusion injury and the fracture of the triquetrum of the right wrist with residual pain.

(d) In Wong Fung Nui, the 1^st defendant strongly slapped on the plaintiff’s left face.  The learned Judge found that the plaintiff suffered tinnitus in her left ear, vertigo and headache and adjustment disorder as a result of the assault, and awarded $80,000 for PSLA.

(e) In Mak Kwong Woo, the plaintiff was awarded $5,000 in 1984 for a cut lip and grazed cheek resulting from the frightening experience of the collision between the plaintiff’s pillion and the defendant’s motorcycle. 

(f) In Ng Kam, the learned Judge awarded $15,000 in 1985 to the plaintiff for what he described as “some pain and general inconvenience” as a result of a traffic accident.

(g) The plaintiff in Lee Chung was awarded $4,000 in 1985 for unconsciousness, a 1 cm cut over his forehead and tenderness over his left shoulder as a result of the traffic accident.

(h) In Chan Tsz Sing, the Court of Appeal awarded $70,000 for the facial scarring suffered by the plaintiff.

(i) In Wong Shing Kam, the 1^st plaintiff was awarded $25,000 for a 1 cm laceration over his lower gum region, right elbow bruising, swollen right face and bleeding of the mouth.  The 2^nd plaintiff was awarded $30,000 for neck sprain and bruises on the legs.

(j) In Limbu Saram Kumar, the learned Judge said he would have awarded plaintiff not less than $50,000 for headaches, dizziness and residual back pains resulting from an accident at work had he found for the plaintiff on liability.

(k) The plaintiff in Tse Parc Ki suffered avulsed nail and bleeding from the nail bed in her right middle finger and I awarded $40,000 for PSLA. 

86.  Although Jack’s mother has suggested that Jack is still suffering from some residual effect of the collision, such condition is not confirmed by medical evidence.  Dr. Tsui observed Jack to be drowsy with nausea at the immediate aftermath.  However, the neurologist Dr. Chan noted Jack to be active and alert at the consultation on 12^th May 2006.  Dr. Chan eventually discharged Jack on 13^th June 2006 without the need for medication and with favourable prognosis for complete recovery.  In any event, there is nothing to establish the casual link between any such condition and the collision.  I will not take that into consideration when assessing PSLA. 

87.  The injuries suffered by Jack is not trivial.  He sustained fracture of the right temporal bone and perforation in his right ear.  He was clearly in agony and pain after the collision.  He was hospitalized for two days.  It took some time for Jack to recover although the recovery was thankfully uneventful.  Having regard to all the circumstances, I think a fair award would be $80,000.

(b)    Loss of earning capacity

88.  An award for loss of earning capacity is intended to cover risks that at some future date during the plaintiff’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market.

89.  As there is no evidence to suggest that Jack has sustained permanent injury which will affect his employment in future, no award is made under this head.

(c)    Travelling expenses

90.  There is a claim of $2,101 on traveling expenses.  The Defendant is agreeable to $705 based on the receipts adduced.

91.  Jack and his family reside at Discovery Bay on Lantau Island.  Other than Dr. Yuen from Discovery Bay Medical Centre, all other doctors who treated Jack have their clinics either on the Hong Kong Island or the Kowloon peninsular.  Someone had to take Jack to these treatments.  They had to take a ferry to Central before commuting with land transportation.  I think a reasonable compensation for the traveling expenses for Jack and an accompanying adult to attend those medical treatments would be $1,500.

(d)    Jack’s cancelled activities

92.  There is a claim of $3,640 for the cost of cancelled summer activity classes booked for May and June 2006.  Both entitlement and quantum are challenged.

93.  Jack had enrolled in music and movement classes before the incident.  A receipt for the sum of $1,170 was produced to evidence the tuition fee paid.  According to Jack’s mother, Jack refrained from attending those classes on doctor’s advice.  A letter from Dr. Pak was produced to confirm that Jack had been advised to refrain from taking up vigorous physical activities and attending classes that would involve movement, jumping and running for at least 2 months. 

94.  The Plaintiff also produced two receipts for the artworks classes which Jack had attended in May and June 2006.  Jack’s mother explains that she enrolled Jack in these classes (which did not involve vigorous physical activities) so as to provide him with some activities.  This is a sensible decision but I do not think the Defendant should be responsible for such expenses.

95.  Based on the evidence adduced, I would only allow $1,170 under this head.

(e)    Tonic food

96.  The Plaintiff is claiming $3,000 for tonic food.  According to Jack’s mother, the doctors have recommended high-calcium diet for Jack, and the family spent about $3,000 on high-calcium food and vitamin supplements for at least 6 months. 

97.  The amount claimed is an estimate and is not supported by receipt.  Be that as it may, courts are usually prepared to award a reasonable amount for tonic food depending on the circumstances of each case. 

98.  High-calcium diet was indeed recommended by Dr. Chan.  Jack was hospitalized for two days only and the recovery was speedy and without complication.  I think a reasonable award in the circumstances of this case should only be $500.

(f)     The cost of the airplane ticket for Jack’s grandmother to fly to Hong Kong

99.  According to Jack’s mother, the family would have traveled to the United States to visit Jack’s grandmother but for Jack’s injury.  Eventually, Jack’s grandmother flew to Hong Kong to see Jack.   The Plaintiff is claiming US$1,434.68 for Jack’s grandmother’s airplane ticket.

100.  Under cross-examination, Jack’s mother agrees that there was no medical or compelling reason why Jack’s grandmother should flew to Hong Kong.  She came because she was close to Jack and was concerned about him.  In my view, the Plaintiff’s claim for the cost of the airplane ticket is too remote and should not be allowed.

(g)   & The value of the service of Jack’s mother

101.  It is the Plaintiff’s case that Jack’s mother had to spend extra time to deliver extra care and services to Jack by reason of the injury.  There is therefore a claim for the value of the services rendered by Jack’s mother at $400 per hour and for 3 months at 3 hours a day.

102.  The Defendant’s counsel observed in his closing submission that the family already had a domestic helper to assist in caring for the child, and the Defendant is willing to pay the cost of extra care at $400 per hour for 2 weeks at 1 hour per day.

103.  Although Jack’s mother was not working at the material time, she could have spent the extra time she looked after Jack on something else.  I think the Defendant’s offer is reasonable and sufficient to compensate for the service of Jack’s mother.  I therefore award $5,600 under this head.

Conclusion

104.  The Defendant is liable to the Plaintiff for the collision on 1^st May 2006.  There will be judgment in favour of the Plaintiff and against Defendant as follows:

	Amount
PSLA	$80,000
Accrued medical expenses	$30,037
Traveling expenses	$1,500
Jack’s cancelled activities	$1,170
Tonic food	$500
Value of the service of Jack’s mother	$5,600

105.  Interest will be awarded at 2% p.a. on general damages for PSLA from the date of the writ.  Interest on other special damages will be awarded at half the judgment rate from the date of the incident.  The Plaintiff’s solicitors are directed to calculate the amount of interest to be included in the judgment.

106.  There will also be a costs order nisi that the Defendant should pay the Plaintiff’s costs of this action, to be taxed if not agreed with certificate for counsel.  Unless an application has been made to vary the costs order nisi, the order shall become absolute 14 days after the judgment is handed down.