PUN TUNG KING v. WONG SING FAT

[English Translation ― 英譯本]

HCPI 486/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 486 OF 2013

_________________________

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JUDGMENT

Introduction

1.  This is a personal injuries action arising from an accident on 21 October 2011.  When the plaintiff was crossing the road, a dog called Kobe, which was kept by the defendant, rushed at the plaintiff from the opposite side of the road, knocked her down on the ground and bit her legs madly.  As a result of this accident, both of her legs were injured and she suffered from post-traumatic symptoms for which she is still receiving psychiatric treatment.  She claims damages of over $1,400,000.

2.  The plaintiff’s claim is based on four causes of action, namely scienter, breach of statutory duty, nuisance and negligence.  The defendant does not dispute the occurrence of the accident.  His grounds of defence are: that Kobe was of mild disposition; that he had fulfilled his duty as a dog owner by providing Sofiah, an experienced maidservant, with a leash which met the requirements for use when walking Kobe; that the accident was unforeseeable; and that Sofiah had done everything she could to control Kobe and prevent the accident from happening.  He also contends that the plaintiff is inflating the amount claimed.

3.  Neither party was legally represented in these proceedings. They did not make any submission on points of law; their submissions pertained mainly to factual disputes. As will be analysed hereinbelow, the main issues in the present case are: the duty of care which the keeper of a large dog and the person who is walking the dog owe to other users of a public place when the dog is taken to that place; whether the defendant and Sofiah were in breach of this duty; and, if they were, the harm done to the plaintiff and the quantum of damages to be awarded to her.

The dog in question

4.  Kobe, the dog involved in the present case, is a male Tibetan Mastiff. At the time of the accident, it was two years and nine months old, weighed 50 kg (about 110 lbs), stood 0.8 m (about 32 inches) tall and was 0.9 m (about 36 inches) long.  It was black in colour with brown patches.  It was a young dog.  Its build was similar to that of a grown up wolf dog but was heavier than a wolf dog.  Kobe was a large dog within the meaning of section 9 of the Dangerous Dogs Regulation (“DDR”) made under the Dogs and Cats Ordinance, Cap 167 of the Laws of Hong Kong, and Kobe’s body weight was 2.5 times the minimum weight of a dog of this category.  Although it was not a “fighting dog” or “known dangerous dog” within the meaning of the Ordinance and hence was not required to be muzzled in a public place, it had to be held on a leash of not more than 2 m in length by a person.

5.  Although there is no expert evidence, I can take judicial notice of the fact that the Tibetan Mastiff is a descendant of dogs kept by nomadic tribes in Tibet which were used for guarding their sheep outdoors and fending off attacks by leopards and wolves and which were also ferocious dogs. A Tibetan Mastiff kept as a pet dog, having gone through generations of domestication, selection and breeding, must be classified as an animal kept by man and not a wild animal.  Whether an animal kept by man should be classified as a domestic animal or a wild animal is a question of law for the judge to determine by reference to the genus and species to which the animal belongs: see McQuaker v Goddard[1]. I can take the aforesaid judicial notice and use it as prima facie evidence that the Tibetan Mastiff belongs to the genus of canis.  According to zoological classification, dogs originated from the wolf, and they are a subspecies, called familiaris, under the lupusspecies.  On the basis of this classification, I find that as a matter of law, a Tibetan Mastiff is a domestic animal.  Having said that, a Tibetan Mastiff may possibly retain its hidden natural behaviour and temperament.  In answer to my questions, the defendant admitted that a Tibetan Mastiff is a kind of ferocious dog.

How the accident happened

6.  Around 5.50 pm on 21 October 2011, the plaintiff alighted from a minibus on Tai Wo Service Road West at Wai Tau Tsuen, Tai Po. At the same time, Sofiah, taking Kobe with her, was on the opposite side of the road, waiting to cross the road after the minibus moved away.  While the plaintiff was crossing the road, Kobe suddenly ran towards and sprang on the plaintiff.  It bit her right calf, and then mauled her left calf, tearing off some of the flesh, so that her left calf was reduced to a mess of flesh and blood.  Subsequently, three pedestrians jointly put Kobe under control by pulling the leash tight.  The police were called, and an ambulance arrived and sent the plaintiff to hospital.

7.  On 22 May 2012, the defendant appeared at Fanling Magistracy in response to a summons issued against him by the Agriculture, Fisheries and Conservation Department pursuant to sections 23 and 25 of the Rabies Ordinance, Cap 421 of the Laws of Hong Kong, for the offence of being the keeper of a dog not on leash or under control which bit a person in a public place.  He pleaded guilty and was fined $1,000.

Assessment of witnesses’ credibility

8.  The plaintiff gave evidence and also called her husband Mr Chung to give evidence.  They lived in Tai Po, New Territories.  At the material time they earned a living by running a “tea restaurant” (茶餐廳).  Their income was meagre and they were unsophisticated.  Save for defects in the information which they submitted to the Inland Revenue Department regarding the plaintiff’s wage/income from the restaurant, I find that, by and large, they are veracious witnesses and I accept their evidence.

9.  The defendant also gave evidence, and he called two witnesses.  At the time of the accident he was not present at the scene.  His evidence was immaterial and not subject to dispute.  Although I do not accept his explanation as to why he admitted the aforesaid offence, this has no bearing on the findings of fact which I will be making in the present case.  Nor will I accord any weight to his conviction.  On the whole, his evidence is credible.

10.  Sofiah is the Indonesian maidservant who walked Kobe on the material day.  Part of her evidence is clearly exaggerated, inconsistent with the objective evidence, and inherently improbable.  I selectively accept her evidence.

11.  Mr Yau, a neighbour of the defendant, is a serving police officer.  Based on his day-to-day observations, he took the view that Kobe had no propensity to attack.  He also frequently saw Sofiah taking Kobe out for a walk, with Kobe being held on a leash.  However, his evidence only covers what he observed during limited periods of time and is not comprehensive.  Nor was he present at the scene of the accident in question.  Much as I believe that he is a veracious witness, I cannot accord undue weight to his evidence.

Claim founded on the doctrine of scienter

12.  The doctrine of scienter has its source in the common law applicable in Hong Kong.  In the recent case of Chiang Ki Chun Ian, a minor suing by his mother and next friend, Chow Yuen Man Louise v Li Yin Sze[2], Bharwaney J reviewed some relevant Court of Appeal cases and English cases.  In Li Yuk Lan v Lau Kit Ling[3], Cons VP, in summarizing the legal principle on scienter, had this to say (at 129):

“... It is well established on the authorities that an owner of a domestic animal is liable for damages caused by the animal, either if the owner knows of some propensity to mischief particular to the animal but not common to the species in general, or if there are particular circumstances which in themselves impose upon the owner a duty to take care.”

13.  In the first part of the above passage, Cons VP directly referred to the doctrine of scienter.  In the second part, he referred to the tort of negligence and the duty of care.  The doctrine of scienter involves strict liability.  The owner of a dog is liable for the behaviour of the dog without the need to prove negligence on the part of the owner.  Under the common law, the essence of strict liability lies in the dog owner’s knowledge that the dog has a propensity for vicious acts.  On the other hand, proof of such propensity is not by itself sufficient to render the dog owner liable.  The victim has to prove further that the dog owner knew or should have known that the dog had done the act which established the propensity.  In other words, a dog owner is not liable for the unpredictable behaviour of the dog he keeps unless he has the requisite knowledge.  The doctrine of scienter is well-established in a number of cases such as Fardon v Harcourt-Rivington[4] and Searle v Wallbank[5].  The actual operation of this doctrine is best illustrated by Li Yuk Lan v Lau Kit Ling and Fardon v Harcourt-Rivington.

14.  In Li Yuk Lan v Lau Kit Ling, the defendant took his two large Labradors out for a walk on a street in Fairview Park.  Neither of the two dogs was leashed.  The plaintiff was attacked and injured by the two dogs when she tried to rescue her shapei from the jaws of one of them.  After referring to Fardon v Harcourt-Rivington, Cons VP held that:

“There was no evidence in the court below of any mischievous propensity on the part of the two Labradors, or that the defendant knew of such propensity, or that she ought to have known of such propensity. Nor for my part do I find any special circumstances. All that the defendant was doing was taking normally well behaved dogs for a walk. It is true that she would not at all times necessarily be in absolute control, but even so, that in my view was not, in the words of Lord Atkin, ‘putting her animals to such a use as was likely to injure her neighbour.’ As far as the claim was based on negligence it should have failed.”

15.  In Fardon v Harcourt-Rivington, a tame dog not known by its owner to have any mischievous propensity was shut away in a closed car with all doors and windows closed.  After a while, the dog became excited, thrashed about and broke a window of the car, causing a sliver of glass to injure the eye of a passer-by.  Lord Atkin found the defendant not liable.

16.  In McQuaker v Goddard[6], in discussing the doctrine of scienter Scott LJ explained the rationale behind the difference in treatment between domestic animals and wild animals as follows:

“On the question of law, it is important to bear in mind that, in the common law of England, a rule was laid down long ago that domestic animals are to be regarded in quite a different light from wild animals. Wild animals are assumed to be dangerous to human beings because they have not been domesticated. Domestic animals are assumed not to be dangerous. That is why, in English law, the keeper of a wild animal must keep it in at his peril: so that if he lets it out and it causes injury to the person or property of any human being, the keeper or owner of the animal, as the case may be, is liable in damages for the injury so caused; and why in the case of domestic animals, the presumption of law is to the opposite effect. There the plaintiff has to prove that the defendant was aware of the particular propensity to hurt human beings which was evinced in the case where, ex hypothesi, the plaintiff suffered; unless he proves that knowledge, there is at common law no liability upon the defendant. That liability has, in the case of dogs worrying sheep and certain other animals, been altered by legislation. But, apart from that exceptional statutory case, there is no liability without proof of knowledge of the defendant; the scienter, as it is called in law.”

Scott LJ also held that the question of whether an animal belongs to the class of domestic animals or the class of wild animals is a question of law to be determined by the judge by reference to the genus and species to which the animal belongs.

17.  Kobe is a Tibetan Mastiff.  This breed of dog has its origin in Tibet where it was kept by nomadic tribes to protect their sheep from wolves and leopards when they turned out their sheep to graze.  It is a kind of ferocious dog.  However, at law it is as much a domestic animal as other dogswhich are undoubtedly animals kept by man, such as Labradors: see my finding in para.5 above.  Both the defendant and his witness Mr Yau gave evidence that Kobe had been tamed and was friendly and that they had no knowledge of its having any propensity for violent behaviour.  Nor has the plaintiff adduced any evidence of Kobe’s violent propensity or the defendant’s knowledge thereof. I find that the plaintiff has failed to prove either of the two essential elements required to establish scienter.

Claim founded on nuisance

18.  As for the plaintiff’s claim founded on nuisance, I believe the claim is unlikely to be based on private nuisance, which is concerned with the activities of the owner or occupier of property within the boundaries of his own land which may harm the interests of the owner or occupier of other land[7]. The plaintiff’s claim appears to be founded on public nuisance.

19.  In Leung Chun [sic] Hung and Another v The incorporated owners of Kwok Wing House[8], Ribeiro PJ summarized the law of public nuisance as follows: Public nuisance is actionable as a tort only by an individual who has been caused particular damage over and above the damage suffered by the public at large[9].  Unlike a claim in private nuisance, an interest in land is not an essential element of a claim in public nuisance.  Neither the plaintiff nor the defendant need have any interest in or relationship with any land or building.  To succeed in an action founded on public nuisance, four essential elements have to be proved: (1)The tortious act in question must have constituted a public nuisance in that it has given rise to a state of affairs which endangered the lives, safety, health, property or comfort of the public, or which obstructed the public in the exercise or enjoyment of any right that was common to members of the public: see R v Rimmington[10].  (2) The defendant must have known or ought reasonably to have known that his act or omission would result in a nuisance hazard presenting a real risk of harm to the public: see Sedleigh-Denfield v O’Callaghan[11].  (3) The nuisance hazard must have been causative of particular injury to a member of the public.  A defendant may be held liable for public nuisance on the basis of his positive act or his omission.  (4) The injury caused to the plaintiff is of a foreseeable type[12].

20.  The particulars of claim pleaded by the plaintiff in the present case are as follows:

(a)  The defendant caused or permitted the dog to be placed in such a position where the dog might cause harm and injury to the plaintiff, and the defendant ought reasonably to have foreseen such risk;

(b)  The defendant exposed the plaintiff to a risk of harm which the defendant knew or ought to have known;

(c)  The defendant failed to ensure that the dog was properly watched or restrained when it got close to any person;

(d)  The defendant failed to ensure that the dog was on a leash or in any event kept under proper control when it was in a public place; and

(e)  In all the circumstances, the defendant failed to take any or any adequate steps to prevent the dog from causing harm to any person (including the plaintiff).

21.  The particulars in the Statement of Claim are sufficient for pleading negligence and public nuisance. However, to succeed in the claim in public nuisance, the plaintiff has to prove that the defendant’s acts or omissions constituted a public hazard.  In my view, leading Kobe to a public place did not constitute any public hazard unless there is evidence of its propensity to cause danger or of its fierce nature. However, the plaintiff has not adduced any such evidence;on the contrary, there is evidence from the defendant that Kobe was well behaved and tame.  In the absence of any evidence that the defendant’s acts or omissions constituted a public hazard, I find that this claim is not established.

Claim founded on breach of statutory duty

22.  The plaintiff relies on the defendant’s conviction at Fanling Magistracy as evidence of his having breached the statutory duty imposed by sections 23 and 25 of the Rabies Ordinance and as the basis of her claim.  Sections 23 and 25 provide as follows:

“23(1) Unless it is on a leash or is otherwise under control, no Part II animal shall be in ——

(a)  a public place; or

(b)  any place from which it may reasonably be expected to wander into a public place if it is not on a leash or otherwise under control.

(2)  Where a Part II animal is found in any place in contravention of subsection (1) the keeper of the animal and any person who caused, suffered or permitted the animal to be in that place shall each be guilty of an offence and liable to a fine of $10,000.

(3)  It is a defence to a charge alleging a contravention of subsection (1) for the person charged to prove that he took all reasonable measures to prevent the contravention.”

“25(1)  Where a Part II animal that is in any place in contravention of section 23 bites a person (other than the animal’s keeper) the keeper shall be guilty of an offence and liable to a fine of $10,000.

(2)  It is a defence to a charge alleging a contravention of subsection (1) for the keeper to prove that ——

(a)  he took all reasonable measures to prevent the animal from biting; or

(b)  the animal was wilfully provoked by someone other than himself.”

23.  Even though the defendant was convicted on his own plea of guilty, he denies that he was in breach of any statutory duty.  He explains that he pleaded guilty because he felt sympathy for Sofiah and he thought it was expedient for him to do so. He says that Sofiah had been dragged onto the ground by Kobe and her knees were thereby injured, and out of sympathy for her, he did not have the heart to call her to give evidence for him in the court; and that as his heavy workload rendered it difficult for him to take days off, he chose to plead guilty with intent to bring the matter to an end as soon as possible.

24.  The defendant’s explanation is in my view wholly incredible.  The accident happened in October 2011; Sofiah’s knee injuries had healed long before early 2012.  She should not have any difficulty giving evidence in the court on 22 May 2012 and thereafter, and I see nothing in the act of giving evidence in court which would deserve any sympathy.  If Sofiah had repeatedly and maliciously damaged electrical appliances in his home, why would he feel sympathy for her when she was required to attend court to give evidence?  If he felt sympathy for her, why did he terminate her employment less than one month before the trial?  Furthermore, as an intelligent man who was well versed in the ways of the world, the defendant should have known that the criminal prosecution would not mean the matter was over.  He should have known that he would face civil litigation in which his plea of guilty would constitute evidence against him.  He chose to plead guilty instead of availing himself of the statutory defence provided in sections 23(3) and 25(2), namely that all reasonable measures had been taken to prevent Kobe from biting any person.  This being the case, I consider that the only reasonable inference is that the defendant pleaded guilty because he knew that Sofiah did not concentrate and/or hold the leash firmly when walking Kobe, with the result that Kobe broke loose.  I consider that the defendant’s explanation is nothing but a lame excuse.  I find that he was in breach of the statutory duty imposed by sections 23 and 25 of the Rabies Ordinance.

25.  Nevertheless, in this type of claim, the first and foremost question for the court is whether the relevant legislation is intended to impose,by way of the statutory duty, civil liability on the person in breach of the duty: see Li Yuk Lan.  This is a matter of statutory interpretation.  In Li Yuk Lan, the plaintiff relied on the defendant’s breach of the now repealed regulation 19 of the Dogs and Cats Regulations as the basis of her claim for breach of statutory duty.  Having considered the provision, Cons VP held that the legislative intent of the provision was not to impose civil liability on the person in breach of the provision.  He said:

“If the regulations were taken as imposing civil as well as criminal liability, the net result would be to make the owner of a dog an insurer of its conduct in a public highway. That would be such a radical change from established principles that, for my part, I do not think the legislature could have intended to introduce it by subsidiary legislation, particularly where the enabling section does not clearly refer to the conduct in question. I refer to s. 3 of the Ordinance, which provides that regulations may be made for ‘controlling dogs and cats in their importation, movement, slaughter and sale, and for the prohibition of the sale of the flesh of dogs and cats.’”

26.  That case concerned regulation 19 of the Dogs and Cats Regulations, which wasenacted pursuant to the Dogs and Cats Ordinance.  The regulation provided as follows:

“(1)  No dog shall be allowed to go abroad on a public thoroughfare or on any premises abutting on any thoroughfare which are not so enclosed as to confine such dog within the enclosed area unless it is on the lead or is otherwise under control.

(2)  A breach of this regulation shall be deemed to have occurred if any dog is abroad as aforesaid and is not on the lead or otherwise under control or if a dog bites any person or any other dog at a time when, and at place at which, it is required by this regulation to be on a lead or otherwise under control.

(3)  n every such case the owner of such dog or, if the owner is absent from the Colony, the person having the custody or care of such dog shall be guilty of such breach, notwithstanding that such breach occurred without his knowledge or without any default on his part and, in the case of a dog biting a person or another dog, notwithstanding any proof that the dog was on a lead or was otherwise under control.”

(No Chinese version is available for this regulation)

27.  By comparison, as far as the imposition of strict liability is concerned, the repealed regulation 19 of the Dogs and Cats Regulations did so in even more detailed and specific terms than sections 23 and 25 of the Rabies Ordinance (with which the present case is concerned) do.  The long title of the Rabies Ordinance reads: “... to provide for the prevention and control of rabies and for related matters”.  Section 3 of that Ordinance empowers the Director of the Agriculture, Fisheries and Conservation and an authorized officer appointed by him to exercise any of the powers under that Ordinance, including the powers to seize, detain and destroy animals; to examine and vaccinate any animal; to require information or production of documents; to feed and keep animals; to deal with licensing of animals; to prosecute cases of animals biting persons; to take controlling measures when rabies exists; and to control the importation of prohibited animals.  I consider that the legislative intent in enacting the Rabies Ordinance is not to impose, by way of a statutory duty, civil liability on a person who is under such a duty.  Nor am I able to make such inference from those provisions.  Accordingly, the plaintiff’s claim founded on the defendant’s breach of statutory duty is bound to fail.

Duty of care owed by the keeper of a dog and the person who takes a dog out on a leash

28.  The plaintiff’s claim in the tort of negligence is based on the allegation that the defendant was in breach of his duty of care, thereby causing injuries to the plaintiff.  These are precisely the “special circumstances” referred to by Cons VP in Li Yuk Lan.  The doctrine of scienter and the tort of negligence differ in the following respect: Under the doctrine of scienter, liability is strict in the sense that a dog keeper is liable for unforeseeable acts done by his dog, unless he has no knowledge of the dog’s propensity to do the vicious acts in question. Whether the acts done by the dog are foreseeable is irrelevant to the liability of the dog keeper.  On the contrary, the legal principle under the tort of negligence is that a dog keeper owes a duty of care to his neighbour, and that the existence of this duty is based on whether the dog keeper can foresee his act or omission will cause his neighbour to suffer any real risk or harm.  Such foreseeability is crucial to the liability of the dog keeper.

29.  In respect of the duty owed by a dog keeper and the standard required in the discharge of that duty,  Bharwaney J remarked in Chiang Ki Chun Ian v Li Yin Sze[13] that:

“18. ... The common thread which runs through the law of negligence, and in its application to various and diverse factual situations, is that a neighbour must refrain from an act or omission (in those cases where he is charged with a positive duty to act) if he reasonably foresees a real, as opposed to a fanciful, risk of harm to his neighbour from his act or omission. The court must assess whether the risk of harm was real or whether it was fanciful and the court must do so by assessing the likelihood of the risk materialising on the specific facts and circumstances of the case before it, and by balancing the likelihood of the risk materialising against the severity of harm, were it to materialise, the cost and practicality of precautions, and the utility of the activity in question.”

30.  In the present case, the grounds of defence are that Kobe was of mild disposition; that the accident was unforeseeable; and that the defendant had discharged his duty as a dog owner, by training Sofiah in the skills of controlling a dog by using a leash, instructing Sofiah on the route to be taken when walking Kobe, and supplying an up-to-standard leash to Sofiah, an experienced maidservant, for use when she took Kobe out to the streets.  The duty owed by a person as a dog keeper is a question of law, depending as it does on the foreseeable risk created by the person’s acts or omissions to his neighbor; and the test for foreseeability is an objective one, not a subjective one based on the dog keeper’s view.

31.  Being a wild animal by origin, a dog possesses behavioural traits and character in line with its nature.  The same is true of a pet dog which, despite having gone through generations of domestication, still retains its natural behavioural traits and characteralbeit hidden.  If a pet dog is a large dog, its keeper should pay particular attention because, once the dog displays its natural behaviour and instincts, it may endanger or even harm the human beings and properties around it.  In a domesticated environment, eg in the dog owner’s home, a dog’s hidden natural behaviour and instincts will be suppressed and the dog will appeartame, friendly, understanding and lovely.  However, upon being irritated, the dog will display its hidden natural behaviour and instincts.  The urban environment is vastly different from the dog’s natural habitat.  In the city, loud noises, air pollution, busy traffic or even streams of people moving about may well irritate the dog.  The urban environment is not suitable for keeping large pet dogs.  When a person who keeps a large pet dog in the city takes the dog to a public place, he is under a duty of care to ensure that the dog will not endanger or even harm other users of the public place.

32.  The danger which a large dog in a public place poses to other users of the place is foreseeable and real, not fanciful.  In 2000, the Legislative Council made significant amendments to the Dogs and Cats Ordinance.  On 15 June 1999, the Chief Executive in Council made the DDR pursuant to section 3 of the Dogs and Cats Ordinance and then submitted the DDR to the Legislative Council for approval.  The Legislative Council set up an ad hoc subcommittee to scrutinize the DDR.  Having considered in detail the submissions made by 13 interest groups and individuals and held two rounds of meetings with their representatives, the subcommittee recommended that the DDR be passed.  The Legislative Council passed the DDR, which became Cap 167D of the Laws of Hong Kong.[14]

33.  Under the DDR, dangerous dogs are classified into “fighting dogs”, “known dangerous dogs” and “large dogs”, and regulatory measures are stipulated for each of these three categories.  “Fighting dogs” include the Pit Bull Terrier and three types of dogs of similar breeds.  These dogs may attack people without provocation or foreboding, thereby inflicting serious injuries or even causing death.  The “known dangerous dogs” category consists of dogs which have inflicted serious bodily injuries on or caused the death of a person or a domestic animal without provocation, or which have a history of repeatedly attacking people or putting people in fear of being attacked.  Only a magistrate has the power to classify a dog as a known dangerous dog upon application.  The “large dogs” category consists of all dogs with body weight of 20 kg or above.

34.  The reason for designating dogs weighing 20 kg or above as “large dogs” and including them in the regulatory regime of the DDR was that dogs of such size posed a threat of inflicting serious injuries on human beings or other animals.  At the Legislative Council meeting on 17 May 2000, the then Secretary for the Environment and Food pointed out that statistics gathered between April 1997 and March 1999 showed that, of the investigated cases involving dog biting human beings, approximately 70% involved dogs with estimated body weight of 20 kg or above.  Furthermore, most of the serious cases,involving hospitalization of individuals by reason of being bitten by dogs in public places, were caused by large dogs. Therefore, the authorities considered it necessary to include dogs which weighed 20 kg or above in the regulatory regime of the DDR and to stipulate that such a dog had to be held on a leash when it entered a public place.  At the Legislative Council meeting held on that day, when the Secretary for the Environment and Food moved for the passage of the DDR, he said:[15]

“... the requirement that such a dog be kept on a leash is indispensable. We consider leashing control essential. Under the current legislation, a dog must be ‘on a leash or is otherwise under control’, but experience tells us that it is difficult to prove if other methods of control can be used apart from leashing. Thus, the existing legislation fails to effectively target at some irresponsible dog owners. The proposal that a large dog must be held on a leash will help address the difficulties in enforcing the current legislation for dog control, provide a proper regulatory measure and help prevent human beings from being bitten by large dogs. There are precedents of the implementation of such a measure in foreign countries. Countries such as Singapore and Ireland also imposed leashing control on specified large dog breeds.”

The statement made by the Secretary and the statistics provided show that when a keeper of a large dog leads the dog into a public place, the danger thereby created of causing serious injuries to other users of the public place is foreseeable and real, not fanciful.

35.  On that day, the Legislative Council passed the DDR.  Section 9 thereof provides that:

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

(a)  is being securely held on a leash of not more than 2 m in length by a person; or

(b)  is securely tied to a fixed object on a leash of not more than 1.5 m in length in a manner that does not pose a danger to public and animal safety, and welfare of the dog.

(2)  This section does not apply to a large dog which is in a country park or a special area within the meaning of the Country Parks Ordinance (Cap 208) or swimming at sea.

(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.”

With the passage of this section by the Legislative Council, a keeper of a large dog who takes the dog into a public place is charged with the statutory duty of securely holding the dog on a leash of not more than 2 m in length.  This statutory duty also becomes the duty of care imposed by the common law on the keeper of a large dog, such duty being owed to other users of the public place.

36.  The defendant stresses that Kobe was of a mild disposition, that the accident was not foreseeable, and that he had discharged his duty as a dog owner, and hence he is not liable for damages in respect of the accident.  This assertion can only be a ground of defence to a claim based on the doctrine of scienter, and this ground of defence does not mean that when the defendant allowed a large dog to enter a public place, he did not owe a duty of care to other users of the place.  Whether this duty existed depends on whether his act or omission created a foreseeable danger to his neighbour.  This is a question of law to be answered by applying an objective test, not a subjective test based on the dog keeper’s view.  In the foregoing paragraphs I have explained under what circumstances this duty of care arises.  The test I apply is an objective test.

37.  Even if I applied a subjective test instead, I could only have arrived at the same conclusion.  Kobe belonged to the large dog category.  It weighed 50 kg and was ferocious by origin.  The defendant should have realized that a dog retained its hidden natural behaviour and temperament, and that environmental conditions might stimulate the dog to exhibit such temperament and instincts, leading to unpredictable conduct by the dog.  The defendant could not rule out the possibility that the constituents of urban life, such as crowdedness, loud noises, air pollution, busy traffic or even streams of people moving about, or any other factors, might irritate Kobe, causing it to act out of its character and display its natural behaviour and temperament, thereby endangering other users of the public place.  If it attacked any person or other animal, it might inflict serious injuries on the victim or even put the victim’s life in danger.  I find it hard to believe the defendant’s assertion that such danger was not foreseeable.

38.  It follows that, be it an objective or subjective test which is applied, it is beyond doubt that when the defendant caused a large dog to enter a public place, a foreseeable risk would be created to other users of or other animals in the public place, so that he owed them a duty of care.  Given Kobe’s breed and weight and the seriousness of the injuries it was capable of inflicting, the standard required of the defendant in discharging his duty of care was a very high one.

39.  A person who walks a dog in a public place must securely hold the dog on a leash and always be vigilant.  Generally, the person who walks a dog must ensure that the dog is close by, so that he can readily control the dog’s actions. He must always hold the leash firmly in order to guard against sudden and unpredictable acts on the part of the dog, particularly when he and the dog are in a stationary position, egwhile waiting to cross the road or when the person who is walking the dog has to stop walking to attend to other matters.  The larger the dog is, the more onerous the duty will be.  If the keeper of a dog intends to entrust someone else to walk the dog to a public place, it is incumbent on him to make sure that the person who is to walk the dog has knowledge of the dog, is aware of the abovementioned duty and is capable of performing that duty.  Furthermore, he must ensure that the person who is to walk the dog possesses sufficient physical strength to control the dog.

Were/Was the defendant and/or Sofiah in breach of the duty of care?

40.  The defendant claims that he had fulfilled his duty as a dog keeper, by employing a maidservant experienced in keeping large dogs to take care of Kobe, by (together with his wife)giving instructions and training to Sofiah on the methods and techniques of controlling a dog by using a leash, and providing her with an up-to-standard leash for use.  The leash did not exceed 2 m in length.  At one end was a loop formed by the rope, which helped the user hold the leash firmly; at the other end was a metal chain.  The defendant instructed Sofiah to wear the metal chain around Kobe’s neck and, when walking Kobe, put her hand through the loop and hold the rope.  If Kobe went out of control, she could pull the leash tight, thereby tightening the metal chain around Kobe’s neck and putting it back under control.  The defendant has produced the leash as evidence.  I find that the leash met the statutory requirement and that the method of walking the dog as described by the defendant was correct.  The defendant said that, after a period of one-odd months during which he accompanied Sofiah in walking Kobe, he considered that Sofiah had sufficient experience and therefore allowed her to walk Kobe on her own.

41.  Sofiah stated that she had kept large dogs in Indonesia, that when she first came to Hong Kong to work as a maidservant, she took care of four large dogs and seven smaller dogs in Sai Kung, and that she had experience in walking dogs.  Starting from 23 July 2010 she was employed by the defendant to work as a domestic servant and to take care of Kobe.  Kobe was then one year and seven months old.  As at the time of the accident in question, she had been taking care of Kobe for 15 months.

42.  Sofiah’s evidence is that on the day of the accident she and Kobe walked past a bus stop by the roadside.  At that time many pedestrians were waiting for buses.  Kobe strolled past them slowly without barking.  When they reached the road junction, Sofiah stopped and observed the traffic condition, getting ready to cross the road.  She saw the plaintiff, a man and another woman alighted from a minibus on the opposite lane.  The plaintiff was holding a handbag in her hand, with another bag hanging on her arm, and she hurriedly ran across the roadway.  At this juncture, without any foreboding, Kobe suddenly dashed towards the plaintiff and bit her fiercely.  The plaintiff did not have major dispute over Sofiah’s evidence as aforesaid, except the allegation that she ran across the roadway.  Sofiah gave very detailed descriptions of every action and move of the plaintiff prior to the accident; by contrast, her evidence about what happened during the accident was very confused and contradictory (see below).  There is no reason why she would have heeded such minute details prior to the accident.  In my view, Sofiah has exaggerated and fabricated the allegation as evidence that the plaintiff provoked Kobe.  I believe that the plaintiff did not hurriedly run across the roadway.

43.  Sofiah said that she held on to the leash with all her might, trying to stop Kobe from running towards the plaintiff, but instead she was dragged along by Kobe as it was too strong; and that when she reached the middle of the roadway, she was pulled down by Kobe, with her elbows and knees hitting the ground.  I believe this part of her evidence.

44.  Sofiah went on to say that although she fell on the ground, she still held on to the leash.  Then Kobe dashed towards the plaintiff and bit her legs but did not pounce on her and knock her to the ground.  Sofiah got up and tried hard to pull Kobe back, but Kobe pulled her down again and then bit the plaintiff’s legs again. At that moment, the plaintiff remained standing without falling down. Sofiah cried out for help but no one took notice of her.  She repeatedly hit Kobe’s head with the metal buckle on the leash and a piece of stone.  Meanwhile, the plaintiff shouted at her, asking her to run.  Under these circumstances, the plaintiff should have cried for help and told Sofiah to pull Kobe away. How come she told Sofiah to run instead?  Subsequently, when Kobe stopped biting the plaintiff and left, Sofiah said that she pulled Kobe away but was pulled onto the ground again.  Given that Kobe was moving away from the plaintiff, it should have been easy for Sofiah to hold Kobe on the leash and go away with it; why then was she pulled onto the ground?  I consider that Sofiah has clearly exaggerated what happened, trying to convey the point that she had done all she could to stop Kobe from attacking the plaintiff.  In any event, she has admitted that she was unable to control Kobe.

45.  As to the issue of whether Kobe had pounced on the plaintiff and knocked her down, under cross-examination Sofiah changed her evidence and said when Kobe bit the plaintiff the second time, the plaintiff was sitting on the ground.  This shows that her evidence is neither complete nor accurate.  I do believe that Kobe suddenly dashed towards the plaintiff and pulled Sofiah onto the ground.  However, I find it hard to believe that when she was on the ground and still holding on to the leash, and given that her body weight was similar to that of Kobe, Kobe could still rush at the plaintiff while dragging her (Sofiah) along.  Moreover, under such circumstances, there was no reason why the plaintiff could not run away instead of being mauled by Kobe.  Another doubtful point about Sofiah’s evidence is that if she was still holding on to Kobe’s leash, how could she possibly hit Kobe with the metal buckle of the leash?  Had Kobe freed itself from the leash? And how was Sofiah able to find a piece of stone in the middle of the roadway to hit Kobe?  These questions show that her evidence is not at all credible. Sofiah’s evidence is in my view inherently improbable.  I accept the plaintiff’s evidence.

46.  Sofiah said that, as instructed by the defendant, she put the metal chain part of the leash around Kobe’s neck and put her arm through the loop at the rope part of the leash so that her arm was encircled by the loop, and in this way she held the leash in her hand.  I consider this a correct and proper way to walk a dog.  When the leash was held in this way, if Kobe went out of control and dashed forward, Sofiah simply had to pull the leash tight immediately, and then the metal chain part of the leash would tighten around Kobe’s throat, so that the dog would have difficulty breathing and would therefore stop moving.  Accordingly, if Sofiah was pulled to the ground by Kobe and if she was still firmly holding the leash, it would have been impossible for Kobe to rush at the plaintiff while dragging along Sofiah, whose weight was similar to Kobe’s.  If Kobe tried to force its way forward, its throat would definitely be grabbed by the metal chain part of the leash, so that the dog would have difficulty breathing and be forced to stop.  The undisputed fact is that Kobe managed to attack the plaintiff twice and bite her legs many times.  This being the case, the only reasonable inference that can be drawn is that when Kobe attacked the plaintiff, the leash was no longer in Sofiah’s hand.

47.  I draw the following inferences from the evidence I accept: At the material time, Sofiah took Kobe, which was held on a leash, to the roadside, waiting to cross the road.  The plaintiff alighted from a minibus and was crossing the road. For some unknown reason, Kobe was suddenly seized by its wild animal nature and started to run furiously. Sofiah was pulled onto the ground, and thereupon the leash slipped out of her hand.  Kobe, like a horse without a bridle, dashed towards the plaintiff, sprang on her with the momentum produced by its body weight of 50 kg (ie 110 lbs), knocked her onto the ground, and mauled her legs.  The reason for Kobe’s display of its wild animal nature might be that it had previously been reprimanded and beaten by Sofiah, orthat it was in a hurry to run back home, or that it was affected by environmental factors.  I need notspeculate about the exact reason.  However, I find that it had nothing to do with the plaintiff crossing the road.

48.  As regards the slipping of the leash out of Sofiah’s hand, I believe that Sofiah did put her arm through the loop at the rope part of the leash so that her arm was encircled by the loop.  However, when Kobe dashed forward and caused the loop to be pulled to Sofiah’s wrist, had she been fullyattentive, she would only have had to hold the leash firmly immediately and it would have been impossible for the leash to slip out of her hand, and Kobe would have been forced to stop as its throat would have been grabbed by the metal chain.  On the other hand, even if Sofiah was fully attentive and held the loop firmly, if her hand and her arm were not strong enough to enable her to effect a tight grip on the leash in time so that the metal chain part couldgrab Kobe’s throat, Kobe could still be able to pull the leash out of Sofiah’s hand.  Kobe weighed 50 kg, about the same weight as Sofiah’s.  It was a young large dog.  The pulling force generated by its four strong limbs must have been much more powerful than the strength of Sofiah’s hand and arm, enabling the dog to pull away the leash.  On the above reasoning, there could only be two causes for the slipping of the leash out of Sofiah’s hand.

49.  First, Sofiah was not fully attentive and failed to pull the leash tight in time to grab Kobe’s throat; instead, she was pulled and dragged along by Kobe when it ran, so much so that the leash slipped out of her hand.  When Sofiah was walking Kobe, she failed to be fully attentive and/or to hold the leash firmly and/or to securely hold the dog on a leash, and was in breach of the duty of care she owed to other users of the public place in which she walked a large dog.  Her negligence caused the accident in question.  The defendant was Sofiah’s employer.  To walk Kobe was a job assigned by the defendant to Sofiah.  Sofiah’s negligence arose from and in the course of her employment.  The defendant, being her employer, is liable to pay damages to the plaintiff for the injuries she suffered as a result of Sofiah’s negligence.

50.  Second, even if Sofiah was fully attentive, her hand/arm or body was not strong enough to control Kobe, so that she was dragged along by Kobe and the leash slipped out of her hand.  This means that the person who was employed by the defendant to walk a large dog into a public place did not have sufficient strength in her hand/arm or body to control the dog.  He was in breach of the duty of care owed to the users of the public place, and the beach caused thesubject accident.  Likewise, the defendant is liable to pay damages to the plaintiff for the injuries she suffered as a result of his negligence.

51.  Either or both of the abovementioned two situations could have caused the accident. But whatever the case was, the defendant was negligent and is liable to compensate the plaintiff.

52.  On the face of it, my judgment appears to be in contradiction to the Court of Appeal’s decision in Li Yuk Lan v Lau Kit Ling.  In that case, District Judge Patrick Chan (as he then was) held that the defendant was liable under the doctrine of scienter, for breach of statutory duty and also for negligence.  His decision was overturned on appeal, but the Court of Appeal’s decision was mainly directed against the findings concerning the doctrine of scienter and statutory duty (see supra) and did not discuss in detail the findings as to negligence.  I believe this had to do with regulation 19 of the Dogs and Cats Regulations which was then in force.  At that time, the DDR had not yet been enacted.  The statutory duty imposed by regulation 19 was rather ambiguous (see supra).  It only imposed a vague duty to control and did not require a person who walked a large dog to keep it on a leash.  The Dogs and Cats Regulations were enacted in 1950.  In the five decades that followed, urbanization and changes in social conditions rendered those Regulations obsolete, and they were replaced by the DDR in 2000.  Besides the changes in the statutory duty, there have also been changes to the common law duty of care.  Furthermore, the facts of Li Yuk Lan were different from those of the present case.  The plaintiff in that case attempted to rescue her dog from the jaws of a dog under the defendant’s control, and in the process she provoked the defendant’s dogs and was bitten.  Perhaps for these reasons, the Court of Appeal found that the defendant was not negligent.  The present case is vastly different from Li Yuk Lan in terms of both law and fact.  Thecurrent law no longer allows a dog keeper to take two large dogs not on leash for a walk in a public place.

Injuries suffered by plaintiff

53.  A Master directed both parties to jointly submit an orthopaedic report and a psychiatric report, but the defendant neither nominated his expert nor submitted any report in accordance with the direction.  Therefore, the expert report submitted by the plaintiff became the joint expert report.  The defendant has not adduced any expert evidence to rebut the plaintiff’s expert evidence.  I accept the expert evidence adduced by the plaintiff.

54.  According to the report compiled by orthopaedic expert Dr Chan Wai Fu, he examined the plaintiff 2½ years after the accident.  The plaintiff suffered a 10-cm oblique laceration on the posterior aspect of her left calf with the subcutaneous fat and underlying muscle fascia exposed.  There were three wounds, each measuring 1 to 2 cm long, on her right calf.  She underwent multiple operations, including debridement and skin closure, and was hospitalized for 18 days.  She received 49 sessions of occupational therapy and 11 sessions of physiotherapy.  Dr Chan opines that the injuries in her left leg were more serious than those in her right leg.  At present, both of her legs still suffer moderate to severe intermittent pain and constant swelling, and as regards her left leg, there are still numbness, itchiness, skin rash, pain in the ankle, and sensory deficit.  There is diffuse tenderness over the whole of her left leg, with reduced range of movement of the ankle.  Dr Chan opines that the plaintiff’s residual symptoms of pain and numbness are probably caused by localized soft tissue traumatic injuryfollowing the severe dog bite, but that her skin rash is likely to be an indication of pre-existing varicose vein and not related to the accident.  He considers that the plaintiff has reached maximum medical improvement, and expected that the residual pain and swelling in her left ankle are expected to exacerbate by prolonged walking, standing and stair climbing.  Her ability in lifting and carrying heavy objects will also be moderately affected.  She is unable to resume her pre-accident job as a beverage counter worker and waitress, and has to take up sedentary work such as a cashier.  In light of soft tissue injury in both of her legs, and the residual pain, swelling and scars, Dr Chan assessesthe impairment of the plaintiff’s whole person caused by the accident at 2%, and her loss of earning capacity at 2%.  He considers it appropriate for the plaintiff to take sick leave up to June 2012.

55.  In addition, the plaintiff hasbeen suffering from post-traumatic stress disorder (PTSD) as a result of the accident.  She received four sessions of psychotherapy at the Department of Clinical Psychology of Alice Ho Miu Ling Nethersole Hospital, and is still receiving treatment at a psychology unit of the Social Welfare Department.  She has been diagnosed by a clinical psychologist to be suffering from PTSD.  She became anxious and irritable and showed signs of psychological distress when exposed to cues that reminded her of the incident.  She was also troubled by sleep disturbance, nightmares, flashbacks, hypervigilance, startled responses, impaired concentration, social estrangement and derealization.  She also clearly had avoidance behaviour.  She received nine sessions of treatment by a clinical psychologist.  According to the occupational therapist, the plaintiff reported that she had symptoms such as leg pain, anxiety, palpitation, chest discomfort and insomnia.  She received psychological treatment and took part in a self-management group programme to alleviate her mood and sleep problems.

56.  Dr Benjam Lai, a psychiatric expert, examined the plaintiff two years and seven months after the accident.  Based on available medical documents, Dr Lai was satisfied that the plaintiff was suffering from PTSD caused by the accident. Her psychiatric symptoms persisted; for example, she had difficulty falling asleep and had to take sleeping pills; she relived the accident and had nightmares; she was on the lookout for dogs and avoided dogs of substantial size; and she became sensitive to and fearful of sudden loud noises and increase in body weight.  He considered that the plaintiff still needed psychiatric treatment, including a further course of eight sessions of psychotherapy, and that she was likely to have mild residual psychiatric symptoms, including fear of facing a dog of substantial size, anxiety, fear of being bitten again, lack of self-confidence and reduced participation in recreational activities.  Based on the plaintiff’s psychiatric condition resulting from the accident, he assessed that she lost approximately 5% of her earning capacity and also suffered approximately 5% permanent impairment of the whole person as a result of the accident.

57.  The defendant has queried whether the plaintiff was exaggerating her case in her evidence and in what she told the doctors who treated her and the experts. Orthopaedic injuries can be tested and verified using objective data, but psychiatric damage cannot.  Psychiatric injuries are assessed solely on the basis of what the patient alleges. Thus, I remind myself to be cautious in considering the plaintiff’s evidence about her psychiatric condition.

58.  Beauty is in the eye of the beholder.  To dog lovers and admirers, who certainly include the defendant, Kobe is a lovely, magnificient and friendly animal.  However, the plaintiff has described it as a ferocious, horrible and harmful black monster which bared its teeth and barked furiously at her.  To someone who has been harmed by it, the plaintiff’s description is not a shade exaggerated.  In her testimony, she mentioned from time to time that when she was being attacked by the dog she thought she would die.  She said that when she was giving evidence, she felt as if the dog in question were growling and barking at her right in front of the witness box.  She still had a lingering fear.  Fear has to be experienced in order to be understood; it cannot be described in words.  Having seen the plaintiff’s demeanour in the witness box and heard her evidence, I am satisfied that her fear is genuine and what she told the doctors and experts is also true.  The dog in question is still haunting her in her dreams, and at present she is still displaying mild residual symptoms of post-traumatic psychiatric disorder, which are affecting her daily life, sleep, appetite, social activities and work.

Quantum: pain, suffering and loss of amenities (PSLA)

59.  The plaintiff was born on the Mainland on 9 October 1955.  She received primary education on the Mainland.  At the time of the accident she was 56 years old.  She is now 59.  Before the accident she was in good health and worked as a waitress and general assistant in her husband’s restaurant.

60.  The plaintiff’s physical injuries were not serious, although she had undergone multiple operations.  Having said that, as a result of the accident she suffers weakness in both legs, which prevents her from standing or walking for a long time or lifting or carrying heavy objects.  To her, a rather more serious injury is her PTSD which is a psychological injury.  Besides the insomnia and avoidance behaviour as described above, she also lacks self-confidence and has reduced participation in recreational activities.  There is no prospect of recovery from such physical and psychological injuries.  Taken together, the abovementioned injuries and conditions put her in the lower end of the serious injury category, which covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, eg the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.

61.  In Lam Pui Yi Anita v Secretary for Justice[16], the plaintiff, who was a health inspector, was hit by a pig’s carcass in a slaughter house in the course of her employment.  As a result, her right shoulder and arm were injured, and thereafter she felt persistent pain.  In addition, she was diagnosed to besuffering from adjustment disorder with mixed anxiety and depression.  The Court of Appeal awarded her damages of $500,000 for PSLA.

62.  In Ng Shing Yan Vincent v Poon Kin Pong[17], a boy was knocked down and injured by the defendant’s van.  He suffered open fractures in the tibia and fibula of the left leg.  Although he had by and large recovered from the leg injuries, he was diagnosed to be suffering from PTSD and social phobia and had been receiving regular follow-up treatment at a psychiatric unit.  The Court of Appeal held that there was no basis to interfere with the award by the Court of First Instance of $500,000 being damages for PSLA.

63.  In Francine Louise Collins v The Star Ferry Company Limited[18], a tyre attached to the side of a ferry and used as a fender fell and hit the plaintiff and then crushed the top of her baby’s pram.  The plaintiff suffered spasm of the left side neck muscle, which gave rise to intermittent headaches and pain, with general weakness and gripping pain in the left arm and lower back, pins and needles in the left leg, and pain in the neck, mouth, left hand and fingers, forearm, upper arm and left shoulder.  Furthermore, she complained that she was fearful of leaving her child alone.  She had nightmares of the accident and of violent events, and had recurrent distressing recollection of the accident six to eight times a day. She was distressed when exposed to the site of the accident.  Her interest in activities and in socializing diminished.  She was depressed; her mood was labile and she lacked self-esteem.  In 2001 she was awarded $475,000 being damages for PSLA (the figure would have been $596,580 in 2014).

64.  In Leung Pui Yuk v The Incorporated Owners of Albert House & Ors[19], a canopy attached to the defendant’s flat collapsed and hit the plaintiff.  She sustained superficial physical injuriesonly; but she saw her mother hit by debris and covered in blood, which caused her considerable shock and fear.  Consequently, she suffered PTSD.  She was impaired in her emotions, in her social functioning and psychological functioning.  She also suffered personality change.  She was awarded $500,000 as damages for PSLA (the figure would have been $627,979 in 2014).

65.  In Tse Ngan Heung v Lo Sin Tak & Ors[20], the plaintiff was knocked down by the defendant’s motor vehicle. She suffered lacerations on her head, hands, back, knees and toes, and fractures of her left superior and inferior pubic rami, ischial tuberosity and of her right fibula.  She also had post-concussion vertigo and acute stress reaction that required psychiatric treatment.  Furthermore, she suffered decreased concentration and memory problems, easy fatigability and slower performance at work with flashbacks of the accident.  She also suffered from a mild degree of survivor’s guilt as her friend, who was also hit by the vehicle in the same accident, became confined to a wheelchair. She had nightmares about the accident twice a week on average.  She became introverted, pessimistic and socially withdrawn. She easily forgot instructions in her work, and felt stress and anxiety whenever she crossed the road.  She was awarded $350,000 as damages for PSLA (the figure would have been $457,605 in 2014).

66.  In the present case, the injuries suffered by the plaintiff are comparable to the injuries of the victims in the abovementioned cases.  Her whole person impairment and loss of earning capacity attributable to the physical injuries caused by the accident have both been assessed at 2%, but those attributable to her psychiatric condition have both been assessed at 5%.  Taking all these into account and having regard to the authorities referred to above, I consider that an award of $500,000 as damages for PSLA is appropriate, even though the plaintiff is claiming a lower amount.

Quantum: pre-trial loss of earnings

67.  Before the accident, the plaintiff worked as a waitress in her husband’s restaurant. Every morning she went to the restaurant to prepare for doing business that day.  When the husband returned to the restaurant, she went home and went to buy foodstuff for her family.  In the afternoon, she went back to the restaurant to carry out her work as a waitress.  Her duties included buying foodstuff, preparing sandwiches and snacks for customers, working at the beverage counter and attending to other miscellaneous matters.  She worked eight hours a day.  Her husband paid her at the rate of $30 per hour, which was the minimum wage at that time.  Her average monthly income was $7,300.

68.  Following the accident in question, she had to recuperate at home and receive treatments. It was not until 1 March 2012 that she was able to resume working at the restaurant.Her loss of earnings for this period was $31,390 (ie $7,300 x 4.3).

69.  Starting from 1 March 2012, as she could not work in a standing position for a prolonged period of time, she could only work as a cashier, earning a monthly income of $3,000.  Up to the commencement of trial, her loss of earnings is $162,253.33 (ie ($7,300 - $3,000) x 37²²/₃₀).

70.  The plaintiff claims that her pre-trial total loss of earnings is $193,643.33 (ie $31,390 + $162,253.33).

71.  The defendant challenges the plaintiff’s evidence.  He points out that neither the plaintiff nor her husband had filed any return to the Inland Revenue Department in respect of her income, except that on 20 May 2012 her husband filed a return in respect of her income from 1 May to 21 October 2011 in the sum of $41,040. Therefore, the defendant asserts that the return was evidence specially fabricated by them for the purpose of the present action.  He further points out that he received a letter dated 1 February 2013 from the solicitors then acting for the plaintiff, which stated that she worked 11 hours every day and that her average monthly income was $10,037.50.  This, it is submitted, is inconsistent with her evidence.  The defendant also points out that although the plaintiff’s husband had made contributions to a mandatory provident fund scheme, the plaintiff herself had not, and that the plaintiff and her husband appeared evasive under cross-examination.  The defendant submits that the plaintiff’s evidence is not credible.

72.  I believe that the plaintiff and her husband jointly ran the restaurant, that from the date of the accident to 29 February 2012 the plaintiff was unable to resume her work, and that afterwards she could only do lighter work.  However, the plaintiff bears the burden of proving the employment relationship with her husband, her monthly income and her loss of earnings.  Her evidence, being inconsistent with the contemporaneous documents and riddled with doubts, does not meet the standard of proof.  If she and her husband jointly ran the restaurant, and a substitute worker had to be engaged due to her injuries, or the income of the business was reduced because she could not resume her work, then she should have made the appropriate claims and adduced relevant evidence instead of making up any facts or putting forward any false claim.  Therefore, I dismiss this head of claim.

Quantum: pre-trial medical expenses

73.  The plaintiff also claims a sum of $6,828 representing her total medical expenses up to 7 July 2014, and she has produced relevant receipts in support.  I allow this claim for medical expenses.

Quantum: pre-trial traffic expenses

74.  The plaintiff claims that after the accident she became fearful of large dogs, so every time she went out, she had to take a taxi from where she lived to a nearby MTR station and then take public transport, and she did something similar whenever she went back home.  She has produced taxi fare receipts for the period from 8 November 2011 to 29 January 2015 to support her claim.  During this period which lasted 1,179 days, she spent a total of $68,958 on taxi fares, and this translated into an average daily expenditure of $58.49.  On this basis, the total taxi fare she incurred from 30 January 2015 to the day of trial, which lasted 83 days, was $4,854.67.  Therefore, I assess the plaintiff’s total traffic expenses from 8 November 2011 to the commencement of trial at $73,813 (ie $68,958 + $4,855).  In view of her psychiatric condition, I allow her claim for the taxi fares in full.

Quantum: pre-trial expenditure on tonic food

75.  The plaintiff has produced receipts to prove that she had spent $10,683.20 in total on buying tonic food for nursing her health.  However, I have doubts about the medicinal effect of tonic food, and therefore I only allow the plaintiff to claim the usual amount of damages, ie $5,000.

Quantum: future loss of earnings

76.  The plaintiff submits that after the accident she could no longer cope with the work of a waitress and could only be employed as a cashier, earning a monthly income of $3,000.  She claims a sum exceeding $360,000 being the difference in earnings from the day of trial to the time when she reaches 65 years of age.  However, I do not accept her evidence about her employment.  Although she cannot remain standing for a prolonged period of time, she is still able to work as a full-time cashier.  She said that before the accident the hourly wage she received was the minimum wage.  If she is employed as a cashier, she is still entitled to the minimum wage.  She does not suffer any actual loss.

Quantum: loss of earning capacity

77.  The plaintiff claims damages of $30,000 for loss of earning capacity.  I consider that her injuries will bring about a loss of earning capacity and put her at a disadvantage in the labour market.  There is also a risk that in case of laying off she would be dismissed by reason of her injuries resulting from the accident, and that if she lost her job it would be more difficult for her to find another job in the market.  I therefore find that she is entitled to damages under this head.  The plaintiff does not have any vocational skill and does not have any other work.  She can only work as a cashier and earn the minimum wage.  On the basis of the current minimum wage of $32.5 per hour and 6 months’ income, I assess the quantum at $40,560 (ie $32.50 x 8 x 26 x 6).

Quantum: future medical expenses

78.  Dr Lai is of the view that the plaintiff would require further psychiatric treatment, including a further course of eight sessions of psychotherapy.  I allow $2,000 as her future medical expenses.

Quantum: future traffic expenses

79.  The plaintiff claims $390,000-odd as her future traffic expenses to enable her to take taxis.  It is now almost four years since the accident.  Even though she cannot forget the unfortunate experience, she should try to put it out of her mind and to dilute the gloomy effect of the accident on her.  She should face her future in a positive way and should not take an “avoid the reality” attitude forever.  She can choose to take a roundabout route but cannot always rely on taxis.  I consider that she can only claim taxi fares up to the end of this year.  After that, she should put a full stop to her gloomy feelings.  On the basis of $58.49 a day, damages from the day of trial to 31 December 2015, ie a total of 254 days, will be $14,856 (ie 254 x $58.49).

Conclusion

80.  In conclusion, I assess the damages payable to the plaintiff at $643,057.  The breakdown is as follows:

(1)	PSLA:			$500,000
(2)	Pre-trial special damages:
		medical expenses	$6,828
		traffic expenses	$73,813
		tonic food expenses	$5,000	$85,641
(3)	x  Loss of earning capacity:			$40,560
(4)	Future medical expenses:			$2,000
(5)	Future traffic expenses:			$14,856
			Total:	$643,057

81.  The plaintiff is also entitled to interest on various sums as follows:

(1)  Interest on damages for PSLA, calculated at 2.5% per annum from the date of the Writ of Summons (11 June 2013) to the date of this judgment, and thereafter at judgment rate until the sum is paid; and

(2)  Interest on pre-trial special damages, calculated at 4% per annum (half of the judgment rate), from the date of the accident (21 October 2011) to the date of this judgment, and thereafter at judgment rate until the sum is paid.

82.  I give judgment for the plaintiff.  The defendant shall pay to the plaintiff damages in the sum of $643,057 together with interest calculated as set out above.  The defendant shall also pay the plaintiff’s costs, to be taxed if not agreed.

83.  I take this opportunity to warn the defendant that, following the accident in question and my judgment herein, he should appreciate that Kobe is a dog which has a propensity to do vicious acts; therefore, in future when he causes Kobe to enter a public place, he should know that he owes a duty of care to other users of the public place.  He must make sure that the person who walks Kobe understands that he/she bears this duty of care and also understands the importance of performing this duty.  He must ensure that the person holds Kobe securely on a leash of not more than 2 m in length and remains fully attentive when he/she is walking the dog.  In addition, the defendant must ensure that the person’s hands, arms and body as a whole are strong enough to hold Kobe on a leash and control it.  GivenKobe’s body weight and vicious propensity, it may not be appropriate to allow a female with weak physical constitution to walk Kobe.  The defendant may have to walk Kobe personally, or he should find a suitable person to do so.  This is the price to be paid for keeping a large and uncommon breed of dog.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.