LEE CHIU YEE BETTINA v. WONG CHUNG SUM

DCCJ24/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 24 OF 2015

--------------------

--------------------

-----------------------

JUDGMENT

-----------------------

1.  Arising from the injuries and death of her two dogs which were respectively attacked by the defendant’s two dogs on 6 October 2013, the plaintiff premised her claim for damages on (1) strict liability under the scienter rule; and/or (2) negligence.

Issues for determination

2.  There is no dispute that the plaintiff’s two dogs had been separately attacked by the defendant’s two dogs; issues for determination are now confined to the following:-

(1)  How did the two respective attacks occur?

(2)  Whether in those circumstances the defendant was liable under the scienter rule?

(3)  Further or alternative to (2) above, was the defendant liable for negligence? and

(4)  If answer to (2) and/or (3) are in the affirmative, whether the plaintiff has proved her loss?If so, what should be the amount of damages?

Background

3.  The plaintiff and the defendant were at the material time neighbours living two houses apart, respectively at House No. 216 (“216”) and House No. 219 (“219”) of Sha Lan Villas, Tai Po, New Territories, Hong Kong (“the Villas”).

4.  The plaintiff’s two dogs “Siu Kau” and “Nel Nel” were both of small dog breed of Yorkshire Terrier type. The defendant’s two dogs “Gi Gi” and “Dong Dong” are both of large dog breed of Akita type.

5.  Siu Kau being attacked by Gi Gi was hospitalized for its serious injuries and has undergone various medical treatments; it passed away about 14 months after the attack. Nel Nel being attacked by Dong Dongsustained fatal injuries and was proclaimed dead on the same day.

6.  In relation to the two respective attacks, the defendant was respectively charged and convicted of the offence of “being the keeper of dog not on leash or under control found in a place from which it might wander into a public place”, contrary to rule 23(1)(b) of the Rabies Regulation, Cap 421A (“the Convictions”).

Issue 1: How did the two respective attacks occur?

7.  Insofar as it is significant and relevant, the account of events for the plaintiff can be summarized as follows:

(a)  After walking Siu Kau and Nel Nel, the plaintiff’s ex-boyfriend Lee Hoi Yan Joe Hayne (“Joseph”) together with the two dogs were at the material timeon their way back to 216.

(b)  Gi Gi rushed out from 219 into the communal area of the Villas.While Siu Kauwas near 216 ahead of Joseph, Gi Gi attacked and got hold of Siu Kau in its mouth. Gi Gi went on its way back to 219; Joseph chasedfrom behind.

(c)  Gi Gi stopped near House No. 218 of the Villas, Joseph pryed open Gi Gi’s mouth to release Siu Kau. Joseph picked up and held Siu Kau in his armand returned to 216. This was the 1^st attack.

(d)   On his way back, Joseph noticed that Nel Nel was being attacked by Dong Dong outside 216. Dong Dong got hold of Nel Nel in its mouth. Still holding Siu Kau in his arm, Joseph managed to pry open Dong Dong’smouth to release Nel Nel. This was the 2^nd attack.

8.  The defendant put forward a conflicting account of how the two attacks happened.Insofar as it is significant and relevant, it can be summarized as follows.

(a)  At the material time when a barbeque party was going on at the open area outside the kitchen of 219, Siu Kau approached near.  Gi Gi which was present at the party  chased after Siu Kau. It got hold of Siu Kau in its mouth and ran away towards 216. The defendant’s domestic helper Nelida Cabrera (“Nelida”) chased after; she released Siu Kau from Gi Gi and gave it back to Joseph. This was the 1^st attack.

(b)  Joseph who was then holding Nel Nel in his arm put Nel Nel onto the ground in order to take Siu Kau from Nelida. At this juncture, Nel Nel rantowards219; Nelida followed it all the way to the said barbeque area.

(c)  Dong Dong which has gone out to the said barbeque area through the kitchen door then chased after Nel Nel all the way to 216 and got hold of Nel Nel in its mouth. Nelidafollowed them and rescued Nel Nel from Dong Dong. This was the 2^nd attack.

Analysis of evidence

9.  The main factual dispute is whether the plaintiff’s dogs entered the said barbeque area or the defendant’s dogs went into the communal part of the Villas.

10.  Having regard to (a) the distance of about 15-20 metres between 216 and 219;(b) the limited running speed of Siu Kau and Nel Nel which were small pet dogs; and (c) by comparison the running speed of Dong Dong which was a big dog then weighing 56.8 kg, I find the defendant’s account hardly tenable.

11.  It is because had Siu Kau and Nel Nel run to 219 as alleged, there is no reason why Joseph could not have overtaken and carried them back. Further, had Dong Dong chased after Nel Nel from 219 as alleged, it would have got hold of Nel Nel long before Nel Nel reached 216.  

The plaintiff’s account of event

12.  Joseph was the only witness of theattacks giving evidence for the plaintiff.The defendant’s criticism of Joseph’s evidence is two-fold: inconsistency and improbability.

13.  It was said that Joseph’s evidence was inconsistent and contradicts pleadings on whether he was at the material time holding Nel Nel in his arm such that he had put it onto the ground at some time; and on whether Nel Nel was attacked by one or two dogs.

14.  There is indeed an internal inconsistency in Joseph’s witness statement: on one hand he said Nel Nel was waiting outside 216 before the 1^st attack happened; on the contrary he said he put Nel Nel down to the ground. Under cross-examination Joseph admitted the mistake; he clarified and confirmed that he had not held Nel Nel in his arm.

15.  I accept Joseph’s clarification; it was consistent with his statement given to the Agriculture, Fisheries and Conservation Department (“AFCD”) that before the attack happened, Nel Nel was walking on its own and was waiting outside 216, and that Joseph had not held Nel Nel in his arm.

16.  Another criticism is that while Nel Nel was in fact attacked only by Dong Dong, it was pleaded in the Reply that Nel Nel was attacked by two dogs.

17.  It is noted that the plaintiff herself did not witness any of the attacks; her case is based on Joseph’s account of events. Under cross-examination,the plaintiff explained that to her knowledge the defendant had three dogs altogether, while Siu Kau was attacked by one, she mistakenly thought that Nel Nel was therefore attacked by the other two. I accept the plaintiff’s explanation which is clear, direct and reasonable.

18.  It is also said that Joseph’s description of location of the 1^st attack does not match his sketch. Taking into account the nature and extent of the discrepancy, I do not think the alleged inconsistency constitutes any radical departure from the pleaded case. 

19.  Various attempts were made to discredit Joseph that his account of events is improbable. It is said thatit was incredible Gi Gi on its way back to 219 after the 1^st attack would have suddenly stopped so that Joseph could rescue Siu Kau; and that it was impossible Dong Dong did not take the common passageway to reach Nel Nel but chose to pass through the narrow pathway between parked cars and walls. These attempts are of no avail; human beings cannot know how dogs’ mind is directed to act one way or the other. Since the above acts of Gi Gi and Dong Dong, under the experience of mankind are not beyond the possible range of behavior of dogs, I find nothing improbable as alleged. 

20.  Applying the guiding principles in accessing the credibility of witness, I have considered Joseph’s evidence by making comparison between his oral testimony, his witness statement and contemporaneous documents such as the questionnaire and statement given to AFCD. I find him an honest and reliable witness.

The defendant’s account of events

21.  Those who testified for the defendant included Nelida, her friend Susan Anayan (“Susan”) and the defendant himself. On detailed analysis of theirevidence, I find their testimony packed with inconsistencies and contradictions on material issues.

22.  I disbelievethe exaggerated and far-fetched evidence of both Nelida and Susan,deliberately given to defend the defendant and his dogs. The following is, inter alia, evidence which I have flatly rejected.

(a)  In defending the allegation against Gi Gi and Dong Dong of growling and pulling on leash when seeing other dogs, Nelida went far to say that since they moved into 219 in April 2011 until the attacks in October 2013, they had never met any dogs in the Villas during dog walking.

(b)  Regarding the 2^ndattack, Nelida said she lied on the ground, covered Nel Nel with her body and has protected it from being attacked by Dong Dong. This assertion cannot sit in with the fact that Nel Nel was so seriously injured that it was proclaimed deadon the same day.

(c)  Nelida said in her witness statement that Joseph put Nel Nel down to the ground in order to rescue Siu Kau.  However, in her oral testimony she contradicted herself by saying that she rescued Siu Kau and returned it to Joseph. 

(d)  After the attacks, Nelida immediately apologized to Joseph and offered to make compensation. Nelida said it was only her habit to do so, even to wrongdoers.This explanation is absurd;I find that Nelida’s immediate reaction supports Joseph’s account of how the attacks happened.

(e)  According to Nelida, she witnessed the whole incident;   she saw Siu Kau coming near the kitchen at 219.  This is contradictory to what Susan said. Susan said when the 1^stattack happened, Nelida was not yet at the kitchen area.

(f)  With an attempt to show that Siu Kau has entered 219, Susan exaggerated to an extent that the guests to the party seeing Siu Kau have talked about and described it as a little bird. In order to show that she has witnessed all of what happened in the communal part of the Villas, Susan said she never sat down in one place but walked around and followed the defendant’s dogs to 216. However, this contradicted her witness statement where she said she was sitting near the kitchen door at 219 before the 1^st attack happened.

23.  On the part of the defendant himself, considering his evidence as a whole, I do not think he is a credible or reliable witness.

(a)  The defendant did not witness the attacks. However, he signed on thestatement to AFCD to acknowledge that all the attacks happened outside 216.He failed to give any reasonable explanation to this.

(b)  The defendant under cross-examination said that through the kitchen window at 219 he saw Nelida returning Siu Kau to Joseph. As seen from the sketch and photographs, there is a left band along the road before reaching 219 at the end of the road. I am not convinced that the defendant was able to see what happened outside 216. 

(c)  The defendantalso testified that he saw Nel Nel running to 219; he failed to explain how thispiece of important evidence was missing from his witness statement. Further, this assertion contradicted Nelida’s evidence that the defendant was at the backyard of 219 and he did not attend the sceneuntil after Nel Nel was rescued.

(d)  The defendant said he had no knowledge about the plaintiff’s allegation that his dogs were of fierce and mischievous nature.  However in the Defence which was verified by his statement of truth, he has strenuously denied such an allegation. He failed to give any reasonable explanation to this.

24.  In the premises, insofar as Joseph’s evidence differs from those of Nelida, Susan and the defendant himself, I prefer Joseph’s evidence. I find that the plaintiff has proved on a balance of probability that the two attacks happened as pleaded.

Issue 2: Was the defendant liable under the scienter rule?

25.  The doctrine of scienter imposes a strict liability on the owner or keeper of an animal for any injury it causes if:-

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

(b)  the species of animal is classified as tame but the individual animal has a mischievous propensity known to the keeper and damage is caused by such propensity. (see Tort Law and Practice in Hong Kong, 2^nd edn at §8.004).

26.  In the course of trial, the plaintiff conceded that her scienter action against the defendant relates only to Dong Dong in the 2^nd Attack. 

27.  In pursuing under the 2^nd limb of the scienter rule, the plaintiff said the defendant had knowledge of Dong Dong’s mischievous propensity because there was an incident of past damage where Dong Dong attacked the dog of LawSiu Wai Wendy (“Wendy”), the resident of House No. 215 in the Villas (“the Previous Attack”). 

The Previous Attack

Wendy’s evidence

28.  Wendy is clear and direct in her account on the incident happened on 19 June 2011.  She said at the material time when she was walking her dog,Dong Dong rushed out from 219 into the common pathway, attacked and bit her dog on the neck and head resulting in puncture wounds. Wendy then hit Dong Dong on the nose and her dog was released. 

29.  Wendy’s evidence is being criticized of having too many deficiencies. As alleged they include, inter alia, discrepancy in the number of puncture wounds, inaccurate record of the number of attacking dogs in the medical report, inconsistency about the defendant’s visits to her house, omission of important details in her witness statements etc. Despite the criticism, I do not think the so-called deficiencies are significant or material to the extent of discrediting Wendy’s credibility.

30.  I find Wendy a credible and reliable witness. I accept her evidence that her dog was being attacked by Dong Dong on 19 June 2011 in the manner as she described.

Francis’ evidence

31.  Much of the evidence of a neighbor Lee Chi Hung Francis (“Francis”) is not directly relevant to the issues in question. Francis did not witness the Previous Attack, he only saw Wendy’s dog lying injured on the common passageway outside House No 217.His evidence in relation to the Previous Attack is insignificant; the finding of how the Previous Attack took place depends largely on Wendy’s evidence and the contemporaneous medical report of her dog.

32.  The more relevant part of Francis’ evidence is in relation to the defendant’s knowledge of the Previous Attack. Francis said he has told the defendant about it; this piece of evidence was not shaken under cross-examination. I find that the defendant did have actual knowledge of the Previous Attack; in any event, knowledge of Nelida has been imputed on him.   

Nelida’s evidence

33.  Nelida’s account of the Previous Attack is biased and incredible. Her story is identical to how the two attacks in question are being defended. She said it was Wendy’s dog which strayed to 219 and attempted to get into the kitchen, Dong Dong therefore stopped it simply by pressing its head down. If there is any truth in Nelida’s account of event, it is absurd of what happened thereafter that Nelida apologized to Wendy and as alleged Wendy replied by saying “it’s alright”.  

34.  Notwithstanding my finding of the Previous Attack, there is insufficient evidence to establish that Dong Dong is of fierce and mischievous nature for the scienter action to succeed.  I note the following evidence which appears to be pointing to the contrary.

(a)  When Wendy hit Dong Dong on its nose, it readily released her dog. There was no attempt to resist or attack.

(b)  When Joseph pryed open Dong Dong’s mouth to rescue Nel Nel, there was no attempt to attack.

(c)  Further, from those photographs showing Dong Dong in multiple parties and gatherings with guests and with other dogs, it can hardly be said that Dong Dong is of fierce and mischievous nature. 

35.  Further, the allegation of Dong Dong’s growling and pulling of leash when seeing other dogs did not suffice in establishing its fierce and mischievous nature.

36.  In the premises, I find that the plaintiff failed to establish the defendant’s liability under the scienter rule.

Issue 3: Was the defendant liable for negligence?

37.  The Conviction is not by itself conclusive evidence of negligence, but it is relevant in establishing the defendant’s omission to control or secure Gi Gi and Dong Dong.

38.  It remains uncertain whether the said barbeque area outside the kitchen of 219 forms part of 219 by land boundary, or whether it is part of the communal area of the Villas occupied by the defendant. In any event, the kitchen door of 219 was always and also at the material time being left open; as such Gi Gi and Dong Dongcould escape from inside 219 into the communal area of the Villas. There is no dispute that Gi Gi and Dong Dong at the material time were neither leashed nor muzzled. I therefore find that the defendant is negligent in failing to control and secure Gi Gi and Dong Dong.

39.  However, the relevant test is whether there are special circumstances to establish liabilityagainst the defendant. Even if a defendant’s omission to control or secure his dog is negligent, an act on the part of the dog which is contrary to its ordinary nature cannot be regarded, in the absence of “special circumstances”, as being directly caused by such negligence. In the absence of scienter, a heavy burden is cast upon a plaintiff to show “special circumstances”. See Li Yuk Lan v Lau Kit-ling [1989] 2 HKLR 128

40.  In Aldham v United Dairies (London) Ltd [1940] 1 KB 507, Du Parcq LJ (as he then was) said at pp. 513-514:-

“Where it is sought to impede liability to a defendant for the conduct of a living creature, capable of spontaneous action, it has been found necessary to lay down the rules which prevent the jury from attributing to the reasonable man the degree of foresight which would anticipate every mischievous act of which an animal, hitherto docile, might conceivably be guilty, or from regarding the release of such animal from custody or control, without more, as the direct cause of any violent department from its accustomed docility which may ensue. Everyone knows that even a well-behaved animal may conceivably be guilty of such a sudden lapse, but if everyone was obliged to be constantly vigilant through his fear of such a misfortune, which the experience of mankind shows to be most improbable, it would hardly be save ever to let a house out of its stable.

For the purpose of this case, the established rules may be stated as follows:- (1) Negligence cannot be established merely by proof that a defendant has failed to provide against the possibility that a tame animal of mild disposition will do something contrary to its ordinary nature.  (2) Even if a defendant’s omission to control or secure his horse is negligent, an act on the part of the horse which is contrary to its ordinary nature cannot be regarded, in the absence of special circumstances, as being directly caused by such negligence.”

41.  While it is accepted that a tame animal of mild disposition might do some dangerous acts contrary to its ordinary nature, the above established rules have been applied in ascertaining whether reasonable foreseeability is warranted.See Chiang Ki Chun Ian v Li Yin Sze [2011] 5 HKLRD 727; Grace Chin & Anor v Kate Richdale & Anor, HCPI 1187/2000, unreported (15 August 2005); Amrol v Rivera [2008] 4 HKLRD 110.

42.  It is submitted for the defendant that there is nothing to lead one to foresee Dong Dong or Gi Gi would cause injury to others; hence absent special circumstances, no liability for negligence can be found.

43.  I find that under the knowledge of the Previous Attack, the defendant ought to have foreseen that unless Dong Dong was properly controlled secured and prevented from escape, it was likely to attack and cause injury to others. and therefore the defendant ought to regard himself as under an obligation to do something by way of precaution. The knowledge of the Previous Attack amounts to “special circumstance” which distinguishes the present case from those cases where special feature is absent.

44.  In respect of Gi Gi, it is submitted that the Previous Attack did not involve her;there was no previous incident of damage whatsoever to lead one to foresee that Gi Gi would cause injury to others.

45.  It is noted that the nature of each individual animal should be assessed in their own light. However,since Gi Gi is of the same breed and similar build and weight as Dong Dong, with the knowledge of the Previous Attack albeit involving only Dong Dong, the defendant ought to have foreseen that unless Gi Gi was properly controlled secured and prevented from escape, it was likely to attack and cause injury to others like Dong Dong did. This is the “special circumstance” which warrants reasonable foreseeability.

46.  Therefore, I find that the defendant is liable for negligence in respect of both attacks. 

Issue 4: Whether the plaintiff has proved her loss?If so, what should be the amount of damages?

Medical and cremation expenses for Nel Nel

47.  The defendant does not dispute that Nel Nel’s death was a result of the 2^nd attack. The claim of HK$2,100 for medical and cremation expenses evidenced by corresponding receipts is not disputed; I so order.

Medical and cremation expenses for Siu Kau

48.  The claim under this head is for the sum of HK$66,676.75. The defendant argues that Siu Kau should have fully recovered in May 2014 when hospitalization wasno longer required. Further, it is submitted that the plaintiff failed to prove causation that the death of Siu Kau was a result of the 1^st attack.

49.  Therefore, the defendant only regards the sum of HK$59,558.75 as reasonable. He disputes the amount of HK$7,118 which represents medical expenses beyond May 2014 and the cremation expenses of HK$800.

50.  The fact that no hospitalization is required does not mean Siu Kau has fully recovered. I accept the plaintiff’s evidence that Siu Kau’s breathing problem sustained as a result of the 1^st attack has never fully recovered; medical treatment had to continue to prolong her life until she eventually passed away.

51.  I therefore find the defendant liable for allmedical and cremation expenses so incurred. With receipts and documentary proof, the sum of HK$66,676.75 is awarded as claimed.

Cost of purchasing Nel Nel & Siu Kau

52.  The plaintiff testified that the cost of purchasing Siu Kau and Nel Nel was respectively HK$12,000 and HK$4,500. However there was no receipt or documentary proof. 

53.  Further, while the plaintiff has enjoyed her purchase of Siu Kau and Nel Nel since they were babies for more than ten years before their death, the plaintiff provides nothing to enable the court to assess the  value of Siu Kau and Nel Nel for the purpose of assessing compensation.

54.  I appreciate that Siu Kau and Nel Nel may be of great sentimental value to the plaintiff, but shehas not put forward the legal basis upon which she is entitled to recover thepurchase price of the two dogs.  This head of claim fails.

Loss of the plaintiff’s earning

55.  The plaintiff said she suffered loss of HK$35,000 as a result of her time taken off from work to look after Siu Kau.It is admitted that the 15-day leave was actually paid annual leave; and there was extra leave days in 2013 to be carried over to the next. Therefore, the defendant argues that there is insufficientevidence to show actual loss.

56.  The Plaintiff said it remains the company’s discretion to approve buy-out of her unpaid annual leave.However,the employment contract specifically prohibits buy-out as being against company policy. Further, this discretion had never been put to test because the plaintiff has never applied for buy-out of her annual leave.

57.  Having considered the available evidence, I do not think the plaintiff can substantiate her claim under this head.

Expenses for the special diet and feeding arrangement of Siu Kau

58.  The plaintiff said she used to pay her part-time domestic helper HK$2,000 per month for 3 visits per week. Owing to the special need of Siu Kau, she paid an extra sum of HK$2,000 per month to engage the helper for 5 visits per week. Therefore she claims HK$24,000 representing 12 months’ expenses of HK$2,000 each.

59.  The defendant does not dispute entitlement but challenged the deficiency of documentary evidence in support of the amount of claim. It is suggestedthat the reasonable sum should be no more than HK$8,000.

60.  Although the acknowledgment of receipt from the domestic helper does not specify details of the arrangement for top-up or extra services, the specified job duties does include pet care. 

61.  I find that the sum of HK$24,000 was honestly and reasonably incurred for the purpose as alleged. The sum is awarded in full.

Summary of Quantum

62.  Award of damages can be summarized as follows:

Medical and cremation expenses for Nel Nel	HK$  2,100.00
Medical and cremation expenses for Siu Kau	HK$66,676.75
Expenses for the special diet and feeding arrangement of Siu Kau	HK$ 24,000.00
Total :	HK$ 92,776.75

Conclusion

63.  Judgment is entered in favour of the plaintiff for the sum of HK$92,776.75.

Costs

64.  The grant of counsel certificate was fully argued. Taking into account complexity of the legal and factual issues involved, the extensiveness of cross-examination required of, the length of trial etc, I consider the attendance of counsel is being proper in the circumstances of the case.

65.  I make an nisi order that the defendant do pay the plaintiff’s costs of the action with certificate for counsel, to be taxed if not agreed.

66.  The order nisi shall become absolute unless an application to vary is made within 14 days from today.