Tang Lo Lai-chun v. Yim Ho Wai-lin and Others
Read the full judgment text of HCA 2017/1972 on BabelCite. This High Court CFI judgment.
1. The plaintiff in this action, Mrs. Tang, is a seamstress in her middle thirties, married with four children between the ages of 8 and 14. In January, 1971 she lived, as she still does, on the 13th floor of a block of flats in Wanchai. The flat roof of the block was, except for a small part wired off for the benefit of the landlord, common to all the tenants, and Mrs. Tang, like the other housewives there, used it from time to time to hang up washing and to grow a few potted plants. In the aft
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HCA002017/1972 IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) ACTION NO. 2017 OF 1972 -----------------
----------------- Coram: Cons, J. Date of Judgment: 20 November, 1975. ----------------- JUDGMENT ----------------- 1. The plaintiff in this action, Mrs. Tang, is a seamstress in her middle thirties, married with four children between the ages of 8 and 14. In January, 1971 she lived, as she still does, on the 13th floor of a block of flats in Wanchai. The flat roof of the block was, except for a small part wired off for the benefit of the landlord, common to all the tenants, and Mrs. Tang, like the other housewives there, used it from time to time to hang up washing and to grow a few potted plants. In the afternoon of the 24th of that month she went to the roof. It was too wet to hang up the washing, but she had intended to take down one of her potted plants to decorate the flat for the forthcoming Chinese New Year Festival. In the end she did not. She did not think it was sufficiently attractive. She left the roof by the narrow staircase, and as she did so four boxer dogs came rushing up. In fear she retreated back to the roof where the dogs attacked and savaged her. 2. The four dogs lived on the floor just below the roof, that is the 15th floor, It is admitted on the pleadings that they were owned by the 2nd defendant, Miss Yim, who I think was then aged 19 years, although there is some evidence that the true owner was her 8-year-old nephew. In any event neither was at home that afternoon. The only occupant of the flat was the grandmother, the 1st defendant, Mrs. Yim. She was the person then having custody and control of the four dogs. Just at the time that Mrs. Tang was leaving the roof top Mrs. Yim decided to go out shopping. She opened the front door. She took no care to see that the dogs did not dash out and out they did. They rushed up the stairs on to the roof. They were quite used to going there. Indeed it was their only toilet and place for exercise and they went there two or three times a day. They were never taken into the street or elsewhere unless they were sick. 3. The account of the attack given by Mrs. Yim is considerably different from that given by Mrs. Tang. Mrs. Yim says that the attack did not take place until Mrs. Tang went behind her and grabbed her by the throat, causing her to fall to the ground whereupon the dogs came to her rescue. There may be some truth in this, but only in the sense that when attacked by the dogs Mrs. Tang panicked and sought refuge in the nearest human being available, like a child rushing to the skirts of its mother or a drowning man clutching the nearest swimmer. I think also that Mrs. Yim did her best to pull the dogs off Mrs. Tang, but anyone who has seen her will realise that physically she would be capable of restraining little more than one or two small terriers. In general I have no hesitation in preferring the account of Mrs. Tang and accept that she was attacked without any provocation or wrong-doing on her part. In particular I do not accept the version pleaded in the defence that the dogs were left on the roof top to protect the defendants' plants and were at first only giving warning that Mrs. Tang was stealing leaves. The reason for the attack I accept as being that given by the veterinary surgeon, Mr. Davidson. He said that from its proximity and from their habitual and uncontested use of the roof the dogs would have come to consider it as part of their own private territory, and being taken by surprise to find a stranger there, coupled with the extent of her only too apparent fear, leapt to its protection. 4. The question that arises for decision is whether the defendants are liable for the damage that the dogs did. I have found assistance in the case of Draper v. Hodder(1). In that case a pack of Jack Russell terriers attacked and dreadfully mutilated a small boy. There was no evidence that they had ever attacked before, but there was evidence accepted by the trial judge that the characteristics of that particular breed are such that if allowed to roam loose as a pack there is a risk that they will attack a child. Edmund Davies L.J. did not think it necessary to go that far to establish liability. He felt that the question was whether the owner or person in control should have foreseen that by failure to confine his pack of dogs substantial physical harm might be sustained by someone else even though the particular type of harm actually sustained could not reasonably have been anticipated. In that case it was sufficient that the child could well have been bowled over by the onward rush of the dogs and thereby, or by their subsequent antics, however innocent, sustain no insubstantial injury to face or body. That situation is to my mind so similar to the present, wherein Mrs. Tang could well have been bowled over on the narrow staircase by the onward rush of the dogs to the roof, etc., that it would be sufficient in itself to dispose of the question of liability. But it is right that I should go further, for the two other learned Lords Justices rested their decisions on the narrower proposition that the defendant knew or should have known of the particular propensity of that breed of terrier. In the present instance the dogs attacked to protect their own territory. This is a well known characteristic of all dogs. It is the basis for their use as guard animals. The only unusual feature here is that they had extended what they considered to be their own territory beyond the immediate confines of their own flat. Miss Yim declined to give evidence and Mrs. Yim was not questioned upon this aspect. It is impossible to say that they consciously appreciated the likelihood, but I have come to the conclusion that they should have done. The roof was so close to their own flat; the dogs made frequent use of it daily and must at most times have had it to themselves. Any reasonable owner would have realised that they would be just as likely to go for a stranger there as if he had entered the flat uninvited. He would therefore take precautions either to see that no one else was in fact there before he released his dogs, or would take other measures to see that they could do no harm. Failure to take those precautions is negligence. 5. Mrs. Tang also based her claim on an alleged known tendency of the dogs to bite. This cannot succeed. Principally the claim was based upon a subsequent admission by Miss Yim to an employee of the Hong Kong Security Co. Ltd. to the effect that at some time the year before a man came to the flat and was bitten by one of the dogs present. It appears that at the time the man was trying to save his own puppy from being worried by the dogs and it may well have been that the bite was accidental rather than vicious. In any event there is nothing to show that it was in fact inflicted by any of the dogs concerned in the present attack. The other evidence merely shows that people had been afraid of the dogs. Fear of large dogs is not uncommon. It is not necessarily always well founded. 6. A third base of the claim was breach of Reg. 19(1) of the Dogs and Cats Ordinance. This provides:
and imposes guilt on the owner, if he be in the Colony, regardless of any knowledge or failure on his part. However I have some doubts that the section would impose civil liability vis-a-vis Mrs. Tang. The section is designed to my mind to protect the public in public places. I find it hard to accept that the roof top of that particular block of flats was in fact a place open to the public, even though perhaps there was no physical impediment to access, or that it was in her capacity as a member of the public that Mrs. Tang was using it that day. 7. Mrs. Tang received a great number of injuries. Many of them have left no noticeable marks, but the damage to her left arm is very obvious. There are quite large areas of unsightly scar tissue and wastage of flesh. Some of these can be remedied by plastic surgery which Dr. Wedderburn estimated would cost about $3,000 and take overall about six weeks to complete. During those six weeks Mrs. Tang could expect to lose $1,050 wages. Both the sums must be included in the general damages. As special damages she claims 18 months' loss of wages. This is too much. Dr. Wedderburn expressed the opinion that physically she should have been able to take up work of some kind in just over two months. Some allowance must be added to this for the extreme shock that this type of attack causes, but I do not think the defendants should be responsible for her wages for more than six months, that is $3,600. No proper evidence was called in support of the claim for bonesetter's fees or the cost of specially nourishing food. The damage to Mrs. Tang's clothes is pleaded at $58. 8. The permanent physical results of the attack are not great. Certainly not as great as she would make out. The restriction of lifting heavy weights with her left arm is unlikely to cause much difference to her way of life. However the tremor in fine movements of the hand must be of importance to a seamstress and will have some effect upon her earning capacity. I do not know how long this may last. There is also cosmetic disability which she will need to hide with sleeves of some sort, although they need not be very long, so that even in summer there will not be much discomfort. She spent a total of about three weeks in hospital which included an operation for skin graft. Then there was out-patient attendance and physiotherapy. So far these are normal considerations. To them must be added the horrifying way in which the injuries were inflicted and the effect that this may have had upon the mind of Mrs. Tang. I think she has a tendency to play up this effect, in the same way that she attempted to mislead Dr. Wedderburn on the purely physical side. This does not mean I should ignore it altogether. In the case to which I have already referred the young boy was awarded £4,000. The report does not set out the considerations that were taken into account, but I observe that the injuries were far worse than the present case and the victim was a very young child who would be more impressionable and would carry with him the nightmare for a much longer period. Cases where shock or mild neurosis forms the main criterion seem generally to command much lower figures: see e.g. Kemp & Kemp "Quantum of Damages" 3rd ed., case numbers 738, 741, 744 and 779; Ioannon v. Woodley(2); Harrop v. Howard Hill(3). In the present case I have come to the conclusion that an award of $18,000 general damages would be appropriate, of which $6,000 is referable to loss of future earning capacity. 9. Judgment is therefore entered for the plaintiff in the total sum of $21,658 and costs, these costs to be taxed in accordance with the Legal Aid Scheme. Representation: M. Asome (Johnson, Stokes & Master) for plaintiff. 1st and 2nd defendants in person. (1) [1972] 2 All E.R. 210 (2) [1971] C.L.Y.B. Para. 3250(x) (3) [1972] C.L.Y.B. 972 IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) ACTION NO.2017 of 1972 -----------------
----------------- Coram : Hon. Cons, J. in Chambers. Date of Judgment : 7th January, 1975. ----------------- ORDER ----------------- Judgment amended under Slip Rule for a total of $21,658.00 to a total of $25,708.00 (to include the cost and expected loss of wages attendant upon further operation to the arm).
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