Capitly, Elna Lanuza v. Aurea Eloisa Sales and Another

DCPI 580/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 580 OF 2007

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BETWEEN

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Coram : Deputy District Judge E. Yip in Court

Dates of Hearing : 4, 5, and 6 February 2008

Date of Handing Down of Judgment : 20 February 2008

JUDGMENT

Introduction

1.The Plaintiff claims compensation based on scienter and negligence for injuries caused by a single bite of a Corgi dog kept by the 1^st Defendant and owned by the 2^nd Defendant respectively.  The 1^st and the 2^nd Defendants deny liability on the ground that the dog used to be very good-tempered and predictable.  He had no history of attack on people or dogs.  Besides, the Plaintiff had kicked the dog first, resulting in the dog biting her back. 

The Plaintiff’s case

List of witnesses

2.The Plaintiff gives evidence.  She calls no witnesses.  By consent of the 1^st and the 2^nd Defendants, who reserve the right to submit on reliability and weight, 2 witness statements made by John Whitcher, and 2 medical reports made by Dr. Paul Lam are admitted into evidence. 

The Plaintiff’s own evidence

3.The Plaintiff’s witness statement [A45-58] is admitted as part of her evidence-in-chief.  She was a Filipina maid who worked and lived at 3B, Unit 7, Southside Villas, 9 Shouson Hill Road, Hong Kong since 1 September 2004.  Her duties included walking her employer Shih Tzu dog, Travis. 

4.On 7 March 2005 at about 8.30 p.m. she walked Travis on a leash.  As she approaching the entrance of Unit 1, she saw the 1^st Defendant walking the 2^nd Defendant’s Corgi dog, Bobby on a leash.  At the entrance of Unit 1, they met and barked fiercely at each other.  (The two dogs had met and barked at each other before that particular day.)  Bobby ran towards Travis and/or her as if to attack either or both of them.  She took a slight turn to the right and backed away.  She lifted Travis up on the leash.  Bobby bit her once on her left leg near the shin.  She fell down.  During her fall, her left knee, left hand, right hand in sequence hit the ground.  The left side of her crown also bumped against the wall.  Her left knee hurt and was bleeding.  Her head was a bit painful. 

5.Somebody pulled Bobby away.  A man later known as John Whitcher and a security, Mr. Wong, came up to tend to her.  Soon, her employer and the 1^st Defendant’s employer, namely the 2^nd Defendant arrived.  The 2^nd Defendant took her to St. Paul’s Hospital.  He told her that Bobby had bitten the 1^st Defendant before and that the doctors there were well experienced to treat dog bite injuries.  After discussing with her employer, she reported the case to the police.  Later, she was treated in Tang Siu Kin Hospital. 

6.On the following days, she attended further treatments in Canossa Hospital at the expense of the 2^nd Defendant and in a car driven by either the 2^nd Defendant or his driver. 

7.She was granted sick leave from time to time by the doctor.  Her employer was not satisfied with her performance at work because she was taking rest at times during working hours.  On 9 July 2005, 4 months after the incident, she was terminated with immediate effect upon receiving salaries in lieu of advance notice. 

8.She claimed general and special damages. 

John Whitcher’s evidence

9.John Whitcher (“John”) did not know the parties before.  He described how the dog bite occurred in his first statement, which was dated 9 September 2005 [A73].  He was a resident of Southside Villas.  He saw Bobby attack Travis by biting and barking at Travis.  When the Plaintiff lifted up Travis, Bobby tried to jump and climb up her leg but could not get Travis.  She backed away.  Bobby bit her left leg, causing her to fall over.  The 1^st Defendant then took control of and restrained Bobby. 

10.John had left Hong Kong permanently before trial.  He made a second statement, which was dated 14 January 2008 [A73-1 – A73-5] to specifically state, in answer to the defence allegation that the Plaintiff had first kicked Bobby.  At that time, he was sending a colleague into a taxi at the driveway of Southside Villas when the incident occurred.  He was about 30 to 40 feet away.  He saw, at all material times of the incident, that the Plaintiff had not kicked Bobby.           

Dr. Paul Lam’s evidence

11.Dr. Paul Lam wrote 2 medical reports [A85 – 95-8] on the condition of the Plaintiff.  They will be relevant to the assessment of damages. 

The 1^st and the 2^nd Defendants’ case

List of witnesses

12.The 1^st and the 2^nd Defendants give evidence.  They call Alecia dela Paz (“Alecia”) as witness on how the Plaintiff kicked Bobby.  They adopt their witness statements [A59-60, A61-68, A180-186] as part of their evidence-in-chief. 

The 1^st Defendant’s own evidence

13.On 7 March 2005 at 8.30 p.m., she took Nicholas, who was the 2^nd Defendant’s child’s friend, and Bobby to the ground floor.  She was to send Nicholas back home in another block and then walk Bobby.  She tied Bobby on the leash to a faucet near the security guard post when tending Nicholas.  Bobby went lose and she gave chase, calling his name, only to learn that apparently Bobby had bitten the Plaintiff.  She was not around when the Plaintiff was bitten by Bobby.  Many people gathered.  Soon the Plaintiff’s employer and the 2^nd Defendant also arrived.  The Plaintiff was taken to the hospital.  

14.Since her employment with the 2^nd Defendant in May 2004 until now, she has been sleeping with Bobby in her room.  Bobby used to be good-tempered and friendly to people and other dogs.  On 20 December 2004, when she tried to remove Bobby’s bowl after Bobby finished up his meal, she stepped on Bobby’s front paw by accident.  Bobby screamed with an opened mouth.  Her hand accidentally passed by and was scratched by Bobby’s teeth.  The scratch was not serious.  She did not ask to see a doctor but the 2^nd Defendant insisted on taking her to St. Paul’s Hospital.  She has continued to sleep with Bobby until now. 

The 2^nd Defendant’s own evidence

15.The 2^nd Defendant regards Bobby as a good-tempered and predictable family dog.   He was 7 years old at the time of the incident.  Bobby had been beaten by his previous maid when he was a puppy.  He would growl when people threatened him such as with a rolled-up newspaper.  During the long wait with the Plaintiff and her employer in St. Paul’s Hospital, the 2^nd Defendant told the employer of Bobby’s good-tempered and predictable character and the (20 December 2004) instance of having bitten the 1^st Defendant before.  He assured the Plaintiff that Dr. Eric Chien there was good at treating dog bite as he had observed in the medical treatment for the said instance.

Alecia dela Paz’s evidence

16.Alecia worked for an employer who also lived in the same location.  She came to know the 1^st Defendant when they both walked dogs.  They were not in close association.  She has left Hong Kong since December 2005.  She now resides in the Philippines.  She has come to Hong Kong only to give evidence in the present action. 

17.On 7 March 2005 at 8.30 p.m., she was washing dishes in the kitchen of 3A, Unit 2.  Through the window, she saw the Plaintiff walking Travis.  After a while, she heard dogs barking and saw Travis and Bobby barking and approaching each other as if for a fight.  The Plaintiff pulled Travis to an enclosed, small lobby outside the utility room next to the entrance to Block 1.  The Plaintiff stood at the opening of the lobby with Travis at her back.  Bobby stopped barking and stood there facing her.  He moved his head from side to side as if looking behind her for Travis.  A few seconds later, the Plaintiff lifted her left leg and kicked Bobby in his face.  Bobby bit the Plaintiff’s left leg.  Alecia’s employer called her for an errand and she left the kitchen. 

18.Two or three weeks afterwards, she met the 1^st Defendant and asked after Bobby.  She said she saw the Plaintiff kick Bobby before Bobby bit the Plaintiff.  On 6 October 2005, she wrote a statement to that effect and gave it to the 2^nd Defendant’s wife.     

The law

Scienter

19.The custodian or owner of domestic animals may be liable for damages if he has knowledge of the animal’s propensity to cause injuries to human beings.  No liability exists where the damage was done wholly due to the fault of the person suffering it or had voluntarily assumed the risk: Mujiati v Chong Wai Kwan DCPI 424/2003.    

Negligence

20.The custodian or owner of a domestic animal is liable for damages caused by the animal, either if he 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 him a duty to take care: Li Yuk-lan v Lau Kit-ling [1989] 2 HKLR 128. 

The threshold of evidence on mischief

21.In Newsam v Ladd [1972-73] ALR 1372, Connor J stated that slight evidence of mischievous disposition would be sufficient to go to a jury.  I accept that it also represents the position in Hong Kong.

This Court’s findings

Closing submissions

22.I have considered the full closing submissions of the Plaintiff, the 1^st and the 2^nd Defendants.  I shall deal with their relevant parts in due course.

On the Plaintiff’s evidence

23.She says that as a result of the fall after the bite, her left knee hurt and was bleeding.  The left side of her crown was a bit painful.  She has never mentioned these injuries to anyone before me.  She has not told anyone of them before.  I think there could have been no reason to withhold them from all of the medical teams who tended her.  I find her evidence (of the fall and the injury) incredible. 

24.She says that she had also sustained back pain due to the incident.  However, it was only on 11 January 2006, when she mentioned it to the medical doctor [Exh. P2], that she ever started to mention it to anyone at all.  There is no explanation in her orthopaedic expert’s reports as to why she had no back pain until 10 months after the incident.  I find her evidence (of back pain being caused by the incident) incredible.  

25.I do not find her a credible witness.  I do not accept her evidence on all facts in issue.    

On John Whitcher’s evidence

26.Despite the rather detailed account given on paper, John’s evidence is not tested in Court.  His evidence is contrary to Alecia’s evidence on whether the Plaintiff did kick Bobby.  It remains for me to determine whether to prefer his evidence or Alecia’s evidence.  I shall deal with that in para. 30 hereinafter.  

On the 1^st Defendant’s own evidence

27.The Plaintiff’s counsel submits [in paras. 19 – 22 of Submissions] that the 1^st Defendant’s evidence is not credible because it was more probable that she had seen Bobby biting the Plaintiff.  She was only too afraid or shocked to admit that.  I think her present evidence is neutral to the Plaintiff and the defence.  Even if, for some reason, I reject her evidence and come to find that Bobby did bite the Plaintiff, it will not be proof of the absence of a kick.  In any event, I find the 1^st Defendant unshaken in the witness-box.  She is a credible and reliable witness.

On the 2^nd Defendant’s own evidence

28.The Plaintiff’s counsel does not make any criticism of his evidence.  I also find the 2^nd Defendant a credible and reliable witness. 

On Alecia’s evidence

29.The Plaintiff’s counsel submits [in para. 18 of Submissions] that Alecia is not a totally independent witness.  She was an acquaintance of the 1^st Defendant.  They chatted when they met each other while walking dogs.  I think that is a fair comment.  I shall bear this in mind. 

30.Having said that, the Plaintiff’s counsel has not identified any aspects in Alecia’s evidence to demonstrate why her evidence ought not to be accepted.  I find Alecia unshaken in the witness-box. I prefer her evidence to John’s evidence.     

On the propensity to mischief

31.There is no expert evidence called on the subject.  I can only approach the matter with common sense.  The Plaintiff’s counsel submits [in paras. 8 – 14 of Submissions] that Bobby had a propensity to mischief as seen in the following instances:

(1)	The biting on 20 December 2004;
(2)	Tendency of nipping at people when he gets excited;
(3)	Growling at anyone who holds a big stick such as a rolled-up newspaper in front of him;
(4)	When someone threatens to beat him, he will show strong aggressiveness by way of brawling to protect himself.

(1) The biting on 20 December 2004

32.The 1^st Defendant sustained a minor injury of her hand.  She did not require medical treatment but the 2^nd Defendant thought otherwise.  The 2^nd Defendant says that her description to him was not exact.  He somehow reported to the doctor as a bite.  She was the only one who knew what happened.  I accept what she describes in Court as a scratch of her hand when it accidentally passed by Bobby’s opened mouth and bared teeth when Bobby screamed upon her removal of his bowl and stepping on his paw. 

33.The Plaintiff’s counsel submits [in para. 6 of Submissions] that if a dog bites a person because that person takes his bowl away and/or steps on his leg, that is clearly mischievous propensity.  In view of the aforesaid finding of fact, I think this submission, which is based on Bobby deliberately injuring the 1^st Defendant, will have no place.  The crux of my finding is that Bobby’s mouth was opened and teeth were bared when he screamed.  The 1^st Defendant’s hand accidentally passed by and got scratched by his teeth.  I do not find this episode indicative of a propensity to mischief.

(2) Tendency of nipping at people when he gets excited

34.The 2^nd Defendant stated [A62 para. 5] that over the years he had been nipped and scratched by Bobby sometimes during play and when Bobby was really happy and excited.  All the nipping and scratches were very minor that did not need any medical treatment.  If the Plaintiff’s counsel is suggesting that any dogs or animals that slightly nip or scratch are mischievous, I think all pets have to be regarded as mischievous and banned from the household.  I do not find this indicative of a propensity to mischief.

(3) Growling at anyone who holds a big stick such as a rolled-up newspaper in front of him

35.The Plaintiff’s counsel seems to expect, quite unfairly, calmness from a dog than a human who exhibits immediate violence.  I do not find this indicative of a propensity to mischief.

(4) When someone threatens to beat him, he will show strong aggressiveness by way of brawling to protect himself

36.The Plaintiff’s counsel seems to expect, quite unfairly, calmness from a dog than a human who exhibits immediate violence.  I do not find this indicative of a propensity to mischief.

On the happenings of 7 March 2005

37.At 8.30 p.m., the two dogs were approaching each other as if for a fight.  The Plaintiff pulled Travis away.  Bobby followed suit.  Outside the utility lobby, he stood in front of the Plaintiff, who stood inside.  He stopped barking.  He was calm and turning his head to look for Travis.  The Plaintiff then attacked Bobby by a kick on his face. 

38.I have made a finding that Bobby did not have a propensity to mischief before.  The 1^st Defendant might have been in fault for not having properly fastened Bobby’s leash to the faucet.  But that did not cause the Plaintiff’s injury.  The Plaintiff lost her calmness by attacking a dog that had already calmed down.  The dog bit back on the leg that had kicked him.  A human who exhibits violence cannot expect calmness from a dog.  It was entirely her fault.  The 1^st and the 2^nd Defendants could not have taken any measures to ensure that Bobby would not bite back a violent human. 

Conclusion

39.The Plaintiff’s action whether in scienter or negligence must fail and accordingly the Plaintiff’s claim is dismissed.  The Plaintiff is to pay the 1^st and the 2^nd Defendants’ costs, inclusive of the costs of securing Alecia’s attendance in Court from the Philippines, to be taxed if not agreed.  The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.  This costs order nisi shall become absolute 14 days from today.

Representation:

The Plaintiff: by Mr. Kenneth Lee instructed by Messrs. Boase, Cohen & Collins (assigned by D.L.A.).

The 1^st and the 2^nd Defendants: in person.