Secretary for Justice v. Jarabe Cleofe Domingo and Another

DCCJ 1722/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1722 OF 2003

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Coram  :  Her Honour Judge Mimmie Chan in Court

Date of hearing : 6 May, 2009

Date of handing down Judgment :  18 May, 2009

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J U D G M E N T

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Background

1.Police Constable Tsang Kam Wah was patrolling Fei Ngo Shan Road on his motorcycle at about 4:20 p.m. on 7 August 2001.  As he was going uphill along the quiet stretch of road, he saw a black Rottweiler, Bobo, on a stretch of grass near the pavement to his right, on the opposite side of the road.  The 1st Defendant, Domingo, was standing near Bobo.  Police Constable Tsang continued his way, and at about 4:30 p.m., he came downhill on the same stretch of road.  Bobo was still at the undergrowth beside the pavement, now on the left of PC Tsang, with Domingo about 10 feet away.  According to PC Tsang, Bobo began to bark as PC Tsang’s motorcycle approached, and then rushed towards PC Tsang's motorcycle.  PC Tsang was not able to brake in time, and as Bobo collided with the front wheel of the motorcycle, PC Tsang fell to the ground, and the motorcycle toppled over in the middle of the road. 

2.As a result of the accident, Bobo was apparently unscathed, but PC Tsang was injured in his left hand, left shoulder and left wrist, and the motorcycle was damaged.

3.The Employees' Compensation (Ordinary Assessment) Board assessed that PC Tsang had suffered from fracture of the left clavicle as a result of the accident, that the sick leave granted to him from 7 August 2001 to 8 May 2002 was necessary, and that PC Tsang had lost 2.5% of his permanent earning capacity as a result of his injury.  He received employees' compensation from his employer, in the sum of $248,820.21 ("Compensation"). 

4.PC Tsang’s employer also incurred a sum of $14,450.36 for repairing the motorcycle damaged as a result of the accident.

5.These proceedings are instituted by the Plaintiff on behalf of PC Tsang’s employer against Domingo and Mr. Lai, Domingo’s employer at the time of the accident, for an indemnity of the Compensation and repair costs under s.25 of the Employees’ Compensation Ordinance ("Ordinance"), on the ground that the accident was caused solely by the negligence of Domingo in failing to properly control and secure Bobo whilst in a public place.  The Plaintiff claims that Mr. Lai is vicariously liable for the negligence of Domingo, his employee. 

6.By way of defence, Domingo and Mr. Lai claim that PC Tsang had driven his motorcycle negligently, was driving too fast when going downhill, was driving too close to the pavement, and was negligent in permitting loud noises to be emitted from the motorcycle.  They deny that Domingo and Mr. Lai were negligent in any way.

7.At the trial of the action, Mr. Kwong who appeared for Domingo and Mr. Lai very reasonably conceded that at the time of the accident, Bobo was not put on a leash.  The only argument raised by way of defence was that the accident was caused or contributed to by PC Tsang's negligence, as he should reasonably have foreseen that by driving his motorcycle so close to the pavement when going downhill, when he knew that Bobo was near the pavement, the dog would have been frightened and would pounce into the road.  Mr. Kwong also argued that PC Tsang was driving too fast at the material time, such that he was not able to brake in time to avoid the accident.

The issues

8.The issues for determination at trial are :

(1)  whether the accident was caused by the negligence on the part of Domingo; and

(2)  whether the accident was caused in any way by the negligence on the part of PC Tsang.

Whether the accident was caused by the negligence on the part of Domingo

9.As evidence of Domingo's negligence, the Plaintiff relies on Domingo's conviction on 15 April 2002 of the offence of "failing to hold a large dog on a leash in a public place" by the Magistrate, a charge to which Domingo had pleaded guilty.  Under regulation 9 (1) (a) of the Dangerous Dogs Regulations made under the Dogs and Cats Ordinance, no person shall permit a large dog to remain in a public place unless the dog is securely held on a leash of not more than 2 m in length by a person.  A "large dog" is defined in the Regulations to mean a dog having a body weight of 20 kg or more.

10.Mr. Kwong concedes that Bobo was not on a leash at the material time of the accident.  From photographs of Bobo which were produced in evidence, Bobo is apparently a large and heavy dog.  There is no suggestion that Bobo was dangerous or of a violent or other propensity known to Domingo that is likely to cause danger to others, but I am satisfied that Domingo who was in control of Bobo at the material time has a duty at common law to take reasonable care to keep a large and heavy dog under proper control in a public place, so as not to cause damage or injury to other users of the public place (Gomberg v. Smith [1963] 1 Q.B. 25, Amrol v. Rivera [2008] 4 HKLRD 110). 

11.Mr. Kwong submits that Bobo may have been alarmed by the noise made by PC Tsang's motorcycle as it was driven downhill near to the pavement, and that this caused Bobo to bark, and to leap out into the road.  Mr. Kwong also submits that PC Tsang had patrolled the area before, and that PC Tsang had accepted in his evidence that he had seen large dogs on the stretch of the road in question.  In particular, Mr. Kwong pointed out that PC Tsang had seen Bobo and Domingo when he traveled uphill 10 minutes prior to the accident.  It was argued that having foreseen Bobo's presence, PC Tsang should have driven his motorcycle further away from the pavement, to avoid alarming Bobo.

12.As evidence that PC Tsang had driven his motorcycle too near to the pavement, Mr. Kwong relies on the police photographs taken after the accident, which show that the motorcycle had fallen right across the centre dividing line between the uphill lane and the downhill lane.  Mr. Kwong argues that this shows that prior to the motorcycle falling, it was travelling very near to the pavement. 

13.Mr. Kwong also relies on PC Tsang's testimony in Court that just before Bobo had leaped out into the road, she had barked, and at that time, Bobo was 5 feet away from his motorcycle, and Domingo another 5 feet away from Bobo.

14.On PC Tsang’s part, he claims that as he was going downhill, he was travelling near to the centre dividing line of the road.  He denies that he was travelling near to the pavement.  PC Tsang's evidence is that he was travelling on third gear at 30 km per hour, whereas the speed limit for the stretch of the road in question is 50 km per hour.  He denies that he was travelling too fast, but accepted that he was not able to brake in time because Bobo had immediately sprung out onto the road and hit his motorcycle after he had barked at PC Tsang's approach.

15.The evidence suggests that the accident occurred in a serene and quiet area, where the traffic was light.  If, as Mr. Kwong submits, the motorcycle was making a loud noise as it traveled downhill, the natural inference to be drawn is that it was making a similarly loud, if not louder, noise when PC Tsang was driving uphill about 10 minutes earlier.  It should not have escaped Domingo's attention, and she should have known that PC Tsang was approaching Bobo and herself as the loud sound of the motorcycle drew near as it came downhill.  Even if Domingo had considered it safe not to put Bobo on a leash hitherto because no one was nearby, she should have put Bobo on a leash when it became apparent to her that a motorcycle was approaching.  As a user of the public space and road, she was under a duty of care to control and secure Bobo with a leash when she realized, or ought to have realized, that another user of the public road was approaching.  As it is not disputed that Domingo had not put Bobo on a leash at the material time prior to the accident, I consider that the accident was caused by Domingo's breach of duty at common law.  If Bobo had been put on a leash, even if she was alarmed, she would not have been in a position to break loose and to leap into the road and onto PC Tsang's motorcycle, causing it and PC Tsang to fall.  I do not accept that the possibility of Bobo leaping out onto the road was so unlikely to Domingo, as Bobo's controller, that there was no negligence on her part in not taking precautions against it.

Whether the accident was caused in any way by PC Tsang's negligence

16.There is no evidence to contradict PC Tsang's claim that he was driving his motorcycle at 30 km per hour at the material time, and that he was travelling slightly to the right of the centre of the traffic lane going downhill.  The scratch marks on the road and the final resting position of PC Tsang's motorcycle, as can be seen from photograph (1) on page 25 of the trial bundle, appear to support PC Tsang's evidence in this respect.  I do not accept that at the material time, PC Tsang was driving too near the pavement, as Mr. Kwong submits.  Even on PC Tsang's evidence that Bobo was 5 feet away from him when she barked, and Domingo 10 feet away, it suggests to me that PC Tsang's motorcycle was travelling in the centre of the lane going downhill, and I do not consider that that was too near to the pavement.

17.Mr. Kwong's suggestion that in order to avoid causing alarm to Bobo or other users of the pavement, PC Tsang should have driven his motorcycle across the centre dividing line.  He highlights the fact that, as can be seen from photograph (1), the accident occurred on a stretch of the road which was marked by broken white lines on the lane on which PC Tsang was traveling, such that he could have crossed to the opposite lane.  Even taking into consideration the light traffic at the time, as PC Tsang accepts, and the fact that Fei Ngo Shan Road was a quiet stretch of road, I do not consider that PC Tsang had the duty to avoid alarming users of the pedestrian walkway by the sound of his motorcycle, to the extent of having to drive to the opposite lane of the road.  This may create risks to the safety of other users of the road, and risks to PC Tsang himself.  He was travelling either in the centre, or slightly to the right of the centre, of the downhill lane, and he was traveling at a reasonable speed.  This in my judgment constitutes sufficient care on his part, in the absence of any evidence that he was manoeuvring his motorcycle in a particularly hazardous or provoking manner.

18.In relation to the suggestion that PC Tsang should have been able to avoid the accident or to brake in time when he heard Bobo bark and then saw him leap out and pounce at his motorcycle, I accept PC Tsang's evidence that this had all happened at once, that he did not have time to avoid the collision and fall, and that in the circumstances of the case, there is no evidence of lack of care on PC Tsang's part.

19.On the facts of and evidence in this case, I find that there is no negligence on PC Tsang's part.

20.There were arguments as to whether Domingo's witness statement should be admissible as evidence in this case.  Domingo filed a statement in these proceedings on 28 June 2004, but since she had left the employment of Mr. Lai and had departed from Hong Kong, she could not be called as a witness to give evidence at the trial.  A Hearsay Notice was filed in relation to her witness statement.  A statement which she had made to the police on 17 August 2001 was also produced in evidence, on which the Plaintiff seeks to rely in the event that Domingo's witness statement is admitted.

21.By reason of the concession made by Mr. Kwong, that Bobo was not on a leash at the time of the accident, and the fact that Mr. Kwong had relied simply on the evidence of PC Tsang when making his submissions on PC Tsang's negligence and on the absence of any negligence on the part of Domingo and Mr. Lai, it was unnecessary for me to refer in any way to Domingo's witness statement in deciding the issues.  If I had had to refer to Domingo's witness statement, I would have admitted it in evidence in the circumstances of this case, but would have given it very little weight, in view of the fact that there were many parts of her statement which differ from PC Tsang's account, and she was not available to be cross-examined and tested at trial on these parts of her evidence.

Conclusion

22.There is no dispute that if Domingo is negligent, Mr. Lai is vicariously liable for her negligence.  Further, there is no dispute that if Domingo and/or Mr. Lai are negligent, the Plaintiff is entitled to an indemnity under s. 25 of the Ordinance.  Nor is there any dispute as to the Compensation paid to PC Tsang, and the repair costs.

23.In view of my findings, I accordingly grant judgment in favor of the Plaintiff in the sum of $263,270.57, as claimed, with interest at judgment rate from the date of service of the Writ until payment.

24.I will further make an order nisi that the costs of the action are to be paid by Domingo and Mr. Lai, to be taxed if not agreed.  

Ms. Jess Chan, Government Counsel of the Department of Justice for the Plaintiff

Mr. Paul Kwong of Messrs. Paul Kwong & Co. for the 1^st and 2^nd Defendants