Chiang Ki Chun Ian v. Li Yin Sze

CACV26/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 26 OF 2011

(ON APPEAL FROM DCPI NO. 2067 OF 2009)

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BETWEEN

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Before : Hon Cheung, Fok JJA and Bharwaney J in Court

Date of Hearing : 18 October 2011

Date of Judgment : 21 October 2011

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JUDGMENT

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Hon Bharwaney J (giving the Judgment of the Court) :

1.This is an appeal against the judgment of Deputy District Judge C. Lee who adjudged the defendant liable in negligence and awarded damages in the sum of $152,062 to the plaintiff, together with interest and costs. The defendant has brought this appeal against the judgment on liability only, pursuant to the leave granted by Tang Ag CJHC.

2.The Deputy District Judge awarded damages for personal injuries to the plaintiff who suffered injury when he was bitten by a dog, a medium-sized brown Mongrel, about 2½ feet tall, named Pocky.  The defendant was the owner and keeper of Pocky under the Dogs and Cats Ordinance, Cap. 167. The incident occurred at the defendant’s residential premises at No. 68 SheungSzeWan, Clearwater Bay, in Sai Kung on the afternoon of 20 June 2009.  This was a village house with a garden where the defendant lived with her family, including Kenneth, her son.  Kenneth, who was then nine years old, had invited his friends to come over to his place to play.  The plaintiff’s younger brother, Nicholas, had also been invited as were three other boys, Ryan, Jason, who was Ryan’s brother, and Anson.  There were six young boys in the premises that day and five domestic helpers, including Ms Florence Pasyan who worked for the plaintiff’s family, Ryan and Jason’s domestic helper, Anson’s domestic helper, and two domestic helpers employed by the defendant.  The parents of the children were not on the premises. 

3.Pocky was kept leashed at all times at the corner of the living room of the premises, but not muzzled.  The leash was about two feet in length and allowed Pocky some movement in the corner of the living room.  The plaintiff was bitten by Pocky on the left side of his face after the plaintiff fed Pocky a biscuit.  No one witnessed the incident: the other boys were playing upstairs and the domestic helpers were either in the kitchen or elsewhere. 

4.The Deputy District Judge heard evidence from the plaintiff, his mother, Madam Chow, who brought the proceedings as the plaintiff’s mother and next friend, and from Ms Florence Pasyan.  Kenneth and the defendant also gave evidence.  The factual evidence was not controversial except in relation to the allegation that the plaintiff had teased Pocky and had been warned not to do so.  The Deputy District Judge preferred the evidence of the plaintiff over the evidence of Kenneth in those areas where their evidence was in conflict.  He also accepted the evidence of the other witnesses which was unchallenged. 

5.The defendant gave evidence that she had kept Pocky since 2003.  It was a tame dog and it got on well with her cat and her family.  The family often had parties.  The guests who visited them had included children.  Pocky had never had any behavioural problems, and he did not have to be leashed or muzzled at home even if there were visitors to the house.

6.Kenneth’s evidence, which the judge did not accept, was that on arrival, the plaintiff did not seem to be hungry and did not have the lunch prepared for him and his younger brother by Kenneth’s domestic helper.  The other boys had arrived earlier and were playing in the living room.  They patted Pocky and fed it with dog biscuits.  After a while, the plaintiff went to the dining table and used a fork to get a sausage which he brought with him in order to pretend to feed it to Pocky, stopping one foot away from Pocky and saying “Pocky come, Pocky come”.  Pocky appeared to be annoyed and growled.  Anson then told the plaintiff not to tease Pocky but, later, the plaintiff teased Pocky again by eating a mouthful of spaghetti and, standing one foot away from Pocky, by opening his mouth and showing this spaghetti inside his mouth to Pocky.  This made Pocky upset and he barked a few times.  The plaintiff’s helper, Anson, Ryan and Kenneth then asked the plaintiff not to tease Pocky.  They then went upstairs with Ryan and Anson to play while the plaintiff, Jason and Nicholas stayed in the living room.  The plaintiff said he wanted to play with Pocky for a while.  They later learned that the plaintiff had been bitten on his left cheek by Pocky.

7.The evidence of Florence Pasyan was that she, the plaintiff and Nicholas reached the premises at about 2 p.m., at the same time as Jason, Ryan and their domestic helper.  On arrival, she saw Kenneth and Anson playing with Pocky.  Jason and Ryan joined them, but the plaintiff and Nicholas had not had their lunch yet, and they took their lunch on the dining table for about 10 minutes before joining the other children to play with Pocky.  She remained near the dining area. Some of the children later went upstairs, and the plaintiff and Anson remained downstairs playing with Pocky.  Ian also then went upstairs, leaving only Anson behind downstairs.  She later became aware that the plaintiff had been bitten by the dog.  She did not know that the plaintiff had come back downstairs to play with Pocky.  After the incident, Kenneth’s domestic helper took the dog away and kept him leashed in the garden area.  

8.The Deputy District Judge accepted the evidence of the plaintiff who denied that he had teased Pocky with a sausage and with a mouthful of spaghetti.  He had not teased Pocky and had not been warned by anyone not to tease Pocky.  In fact, this was his first visit to Kenneth’s home.  He only learned that Kenneth had a dog at home when he first saw it.  When he arrived, Anson and Kenneth were already there and were playing with Pocky.  He and Nicholas and Ryan and Jason were excited to see Pocky and wanted to play with it.  Ryan and Jason did so, but he and Nicholas had to have their lunch first and their domestic helper sat next to him on the dining table while they took their lunch.  During that time, his friends played with Pocky, patting it gently and feeding the dog with some dog biscuits.  Pocky was not fierce and did not bark.  His friends were playing with Pocky for about half an hour and, when he had finished his lunch, he and his younger brother joined them.  He cannot remember how long they all played together with Pocky but, after a while, four of the children decided to go upstairs to play, and he stayed in the living room to play with Pocky together with Anson.  Afterwards, Anson also left to go upstairs to play with the other children, leaving him alone with Pocky.  At the time, Pocky was lying on the floor.  He walked towards it and followed the other children’s actions in patting it gently and saying “good boy”.  Then he took some dog biscuits to feed it.  When he fed the dog biscuit to Pocky, Pocky was on its feet and he held one end of the biscuit and offered it to Pocky to eat.  After Pocky had eaten the biscuit, it rushed up to him and bit him on the left side of his face.  Before Pocky bit him, it did not bark, growl or make any unfriendly noises.  He felt painful and he panicked and he went to look for Florence.

9.The Deputy District Judge held the defendant liable in negligence for this occurrence for the reasons set out in §§25 to 28 of his judgment and which we summarise as follows.  The children had been invited to come to the premises to enjoy a play-day together, not a birthday party, and the defendant knew or ought to have known that no parents would be present.  The plaintiff and his classmates were around nine years of age, and the rest of the children were even younger.  They were boys.  It was reasonably foreseeable that boys of that age were normally playful, if not naughty, or, at least, that they would get excited in a group.  This was the very first visit by the plaintiff to the premises.  The defendant ought to have foreseen that Ian, as a stranger to Pocky, might not know how to handle Pocky.  Pocky might not treat the plaintiff as if he was part of his master’s family.  The foundation of friendship between Pocky and Ian was likely to be weaker than that between Pocky and the defendant’s family.  All these matters indicated an exposure of a young visitor to the risk of being attacked by Pocky if Pocky, rightly or wrongly, interpreted the visitor’s acts being unfriendly, including teasing it with food.  The risk, which was a real risk and danger, should have been foreseen by a reasonable man.  The defendant ought to have conducted herself as a reasonably careful parent, not just to her own children, but towards other children, paying their first visit to her home, unaccompanied by parents, who might be playful, who might be lacking an experience in handling a dog, and who might be less careful than an adult.  Notwithstanding that her dog had a “good record”, the defendant was under an obligation to take precautions. In the absence of parents, the easy and practical precaution would have been to give a clear instruction to one of her own helpers to keep regular, albeit not continuous, supervision over Pocky.  The more the numbers of the young children were present without accompanying parents, the higher the risk that the dog would get excited and cause injury to the children, either by an intentional attack or an accidental bite while playing.  If her two helpers might be pre-occupied in the kitchen, another reasonable and practicable precaution the defendant could have taken was to instruct one of the helpers to move Pocky beyond the reach of the children after they had played with Pocky under the helpers’ supervision.  The defendant was negligent failing to give proper instructions to her domestic helpers in the light of the foreseeable risk. Pocky was put in such a position that a reasonable man would know that it was likely to cause danger, and therefore, the defendant ought to have regarded herself as under the obligation to take precautions, but which she failed to do.  The defendant was also vicariously liable for her domestic helpers’ failure to keep regular supervision on Pocky during the time when the children were within its reach.

10.The Deputy District Judge found that the plaintiff had not teased Pocky and that the plaintiff was not guilty of contributory negligence.

11.The defendant’s Notice of Appeal raised four grounds of appeal.  Ground 1 of the Notice, which sought to attack the Deputy District Judge’s finding of fact that the plaintiff did not tease Pocky, and Ground 4 of the grounds of appeal, on the judge’s conclusions on contributory negligence, are no longer being pursued.  By Grounds 2 and 3 of the Notice of Appeal, which were pursued, the defendant contended that, on the judge’s findings of fact, there was nothing that could be said to have alerted the defendant that Pocky was likely to cause a real risk and danger to the plaintiff and that, therefore, the defendant was not negligent in permitting the plaintiff to play with Pocky without the supervision by her domestic helper.  In support, the defendant relied on the following matters :

(1)  Pocky had been kept at the premises for some six years since 2001.  It was a tame dog that got on well with the defendant’s cat and family members.

(2)  The defendant often had parties at the premises with visitors and children, and the dog never displayed any behavioural problems and blended in well with the visitors. 

(3)  It did not have to be leashed or muzzled even when there were visitors.  Indeed, it was the evidence of Kenneth, which the Deputy District Judge accepted, that Pocky would be attached to a leash when visitors came into the premises to stop it from running out and that, if the visitors were not afraid of dogs, it would be released by the domestic helper.  It had been released earlier, after Anson arrived, and he and Anson had played with Pocky for some time, but it was tied up again when the other children came to the premises.  However, on this occasion, the domestic helpers were busy preparing lunch and, after they had finished preparing lunch, they simply forgot to release Pocky. 

(4)  Pocky was in a familiar environment on the day of the accident when the plaintiff and the others visited the premises. 

(5)  The defendant did not have any reason to think that Pocky had a propensity to act violently or to attack or bite anyone.

(6)  The dog had a very gentle, playful, lively and well behaved temperament. There was no evidence to suggest that it was prone to getting excited easily when it encountered visitors, including children, at the premises for the first time.  Nor was there any evidence to suggest that the dog was, in fact, excited, or annoyed, by any of the visitors on that day.

(7)  Before the accident occurred, other children at the party had patted and fed the dog without incident, before the plaintiff then followed suit.  The dog was not fierce.  It did not bark at or frighten the plaintiff or any other children at any given time.  The plaintiff had patted and fed the dog, with the dog wagging its tail in the process.

12.The defendant submitted that, on these facts, there was no factual basis for the judge to conclude that, on the day of the accident, the plaintiff or any of the other children were so playful that they might have excited Pocky to misinterpret the plaintiff’s friendly approach as being unfriendly, and to bite him as a result.

The Law

13.Cons VP in Li Yuk Lan v Lau Kit Ling [1989] 2 HKLR 128 said at p. 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.”

In support he cited from the often quoted judgment of Lord Atkin in Fardon v Harcourt-Rivington (1932) 146 TL 391.  In that case, a dog had been shut away in a closed car and, becoming excited and thrashing about, had broken one of the car’s windows, causing a sliver of glass to injure the eye of a passer-by.  Lord Atkin said :

“As I understand the case as put forward by Mr O’Connor, he put it on two grounds. In the first place he relied upon the liability of the owner of an animal of known mischievous propensities to keep it under control, with the consequence that damage caused by the mischievous propensities is damage which falls upon the person who fails to exercise the control. That is a liability which exists only in the case either of wild animals, which have by their nature a mischievous propensity, or of tame animals which are known to the persons having control to have a particular mischievous propensity. In this case it is quite clear on the evidence this ordinary tame dog was not known by the owner to have any mischievous propensity whatever, and, for the reasons given in the judgment of the Court of Appeal, the case must fail if it is put upon that ground. But it is also true that, quite apart from the liability imposed upon the owner of animals or the person having control of them by reason of knowledge of their propensities, there is the ordinary duty of a person to take care either that his animal or his chattel is not put to such a use as is likely to injure his neighbour – the ordinary duty to take care in the cases put upon negligence. As far as that part of the case is concerned, it appears to me that, for the reasons given by the noble Viscount on the Woolsack, the case was not established and there was no evidence upon which a jury could reasonably come to the conclusion that the defendant in this case had been guilty of any breach of duty at all.”

14.The same principle has been restated by Greer LJ in Sycamore v Ley (1932) 147 LT 342 at 345 as follows :

“ He may, in my judgment, be liable for the conduct of a dog which has not been taken out of the category of tame animals if he puts it in such a position and in such circumstances as render it likely that the dog will get excited, will lose its temper, and will cause damage to people ...

… There may be cases in which a defendant may be liable for the bite of a dog even if the dog does not belong to the class of ferocious animals, if it be proved that the dog is put in such a position that a reasonable man would know that it was likely to cause danger and therefore he ought to regard himself as under an obligation to do something by way of precaution.”

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

“ 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 an animal from custody or control, without more, as the direct cause of any violent departure 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 safe ever to let a horse 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.”

16.Lord du Parcq in Searle v Wallbank [1947] AC 341 repeated these propositions to explain Lord Atkin’s statement in Fardon v Harcourt-Rivington when he said at p. 360 :

“ Nevertheless, Lord Atkin’s proposition will be misunderstood if it is not read as subject to two necessary qualifications: first, that where no such special circumstances exist 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 some dangerous act contrary to its ordinary nature, and, secondly, that even if a defendant’s omission to control or secure an animal is negligent, nothing done by the animal which is contrary to its ordinary nature can be regarded, in the absence of special circumstances, as being directly caused by such negligence.”

17.Moir JA giving the judgment of the Alberta Supreme Court in Nasser v Rumford, 83 DLR (3d) 208 said at p. 213 :

“ The dog had been allowed to run free among both children and adults. No problem has occurred in the past. There was nothing in Trudy’s past behaviour that would require that she be locked up, muzzled or restrained. In my opinion what occurred here was most unusual and simply not foreseeable. We must not test the question of foreseeability by looking at the unfortunate injury to the respondent and then say it was foreseeable merely because it happened. That is not the test in law. ”

18.The plaintiff did not bring his claim under the doctrine of scienter,which requires proof of knowledge of the animal’s propensity to attack.  Neither did the plaintiff bring his claim under the Occupier’s Liability Ordinance.  He chose to sue in negligence.  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.

The defendant is liable in negligence

19.This is a difficult case.  We were impressed initially by the submissions of Mr Clifford Smith SC that, on the facts as found by the judge that Pocky was tame and was well behaved prior to the occurrence, that it could not be reasonably foreseen that Pocky posed a real risk and danger to the visiting children.  However, after further reflection, we have concluded that the Deputy District Judge was right to find as he did. 

20.In this case, the group of children aged 9 and under were excited to see Pocky and to be able to play with Pocky. They played with Pocky for a considerable and continuous period of time.  Different children from the group patted it and fed it dog biscuits.  At times, there were as many as 6 children playing and surrounding Pocky, who was kept on a leash instead of being allowed to run free as was normally the case.  Some of them went upstairs to play but others remained and continued to play with Pocky.  This lengthy period of continuous play by excited young boys would have caused Pocky to become stimulated and excited, and that excitement must have been amplified by the fact that it was restrained and unable to interact freely with the boys. The proper inference to draw from these facts was that the act of biting the plaintiff was not a spontaneous act that was wholly out of character but the result of the continuous period of unsupervised play by the lively young children that caused Pocky to become excited and to bite the plaintiff, either accidentally or because it misinterpreted the unfamiliar plaintiff’s act as being unfriendly. A spontaneous act that was wholly out of character was unforeseeable but the latter was reasonably foreseeable. Although the Deputy District Judge did not expressly say so, it appears to us, from a close reading of §25 of his judgment, that he did draw the latter inference.  Even if he did not do so, we are able to draw this inference from the primary facts as found by the Deputy District Judge, and we do so.

21.In this situation where a large group of lively young children was going to play continuously and for a considerable period of time with Pocky, who was kept under a leash throughout that period, it was incumbent on the defendant and on her agents, her domestic helpers, to ensure that there was periodic supervision of the children and of Pocky by at least one of them, so as to ensure that Pocky did not get over-excited by the playful children, some of whom were strangers to Pocky, and did not over-react to any of them.

22.We want to make it plain that, by this decision, we are not creating a precedent that young children playing with tame dogs must always be supervised by adults.  Each case must turn on its own particular facts. We do, however, conclude, given the particular facts and circumstances of the present case, that there was a real, and not a fanciful, risk of an untoward reaction on the part of Pocky to the continuous playfulness of this group of lively young children.  For these reasons, we conclude that the Deputy District Judge was right to find that the defendant was negligent in failing either to ensure periodical supervision of Pocky and the children by one of her domestic helpers, or to instruct one of her domestic helpers to move Pocky to a place beyond the reach of the children, after they had played with Pocky under that helper’s supervision. 

23.We dismiss this appeal and make a costs order nisi that the appellant pays the costs of the appeal, to be taxed if not agreed, with certificate for two counsel.  These costs are wholly disproportionate to the value of the claim.  The resolution of this case either by negotiation or mediation would have been a far better and more sensible option than by litigation, which required two young boys to give evidence, and to be cross examined, in court, and substantial and wholly disproportionate costs to be incurred in engaging senior counsel to argue the matter in the Court of Appeal.

Mr Clifford Smith SC and Mr Jonathan Chang, instructed by Messrs Szeto Virginia & Co., for the Defendant/Appellant

Mr Michael Ozorio SC and Mr Damian Wong, instructed by Messrs Szwina Pang, Edward Li & Co., for the Plaintiff/Respondent