Li Yuk Lan v. Lau Kit Ling

CACV000133/1988

_________

Coram: Hon. Cons, V.-P., Hunter J.A. & Mortimer, J.

Date of hearing: 10 February 1989

Date of delivery of judgment: 10 February 1989

_______________

J U D G M E N T

_______________

Cons, V.-P.:

1. On the evening of the 25th October 1987, the Plaintiff with her sister and her husband were inside their house in Fairview park. Hearing a commotion in the road outside the Plaintiff and her sister rushed out to see what was happening. There they found the Plaintiff's Shapei, a small dog which she had left at large in her garden adjoining the road, in the jaws of a large black Labrador belonging to the Defendant. Apparently the Defendant had been taking that and another Labrador for a walk. Neither of the two big dogs were kept on a leash.

2. Regulation 19(l) of the Dogs and Cats Regulations, made pursuant to Section 3 of the Dogs and Cats Ordinance, Cap 167 provides:-

"No dog shall be allowed to go abroad on a public thoroughfare or on any premises abutting on any thoroughfare which are not so enclosed as enclosed as to confine such dog within the lead or is otherwise under control."

3. There seems to have been a suggestion in the court below that the dogs were under control, in that they had been trained and the Defendant was carrying a small cane, a claim which in the circumstances was clearly ill-founded and later accepted as such by the Defendant when pleading guilty by letter in the Magistrates Court to a charge brought under the Regulation. In the event she was fined $150. We do not know what was put forward by way of mitigation, but unless there were particular circumstances which did not surface in the civil litigation it seems to me at least that a fine of that nature is hardly likely to encourage either the Defendant or others to pay heed to the regulation. It is to be noted that the maximum fine prescribed is $5,000 with provision additionally for imprisonment.

4. To return to the circumstances of that evening, the Plaintiff attempted to rescue her dog by pulling it from the jaws of the Labrador, at which stage the second Labrador joined in. Rescue was eventually achieved not by the efforts of the Plaintiff, but by the more sensible course adopted by her husband of turning the garden hose upon the dogs.

5. In the course of the fracas the Plaintiff received bites to one ankle and a finger, together with bruises and abrasions. At the time it was thought these were the only injuries. Sadly, unknown to herself, she was six weeks pregnant and the following day she suffered a miscarriage as a result of the incident.

6. In due time the Plaintiff brought action in the District Court. Her claim was founded on negligence at Common Law and broach of statutory duty, namely Regulation 19(1) which I have just quoted. The hearing came on before His Honour Judge Patrick Chan, who was satisfied chat the Defendant was liable in both respects. He awarded general damages of $35,000, with nearly $10,000 in special damages for medical and veterinary fees.

7. The Defendant now appeals against that decision.

8. With every respect to the judge below, in my view he came to the wrong conclusion. 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. These two aspects of the law are illustrated in the judgment of Lord Justice Atkin in Fardon v. Harcourt-Rivington 146 (1932) LT 391. That was a case where 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 put out the eye of a person outside -

"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 that 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 here 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."

9. The comment thereon of Lord du Parcq in Searle v. Wallbank [1947] A C 341 at 360 is apposite, to the present circumstances -

"…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 disposition will do some dangerous act contrary to its ordinary nature ... ''

10. There was no evidence in the court below of any mischievous propensity on the part of the two Labradors, or that the Defendant knew of such propensity, or that she ought to have known of such propensity. Nor for my part do I find any special circumstances. All that the Plaintiff was doing was taking normally well behaved dogs for a walk. It is true that she would not at all times necessarily be in absolute control, but even so, that in my view was not, in the words of Lord Atkin "putting her animals to such a use as was likely to injure her neighbour." As far as the claim was based on negligence it should have failed.

11. I turn then to the alternative claim in breach of statutory duty. Whether breach of a statutory provision creates a civil liability in favour of a 3rd party who suffers damage from the breach is a matter of construction of the provision in the context of the statute as a whole. Much has been written and spoken upon the general principles to be adopted in such circumstances. It is sometimes said that liability in civil law is only imposed where the statute gives protection to members of a particular class of the public other than the public generally or where rights are expressly conferred by the statute. In my view it is not necessary to follow those lines in the present instance, for the provisions of Regulation 19 appear to me to be such that clearly no civil liability was intended. It is an extremely stringent regulation. I have read the first paragraph. I read now the second and third -

"(2) A breach of this regulation shall be deemed to have occurred if any dog is abroad as aforesaid and is not on the lead or otherwise under control or if a dog bites any person or any other dog at a time when, and at place at which, it is required by this regulation to be on a lead or otherwise under control.

(3) In every such case the owner of such dog or, if the owner is absent from the Colony, person having the custody or care of such dog shall be guilty of such breach. notwithstanding that such breach occurred without his knowledge or without any default on his part and, in the case of a dog biting a person or another dog notwithstanding any proof that the dog was on a lead or was otherwise under control."

If the Regulation were taken as imposing civil as well as criminal liability, the net result would be to make the owner of a dog an insurer of its conduct in a public highway. That would be such a radical change from established principles that, for my part, I do not think the legislature could have intended to introduce it by subsidiary legislation, particularly where the enabling section does not clearly refer to the conduct in question. I refer to Section 3 of the Ordinance, which provides that regulations may be made for "controlling dogs and cats in their importation, movement, slaughter and sale, and for the prohibition of the sale of the flesh of dogs and cats."

12. For these reasons I would allow the appeal and set aside the judgment below.

Hunter, J.A.:

13. I agree, on the issue of breach of statutory duty I would for my part also invite attention to subsection 3(2) of the principal ordinance. My Lord has read a greater part of Regulation 19 and drawn attention to its very wide terms. Those wide terms can only be supported by reference to subsection 3(2) of the principal ordinance. A reading of that subsection shows a clear intent to my mind that these extended provisions were to apply only to breaches of regulations giving rise to criminal liability for which a fixed penalty was prescribed by way of fine or imprisonment and not intended to go any further and create some wholly unlimited civil liability having the effect my Lord has described.

14. Likewise I wholly agree with his observations on negligence. In the absence of scienter a heavy burden is cast upon a plaintiff to show "special circumstances" or "special propensity" in two of the phrases used in the authorities, together with a real likelihood of danger, not to other animals, but to human beings. That onus in my judgment, was plainly not discharged by the Plaintiff in this case.

Mortimer, J.:

I would also allow this appeal for the reasons given by my Lords and I would only add one comment of my own. It is this, that it seems to me on the question of negligence apart from scienter the matter is completely answered by a further passage from Lord du Parcq in Searle v. Wallbank which has already been cited; where he says on page 360 -

"… 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."

15. In the learned judge's judgment he omitted to consider that matter in his finding of negligence. Otherwise I entirely agree with the matters advanced by my Lords. I would allow this appeal.

Representation:

Miss Priscilla Wong (M/s Y.K. Fung & Co.) for Defendant/Appellant

Louis K.Y. Chan (M/s Liau, Ho & Chan) for Plaintiff/Respondent