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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)

------------------------------BETWEEN
CHIANG KI CHUN IAN,
a minor suing by his mother and next friend,
CHOW YUEN MAN LOUISE

Plaintiff/Respondent

and
LI YIN SZE

Defendant/Appellant
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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
----------------------JUDGMENT
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Hon Bharwaney J (giving the Judgment of the Court) :

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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

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interest and costs. The defendant has brought this appeal against the
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judgment on liability only, pursuant to the leave granted by

Tang Ag CJHC.

The Deputy District Judge awarded damages for personal

injuries to the plaintiff who suffered injury when he was bitten by a dog,
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defendant was the owner and keeper of Pocky under the Dogs and Cats

afternoon of 20 June 2009. This was a village house with a garden where

over to his place to play. The plaintiffs younger brother, Nicholas, had

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and five domestic helpers, including Ms Florence Pasyan who worked for

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domestic helper, and two domestic helpers employed by the defendant.

The parents of the children were not on the premises.

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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

brother, and Anson. There were six young boys in the premises that day
the plaintiffs family, Ryan and Jasons domestic helper, Ansons

Kenneth, who was then nine years old, had invited his friends to come
also been invited as were three other boys, Ryan, Jason, who was Ryans

premises at No. 68 Sheung Sze Wan, Clearwater Bay, in Sai Kung on the
the defendant lived with her family, including Kenneth, her son.

a medium-sized brown Mongrel, about 2 feet tall, named Pocky. The

Ordinance, Cap. 167. The incident occurred at the defendants residential

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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

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elsewhere.
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The Deputy District Judge heard evidence from the plaintiff,

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his mother, Madam Chow, who brought the proceedings as the plaintiffs
mother and next friend, and from Ms Florence Pasyan. Kenneth and the

had been warned not to do so. The Deputy District Judge preferred the

where their evidence was in conflict. He also accepted the evidence of

the other witnesses which was unchallenged.
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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.
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children. Pocky had never had any behavioural problems, and he did not

Kenneths evidence, which the judge did not accept, was that

lunch prepared for him and his younger brother by Kenneths domestic

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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

on arrival, the plaintiff did not seem to be hungry and did not have the
helper. The other boys had arrived earlier and were playing in the living

house.

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The family often had parties. The guests who visited them had included
have to be leashed or muzzled at home even if there were visitors to the

evidence of the plaintiff over the evidence of Kenneth in those areas

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defendant also gave evidence. The factual evidence was not controversial
except in relation to the allegation that the plaintiff had teased Pocky and

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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

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mouthful of spaghetti and, standing one foot away from Pocky, by

opening his mouth and showing this spaghetti inside his mouth to Pocky.

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This made Pocky upset and he barked a few times. The plaintiffs helper,
Anson, Ryan and Kenneth then asked the plaintiff not to tease Pocky.

wanted to play with Pocky for a while. They later learned that the

The evidence of Florence Pasyan was that she, the plaintiff

Jason, Ryan and their domestic helper. On arrival, she saw Kenneth and

dining table for about 10 minutes before joining the other children to play

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playing with Pocky. Ian also then went upstairs, leaving only Anson

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bitten by the dog. She did not know that the plaintiff had come back
downstairs to play with Pocky. After the incident, Kenneths domestic
helper took the dog away and kept him leashed in the garden area.
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The Deputy District Judge accepted the evidence of the

plaintiff who denied that he had teased Pocky with a sausage and with a
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later went upstairs, and the plaintiff and Anson remained downstairs
behind downstairs. She later became aware that the plaintiff had been

and Nicholas had not had their lunch yet, and they took their lunch on the
with Pocky. She remained near the dining area. Some of the children

and Nicholas reached the premises at about 2 p.m., at the same time as
Anson playing with Pocky. Jason and Ryan joined them, but the plaintiff

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plaintiff had been bitten on his left cheek by Pocky.

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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

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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 Kenneths
home. He only learned that Kenneth had a dog at home when he first saw

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it. When he arrived, Anson and Kenneth were already there and were
playing with Pocky. He and Nicholas and Ryan and Jason were excited

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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

with some dog biscuits. Pocky was not fierce and did not bark. His

finished his lunch, he and his younger brother joined them. He cannot

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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

friends were playing with Pocky for about half an hour and, when he had
remember how long they all played together with Pocky but, after a

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

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alone with Pocky. At the time, Pocky was lying on the floor. He walked
towards it and followed the other childrens actions in patting it gently
and saying good boy. Then he took some dog biscuits to feed it. When

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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

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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.

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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

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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

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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

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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.

as if he was part of his masters family. The foundation of friendship

and the defendants family. All these matters indicated an exposure of a

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it with food. The risk, which was a real risk and danger, should have
The defendant ought to have

children, but towards other children, paying their first visit to her home,
unaccompanied by parents, who might be playful, who might be lacking

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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

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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

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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
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

conducted herself as a reasonably careful parent, not just to her own

might be pre-occupied in the kitchen, another reasonable and practicable

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wrongly, interpreted the visitors acts being unfriendly, including teasing

been foreseen by a reasonable man.

between Pocky and Ian was likely to be weaker than that between Pocky
young visitor to the risk of being attacked by Pocky if Pocky, rightly or

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

negligent failing to give proper instructions to her domestic helpers in the

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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

was also vicariously liable for her domestic helpers failure to keep

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The Deputy District Judge found that the plaintiff had not

teased Pocky and that the plaintiff was not guilty of contributory

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Ground 1 of the Notice, which sought to attack the Deputy

Ground 4 of the grounds of appeal, on the judges conclusions on

By Grounds 2

contended that, on the judges findings of fact, there was nothing that

was not negligent in permitting the plaintiff to play with Pocky without

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(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

defendants cat and family members.

on the following matters :

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a real risk and danger to the plaintiff and that, therefore, the defendant
the supervision by her domestic helper. In support, the defendant relied

and 3 of the Notice of Appeal, which were pursued, the defendant

could be said to have alerted the defendant that Pocky was likely to cause

District Judges finding of fact that the plaintiff did not tease Pocky, and
contributory negligence, are no longer being pursued.

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The defendants Notice of Appeal raised four grounds of

appeal.

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within its reach.

regular supervision on Pocky during the time when the children were

negligence.

therefore, the defendant ought to have regarded herself as under the

obligation to take precautions, but which she failed to do. The defendant

(2)

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The defendant often had parties at the premises with visitors

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and children, and the dog never displayed any behavioural

problems and blended in well with the visitors.

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(3)

the Deputy District Judge accepted, that Pocky would be

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

However, on this occasion, the domestic helpers were busy

preparing lunch and, after they had finished preparing lunch,

(4)

Pocky was in a familiar environment on the day of the

(5)
(6)

The defendant did not have any reason to think that Pocky

prone to getting excited easily when it encountered visitors,

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was there any evidence to suggest that the dog was, in fact,
excited, or annoyed, by any of the visitors on that day.
(7)

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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

including children, at the premises for the first time. Nor

The dog had a very gentle, playful, lively and well behaved
temperament. There was no evidence to suggest that it was

premises.
had a propensity to act violently or to attack or bite anyone.

they simply forgot to release Pocky.

accident when the plaintiff and the others visited the

up again when the other children came to the premises.

attached to a leash when visitors came into the premises to

It did not have to be leashed or muzzled even when there

were visitors. Indeed, it was the evidence of Kenneth, which

at or frighten the plaintiff or any other children at any given

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time. The plaintiff had patted and fed the dog, with the dog

wagging its tail in the process.

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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
excited Pocky to misinterpret the plaintiffs 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

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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 cars windows, causing a sliver of glass to

plaintiff or any of the other children were so playful that they might have

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injure the eye of a passer-by. Lord Atkin said :

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As I understand the case as put forward by Mr OConnor, 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

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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.

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14.

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.

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15.

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The same principle has been restated by Greer LJ in

Sycamore v Ley (1932) 147 LT 342 at 345 as follows :

Du Parcq LJ, as he then was, in Aldham v United Dairies

(London), Ld [1940] 1 KB 507 at pp. 513-514 said :

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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

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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.

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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
defendants 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.

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16.

Nevertheless, Lord Atkins 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
defendants 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.

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Lord du Parcq in Searle v Wallbank [1947] AC 341 repeated

Harcourt-Rivington when he said at p. 360 :

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these propositions to explain Lord Atkins statement in Fardon v

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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 Trudys 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

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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.

The plaintiff did not bring his claim under the doctrine of

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scienter, which requires proof of knowledge of the animals propensity to

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Liability Ordinance. He chose to sue in negligence. The common thread

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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

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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

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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

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precautions, and the utility of the activity in question.

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attack. Neither did the plaintiff bring his claim under the Occupiers
which runs through the law of negligence, and in its application to

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

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danger to the visiting children. However, after further reflection, we have

concluded that the Deputy District Judge was right to find as he did.

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20.

In this case, the group of children aged 9 and under were

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excited to see Pocky and to be able to play with Pocky. They played with
Pocky for a considerable and continuous period of time.

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on a leash instead of being allowed to run free as was normally the case.

play with Pocky. This lengthy period of continuous play by excited

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restrained and unable to interact freely with the boys. The proper

of the continuous period of unsupervised play by the lively young

children that caused Pocky to become excited and to bite the plaintiff,
act as being unfriendly. A spontaneous act that was wholly out of
character was unforeseeable but the latter was reasonably foreseeable.

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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

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inference from the primary facts as found by the Deputy District Judge,
and we do so.

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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

either accidentally or because it misinterpreted the unfamiliar plaintiffs

21.

was not a spontaneous act that was wholly out of character but the result

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and that excitement must have been amplified by the fact that it was
inference to draw from these facts was that the act of biting the plaintiff

Some of them went upstairs to play but others remained and continued to
young boys would have caused Pocky to become stimulated and excited,

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

ensure that there was periodic supervision of the children and of Pocky by

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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

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not over-react to any of them.

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22.
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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
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risk of an untoward reaction on the part of Pocky to the continuous

defendant was negligent in failing either to ensure periodical supervision

the children, after they had played with Pocky under that helpers

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

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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

one of her domestic helpers to move Pocky to a place beyond the reach of
supervision.

conclude that the Deputy District Judge was right to find that the
of Pocky and the children by one of her domestic helpers, or to instruct

circumstances of the present case, that there was a real, and not a fanciful,
playfulness of this group of lively young children. For these reasons, we

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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

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Court of Appeal.
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(Peter Cheung)
Justice of Appeal

(Joseph Fok)
Justice of Appeal

(Mohan Bharwaney)
Judge of the
Court of First Instance

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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

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