Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Secretary For Justice v Jarabe Cleofe Domingo And Another

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date18 May 2009
Year2009
Judgement NumberDCCJ1722/2003
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ001722/2003 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

----------------------

BETWEEN
SECRETARY FOR JUSTICE Plaintiff
and
JARABE CLEOFE DOMINGO 1st Defendant
LAI KAM WING JIMMY 2nd Defendant

----------------------

Coram : Her Honour Judge Mimmie Chan in Court

Date of hearing : 6 May, 2009

Date of handing down Judgment : 18 May, 2009

----------------------

J U D G M E N T

----------------------

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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT