Child and the Dog

It is an unfortunate fact of life that while we enjoy the company of pets such as dogs, we also get bitten for a variety of reasons. Whenever a dog bites, it can attract not only media attention but also legal consequences. But the important bottom line is that just because one is injured does not mean that someone must be responsible.

First of all, it is often omitted that a dog bite can bring the owner or carer into criminal liability.

Under ss 23 and 25 of the Rabies Ordinance (Cap 421), when a dog is in a public place (or a place that it may escape to public places), it must be put on a leash “or is otherwise under control” by the keeper or those responsible for the dog. Otherwise, there is already an offence. In such a case, if the dog has bitten anyone, there is an additional offence.

In 香港特別行政區 訴 梁煥章 HCMA 833/1998, the court held that in an enclosed private garden, there is no obligation to leash. However, it still depends on the circumstances. For example, in HKSAR v Chan Wai Keung HCMA 305/2013, while a dog was kept in a private garden, the house was being renovated and frequented by workers on the property. It was held that the dog should have been on a leash to prevent escaping.

For a large dog that is heavier than 20kg, there are more stringent requirments in public places. Under s 9 of the Dangerous Dogs Regulation (Cap 167D) it must be put on a leash of not longer than 2m when being carried by a person, or not longer than 1.5m when tied to a fixed object. Unless it is in a country park or is swimming at the sea.

Even though a biting dog is properly leashed, the owner may still face a civil claim for the injuries caused. It is interesting to note that in common law, there exist two claims where domestic animals were involved.

The Court of Appeal in Chiang Ki Chun Ian v Li Yin Sze [2011] 5 HKLRD 727 examined the doctrine of scienter (knowledge). Apart from the conventional negligence claim, a “scienter” claim even imposes strict liability if the owner knows of some propensity to mischief particular to the domestic animal, but not common to the species in general.

Once that special knowledge is established, proof of negligence is not required for a successful claim. There is thus no need to prove whether the dog owner’s conduct was reasonable, nor if the dog’s behaviour was foreseeable. On this end, such a claim may be more straightforward.

In any event, there is always a potential common law claim of negligence. The ordinary duty is imposed by the law 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.

For a pet owner, it is important to note that the law does not impose a high standard upon them. There is no suggestion that pets should always be on a leash if there is a slight chance of escaping to public places. A responsible pet owner should consider if there are special circumstances that heighten the risk of escaping or biting and certainly be aware of the potential legal consequences.