Wong Giles v. Donowho Simon Christopher and Another

HCPI 1046/2014

[2020] HKCFI 603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1046 OF 2014

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Before: Hon K Yeung J in Court

Dates of Hearing: 22‑25, 28‑31 October, 1 and 5‑6 November and 3 December 2019

Date of Judgment:  16 April 2020

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JUDGMENT

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Introduction

1.The parties and their respective families were occupants of three different apartments inside Block EF of Pearl Gardens at no 7 Conduit Road (“Pearl Gardens”).  The plaintiff (“P”) and his wife (“P’s Wife”) occupied Apartment F4 (“F4”) on the 4^th floor, the 1^st defendant (“D1”), his wife (“D1’s Wife”) and their children occupied Apartment F5 (“F5”) on the 5^th Floor, and the 2^nd defendant (“D2”), his wife (“D2’s Wife”) and their children occupied Apartment F6 (“F6”) on the 6^th. F6 is directly above F5, which in turn is directly above F4.  The parties were therefore neighbours in the vertical sense. 

2.The parties had a history of disputes over noise disturbances.  Part of the complaints related to television and radio noises emanating from within F4.  P said that on the late evening of 9 January 2014, his door was banged on and kicked at hard.  He said that he was stressed and agitated thereby.  He said that the power supply of F4 then got switched off (the “Subject Outage”).  He said that either or both of the defendants did those.  P further claimed that in the resulting darkness, and whilst stressed and disorientated, he tripped and fell inside F4, and had sustained back injuries.  He also said that he suffered from certain psychiatric problems as a result (notably Post Traumatic Stress Disorder (“PTSD”)).

3.This is P’s personal injury claim against the defendants for damages.

The background facts

4.Some background facts are not in dispute.  I set them out as follows.

5.P was born on 10 December 1940.  He suffered from a motorcycle accident in around 1969.

6.P has, and P’s Wife had until March 2019 when she passed away, been occupying F4 since 1982.  They became the registered owners of F4 in 1984.

7.As I have observed above, F4 is on the 4^th Floor of Pearl Gardens and is directly beneath F5 on the 5^th Floor.  F5 is in turn directly beneath F6 on the 6^th Floor.

8.The internal layout of F4, F5 and F6 is the same.  Each has a connecting living room and dining room, 1 master bedroom and 3 additional bed or study rooms.  Each has a front door and a backdoor.  There is separately a maid’s room, which is close to the backdoor. 

9.At time material to this case, P and his wife had two live‑in domestic helpers.  They were Ms Lina Bernardino Esplana (“Esplana”) and Ms Dorjee Choden Dupka (“Dupka”).

10.In 2004, D2, D2’s Wife and their 2 sons moved into F6.  D2 and D2’s Wife have been the joint registered owners of the same since April 2004.

11.In May 2005, New Modern Limited (“New Modern”) purchased F5.  D1 and D1’s Wife are directors of New Modern, with D1’s Wife being its sole shareholder.  D1, D1’s Wife and their 3 children moved into F5 in the end of August 2005.

12.In 2009, D1’s Wife gave birth to their youngest child.  The family of 6 continued to live in F5.

13.The management company of Pearl Gardens at the material time was called Synergis (“Synergis”).

14.Whilst the parties do not agree on the time when they first started to do so, there is no dispute that some time since about 2010/2011, there had been complaints from D1’s Wife to both Synergis and the police about noises from F4, and from P about noises from F5.  At a later stage, D2 also started to complain about noises from F4.  Divers correspondence ensued which have been produced before me. 

15.The disputes between the parties over noises went on for several years. Multiple complaints were made to the police about noises emanating from F4, resulting in the police calling upon F4 on many occasions.

16.In the words of Ms Chao, counsel for P, “it is undisputed that the parties have grudges arising from noise complaints against one another prior to the Incident”[1].

17.On 9 January 2014 at around 11:15pm, D2 went to the front door of F4. He knocked on the front door and kicked at it.  Shortly afterwards, D1 also appeared there and knocked on the door loudly.  D2 pressed the doorbell at 11:53pm.  Parties do not agree as to the reason of that visit.  It is the case of D1 and D2 that P was making loud noises inside F4 at that time and they were there demanding him to stop.  P’s case is that he was not making any noise then and that the defendants were there to harass him.  I will come back to this factual dispute.

18.Whatever the purpose of the visit, it is common ground that P did not open the door at that stage.

19.At around midnight of 9/10 January 2014, the Subject Outage took place.

20.In his witness statement, D1 admitted that he and D2 turned off the master electricity switch of F4 so as to put a stop to the noise nuisance which he said P was causing at that time.  D2 in his Defence denied having switched off the mains of F4.  But whether or not D2 was involved, the Subject Outage did occur.

21.It was during the Subject Outage when P allegedly tripped in darkness and sustained injury to his lower back.

22.Thereafter, the police, D1, D2 and D2’s Wife arrived (or arrived again) outside F4.  P opened the front door of F4.  What exactly happened are in dispute, but it is common ground that the police talked to P, D1 and D2 separately.  P did not make any complaint to the police about the alleged trip and fall.  Both P and D1 made a statement and signed in the notebook of a police officer (“PC13453”), which contained also PC13453’s account of the night.  The police left around 2:00am/2:30am on 10 January 2014.

23.At around noon of 10 January 2014, a workman from Chun Fai repaired the doors of P’s Apartment in the presence of P.  D1’s Wife observed P standing at the front door of F4 when the works were being carried out.

24.In May 2014, D1 and D2, along with some other claimants, commenced Land Tribunal Proceedings against P and P’s Wife under Lands Tribunal Management Application No 136/2014 (the “LT Proceedings”).  The Incorporated Owners of Pearl Gardens and the owner or resident of F3 (the unit on the 3^rd Floor directly beneath F4) were amongst those other claimants.

25.In about March 2014, because of the ongoing noises issues, the Donowhos moved out of F5 into a leased flat. 

P’s Wife

26.P’s Wife passed away in March 2019.  I have previously[2] acceded to P’s application and granted him leave to file and serve his Wife’s affirmation dated 22 August 2018 (“P’s Wife/Aff”) and to rely on the same as evidence at the trial.

Application by P to rely on the affirmation of Dupka

27.On the first morning of the trial, and supported by the affirmation of Ma Wan Hin dated 18 October 2019 (“Ma”, a solicitor with Haldanes), P sought leave under Order 38, rule 2 to rely on the affirmation dated 14 April 2016 of Dupka (“Dupka’s Affirmation”) without calling her. 

28.The application was supported by D1, but opposed by D2.

29.Dupka was from India.  At the time material to the events leading to the present claim, she was a domestic helper employed by P and his wife.  P originally intended to call her as one of his factual witnesses.  A witness statement (dated 9 October 2015) had been signed by her and filed for that purpose. 

30.In about April 2016, Dupka left P’s employment and was about to go back to India.  In anticipation of the eventuality of she not coming back to Hong Kong for the trial, Dupka made an affirmation (ie Dupka’s Affirmation) in substantially the same terms as her witness statement.

31.According to Ma, he in September 2019 contacted Dupka to try to confirm that she would be coming to Hong Kong for the trial.  He said that it was then when Dupka for the first time indicated to him that she would be busy and that it would be difficult for her to leave her family in India during October and November 2019.  Ma said further that “As an alternative, over the last week, I had tried to explore the possibility of [Dupka] giving evidence via video‑link in her hometown.  However, [Dupka] did not confirm if such arrangement would be feasible”.

32.Dupka’s evidence would be relevant to, amongst others, one important issue, namely whether D2 was responsible for the Subject Outage.  The main power switch of F4 was somewhere near its back entrance.  Dupka claimed[3] that immediately before the Subject Outage, she saw both D1 and D2 there.  She said that she saw them through the door‑viewer of the back door of F4.  She described certain acts on the part of D1 and D2, immediately after which all the lights in F4 went off.

33.According to his Defence[4], D2 “did not switch off the electricity supply as alleged ”.  According to D2’s witness statement[5], “I was not involved whatsoever in any of the power outages at [P’s] Apartment as alleged ”.

34.On the other hand, according to D1’s witness statement[6], it was indeed he who together with D2 switched off the mains of F4 and caused the Subject Outage.

35.Whether D2 was responsible for the Subject Outage is an important factual issue.  It is probably the most important issue in so far as D2’s defence is concerned.  Its resolution will be dependent upon my assessment of the respective credibility of D1 and Dupka.

36.I refer to Ma’s affirmation in support.  No satisfactory explanation has been provided as to why video‑link could not be arranged.  It further appears that arrangements to secure Dupka’s attendance was not actively pursued until September this year.

37.I refer to §38/2/1 of the Hong Kong Civil Procedure 2020, Vol 1,that:

“ It is not practicable to make such an order [under O.38, r.2] where the evidence will be strongly contested and its credibility depends on the court’s view of the witness…”

38.In my view, and in the circumstances of this case, it would be grossly unfair to D2 if I were to admit Dupka’s Affirmation without affording D2 the chance to cross‑examine Dupka.  On the other hand, the effect of Dupka’s absence is much less stark when it comes to P’s case given D1’s case and his expected evidence.

39.Having considered the matters as they were on the 1^st day of the trial, and on balance, I refuse P’s application.

P’s pleaded case on liability

40.According to the Endorsement of Claim on the Writ:

“ [P’s] claim is for damages (including aggravated damages), together with interest thereon and costs, for personal injury, loss and damage for a serious back injury (with psychiatric sequalae) sustained by [P] as a result of deliberate, malicious, reckless or negligent act and/or breach of duty on the part of his neighbors, namely [D1] and/or [D2], in switching off the electricity mains serving [F4] around midnight between 9 and 10 January 2014 thereby causing a power outage as a result whereof [P] tripped and fell over a rug while moving or making his way in darkness inside the apartment and in a state of stress and/or disorientation during the power outage.”

41.According to P’s Statement of Claim:

(a)  §2 thereof, that:

“ [Ps’] action herein is for damages for a serious back injury (with psychiatric sequalae) sustained at about midnight between 9 and 10 January 2024 as a result of the deliberate and malicious act of [D1] and/or [D2] in switching off the electricity mains serving [F4] thereby causing [P] to trip and fall over a rug while moving or making his way in darkness (‘the Incident’).”

(b)  P and P’s Wife at the material times occupied F4, whilst D1 and D2 with their respective families each occupied F5 and F6 (§§3‑5);

(c)  Since 2005, P has been disturbed by noises resembling those of uncontrolled screaming of children and loud and sharp thuds against the ceiling of P’s Apartment (§6);

(d)  The disturbances exacerbated upon the birth of D1’s youngest child in 2009 (§7);

(e)  By early 2011, the disturbances had culminated in various complaints made by P to the manager of the building and cross‑complaints from D1 “for alleged excessive noises from the television and/or radio (which are denied) emanating from [F4]” (§8);

(f)  “In about December 2013, [D2] joined [D1] in making complaints to the manager of the Building and the police against [P], which complaints were vehemently denied by [P]” (§9);

(g)  There had been between December 2013 and 9 January 2014 four power outages at F4 (the “4 Earlier Outages”) (§10);

(h)  Those complaints and cross‑complaints have become the subject matter of a separate Lands Tribunal matter (§11);

(i)  §§12 to 24, that:

“ 12. On 9 January 2014 at about 11:15 pm, [P] was watching television in the living room of [F4] …whereupon D2 appeared at the front door banging on and kicking at it very hard with associated utterance of verbal abuse by way of vituperative language directed at [P] demanding that the door be opened.

13. By reason of the stress and discomfort visited upon [P] as a result of the hostility of and/or associated with [D2’s] act as pleaded in Paragraph 12 above, [P] did not attend the front door in the hope that [D2] would come to his senses and desist from continuing.

14. Thereafter, at around midnight of 9 January 2014, when the banging and kicking and verbal abuses stopped after some 40 minutes, [P] rose from his seat in the living room with a view to making his way to the front door to check whether [D2] had left.

15. Unbeknown to [P] at the material time, [D1] and [D2] had at this juncture gathered at or near the back door of [F4], where the control of the electricity mains was [sic] located at a height of about 9 feet, to deliberately and maliciously switch off the electricity supply to [F4] thereby causing a power outage ([‘the Subject Outage’]) and rendering [F4] in a sudden state of total darkness.

16. It is averred that the [Subject Outage] occurred while [P] was still stressed and agitated by the earlier banging and kicking on the front door and verbal abuses as pleaded in Paragraph 12 hereinabove.

17. In the circumstances, [P] was stressed and disorientated by the [Subject Outage] and, while he was making his way to the front door in total darkness, his foot was caught by a Persian rug in the living room thereby causing him to stagger and fall and sustain injury to his lower back.

18. It is averred that the power outages on the four previous occasions (as pleaded in Paragraph 10 hereinabove) and the [Subject Outage] (causing the Incident) were a serial of premeditated and concerted acts perpetrated by [D1] and [D2] or, in the alternative with the consent or connivance of [D1] and/or [D2] …

19. It is eminently foreseeable to [D1] and [D2] that their deliberate act of switching off the electricity mains of [F4] at around midnight between 9 and 10 January 2014 as pleaded in Paragraphs 14 and 15 hereinabove (‘the Deliberate Act’) and/or the [Subject Outage] caused thereby would be likely to expose [P] (and the occupants at [F4]) to the risks of injury while moving or making their way in darkness and/or a state of stress and/or disorientation associated therewith.

20 In the premises, it is averred that the Deliberate Act and/or [Subject Outage] was calculated and/or intended by [D1] and/or [D2] to cause injury, stress, discomfort and inconvenience to [P].

21. Further and/or in the alternative, it is averred that [D1] and/or [D2] were being reckless as to whether injury would be caused to [P] by the Deliberate Act when they well knew (or ought to have known) of the real and substantial risks attendant upon the sudden [Subject Outage] rendering [P] in a state of stress and/or disorientation while moving or making his way in darkness.

22. It is the duty of each of [D1] and [D2] not to cause or inflict any injury upon [P] whether negligently, intentionally or recklessly.

23. Wrongfully and in breach of the duty (as pleaded to in Paragraph 22 hereinabove), [D1] and [D2] inflicted (or caused to be inflicted) upon [P] injury by their Deliberate Act when they well knew (or ought to have known) it was likely to result in injury being sustained by [P] …

24. By reason of the matters aforesaid, [P] has sustained injuries and suffered loss and damage.

PARTICULARS OF INJURIES

(1) Prior to the Incident, [P] had enjoyed good health and led an active life commensurate with his age;

(2) After the Incident, [P] had onset of back pain which became manifested in the following few days;

(3) On 17 January 2014, due to persistent back pain, [P] attended the Outpatient Department of the Hong Kong Adventist Hospital (‘the Hospital’) whereupon:

(i) Clinical examination revealed that the area of pain extended from the upper lumbar to the sacral regions;

(ii) X‑ray of the lumbar spine showed an anterior compression fracture of the L3 vertebral body with moderate reduction of anterior vertebral height[7];

(iii) [P] was diagnosed with fracture of the lumbar spine with lumbar support and medication prescribed; and

(iv)  As a result of the Incident, [P] has suffered Post‑Traumatic Stress Disorder.”

D1’s Defence and Counterclaim

42.On 22 December 2014, D1 filed his Defence and Counterclaim.

43.According to D1’s Defence and Counterclaim:

(a)  He and his wife in May 2005 acquired F5 through New Modern.  They moved in with their 3 children in August 2005 [§6];

(b)  D1’s Wife gave birth to their 4^th child in 2009 [§8];

(c)  Between early 2010 and March 2014 when they moved into alternative accommodation, D1 and his family had been suffering from frequent and substantial disturbances of noise from F4 [§9].  Thirty‑four paragraphs of Particulars have been pleaded thereunder.  Such disturbances included Chinese style music with cymbals and drums, noises from TV and radio every day from 7:00 in the morning until 11:00 late in the evening (and sometimes before and beyond), vibrations felt inside F5 from noises emanated from F4, and sometimes even loud blasts.  I reproduce some of the particulars here:

“ i) In early 2010, Chinese style music with cymbals and drums (the ‘Cymbal Music’) emanating from [F4] woke [D1] and his wife close to 7:00am every morning including weekends. The Cymbal Music continued for approximately one hour every morning.

ii) After one month of such disturbance [D1’s Wife] requested the manager of the Building at the time to approach [P] and request that more soothing music be played, if any.

iii) The Cymbal Music nevertheless continued, commencing at exactly 7:00am every morning.

iv) Subsequently, the Cymbal Music was replaced by that of a TV or radio which would switch on and start emanating noise at exactly 7:00am every morning and would switch off 16 hours later at 11:00pm exactly (the ‘TV or Radio Noise Disturbance’). However, the TV or Radio Noise Disturbance ceased between noon on Tuesdays until late afternoon on Thursdays.

v) [D1’s Wife] was informed by the guards of [Pearl Gardens] that [P] and his wife visited China every week normally from Tuesday to Thursday.

vi) [D1’s Wife] again asked the manager of [Pearl Gardens] to liaise with [P] and ask him to turn down the volume of the TV or radio. [P] sent the manager of [Pearl Gardens] a letter (the ‘Letter’) stating that, according to his inquiry with the Hong Kong Police, he is entitled to play music in any manner as he wishes from 7:00am to 11:00pm...

vii) Following the Letter, the TV or Radio Noise Disturbance continued to emanate from [F4] from 7:00am to 11:00pm every day (but now also including each Tuesday and Thursday).

viii) Vibrations from the TV or Radio Noise could be felt coming through the floor from [F4] into [F5].

…

xxi) During June 2013, [D1] rearranged [F5] so that one of his daughters were able to sleep in the study room as the TV or Radio Noise Disturbance was affecting her severely. She had missed many days of school as a result of tiredness and stress.

…

xxvi) On 10 December 2013, [D1’s Wife] called the Hong Kong Police at 7:00am due to the TV or Radio Noise Disturbance. [D1’s Wife] again called the Hong Kong Police at 11:45pm on the same day because the Master Bedroom Noise continued after 11:00pm. That night, [D1] and his wife were only able to sleep by 1:20am.

xxvii) On 11 December 2013, [D1] and his wife were again woken by the TV or Radio Noise Disturbances at 6:00am and they called the Hong Kong Police at 6:30am.

xxviii) On 12 December 2013, [D1] and [D1’s Wife] were once again woken up by the TV or Radio Noise Disturbances and again called the Hong Kong Police. On the same day at 7:00pm, the TV or Radio Noise Disturbances were so loud that [D1’s] 4‑year‑old son was not able to sleep. The Hong Kong Police was again called at around 8:00pm.

xxix) During December 2013, in addition to the TV or Radio Noise Disturbances, [D1] and his family experienced many extremely loud but short blasts of noise lasting two minutes or less (the ‘Blast’). Each Blast could be clearly heard in every room of [F5] and were heard at all hours of the day including overnight. Each Blast would severely disrupt [D1] and his family’s sleep and ability to live normally.

xxx)     On 27 December 2013, [D1] and his wife were woken up by a Blast at 12:02am. At around 6:45am, extremely loud radio music was played for 8 minutes and woke up [D1] and his family …”

(d)  The disturbances had been reported to Synergis and the police on a lot of occasions, but did not subside;

(e)  The Deliberate Act was not admitted.  Any allegation of malicious intent or recklessness was specifically denied;

(f)  The alleged fall by P was not admitted (§14);

(g)  As a result of the noise disturbances caused by P, D1 and his family could no longer live in F5.  Alternative accommodation was rented.  He counterclaimed for the costs involved.

44.Pursuant to the Order of Master Leong of 3 February 2015, the Counterclaim has been stayed pending the outcome of the LT Proceedings. Details of the LT Proceedings are not before me, but it appears that at some stage, those proceedings were in turn stayed pending the result of P’s claim herein.  The net result is that D1’s Counterclaim remains stayed, and this Court is not called upon to adjudicate on it at this stage.

D2’s Defence

45.D2’s Defence is dated 23 December 2014.  According to the same:

(a)  Since around January 2013, P had played his television and music system at very loud volumes till late at night.  D2 had made numerous complaints to Synergis and the police against P for such noise disturbances (§§9(a) and (b));

(b)  D2 admitted that he “appeared at the front door of [F4] and knocked on the front door with force and kicked at it a couple of times demanding [P] to cease noise nuisance shortly before midnight on 9 January 2014” (§12);

(c)  D2 denied having switched off the mains of F4, or otherwise involved in any of the power outages as alleged (§3, §12, §15 and §18);

(d)  The alleged fall was not admitted, and P was put to strict proof thereof (§17);

(e)  D2 denied that P has suffered any injury (§20).

The Noise Logs

46.At different stages, D1’s Wife kept written records of the noises that were emanated from F4 (collectively the “Noise Logs”).  3 sets have been produced:

(a)  One set covers the period from 11 May to 14 June 2013 (“Noise Log Set A”);

(b)  Another set, which is typewritten, covers the period between 9 December 2013 and 20 February 2014 (“Noise Log Set B”).  It bears the heading:

“ A record of extremely loud noise from Flat F4

(Note: This excludes the daily radio noise heard from 7:00 am‑11:00 pm by F5 and F6)”

(c)  The third set (“Noise Log Set C”) is handwritten.  It was only produced in the course of the trial.  According to D1’s Wife, Noise Log Set C were the records from which she prepared Noise Log Set B.

47.The Noise Logs were not scientific records of the noises sought to be recorded in terms of their decibel levels.  But the intensity of the noises as they were heard inside F5, and the dates and times when they were heard were recorded and described in words. 

The issues on liability

48.The parties could not agree upon a list of issues on liability.  The version before me at the commencement of the trial was revised on the 5^th day. Even that version was not fully agreed.  They are as follows:

(1)  Whether the Incident happened as claimed by P on 9 and 10 January 2014;

(2)  Whether D1 and D2 deliberately banged and kicked the doors of F4, and[8] switched off the electricity mains around midnight between 9 and 10 January 2014, causing the alleged Subject Outage;

(3)  If the answer to (2) is ‘Yes’, then did the Deliberate Act and/or the alleged Subject Outage cause:

(a)  P’s foot to get caught by a Persian rug in the living room, while moving or making his way in darkness and/or in a state of stress and/or disorientation, causing him to stagger and fall, as alleged; and/or

(b)  P to be in a state of stress and/or disorientation, as alleged;

thereby causing him to sustain injury (the “Incident”);

(4)  Did D1 and D2 owe P a duty not to cause or inflict any injury upon P whether negligently, intentionally, or recklessly?

(5)  Were D1 and D2 in breach of their duties by committing the Deliberate Act?

(6)  If the answer to (5) is ‘Yes’, whether D1 and D2 knew (or ought to have known) it was likely to result in injury being sustained by P?

(7)  Whether the alleged Incident was caused and contributed by the negligence on the part of P himself, and if so, by how much?

49.Despite (more or less) agreed, those issues, in particular Issue (3), require some careful analysis.

50.Issue (3) is split up into 2 limbs.  I call for the sake of convenience limb (3)(a) the “Stagger and Fall Limb”, and limb (3)(b) the “Stress & Disorientation Limb”.

51.As drafted, Issue (3) suggests that the Stress & Disorientation Limb can be a free‑standing limb of P’s claim so that, even if the Court is to reject the Stagger and Fall Limb, P’s claim still has something to stand on.

52.That however is not consistent with P’s pleaded case:

(a)  I have reproduced the General Endorsement of the Writ above, that “[P’s] claim is for damages … for personal injury, loss and damage for a serious back injury (with psychiatric sequalae) sustained by [P]” (emphasis added);

(b)  I have reproduced §2 of the Statement of Claim above.  Similarly, it was pleaded that “[P’s] action herein is for damages for a serious back injury (with psychiatric sequalae)…”;

(c)  I have reproduced §17 of the Statement of Clam above.  That P was allegedly “stressed and disoriented ” was pleaded as the state P was allegedly in while he staggered and fell.  Those conditions were not pleaded to support by themselves any injury;

(d)  I have reproduced §24 of the Statement of Claim above.  While PTSD has been raised, it was particularized in §24(3)(iv) under §24(3), which §24(3) related to P’s attendance of Hong Kong Adventist Hospital due to “persistent back pain”;

(e)  There is in my view force in the submissions of Mr Hingorani[9], counsel for D1, that P’s case “relies only on serious back injury as the genesis” of the psychiatric sequalae.

53.In the course of her opening submissions, and upon my invitation for clarification, Ms Chao informed the court that even if P had not fallen and had not suffered any back injury, his alleged psychiatric sufferings could still support his claim for damages.

54.However, in the course of her closing submissions, and again upon the court’s invitation for clarification, Ms Chao fairly accepted that P’s pleaded case was linked to the alleged fall, and if there had been no fall, even if the medical evidence suggests any psychiatric issues like PTSD or adjustment disorder on P’s part, such medical evidence cannot independent of any fall and back injury support P’s claim.

55.In my view, given the way P’s case has been pleaded, that is clearly correct.

The witnesses

56.The factual witnesses were:

(a)  For P’s claim:

(i)  P gave evidence himself.  He adopted his 2 witness statements dated 9 October 2015 (“P/WS#1”) and 16 October 2017 (“P/WS#2”) as his evidence in chief, and was cross‑examined;

(ii)  Mr Hingorani objected to the admissibility of certain parts of P/WS#2.  I have admitted them on a de bene esse basis.  I will come back to this matter;

(iii)  Esplana was called.  She adopted her witness statement of 9 October 2015 (“Esplana/WS”) as her evidence in chief, and was cross‑examined;

(iv)  As mentioned above, I have previously granted P leave to rely on P’s Wife/Aff without calling her;

(v)  I have for reasons set out above refused P’s application to rely on Dupka’s witness statement;

(vi)  Dr Wong Chee Wing was called (“Dr CW Wong”).  He was the psychologist whom P had consulted.  He was called as a factual witness to produce and explain certain reports, notes and records which he had prepared and kept.

(b)  For D1’s defence:

(i)  D1 gave evidence.  He adopted his 2 witness statements dated 8 October 2015 (“D1/WS#1”) and 27 December 2017 (“D1/WS#2”) as his evidence in chief, and was cross‑examined;

(ii)  Ms Chao objected to certain parts of D1/WS#2.  I have again admitted them on a de bene esse basis.  I will similarly come back to this later;

(iii)  D1’s Wife gave evidence.  She adopted as her evidence in chief her witness statement dated 8 October 2015 (“D1’s Wife/WS”) and her affirmation filed on 25 July 2014 for the purpose of the LT Proceedings.  She was cross‑examined;

(iv)  D1 called Mr Richard Newburn.  He was the case manager of LGS Matrix Hong Kong Ltd responsible for the coordination and supervision of a surveillance operation conducted on P on 13, 14 and 15 January 2015.  The admissibility of certain parts of Mr Newburn’s evidence were challenged. I have again admitted them on a de bene esse basis.  I will similarly come back to them.

(c)  For D2’s defence:

(i)  Although he has filed a witness statement dated 25 August 2015, he in the end did not testify before me.  The court was only informed of his decision not to give evidence several days into the trial;

(ii)  He called no other factual witness.

57.In respect of expert witnesses:

(a)  2 specialists in orthopaedic surgery were called: Dr Lam Chi Keung, Johnson (“Dr Lam”) was engaged by P, and Dr Baldwin Chan (“Dr Chan”) by the defence; and 

(b)  2 specialists in psychiatry were called: Dr Wong Chung Kwong (“Dr CK Wong”) was engaged by P, and Dr Benjamin Lai (“Dr Lai”) by the defence.

Credibility of witnesses

58.When considering the credibility of a witness, I remind myself of the importance of considering the inherent likelihood or unlikelihood of the witness’ evidence, the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence.  I need to consider the totality of the evidence.  I warn myself against attaching undue weight on demeanour, though demeanour is obviously relevant when considering credibility.

P’s credibility

59.As I have analysed above, whether P had fallen as alleged and pleaded is the most important issue in so far is liability is concerned.

60.D2 in his Defence admitted that shortly before midnight on 9 January 2014, he appeared at the front door of F4, knocked on the front door with force, and kicked at it a couple of times.

61.The Subject Outage occurred.  D1 has admitted that in D1/WS#1.

62.The fact that on that night, the door of F4 had been banged on and kicked at, and that the Subject Outage did occur however do not mean that P had indeed fallen as alleged.

63.P was alone inside the living room of F4 when he allegedly fell.  P’s Wife did not witness that.  According to her, P did not tell her about the fall until 2 or 3 days later.  According to P’s Wife/Aff:

“ 5. During the night of 9 January 2014, I was in the master‑bedroom of [F4] watching television. I heard some banking noises around 11:15pm and thought it was one of the children in [F5] making another disturbance. However, the noises persisted so I decided to check what was happening after about five minutes. When I opened the hallway door to the living room, my husband was lying on the sofa watching television. He told me that ‘the guy from [F6]’, i.e. [D2] … was pounding on the front‑door. My husband then told me that [D2] would get tired eventually and leave so we should just ignore him. I went back to the master bedroom and resume watching television. After the lights suddenly went out at around midnight, I entered the living room with a small torch. My husband was about to call the management office and I shone the torch on the telephone to help him with his call. Almost immediately afterwards, the police arrived at the front‑door.

6.     Two or three days later, I saw my husband taking Panadol tablets and I asked him what was wrong.  It was only then that he told me he had tripped over the Persian rug in the living room during the power outage … and was feeling back pain.  When the back pain did not improve a week later, my husband decided to seek medical help at the Hong Kong Adventist Hospital.”

64.Nor did Esplana witness the alleged fall.

65.Hence, in deciding whether P had fallen as alleged, it is important to consider and assess P’s evidence carefully, which I have done.  P’s credibility is crucial to the issue.

66.In the discussions below, I will refer to some of the clinical notes and reports prepared by the doctors or experts.  Ms Chao submitted[10] that P should not be faulted for words used by the doctors.  The meaning of certain words might have been lost in translation (P using mostly Cantonese during consultations, whereas the notes and reports were written in English).  To some extent I accept that.  I will confine my consideration to clinical notes and reports on matters which could only have come from P and which are beyond niceties of languages which might have been affected by translation.

67.I set out in the paragraphs below matters which are in my view material to P’s credibility.

68.Absence of formal complaint until February 2011:

(a)  In P/WS#1[11], P described how he and his wife had, since 2005 when the Donowhos moved in, regularly been disturbed by uncontrolled screaming of children and loud and sharp thuds against the ceiling of F4.  He said that he complained about the noise disturbance to the security guards on a number of occasions.  He even sought advice from the police.  He said he and his wife simply put up with it.  He described how the problem got worse in about 2009 when D1’s youngest child was born.  He said that noise of a crying baby, screams and loud thuds became increasing frequent.  He said that noises came in the middle of the night and there were many a night when he and his wife got woken up;

(b)  Despite the alleged noise disturbances, there had however been no formal written complaint from P;

(c)  P said[12] how he and his wife chanced upon D1 and his wife in about 2008 at the lift lobby, that his wife told them the noise issue, and that D1 and his wife “simply turned their face and moved away in such a way to suggest that it was not worthy of a response”.  But despite that, there was still no formal written complaint;

(d)  He said that “the noises emanating from [F5] became so unbearable that I was forced to devise solutions to try to block them out myself ”.[13] He said in about April 2010, “out of desperation”, he had false ceiling installed.  He said[14] that additionally he and his wife “install a stereo system on the ceiling to try to help shield and/or muffle the noises emanating from [F5]”.  As I will explain later, P in fact did something much more drastic.  But relevantly on this issue of written formal complaint, there had still been none before he did what he did in April 2010;

(e)  The first written complaint was filed on 7 February 2011[15]. But that was made apparently in response to a letter dated 1 February 2011 from Synergis relating to noise complaints made against P himself;

(f)  In that letter, P wrote that “I am only complaining now because the noises are getting worse by the day and passed the tipping point of my tolerance”.  That is quite inconsistent with what P has said at §16 of P/WS#1 that by April 2010, the noises from F5 had already become “so unbearable”;

(g)  In my view, the absence of any written formal complaint by P until February 2011 (and even that was in response to a complaint against himself) suggests that P has grossly exaggerated the so‑called noise nuisance from F5.

69.P was untruthful about the reasons for his installation of “a stereo system”:

(a)  In §16 of P/WS#1, P talked about the installation of an 8‑inch false ceiling inside F4 in about April 2010.  He said further at §§17 and 18 that:

“ 17. Additionally, we installed a stereo system on the ceiling to try to help shield and/or muffle the noises emanating from [F5]. The stereo system was automatically programmed to broadcast radio news from 7:00 am to 11:00 pm every day. However, my wife and I have been careful to ensure that the level of sound from the stereo system would be at a reasonable volume and that it would only be used within reasonable hours. As far as I am concerned, we are merely exercising and protecting our right to the enjoyment of [F4].

18. Fortunately, those solutions worked quite effectively.  Whilst the Noise Disturbance were still clearly audible, the false ceiling and stereo system were able to block out some (though not all) of the noises from [F5] and made them less sharp during the daytime, and the false ceiling at least helped my wife and I to sleep without interruptions on most nights.”  

(b)  During cross‑examination, when asked about the manner in which the speakers were mounted and why they were not set facing him if he liked the music, he said that he liked music muted;

(c)  P was economical with the truth in relation to the details of the so‑called “stereo system”.  He is also untruthful when he said that the reason for its installation was to shield and/or muffle the noises from F5 (at least that was not the main reason).  I explain;

(d)  What P described as “a stereo system” in P/WS#1 was in fact 7 sets of stereo systems, each with 2 speakers attached (making a total of 14) all facing upwards within inches from the ceiling of F4.  He gave the following details of the systems when testifying:

(i)  In about April 2010, he installed in F4 a total of 7 stereo sound systems.  3 of them were set up at the living/dining areas, 1 in the master bedroom, and 1 in each of the 3 other bed or study rooms;

(ii)  Each set comprised what P described in evidence as a “console”, which had the capabilities of playing both radio and compact discs.  Each could be remotely controlled so that the volume level could be tuned up or down with a remote control;

(iii)  When purchased, each of the systems came with two speaker boxes that were meant to be connected with cables to the console for sound;

(iv)  Each of the speaker boxes was open on one side from which sound was meant to travel through (the “Sounding Face”);

(v)  Only pictures of two of the 7 systems have been produced.  I refer to the one at [C2/1122]:

(1)  It shows the system installed at the living area.  One sees from the photo a built‑in vertical cabinet that lined the wall.  Towards the top of that vertical cabinet at false ceiling height sits the console.  Next to the console is a rectangular housing or cabinet (the “Cabinet Housing”).  It was purposely‑built, and was affixed to both the built‑in wall cabinet and the false ceiling;

(2)  The Cabinet Housing was made of wood, and was not perforated;

(3)  According to P, the two speaker boxes which came with the console were both put inside the Cabinet Housing.  They faced up, and that the Sounding Face was only about 2 to 3 inches from the concrete ceiling.  There was no insulation between the Sounding Face and the concrete ceiling.  The gaps between the speaker boxes and the inner walls of the Cabinet Housing were however lined with the styrene foam (which came with the console) and acted as some sort of sound insulation;

(4)  The photographs at [C2/1123] and [C2/1124] show one of the two systems at the dining area.  One sees a similar set‑up with a purposely Cabinet Housing;

(5)  All the speakers at the living and dining areas, and most inside the bed or study rooms, similarly faced upwards towards the ceiling;

(e)  The number and placement of the speakers are entirely inconsistent with the claimed purpose of shielding off or muffling noises from F5;

(f)  The fact that the 7 consoles were set to turn on automatically every day for 16 hours from 7am to 11pm is also inconsistent with those claimed purposes.  Not even P himself was suggesting that the noises from F5 were continuous (as opposed to intermittent baby crying, screaming etc) which required to be muffled by 14 speakers which kept firing for 16 hours every day;

(g)  P and his wife habitually went back to the Mainland every Tuesday and came back on Thursday.  The consoles were allowed to be on, and speakers kept firing, even during those days when P and his Wife were in the Mainland;

(h)  The fact that the speakers were sealed into Cabinet Housings with their Sounding Faces within inches from the ceiling (and with no insulation between the Sounding Faces and ceiling) suggests that the false ceiling, Cabinet Housings and speakers were purposely designed, constructed and placed to maximize disturbances, not just by sound but also by vibration, to those inside F5;

(i)  I have reproduced above the relevant paragraphs of D1’s Defence.  He pleaded that vibrations were felt inside F5 from noises emanated from F4.  On the evidence, given the placement of the 14 speakers, that was in my view perfectly plausible;

(j)  On the other hand, the fact that the gaps between the speaker boxes and the inner walls of the Cabinet Housings were lined with styrene foam suggests that P wanted he and his wife inside F4 to be least disturbed by the noises from the speakers;

(k)  In the course of cross‑examination, P revealed that at some stage when P said the occupants of F3 (the Apartment directly underneath F4) “ganged up” with the others against him in the LT Proceedings, 1 or 2 downward facing speakers had been added;

(l)  In the course of cross‑examination, P changed his explanations for the installation of the sound systems.  He:

(i) admitted that it was his premeditated plan to make life a misery for his neighbours;

(ii) agreed that he made unbearable noises for his neigbhours to retaliate and to punish for the emanation of noises from F5;

(iii) accepted that the noises from 7am to 11pm were meant to be offensive to his “enemies”;

(iv) the systems were left on when he was away to the Mainland between Tuesdays to Thursdays because it was inconvenient to change the automatic settings, and that “it was meant to be offensive”;

(v) Sometimes, the noises from his 14 speakers were extended beyond 7am to 11pm as retaliation if the occupants at F5 had done anything, in P’s words “silly”, and that the noises would be extended as extra punishment for them;

(m)  His original explanations of installing the false ceiling and “a stereo system” to “help shield and/or muffle the noise” were clearly untruthful;

(n)  What he has said in P/WS#1 that “my wife and I have been careful to ensure that the level of sound from the stereo system would be at a reasonable volume and that it would only be used within reasonable hours” was clearly a lie;

(o)  His answer given during cross‑examination that he liked music muted from speakers enclosed in Cabinet Housings was misleading, if not also an outright lie;

(p)  In answer to a letter from Synergis[16], P said that he left the systems on even when he was out “to deter intruders”. That answer was also untruthful.

70.His evidence that he was not making loud noises on 9 January 2014 beyond 11:00pm inherently improbable:

(a)  It is D1’s case, and D2’s pleaded case, that P was making noises beyond 11:00pm on 9 January 2014, and that they went to the front door of F4 to demand P to stop the noise;

(b)  It is on the other hand P’s case that the stereo systems were off by 11:00pm, that he was only watching television, and that the volume was low.  Upon cross‑examination by Mr Fong, counsel for D2, as to why D2 would have continued to bang on P’s door for 40 minutes if he (P) had in fact stopped the noises, P said that the whole thing was fabricated, that a group of people including the new manager was trying to intimidate him.  He said specifically that:

“ This is a case of intimidation. These people got together, planned ahead to intimidate me, tried to cow me, bully me some time that evening, so that I would be so cowed so scared that I wouldn’t do anything. This is pre‑planned and doesn’t matter if there’s noise or not after 11:00. It is not related ok? The whole thing was like a scheme try to intimidate people.”

(c)  But the defendants did not just go down to bang on P’s door to, in P’s words, intimidate him.  D1’s Wife said that their children could not go to bed as the noise did not go off.  She called the police.  D2 came down to F5 and said that they had called the police too, and that their children could not sleep either.  D1’s Wife, when asked by Ms Chao as to why D1 and D2 went down to F4, gave the further evidence that they had to take action, they could not go to bed, they were exhausted, they wanted to go to bed, they wanted the noise to be off, and had to do something.  They called the police, and had done everything they possibly could, and so thought in desperation: let’s go and knock on P’s door, if nothing else to vent their frustration of living with all those noises over that period.  They wanted to knock on the door and tell P to switch off the noise;

(d)  Ms Chao relied on one inconsistency between Noise Log Set C and Set B.  In the former, there was an entry against 9 January 2014 which suggested that the daily 7:00am to 11:00pm ceased at “11:08”.  That entry was however not in Noise Log Set B, which instead recorded that “Radio didn’t go off as normal at 11pm”.  Ms Chao submitted further that that was inconsistent with D1 and D2 going to knock on the door of F4 at 11:15pm;

(e)  But as the heading of Noise Log Set B says, it excluded the daily radio noises.  I note further that in Noise Log Set C, D1’s Wife recorded “Loud blasts at ~11:45, 11:55, 11:57”;

(f)  I do not find the inconsistency relied upon by Ms Chao material;

(g)  Much more material in my view is the inherent probability (or improbability) of the parties’ respective cases on this point. The defendants’ cases that D1 and D2 were there to demand P to stop the noise is believable, and is materially consistent with the Noise Logs.  Their actions of calling the police are also consistent with that.  I find on the other hand P’s allegation that D1 and D2 all of a sudden concocted a plan to “cow” him and intimidate in the middle of the night so inherently improbable as to be totally unrealistic.  This is particularly so bearing in mind that the noise disputes between the parties had by then gone on for several years.

71.Inconsistent versions of events immediately prior to the alleged fall:

(a)  I have reproduced §§12, 13 and 14 of the Statement of Claim above:

(i) P pleaded that he was at the time of the knocking and kicking on the night of 9 January 2014 watching television in low volume;

(ii) he did not plead that D2 was there complaining about the noise from his radio;

(iii) In §13, P pleaded that he “did not attend the front door in the hope that [D2] would come to his senses and desist from continuing”, and it was when the banging and kicking and verbal abuses had stopped after some 40 minutes when he “rose from his seat in the living room with a view to making his way to the front door to check whether [D2] had left”;

(b)  In Dr CW Wong’s clinical notes on the consultation session that took place on 11 April 2014 (“11/4/14 Clinical Notes”)[17], P was recorded to have told him that:

“ 6/F guy pounded on his front door to complain about the noise. He was sleeping & not making sound. Did not open the door”;

In Dr CW Wong’s Psychological Treatment Progress Report dated 28 July 2014, at §2.1 thereof[18], it was reported that:

“ The material incident took place around late evening on 9 January 2014. [P] was at home when he heard a loud pounding on his door by someone who complained about the noise of his radio. He did not open the door, but called the Building Management instead.”

Whilst in those parts of the clinical notes and report, P was recorded to have told Dr CW Wong that D2 was there complaining about the noises, P did not mention the complaint in his Statement of Claim, who claimed that he was then not making any noises;

(c)  In P/WS#1, he said, not pleaded in his Statement of Claim, that he had in fact gone to the front door to check while the banging and kicking were happening, that:

“ 34. At around 11:15 pm on 9 January 2014, I was watching television in the living room of [F4]. My wife was in the master‑bedroom. Suddenly, someone started banging at the front‑door and kicking it very hard. The person also started yelling abusive language and demanded that the door be opened.

35. I got up and went to the front-door. I looked through the door‑viewer and saw that it was [D2] outside. I heard [D2] call me a ‘tortoise with retracted head’ … and other rude things. I also saw a security guard was outside but the security guard merely observed what was happening.

36. The banging, kicking and yelling scared and agitated me and I did not know what to do.  I went back to the television, hoping that it would all stop soon, but the banging, kicking and yelling continued.  My wife, [Esplana] and [Dupka] also heard the noise.”

(d)  There, in P/WS#1, he did not describe how D2 looked when he allegedly checked through the door‑viewer.  He still did not mention that D2 was complaining about the noises from his radio;

(e)  In the Joint Psychiatric Report of 2 November 2015, Dr CK Wong and Dr Lai reported that in §22 that:

“ At around 11 pm on 9 January 2014 he heard door banging and door kicking sound. He went to the door to check and saw the tenant of the sixth floor of his building at the door. The man looked aggressive and was loud in his voice. He felt as if the man meant to kill him. He did not open the door to avoid any possibly physical contact. He returned to the sofa to watch television …”

(f)  The glaring inconsistency as to whether P had amidst the banging and kicking gone to the door to check through the door‑viewer, and whether D2 was there complaining about the noise significantly undermine P’s credibility.

72.Different versions as to how P allegedly fell:

(a)  I have reproduced the Endorsement of Claim in the Writ, wherein it was pleaded that P “tripped and fell over a rug”;

(b)  I have reproduced §17 of the Statement of Claim wherein it was pleaded that P’s “foot was caught by a Persian rug in the living room thereby causing him to stagger and fall and sustain injury to his lower back”;

(c)  In §§39, 51 and 52 of P/WS#1, he claimed that;

“ 39. In the darkness, and whilst I was stressed and disorientated by the [Subject Outage], I tripped over the edge of a Persian rug in the living room, staggered and fell onto the floor (‘the Incident’). As a result of the Incident, I felt immediate lower back pain but did not pay much attention to it as I was soon pre‑occupied b subsequent events at the front‑door. I was able to get myself back up after falling.

…

51. Immediately after the Incident, I felt lower back pain. In the few days following the Incident, I took some Panadol tablets and the pain was bearable. Unfortunately, the pain later became increasingly serious.

52.    On 17 January 2014, owing to increasingly serious and persistent back pain during the preceding two days, I consulted Dr Ho Kai Chi Kenneth … at the Hong Kong Adventist Hospital …”

(d)  In §24(3)(ii) of the Statement of Claim, the alleged injuries were particularized as being “an anterior compression fracture of the L3 vertebral body”;

(e)  That alleged L3 Fracture was in fact an old injury.  As Dr Lam and Dr Chan explained in their Joint Medical Assessment & Report dated 24 September 2015:

“ 4. One issue that needs to be addressed is whether the L3 fracture was a recent fracture or an old fracture.

5. Both doctors consider that the MRI scan performed soon after the injury DID NOT reveal bone edema, acute soft tissue swelling at L3 region, or haematoma — features present in cases with ACUTE spinal fracture.  After careful consideration of the medical evidences available, although [P] denied old injury to his low back area and denied any previous back pain, both doctors agree that the L3 fracture was an old fracture.”

(f)  When the police attended F4 that night, P did not complain to them that he had tripped or staggered and fallen in the darkness caused by the defendants.  Nor was that any complaint that he had suffered back injury;

(g)  P did not complain to his wife that he had tripped or staggered and fallen until she allegedly asked him “two or three days later”;

(h)  The absence of any complaint is particularly surprising giving P’s evidence in P/WS#1 that he “felt immediate lower back pain”;

(i)  But in Dr CW Wong’s 11/4/14 Clinical Notes, it was recorded, amongst others, that P felt no pain because he “fell in the carpet”:

“ - Fell down, got up immediately.

- Back pain.[19]

- He Fell down.

- Felt no pain. ∵ fell in the carpet”[20] (emphasis added)

(j)  This should also be contrast with §39 of P/WS#1 where he claimed that he fell on the floor, which is quite different and potentially more serious;

(k)  In their Joint Psychiatric Report of 2 November 2015[21], Dr CK Wong and Dr Lai reported that:

“ 29. After the police left he felt numbing pain at the area around the coccyx. He did not feel much discomfort before the police left. He took two tablets of panadol and hoped he would sleep better. He meant to sleep but could not. He felt angry.

…

32. The numbing pain at the area around the coccyx continued.  He took panadol one tablet in the morning, one tablet at noon and two tablets before sleep.  He carried on his daily life as usual.  He returned to Mainland China from Tuesday and Thursday as usual.  The incident occurred on a Thursday.  While in Mainland China, he felt severe pain at the coccyx.  When he returned to Hong Kong he went to see his family doctor in Adventist Hospital.”  

(l)  But according to the Medical Report dated 25 March 2014 of Dr Kenneth Ho of the Hong Kong Adventist Hospital[22]:

“ [P] first presented to the Outpatient Department on the 17^th January 2014 with a history of having fell down on the 9^th January and injured his back. He complained of low back pain of 2 days duration.” (Emphasis added)

(m)  That complaint of “pain of 2 days duration” is quite inconsistent with P’s allegations that the pain had been continuous since the alleged fall, even taking into account of what he said in §52 of P/WS#1 that the pain became “increasingly serious and persistent…during the preceding two days”;

(n)  Most important of all, the descriptions of the fall in the Statement of Claim and P/WS#1 were different from P’s demonstration of the alleged fall which he was asked to perform in the course of cross‑examination.  Parties have not been able to agree fully upon a verbal description of the demonstration. Ms Chao’s description of that demonstration at §87 of her written closing submissions is in my view a fair one, that:

“ …after the [Subject Outage], as he was walking, his legs were already feeling weak, he stumbled slightly on the rug, and because his legs were weak, he slid down into a squat and fell onto his buttocks.”

(o)  On that version, it was an alleged case of legs going weak, stumbled slightly and the body sliding down into a squat.  It was not a case of “tripped and fell over a rug” (as pleaded in the Endorsement of Claim), nor that P’s “foot was caught by a Persian rug in the living room thereby causing him to stagger and fall and sustain injury to his lower back” (as pleaded in the Statement of Claim), and definitely not a case of he having “tripped over the edge of a Persian rug in the living room” (as claimed in P/WS#1) (emphasis added).

(p)  P is the only person who can tell the Court how he fell.  He did not complain to the police when they were at F4 on that night.  He did not contemporaneously complain to his wife.  He did not seek medical treatment until 17 January 2014.  He pleaded an injury which was an old one.  He has come up with different versions as to how he allegedly fell even on the face of pleadings and his witness statement.  All these inconsistencies in respect of this most important aspect of his case suggests that P is neither a credible nor reliable witness.

73.P as a witness:

(a)  I have observed P closely when he was giving evidence.  He was aggressive, belligerent, hostile, and highly argumentative.  He was vindictive.  He himself said that the installation of the 7 stereo systems were meant to retaliate and to punish, and the noises they created were meant to be offensive.  Those attributes are not conducive towards his reliability as a witness;

(b) Ms Chao accepted[23] that “in the course of his testimony, P made a number of offensive remarks and was highly temperamental”.  She submitted that P’s behaviour should however be:

“ considered in light of P’s old age, the long standing grudges arising from the noise disputes between him and D1’s family (for which he was still angry about), his psychiatric history, and the high stress environment of giving evidence which spanned for 4 days. It is submitted that it is understandable and not uncommon for an elderly person of P’s age and history to display similar behaviours of hyperarousal, stubbornness, irritability and anger.”

(c)  I have considered P’s evidence and his demeanour in the light of those matters.  I however do not accept that those considerations put P in any better light as a witness.  He has little right to be angry about the noise disputes when he was admittedly the one who installed inside purpose‑built Cabinet Housings 14 speakers firing[24] within inches of and towards the F4 ceiling / F5 floor for at least 16 hours per day every day for several years since April 2010 to punish and retaliate, and when he was the one who added “1 or 2” sets of downward facing speakers when the occupants of F3 joined in the LT Proceedings.  In my view, the anger described by Ms Chao in fact further undermines P’s credibility and reliability as a witness.

(d)  I however state again that though demeanour is obviously relevant when considering credibility, I have not given it undue weight.  The matters of primary importance remain the inherent improbability and internal inconsistency of P’s case and evidence which I have set out and explained above. 

74.For the reasons detailed above, I conclude that P is not an honest and credible witness.  Nor is he a reliable witness.

The credibility of D1 and D1’s Wife as witnesses

75.I have considered their evidence.  Their versions of events are inherently probable. I point in particular to their evidence that P was still making noise beyond 11:00pm on 9 January 2014, and that that was the reason why D1 and D2 went to the front door of F4.  That version of events is inherently probable.  I have explained why above.  No material external or internal inconsistencies have been demonstrated by cross‑examination.  Their evidence is further in large part and materially supported by the Noise Logs and contemporaneous correspondence.  They showed restraint when giving evidence, and their reactions were natural and spontaneous.  When it was suggested to D1’s Wife during cross-examination that there was no mat or rug inside F5 which could have muffled the noises of objects dropping onto the floor, she denied the allegation and gave the spontaneous answer that she did not like sitting on hard parquet floor when playing with children.  She denied creating any noises when up taking care of her youngest child, replying again spontaneously that her younger child was an easy baby.  She further said that when she noticed their children doing anything which might create any noise nuisance to neighbours, she would have intervened.    

76.All in all, I find D1 and D1’s Wife to be truthful, honest and reliable witnesses.  I reject P’s evidence in so far as it contradicts the evidence given by D1 and D1’s Wife.

My findings

77.I confine myself to the agreed issues.  On the 1^st, 2^nd and 3^rd agreed issues, I make the following findings of facts:

(a)  P and his wife habitually went back to the Mainland on Tuesday and came back on Thursday;

(b)  9 January 2014 was a Thursday.  As recorded by D1’s Wife in Noise Log Set B, which I accept, on that day:

“ Radio noise distinctly heard by [D1’s Wife] from 3:30 to 5 am — trouble falling asleep again

[P and P’s Wife] return home at 2:00 pm (Mr Mak observed). Two radios turned on extremely loudly into Master Bedroom on different channels — unbearable. [D1’s Wife] had to leave the flat — could be heard in all rooms. Early evening — volume made dinner time conversation difficult.”

(c)  The noises were from the 7 sets of stereo systems with a total of 14 speakers purposely built inside F4 in manners and for purposes which I have stated above;

(d)  At about 6:00pm that day, the noises from F4 was loud, to the extent that conversations between the Donowhos were drown thereby.  D1’s Wife called the police.  Police officers attended F4 at about 9:30pm.  P (or his wife and his helpers) did not open the door[25];

(e)  The radios in F4 were not switched off at 11:00pm and continued very loudly[26]. As described by D1[27], the noise remained invasive.  I specifically reject P’s evidence that he was at that stage watching television at low volume;

(f)  D1’s children could not go to sleep because of the noise;

(g)  D1’s Wife called the police at about 11:15pm.  D2 and his wife came to F5.  He told the Donowhos that they had called the police too, and that their children could not go to sleep either.  D2 said that he was going to go and knock on the front door of F4 and demand the radio be switched off.  He had a magazine in his hand[28]. As described by D1’s Wife in the course of her oral evidence, they thought they had to take action, they could not get to bed, they were exhausted, they wanted to go to bed, they wanted the noise to be off, and had to do something.  They had called the police, and had done everything they possibly could, and so thought in desperation: let’s go and knock on P’s door, if nothing else to vent their frustration of living with all those noises over that period;

(h)  D1 and D2 then went down to F4.  Both of them knocked loudly on the front door.  D2 also kicked at it a couple of times.  D2 was demanding P in Cantonese to cease the noise.  Though D1 did not speak Cantonese, I accept his evidence that he got the very clear impression that that was what D2 was demanding[29]. That would be the most obvious things for D2 to have demanded given the purpose of their visit;

(i)  In §§36 and 38 of P/WS#1, P claimed that:

“ … The banging, kicking and yelling scared and agitated me and I did not know what to do …”

“ … I was feeling increasingly stressed and rather shaken by the events …”

(j)  I specifically reject P’s evidence and account that he was in any way scared, agitated, stressed or shaken by the knocking and kicking of his door by D1 and D2.  I draw the inference and find that P knew why D1 and D2 were knocking on his door.  He knew that they were asking him to cease the noise. If he were in any way scared, agitated, stressed or shaken, he could have and should have ceased the noise.  He chose not to.  P explained in evidence that the stereo systems could be remotely controlled.  Had he wanted to turn them off or the volume down, he could easily have done so.  He remained belligerent and vindictive.  As recorded by D1’s Wife in Noise Log Set C, which I accept, P caused “Loud blasts at ~11:45, 11:55, 11:57”.  D1’s Wife explained in her evidence that the sign “~” means approximately;

(k)  As described by D1 at §33 of D1/WS#1, which I accept:

“ The Noise Nuisance remained very loud. We were all upset that [P] would not turn off his radios as it was now past 11:30 pm. We all wanted to put a stop to the Noise Nuisance so our families could get some sleep. Since it was clear that [P] wasn’t going to stop the Noise Nuisance emanating from [F4], [D2] said that he wanted to turn off the electricity to [F4] but there was a cover to the master switch. [D2] and I decided to go down and take a look.”

(l)  D1 and D2 did go down to where the mains switch of F4 was and together successfully switched it off;

(m)  As to what happened to P inside F4 during the Subject Outage, only P could tell this Court.  I have explained why I have found that P is not an honest, credible or reliable witness.  I do not accept his evidence in that regard.  I do not even accept that he happened to be on his feet making his way to the door when the Subject Outage occurred;

(n)  P claimed in §38 of P/WS#1 that “soon after he got up”, the Subject Outage occurred.  He said in §39 of P/WS#1 that “whilst I was stressed and disorientated by the [Subject Outage], I tripped over the edge of a Persian rug in the living room, staggered and fell onto the floor”.  I do not accept his evidence that he was stressed or disorientated as alleged.  I further do not accept his evidence that he had “tripped over the edge of a Persian rug in the living room, staggered and fell onto the floor” as alleged.  I have explained above the glaring inconsistencies surrounding his evidence on this material issue;  

(o)  The police later arrived at F4.  As to what happened then, I accept D1’s evidence at §§35 and 36 of D1/WS#1, that

“ 35. [P] finally opened his front door and stood in his doorway with his wife and a maid swearing loudly at me in English saying such things as ‘You fucking criminal’ ‘I will sue you for this’ ‘There’s a black mark on the door’ and ‘I’ll get you’. The Police Officer said something to [P] and his wife in Cantonese. It seemed he was trying to get them to calm down.

36. Without warning, [P] seemed to snap suddenly. He leapt towards me, with his hand raised and holding a substantial 6”‑8” long torch. I stepped back and raised my right arm to protect myself. [P] brought the torch down and the blow struck my hand with a substantial thump. Had I not stepped back and protected myself with my arm, the blow would have hit my head or face …”

(p)  In that regard, I specifically reject P’s evidence at §41 of P/WS#1 that “I was holding a small torch at that time and, at one point, I accidentally brushed it against [D1’s] hand ” (emphasis added).  No particulars have been provided as to how his torch would have somehow “accidentally” brushed against D1’s hand;

(q)  P did not make any complaint to the attending police officers in respect of his alleged fall or injury;

(r)  The L3 Fracture pleaded in the Statement of Claim is an old wound;

(s)  In the light of the fact that the L3 Fracture was an old wound, Ms Chao relied on certain soft tissue injury that was found on P.  She submitted[30] that:

“ The Ortho Experts agree that, if the Incident did happen, P did suffer from a soft tissue injury to the lower back as a result of the Incident.” (emphasis added)

(t)  I am not satisfied that P is able to prove that “the Incident did happen”.  I am not satisfied that any soft tissue injury that might have been found on P has been proved to be related to the events that took place on 9/10 January 2014;

(u)  I am not satisfied that P has established the “serious back injury” pleaded in Endorsement of Claim or the Statement of Claim.  I am in fact not satisfied that he has established any “back injury” arising from the events that night, serious or otherwise.  Not being satisfied with the existence of its genesis, I am therefore also not satisfied that there has been any “psychiatric sequalae” as pleaded and claimed.

The psychiatric evidence

78.As I have recorded above, Ms Chao has accepted that P’s pleaded case was linked to the alleged fall (the Stagger and Fall Limb), and that if there has been no fall, even if the medical evidence suggests any psychiatric issues like PTSD or adjustment disorder on P’s part (the Stress & Disorientation Limb), such medical evidence cannot independent of any fall and back injury support P’s claim.

79.On that concession, and with my findings relating to the alleged fall, the psychiatric evidence has become quite irrelevant.

80.In any event, I have now rejected P’s evidence and account that he was in any way scared, agitated, stressed or shaken by the knocking and kicking of his door by D1 and D2.  I have found that despite the knocking and kicking, he remained belligerent and vindictive.  I also do not accept his account that he was stressed or disorientated by the Subject Outage.  As stated by Ms Chao in her written closing submissions, “[the] Psych Experts are required to base their diagnosis and assessment of P by what he says”[31], and in reciting the evidence of Dr CK Wong, “fact finding is a matter for the Court”.  This Court has now made the findings, as set out above. The Stress & Disorientation Limb in any event has nothing to stand on.

81.Given the way P’s case has been pleaded, and given my findings on facts above, there is no need for me to consider in any detail the psychiatric evidence of the specialist psychiatrists.  I in fact should not as their opinion was based upon P’s account which I have now rejected. Having heard the evidence, I simply express the following views on the issue of PTSD:

(a)  Dr CK Wong, the specialist psychiatrist called by P, opined that P suffered from PTSD;

(b)  Psychiatrists, in making diagnosis of PTSD, are recommended to apply the “Diagnostic Criteria for Posttraumatic Stress Disorder According to Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition” (“DSM-V”);

(c)  Whilst DSM‑V contains a number of criteria, the satisfaction of Criterion A is essential.  Even other criteria may have been satisfied, it matters not if Criterion A is not satisfied.  Dr CK Wong agreed with this; 

(d)  Criterion A of DSM‑V is, inter alia:

“ A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:

1. Directly experiencing the traumatic events(s).

…

4. Experiencing repeated or extreme exposure to aversive details of the traumatic events(s) (e.g. first responders collecting human remains; police officers repeatedly exposed to details of child abuse).”     

(e)  As summarized by Ms Chao at §218 of her written closing submissions, Dr CK Wong opined that Criterion A(1) was satisfied, and that “it is important to note that from a psychiatric view, this criterion is satisfied upon the subjective perception of P, even if it may not be realistic”.

(f)  I do not accept that the events that took place on the night of 9/10 January 2014, whether alone or considered in conjunction with the 4 Earlier Outages, any alleged earlier pounding of the door at F4, and other related matters, could objectively be regarded as any traumatic event in the DSM‑V sense.  I would also have rejected any allegations on the part of P that he subjectively thought them to be so.

(g)  If necessary, I would have rejected Dr CK Wong’s opinion that P had been suffering from PTSD.

The other agreed issues on liability

82.In the light of my findings in relation to the 1^st, 2^nd and 3^rd agreed issues, the other issues are not engaged.  They have become hypothetical, and it will not be appropriate for me to rule on them in a vacuum.

Conclusion on liability

83.For the reasons set out above, I rule against P on the issue of liability.

Quantum

84.The quantum of damages for pain, suffering and loss of amenities, medical expenses etc is factually dependent upon the nature and severity of any injury sustained.  Given my findings above, I do not find it possible to rule on the issue of quantum in a vacuum.

85.In his Revised Statement of Damage, P further claimed that he was an inventor, designer and entrepreneur, that he had been working on a project on the design and development of compact stair‑lifts (the “Project”), but that “[as] a result of the Incident, [P] has suffered, inter alia, restriction to his ambulation in that he could not walk up and down the stairs freely, which was essential for his work under the Project.  Further, quite apart from physical impairment, the psychological sequalae arising from the Incident including but not limited to panic anxiety symptoms have affected his sleep and mental stamina”[32]. It was then alleged that the Project had to be suspended, leading to loss of profit by way of a loss of chance in the sum of HK$5,000,000.

86.Again, this limb of the claim is factually dependent upon the alleged “restriction on [P’s] ambulation” and the alleged “psychological sequalae”, and the extent to which they might have impacted on the Project.  I do not deem it appropriate to rule on the matter in a vacuum.

The evidence admitted on a de bene esse basis

87.The first area of dispute related to P/WS#2 and D1/WS#2.  P/WS#2 related principally to various aspects of the Project, and D1/WS#1 D1’s reply thereto. Having heard the evidence, I rule that the contents of P/WS#2 could have been relevant to the issue of quantum, and could be taken as evidence from P based upon his own knowledge of and experience on the matters concerned.  I rule them in.  Having ruled then in, I accept Mr Hingorani’s submission[33] that D1 should be afforded the opportunity to reply on D1/WS#2 as the matters covered are ones of common sense.  I also rule them in.  Ultimately, it is a matter of weight, which has become academic given my ruling on liability.

88.The other area of dispute relates to certain parts of Newburn’s witness statement and the surveillance report he produced.  I have viewed the video clips and the contents of the surveillance.  Whilst I find them admissible as being potentially relevant, I find them to be of little assistance. I place little weight on them, and have not relied on them when reaching my decisions above.

Disposal

89.For the reasons set out above, I dismiss P’s claim in its entirety.

Costs

90.I make a costs order nisi that D1 and D2 shall have the costs of the action (but excluding at this stage the costs of and relating to D1’s Counterclaim, which costs I reserve, as the Counterclaim has been stayed), including the costs I reserved on 11 July 2019.  The costs are to be taxed if not agreed.  Any application for variation should be made within 14 days from the date hereof, submission in response within 7 days of receipt, and reply within another 7 days.

Ms Jolie Chao and Ms Stephanie Hung, instructed by Haldanes, for the Plaintiff

Mr Jeevan Hingorani, instructed by Tanner De Witt, for the 1^st Defendant

Mr Frederick Fong, instructed by Joseph Leung & Associates, for the 2^nd Defendant