Cheung Yuk Ha v. Choi Wan St. Joseph’s Primary School and Another

HCPI 377/2019

[2023] HKCFI 313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 377 OF 2019

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BETWEEN

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Before: Deputy High Court Judge Leung in Chambers

Date of Hearing: 1 November 2022

Date of Decision: 1 February 2023

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DECISION

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1.The plaintiff applied for leave to adduce expert evidence on liability, namely that from a clinical psychologist. The attempt failed before the master. She now appeals.

BACKGROUND

2.At the material time, the plaintiff was on duty as a primary school teacher under the employ of the 1^st defendant, of which the 2^nd defendant was and is responsible for the management and operation. She commenced the present action for injuries inflicted by a primary 2 student (“the Student”) during a lesson in her class on 28 October 2016. The Student was then known to have Attention Deficit Hyperactivity Disorder (“ADHD”). The injuries consisted of an 8 cm long scratch on her arm by a pencil and abrasion on her abdomen but her major complaint now is psychiatric injury.

3.The plaintiff claims that the defendants owed her but were in breach of their duty of care, which caused the incident. In her statement of claim, the plaintiff formulated her claim on the following factual basis:

(1) In the school year of 2014, the plaintiff’s right hand had been bitten by another primary 4 student with ADHD in the course of her duty at the school premises. This was reported to the defendants.

(2) The Student started at the 1^st defendant in school year of 2015. He was known to have ADHD and a history of emotional problem and aggressive behaviour.

(3) Since the start of the school year of 2016, the Student had on the various dates acted in a disorderly manner with loss of temper during lessons in the classroom, snatched and sabotaged the personal belongings of his classmates and teachers as well as demonstrated aggression towards his classmates and teachers.

(4) Regarding aggression towards his classmates and teachers, the Student is said to have hit the hand of a classmate on 4 October 2016, hit the heads of his classmates and pushed his desk forward to bump against the teacher’s desk in the front on 11 October 2016 as well as kicked and hit the teacher on 24 October 2016.

(5) The defendants are said to have been in breach of their duties in tort as well as under the employment contract and the statute, which caused the incident and her injuries. Broad allegations aside, the particulars of negligence on the part of the defendants that were pleaded are essentially:

(a) failing to heed the plaintiff’s complaint/report of the incidents mentioned in (1), (3) and (4) above, to make suitable enquiry and to take remedial action and preventive measures to avoid similar incident(s) of aggression by student(s) with ADHD and aggressive behaviour to recur;

(b) failing to set up and operate a reasonable and sufficient adequate system to deal with and manage aggressive behaviour of student(s) with ADHD and in particular the Student;

(c) failing to give the plaintiff any or any adequate instructions and training in techniques to deal with and to manage the emotional problem and aggressive behaviour of the student(s) with ADHD and in particular the Student;

(d) failing to make suitable and sufficient assessment of the risk of injury that might be caused to the plaintiff and her colleague(s) by student(s) with ADHD and aggressive behaviour and in particular the Student;

(e) failing to ensure that the Student had been receiving proper medical treatment on ADHD as well as his emotional problem and aggressive behaviour and that he was given proper medication (if any) during the school hours; and

(f) failing to take reasonable and sufficient steps to prevent repeated incidents of aggression by student(s) with ADHD and aggressive behaviour and in particular the Student.

(6) As to statutory duty, the plaintiff relies on section 6 of the Occupational Safety and Health Ordinance, Cap 509, under which the duty of the employer to provide a safe system of work, instruction and training as well as safe working environment is said to been breached on the part of the defendants. As to the alleged breach of contract, the same particulars of breach under the other heads are repeated.

4.In defence, the defendants put the plaintiff to proof of the incident and her alleged injury. Whilst the Student was known to have ADHD at the time, the plaintiff is put to proof of his behaviour as alleged. If the incident in question happened as alleged, the defendants denies that it was reasonably foreseeable at the time. In any event, the defendants aver that they have conducted training sessions for the staff, including the plaintiff, as well as providing guidelines, instructions and trainings on how to handle students with emotional or behavioural problems. Measures have also been put in place, including:

(1) sound policy and safe system to handle students with special educational needs including students with ADHD such as the Student;

(2) specific instructions and sufficient training to staff, including the plaintiff, in techniques and skills on how to deal with and manage students with ADHD, including the Student;

(3) specific guidelines on how to handle students who lost control of their emotion;

(4) proper assessment of risk of injury to the staff, including the plaintiff, posed by students with ADHD such as the Student;

(5) proper enquiry, close monitor and due record of reported behaviours of the Student;

(6) remedial action and preventive measures to ensure behavioural problems of the Student, if any, would not recur;

(7) communication with the parents of the Student to keep track of his medical condition and treatment; and

(8) accommodation of the individual teaching needs of staff, including the plaintiff, and provision of necessary support.

5.The defendants also aver that the plaintiff has sufficient knowledge, experience and skills at the material time to handle students with ADHD such as the Student. Contributory negligence is also alleged.

6.The plaintiff has raised the issue of expert evidence on liability at an early stage. The plaintiff indicated the intention to adduce such evidence after the filing of the statement of claim. Correspondence between the parties and directions of the master since mid-2020 followed with a view to ascertaining the purpose and scope of the expert evidence on liability sought to be adduced by the plaintiff.

7.In view of the defendants’ objection, the plaintiff would have to take out a formal application for leave to adduce the intended expert evidence on liability. This she did but only after actually obtaining the expert report of Dr Sammy Cheng (“Dr Cheng”), clinical psychologist, dated 23 July 2021 (“the Report”). Eventually she filed her summons on 13 August 2021 for leave to adduce the Report. The application was later agreed to be disposed of on paper only by the master.

8.On 28 June 2022, the master gave her decision whereby she dismissed the application with costs.

9.By notice of appeal filed on 4 July 2022, the plaintiff appeals against the master’s decision.

THE PRINCIPLES

10.As an appeal under O58, r(1) of the Rules of the High Court, Cap 4A, this is a re-hearing of the application before the master. The judge will give the weight it deserves to the decision of the master but is in no way bound by it: see Hong Kong Civil Procedure 2023 (Vol. 1) at §58/1/2.

11.For leave to be granted to adduce expert evidence, there are the following considerations:

(1) The proposed expert evidence must be relevant and reasonably necessary for resolving the issues for determination at trial.

(2) The burden is on the applicant to show the proposed expert evidence is required for the above reasons for resolving the issues in dispute.

(3) After the implementation of the Civil Justice Reform, the court can also take into account the probative value of an expert report in exercising the case management power of deciding whether or not to grant leave to adduce it.

(4) The previously more relaxed approach of granting leave for expert evidence when the court cannot form a clear view on relevance is no longer applicable, and if the applicant for expert directions fails to persuade the court on relevance and necessity of such evidence, the application should be dismissed.

See Thapa Kamala v Tang Wing Kit [2021] 2 HKLRD 757 at §§57-61; Wong Hoi Fung v American International Assurance Co (Bermuda) Limited [2002] 4 HKC 225 at §12.

WHY THE PLAINTIFF SAYS EXPERT EVIDENCE ON LIABILITY FROM A CLINICAL PSYCHOLOGIST IS NECESSARY

12.As confirmed to the master back in September 2021, the plaintiff says that the following issues in the present case call for expert evidence on liability and that from a clinical psychologist:

(1) The degree of seriousness of ADHD suffered by the Student in light of the history of his aggressive behaviour (Issue 1).

(2) The appropriate measures to manage, curb or control the aggressive behaviour of the Student (Issue 2).

(3) The special training to teachers to cope with the Student’s behavioural issues (Issue 3).

(4) Preventive measures that could be taken to deal with the Student’s aggressive behaviour (Issue 4).

(5) The extent that the Operation Guide on the Whole School Approach to Integrated Education issued by the Education Bureau (the “Guide”) is applicable to deal with the Student (Issue 5).

(6) Whether the Tier-3 support model of the Guide (“the Support Model”) should apply to the Student (Issue 6).

(7) Whether the Student should be classified as a student with severe or multiple disabilities that cannot adopt to ordinary school life despite intensive support is provided, and whether he should be referred to the Education Bureau for placement in special school for intensive support services (Issue 7).

ISSUE 1

13.That the Student suffered from ADHD at the material time is not in dispute. As mentioned, the plaintiff’s case is that the defendants knew at the material time not only that the Student has ADHD but also his history of emotional problem and aggressive behaviour. The state of knowledge on the part of the defendants is based on the alleged reports of incidents both of violence by another student with ADHD against her in 2014 and the various instances of aggression and violence by the Student against his classmates and other teachers in 2016. The defendants are said to have failed their duties in, amongst other things, paying sufficient, if any, heed to those reports and taking appropriate steps to essentially ensure the safety of the teaching staff including the plaintiff.

14.Putting aside their denial and non-admission of those previous incidents pleaded by the plaintiff, what the defendants put in issue by way of defence is whether they were indeed in breach in view of those previous incidents, if proved by the plaintiff.

15.In other words, the issue is never what risk the Student with ADHD might pose to others or how serious such risk, if materialized, could turn out to be in terms of aggression and violence to others. The issue is whether the defendants have failed to do what should have reasonably been done in view of those alleged incidents to ensure that the teaching staff, including the plaintiff, would be safe from such aggression and violence from the Student in the course of their duties.

16.The plaintiff intends to adduce the Report in which Dr Cheng stated his opinion about the nature and symptoms of ADHD as well as the level of hyperactivity or impulsivity, and thus propensity to aggression, of the Student. That is not relevant. According to the pleadings, the relevant issues are firstly the actual previous manifestation of the condition of the Student in his conduct and secondly, what the defendants should have reasonably done in view of the alleged record of such previous conduct of the Student. Whether the defendants were in breach depends on whether what they have allegedly done, also as pleaded, reasonably sufficed to ensure the safety of the teaching staff including the plaintiff in the circumstances.

17.Much is said on behalf of the defendants about the limitations of Dr Cheng’s assessment and opinion. The major limitation lies in the insufficient or incomplete information about the Student particularly in the absence of actual assessment of the Student in person. That primarily was the result of the fact that the Student is a third party to the present action. It would appear to me that proper assessment may also entail interview with or information from the family members of the Student. As to the information obtainable from the available materials, including the documents such as the court documents, there are as expected discrepancies which the expert was not in a position to resolve. Dr Cheng fairly acknowledged those limitations and hence his caveat in his opinion. The defendants say that serious doubt is cast on the probative value of his evidence. That is the case if such evidence is relevant in the first place.

18.The plaintiff attributes the blame for the incomplete information basis for Dr Cheng’s opinion to the defendants’ refusal to accede to her previous request for the Student’s medical records for the period between September 2015 and October 2016. Somehow, the parties sought to turn this into an occasion of arguing whether the plaintiff is entitled to the discovery of those medical records and whether the defendants have them in their possession. They argue whether the defendants have control of the documents and power to disclose them, if they exist, in view of the protection of personal data of the Student under the Personal Data (Privacy) Ordinance, Cap 486. The plaintiff also argues that if the present application is allowed, consequential direction may be made for the specific discovery of the medical records of the Students so that the same may be provided to the experts (of both sides) for further consideration.

19.However, the fact is that there has been no application for discovery of the documents mentioned above. Nevertheless, the plaintiff proceeded to obtain and now seeks to adduce the Report prepared on the basis of the information available without those documents. Before this court are the issues of relevance and probative of such evidence in the Report so prepared and as it is.

20.Further, whilst I do not rule out that discovery of medical records for further expert opinion and report may be directed, if the Report is allowed to be adduced in the first place, this is different from parking the issue of entitlement to specific discovery now with the pretext of whether such expert evidence should be adduced. The defendants describe that as no different from sneaking in an application for specific discovery through the backdoor. The criticism is not without basis.

21.The defendants also question whether those medical records of the Student, if available, would make a difference in terms of probative value of the existing opinion evidence, in view of Dr Cheng’s caveat about the lack of actual assessment of the Student in person. I share the reservation but need say no more.

22.Back to the evidence in the Report, as it is, Dr Cheng assessed that the Student’s ADHD ranged between moderate and severe level of subtype of hyperactivity or impulsivity with propensity to aggression. In my view, it is neither here nor there. To resolve the issues on liability that the court is expected to resolve as discussed above, proof by the plaintiff of the level of hyperactivity or impulsivity, and thus expert evidence in respect of that, is neither necessary nor of assistance. It will be a matter of finding by the court on the basis of the pleaded facts as may be established by the parties at the trial.

23.Part of the Report concerns autism spectrum disorder (“ASD”), which is said to be an additional psychiatric disorder suffered by the Student. Dr Cheng gave his opinion on its nature and common symptoms as well as, arguably, such diagnosis in respect of the Student. The plaintiff acknowledges that such psychological condition is neither a pleaded particular nor an issue for the expert as confirmed to the master back in 2021. She explains that this was discovered only after exchange of witness statements. However, I note that exchange of witness statements still predated the confirmation to the master.

24.The more pertinent concern remains that about the relevance and probative value of the expert evidence in this respect. The above discussion in respect of relevance of the expert evidence on the seriousness of the ADHD of the Student refers. Dr Cheng made a similar caveat in his evidence on the possible diagnosis of ASD in respect of the Student on account of the incomplete information and lack of assessment in person. Similar caveat was given in respect of the extent to which he managed to comment on the severity of the possible ASD of the Student. In other words, even assuming that the ASD issue is relevant, the probative value of the evidence, as it is, is doubtful.

ISSUES 2, 3 & 4

25.Issues 2, 3 and 4 concern what the defendants should have done to ensure that the plaintiff would be safe in the course of her duties from the risk of aggression and violence by students with ADHD, including the Student.

26.As mentioned, the defendants have pleaded what they have done in this respect. The issue is whether the steps and measures taken by the defendants are established and, if yes, whether they were reasonably sufficient in the circumstances at the material time.

27.Insofar as recommendations for steps and measures to be taken in the circumstances of this case are concerned, there is clear concern about the relevance of the discipline of clinical psychology. No doubt, as he also explained in the Report, Dr Cheng has experience in offering advice to parents and schools, but that does not put him in the category of experts relevant to comment on the measures for the safety of the teaching staff. As discussed, the issue of whether the steps and measures taken by the defendants are established and, if yes, whether they were reasonably sufficient in view of the previous conduct of the Student are very much questions of fact for the court: see for instance Cathay Pacific Airways Limited v Wong Sau Lai [2006] 2 HKLRD 587. Clinical psychologist’s opinion is of doubtful, if any, assistance: see Li Siu Ping and Another v Perfecta Dyeing, Printing & Weaving Works Ltd, DCPI 901/2006 (18 July 2007).

28.If opinion of an expert on psychology is indeed relevant and necessary, I would have thought that a specialist involved with the perspective of the safety of the students and staff in schools consisting of students with ADHD would be more relevant. There should be personnel qualified to give such opinion evidence. The defendants in their witness statements reveal the engagement of educational psychologist. The plaintiff also refers to establishments for students with special education needs. Dr Cheng has experience in offering advice to parents and schools on how to manage students with ADHD apparently from the perspective of the psychological care and management of the subject students. He does not profess or claim expertise in advice from the perspective of safety issues arising out of students with ADHD at school. Nor does his curriculum vitae suggest otherwise.

29.As to the specific recommendations which Dr Cheng made in the Report, they included communication and work between the defendants and the parents of the Student on the behaviour and performance of the Student at school, his medication compliance, intervention of educational psychologist and counsellor as well as structured teaching staff support and training. The defendants have allegedly put in place measures in all of those areas, and they are set out in detail in their witness statements and affirmations for the purpose of the present application. Whether they are proved and, if proved, were reasonably sufficient in the circumstances at the material time will be a matter of finding by the court. If expert opinion is indeed necessary, one from the discipline possessing expertise to comment on those measures would have been relevant, but not a clinical psychologist.

ISSUES 5 & 6

30.The plaintiff seeks to rely on what Dr Cheng stated in the Report on the applicability of the Guide and the Support Model, which are said to provide the measuring scale for the duty of reasonable care on the part of the defendants in the present case.

31.The attempt suffers from lack of relevance from the outset. The Guide and the Support Model are nowhere mentioned in the pleading or witness statement to become an issue of the alleged duty or its measure, and thus breach, in the first place. The plaintiff admits that the alleged relevance of the Guide and the Support Model was discovered only after her pleading has been filed, and the documents were disclosed in March 2021. She argues that if the court is satisfied that they are relevant and the expert evidence in this respect would be of assistance, supplements to her pleading could be incorporated by way of amendment subsequently.

32.Insofar as the approach is concerned, the plaintiff is putting the cart before the horse. As mentioned, relevance and necessity of expert evidence depend on the issues in dispute that need to be resolved. Issues arise out of the pleadings, which include not only the contentions made in the claim but also the answers set out in the defence. In respect of the Guide and the Support Model, the defendants should have their opportunity to study and to plead what they are advised to be the appropriate answer in terms of stance and facts. Only then do the issues in dispute in this respect become crystallised for resolution.

33.Insofar as substance is concerned, there does not seem to be issue of whether or not the Guide was applicable to the defendants’ schooling of the Student. The defendants accept that the Guide published by the Education Bureau is expected to be observed by schools. The preamble of the Code says that all schools have the obligation to admit students with special education needs and to provide them with appropriate support so that their potential could be fully developed.

34.That said, what the Guide provides under such preamble do not seem to be relevant to the dispute in the present case. Apparently, the Guide sets out the guiding principles and strategies in approaching students with special education needs. However, there is no pleaded issue of the lack of or insufficient strategy or approach in teaching or managing students with special education needs giving rise to the risk of aggression or violence by such students such as the Student at the material time. As mentioned, the pleaded case of the plaintiff is that the defendants knew or ought to have known such risk in view of the history of actual aggression and violence from the Student to his classmates and teachers prior to the incident in question. The issue is whether the defendants has taken reasonable steps to protect the staff and students from such risk.

35.In any event, the concern about the appropriate discipline of expert evidence on the education and schooling strategy in connection with students with ADHD and special education needs discussed above is repeated here. No disrespect is meant to Dr Cheng regarding his offering opinion from his experience and good work in advising schools and parents in the management of students with such special needs. I also do not rule out that a clinical psychologist may happen to possess the expertise in commenting on the perspective of effective management of the behaviour and education of the students at school. However, the perspective in issue in the present case is that of ensuring a safe working environment for the teaching staff from the risk of aggression and violence from such students. One would expect that an expert involved in the design of the education and management strategies for schools consisting of students with special education needs or ADHD would be more suitable than a clinical psychologist.

ISSUE 7

36.The plaintiff suggests that the defendants should have assessed whether the Student should be classified as being unable to adopt to ordinary school life so that he should have been referred to the Education Bureau for placement in a special school. Effectively, the plaintiff is suggesting that the Student should not have been present at all at the school at the material time, which the defendants have failed to cause to happen and thus retaining the risk of aggression and violence posed by him to the teaching staff including the plaintiff.

37.If the attempt of the plaintiff is to put the above contention under the umbrella of the plea of the general failure to take any or sufficient steps to avoid the incident, this must be rejected. The above contention is of such nature that calls for particularity in the plea so as to afford the defendants with a fair opportunity to plead to that specifically. This goes to whether the contention is in issue and hence relevance of the expert evidence in this respect.

38.Assuming that such evidence is relevant, the defendants question the probative value of Dr Cheng’s opinion in this respect. Dr Cheng opines that the Student had moderate to high likelihood of inability to adapt to an ordinary school life, and that he should be referred to the Education Bureau for special placement. However, such opinion still suffers from the deficiencies and limitation of the psychological assessment of the Student discussed above. That aside, there are other more practical concerns.

39.First, there is a huge leap from any assessment of likelihood of inability of the Student to adapt to an ordinary school life, which the defendants are said to have failed to carry out, to the removal of the Student to special placement. The instances involving the Student that the plaintiff refers to as the factual basis for contending that the defendants should have carried out the assessment of the need to refer the Student to the Education Bureau for special placement could only be those that were pleaded. They were dated between September and late October 2016, the last of which was 4 days prior to the incident which allegedly caused the plaintiff bodily injury. As pointed out on behalf of the defendants, there are procedures under the Guide to follow from the assessment stage to the referral and eventually to the actual special placement of the subject student. Time would have been required. In my view, it does not take much for one to question how the proposed assessment, even if carried out at the appropriate time in the present case, would have led to the removal of the Student, and thus the risk he posed, from the 1^st defendant so that the incident to the plaintiff on 28 October 2016 could have been prevented.

40.Second, and importantly, it is difficult to perceive that a clinical psychologist would be in a position to give opinion evidence on any matters in the spectrum of the referral and special placement mechanism beyond perhaps the preliminary psychological assessment stage. In the present case, even Dr Cheng’s psychological assessment of the Student was given subject to admitted limitations and caveat. Further caveat must also be given on account of the absence of communication with the parents of the Students and the school in the context of the referral and special placement.

41.The new contention in respect of alleged failure of the defendants to carry out assessment of the Student with a view to referring him to the Education Bureau for consideration of special placement is just irrelevant to the causation of the incident and alleged injury in question. So is the expert evidence of clinical psychologist in this respect.

OTHERS

42.In the submission, the defendants also complain about the delay on the part of the plaintiff in taking out the application and her obtaining expert report on liability other than on a joint basis (citing the observation of the court in Lau Kwai Yin v Tack Hsin Restaurant (London) Ltd & Another [2016] 1 HKLRD 831 at §40). These are facts, but I need to go no further in respect of them, in view of the more pertinent considerations discussed above.

CONCLUSION

43.The master was clearly right in refusing the application before her. The appeal should be dismissed.

COSTS

44.Subsequent to the filing of the notice of appeal, the defendants requested the plaintiff twice for consent to have the appeal disposed of on paper without an oral hearing. Somehow the plaintiff did not care to respond. In view of the agreed manner of disposal of the original application before the master, the nature of the appeal being re-hearing on the basis of the same materials before the master and the fact that the same counsel before the master would be involved in the appeal, it does appear that any difference in terms of the substance and effectiveness of submission by insisting on the oral hearing would be more perceived than real. This is said with no disrespect to counsel who was briefed to attend the oral hearing.

45.The above caused this court to issue a written direction, warning that there might arise an issue of costs or any part of them irrespective of the outcome of the appeal then pending. Now following the outcome of the appeal, the defendants should have the costs of the appeal. That said, the plaintiff is proceeding on public fund and this is still undesirable. This is not the first court pointing out the costs consequence of insisting on oral hearing which could and should be dispensed with, and practitioners are reminded that the court may in appropriate circumstances direct them to show cause why such costs that should have been saved should not be borne by them personally.

ORDER

46.The appeal is dismissed.

47.I make a nisi order that the costs of and occasioned by the appeal be to the defendants. In the absence of application in 14 days to vary, the nisi order will become absolute without further order; and upon that, the defendants shall lodge and serve in 7 days their statement of costs for summary assessment while the plaintiff may lodge and serve her comment in 7 days thereafter. Costs will then be summarily assessed on paper only.

Mr Wong Chi Kwong, instructed by Philip S W Chan & Co, assigned by Director of Legal Aid, for the plaintiff

Mr Gary Chung, instructed by Deacons, for the 1^st and 2^nd defendants