Cheung Yee Mong Edmond v. So Kwok Yan, Bernard t/a Gloria English School and Another
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HCPI000574/1995 MPI/LA 11631/96 (D12) IN THE SUPREME COURT OF HONG KONG HIGH COURT ____________
____________ Coram: The Hon. Mr. Justice Seagroatt Dates of Hearing: 13, 14, 15, 18, 19, 20, 21, 22, 25, 26, 27, 28, Date of Delivery of Judgment: 14 May 1996 _______________ J U D G M E N T _______________ The Plaintiff 1. Edmond Cheung Yee-mong is a 13 year old schoolboy who lives in Vancouver with his parents. He is the only child and is unlike the overwhelming majority of schoolboys. He is on many occasions unwilling to attend school, he cannot bear being touched by his fellow pupils, and is averse to physical contact with his parents. He has obsessive rituals in which he seeks to wash or cleanse himself of any possible taint or contact with his body or clothing. He receives regular therapy and psychiatric supervision. He has in fact been under the care of the Richmond Mental Health team since approximately November 1992. He suffers from a condition diagnosed as Obsessive Compulsive Disorder. I shall refer to this condition in future by the abbreviation adopted in this case, OCD. 2. Edmond is intellectually reasonably well-endowed, and in due course I shall review his background of intelligence and educational progress. At present, he is in Hong Kong, having accompanied his parents on the flight from Canada, they needing to be here for this action on his behalf claiming damages for him for personal injuries. 3. In order to enable him to cope with the flight and his stay in a hotel here, he has been prescribed medication which is essentially of a sedating type to help relieve his anxiety. It was not possible for him to stay behind in Canada because he cannot be left without at least one of his parents being in close contact. By reason of a circumstance to be examined later, the rapport which had developed slowly over a long time with his therapist, Miss Winnie Ting, has been significantly disrupted. Once I had seen the video of his interview, if that is the right word, with Dr. William Green, in February of this year, I realised that there was no prospect of his entering this court room to give evidence, and I am satisfied that there was nothing to be gained by seeking to persuade him in any way, or by my seeing him. Whatever the diagnosis, whatever the cause, this 13 year is an extremely disturbed boy, though it may be that some of the apprehensions as to his capacity for physical self-harm, in the past, are extreme and excessively pessimistic. 4. What has brought this boy to his current state and the very guarded but essentially poor prognosis for his future? It is necessary to look at his background. The Early Years 5. As far as can be ascertained and accepting the evidence adduced, Edmond was a normal baby who developed through the usual milestones without any notable interruption or illness. There is no known history of any psychiatric disturbance or significant psychological upset within the family. 6. The Primary/Kindergarten report for the year 1988/1989, when Edmond was 5 years of age, reaching 6 years of age at the end of that year, shows very good grades for the majority of the academic subjects, both Chinese and English, ranging from the good to the excellent with the latter assessment predominating. There is no "average" assessment in any subject. His lowest assessment, a 'B' (Good), is in Games. 7. There are also assessments in Character Education, some of which are extremely difficult to make, and essentially arbitrary in my view in the case of a 5 - 6 year old, such as: leadership, but I note he has high grades (A) for assiduity, friendliness and understanding. That is not to say of course that he may not be subject to the occasional moods of naughtiness, defiance and distraction to which any normal child is subject in these early years. He had only 5 days away from school in that year. He "graduated" from the Kindergarten at the Gloria English Primary School and Kindergarten at the end of that academic year and moved into Primary 1A for the academic year 1989-90. 8. An examination of the assessment at the end of this year shows a wider variation of grades but still essentially good to excellent on the academic side in both Chinese and English subjects, ranging for the most part from good to very good. The odd C (fair) has crept in however. The assessments for physical education have worsened showing a 'D' (poor/fail) and a 'C' (fair). His overall assessment is "quite intelligent, conduct is also good." The character assessments are also in the range "good" to "very good." He was absent for only one day. His overall position showed quite a good level in tests but dropping away to some extent in examinations, in the second term. Nonetheless, he went into Primary 2A for the next academic year 1990/91. This was the academic year in which the incident occurred, at the beginning of the third (summer) session. It does not therefore give a complete picture. 9. He again falls away to some extent in examinations at the end of the first term and a comparison of the previous years two terms and this term show him dropping from the top 19% to 27% and then to 40%. That may not in itself be significant. His physical education assessment is 'B' (Good). His character assessments nonetheless show high grades. The First Defendants 10. These reports were made by the teachers at the Gloria English School at which school Edmond had been a pupil since September 1986 when he was 3 years old. In addition to such reports I have heard oral evidence from two of Edmond's teachers: Mme. Chu Shang Wai who was his class teacher in Primary 2 (1990/91 academic year) and Mme. Lam Mei Chun who joined the school in the year that Edmond joined the Kindergarten, September 1986. She had taught Edmond in both Primary 1 and 2. 11. Mme. Chu spoke of his being a quiet and timid boy crying easily when the class was scolded, and not participating to any extent in class contribution. Mme. Lam also thought him a quiet and nervous boy who did not have much contact with his peers. These comments do not sit easily with the Kindergarten assessments of his character but then the Primary School assessments do not deal with such aspects. Mme. Lam also spoke of a series of complaints from Edmond's mother about Edmond being bullied by his class-mates, and about his school performance. Her inquiries into these complaints revealed that perhaps Edmond did not enjoy contact with his class-mates, kept himself very much to himself, and did not respond well to their teasing and joking behaviour. That picture, if true, is not an unknown one, many young children being fairly self-contained or isolated from their more extrovert peers at an early stage. To what extent it is helpful or significant in the issues which I have to resolve is not entirely clear, but certainly one feature referred to by those two teachers, contrasts strongly with the state, described by others, on 16th April, as I shall review. The Second Defendant 12. Mr. Ko was Edmond's teacher of Health Education or Science in Primary 2. He had joined the school in September 1990. He was about 24/25 years of age then. He was employed to teach a number of Chinese subjects apart from Health Education. He was not a registered teacher but the school obtained a Permit to Employ an Unregistered Teacher from the Director of Education on 14th March 1991, a month before this incident. After this incident, he resigned his post with effect from the end of the academic year. It seems to me that that event was contrived by the school and that I should not draw any inference from it adverse to Mr. Ko. 13. In this action, Mr. Ko has represented himself. He was refused Legal Aid. His former employers are represented by Solicitors and Counsel. They contend that they are not vicariously liable for Mr. Ko's actions which they contend in any event, did not amount to an assault. The Incident of 16th April 1991 14. Sometime before 5 p.m. on this Tuesday during the last lesson of the day, Edmond's class was receiving instruction in Health Education from Mr. Ko. 15. At some stage of the lesson, a number of pupils was talking and apparently not listening to Mr. Ko. It is common ground that Edmond was not one of those talking. Mr. Ko instructed the whole class to cover their mouths with their hands. All complied except Edmond and possibly another. What happened next is crucial to this action and to what I have to decide. Apart from the oral evidence of Mr. Ko and two members of Edmond's class, there is a record of the school's inquiry at the request of the Education Department and a number of reasonably contemporaneous statements made to Police Officers when they conducted an investigation following a complaint to the Police by Edmond's mother in mid to late May. In addition, there is a summary of events by the Education Department Investigation Committee, which is of course essentially hearsay, and a signed letter from Mr. Ko (dated on or about the 7th May 1991) in Chinese, which has been translated, which purports to set out what occurred. I do not know to what extent that letter has been influenced by the school's representatives who were undoubtedly anxious to ensure that (1) if there were any fault it lay with Mr. Ko and (2) that they no longer had his services in view, in particular, of the adverse publicity which resulted from the contact with the press and the Police investigation. That letter pre-dated the Police statements. His actual letter of resignation followed the Police inquiry. 16. I have had to make my findings of fact on five types of evidence:
17. Inevitably there are inconsistencies which I have to resolve. 18. I start with the evidence of Mme. Cheung as to what she alleges Mr. Ko told her directly in, essentially, a telephone conversation. Her version was that - he admitted being angry, saying he could not control himself and that Edmond did not comply with a request to cover his mouth. Mr. Ko denies this but accepts that he may well have said that he was sorry, that he did not mean to hurt him, that his head first went back and hit a chair, that he tried to hold his head but it was too late. Mme. Cheung's version of that telephone conversation if correct is capable of supporting the inference that Mr. Ko was admitting he had done something which he regretted in a fit of temper when he lost his self-control. 19. On the 20th May, at the request of the Education Department the school carried out an investigation. I have no doubt that but for the Department's request it would not have done so. Hitherto, as I shall deal with later, it was too much concerned with pacifying Mme. Cheung involving itself in the medical treatment of Edmond, and putting all the blame on Mr. Ko, and securing his resignation, and even prejudicing his position, no doubt in a sense of panic, and with poor judgment. Although however a month had elapsed before they got down to the task of doing what they should have done at the outset, they did establish, an inquiry in which a number of Edmond's class-mates were questioned as to what occurred in the classroom, and a contemporaneous note was taken by the teacher in charge of discipline Mme. M.H. Chan. I accept her evidence that the pupils were called in for questioning individually, and that she made accurate notes of the questions and answers which she then accurately wrote up into a 'fair' copy that same night. It is probably the only reliable document emanating from the school. 20. In examining that record I have looked for inconsistencies in the evidence, and anything to suggest the pupils were primed, led into agreeing with a version put to them, or for some reason over sympathetic to, or overawed by Mr. Ko, or fearful lest they let the school down. 21. Three of the five interviewed said they saw what happened. The picture was: Mr. Ko wanted all the students to cover their mouths with their hands because they were too noisy. Edmond did not obey. He was sitting sideways with his legs up. Mr. Ko tried to persuade him to cover his mouth but he ignored him. So Mr. Ko grabbed hold of his (Edmond's) hand to cover his mouth. Edmond tried to dodge and bent his head upward and backwards. Edmond then cried. 22. Of those three students two were called to give evidence. The one who was able to recollect, in any detail what had occurred some five years ago now, was Ng Win Man, known as Maggie. She was robust and forthright. She recalled Mr. Ko also telling Edmond to put his knees or legs down. Edmond did not do anything. Mr. Ko caught hold of his hand to cover his mouth but Edmond would not let him and moved his hands about, struggled and moved his head which struck the desk behind. Mr. Ko held his head and massaged his neck. Mr. Ko had not pushed Edmond's hand against his face. Edmond was turning his head away to avoid it. 23. The second student, "Tommy", Hung Fan Wai, could remember little of the detail but said whatever was in his statement to the Police was his truthful recollection at the time. 24. It is helpful to consider the statements made to the Police by the pupils, following the complaint by Mme. Cheung, to test the reliability of the accounts given at the various stages. 25. Maggie's statement to the Police, made in the presence of her father, was entirely consistent with her evidence in this case and what she had said at the school inquiry some three days earlier. Mr. Ko to Edmond had said: "Please cover your mouth and don't put your leg on the desk. I saw Edmond ... still bending both his knees and pushing them against the desk, still ignoring Mr. Ko. At that time, Mr. Ko walked up to the side of [Edmond's] seat, used his hand to catch firmly [Edmond's] right hand to press hard [Edmond's] to cover own mouth. And [Edmond] twisted his head to and fro to avoid his mouth being covered and also his head banged on the wooden chair ... which he was twisting his head backwards and he cried in a very loud voice." 26. She was asked a number of questions about Mr. Ko's use of discipline. Nothing of what she said indicated that he had any problem controlling a class or used any untoward means of discipline. 27. The statement made by Tommy in the presence of his mother was entirely consistent with Maggie's account. Tommy was the other pupil called on behalf of the first Defendant who had little recall of the details some five years later. 28. Law Siu Sing, another class-mate, but one who did not tell the school inquiry his version, probably because he had had some altercation with Edmond in a music lesson prior to this incident, confirmed the picture portrayed by his class-mates in all material respects. 29. Mr. Ko was also seen by the Police and he too made a detailed statement. What he said about the incident was entirely consistent with the description given by the other pupils to whom I have referred. There is no part of his statement which calls for any closer examination or mentions any matter which would give rise to any reservation about what he did, or why he did it. 30. It is of course clear that the picture so far conveyed is quite different from that given by Edmond in his detailed statement to the Police on the 21st May in the presence of his mother. Because he has not given evidence, and I make it clear that his condition makes it impossible for him to face the environment of this court let alone be cross-examined, I need to set out the relevant part of that statement which is contained in paragraphs 3 and 4 :
31. This is basically what Mme. Cheung said that Edmond related to her, and it is the consistent thread of his allegation throughout the course of his medical and psychiatric treatment. If it is true or he establishes to my satisfaction on the balance of probabilities that that is probably what happened it would constitute an unacceptable level of discipline exerted upon a 7 year old pupil, and an assault. No-one I anticipate would describe it as other than excessive correction or enforced compliance. It would also of course be difficult to imagine that a caring and self-disciplined teacher would carry out such an assault on a pupil of any age let alone one of such tender years. 32. Mr. Ko gave evidence and the material part of it of course concerns what actually took place in the classroom on that Tuesday afternoon during the last part of the last lesson when pupils are perhaps more restive than usual, looking forward to the end of the day and the return home. 33. At some late stage during reading in unison from the text-book, certain pupils started to 'play up', and that developed into talking and perhaps giggling. It was distracting for other pupils. Some others started to join in, a known infectious reaction amongst older pupils let alone the young high-spirited ones whose attention span at that stage of the day was stretched to the limit. A statement of his version of what occurred was written on or about the 7th May and sent to the Education Department. The relevant part of it according to the English translation runs as follows :
That is to be compared to the material part of his statement to the Police some 2-3 weeks later :
34. Between those two accounts, there is no material difference save that in the latter there is no mention of his holding Edmond's head with his other hand as he sought to bring Edmond's hand to cover his mouth. I have to consider carefully whether that is a material matter and I shall do so shortly, but before I do so, I must comment upon Mr. Ko's proof of evidence. It was compiled with the assistance of a friend who clearly had some practical legal experience, most probably in a solicitor's office. Mr. Ko read out his statement made to the Education Department to the friend who composed an English translation of it, in the form of a proof of evidence which was then translated back into Cantonese for Mr. Ko's approval. It is easy to see how unsatisfactory that procedure is and in saying that I do not criticise anyone. Mr. Ko laboured under the disadvantage of not having lawyers to represent his interest. I consider it is safer to place no reliance upon that purported proof of evidence but to rely upon the reasonably contemporaneous accounts as the documents which most honestly reflect his version of events. 35. Into the equation in order to determine where the truth lies comes his evidence on oath. 36. A number of pupils was talking whilst he was seeking to involve them in reading from the book. This distraction developed so that the majority of the class caught the fever and for a time a little chaos reigned. He required all to cover their mouths with their hands. This was an eminently reasonable course to take. Edmond had not responded to the request. Either he did not hear, or he thought the instruction did not apply to him. He was sitting with his knees up against the edge of the desk and flicking through the pages of his textbook. Mr. Ko told him by word or gesture to look at the pupil next to him, who clearly had complied with the instruction. Although Edmond looked at this pupil he did not comply. He did not obey the oral instruction. Nor did he put his knees down, which he was also instructed to do. Mr. Ko then took his hand and put it to his mouth - he formed the view that his hand actually came into contact with his mouth. He said he then returned to his teaching, saw that his knees were down and shortly after was informed by another pupil that Edmond was crying. He walked over to him and rubbed his neck. 37. This version is different from his earlier written versions in that there appears to be a gap in his memory from the time when he picked up his hand to cover his mouth. When he was cross-examined about what he had said in the earlier statements about Edmond twisting his head to and fro, he said that this was the impression he had at the time, it all took place quickly. He felt at the time that Edmond did not want to cover his mouth. He was not sure to what extent Edmond put up resistance. He could not remember clearly if his other hand was holding the back of Edmond's head. He agreed his first account was probably the most accurate one. He was certainly not saying that Edmond put up any resistance to what he was trying to get him to do. He said he did not push his hand against his mouth. He was saying in relation to the reaction of Edmond to having his hand brought to cover his mouth that he could not now remember the details as described by him in earlier statements. 38. The picture emerging from the body of evidence of the pupils and of Mr. Ko, which I accept, as the reliable and truthful one, is of a class becoming progressively noisy towards the end of the last lesson of the afternoon. It was not in my view chaotic in the sense that all was disorder, but the overall disciplined control had gone, albeit temporarily. Mr. Ko tried to recover the position and succeeded. The method he used is a time-honoured one - the whole class, regardless of whether a significant minority (or majority) were innocent of any misbehaviour, was required to observe an instruction. Edmond did not comply. He may well have been simply inattentive rather than obstinate or truculent, but he refused to put his knees down and to cover his mouth. Mr. Ko then took his hand to cover his mouth for him. That physical act by Mr. Ko was, in my judgment, quite appropriate and acceptable. Edmond resisted - perhaps he simply did not want his mouth covered with his hand. He moved his head either backwards and forwards or side to side or both in an effort to avoid it. It did in fact last for a very short time. Mr. Ko may have achieved his object. I am satisfied that he did not push Edmond's head either directly or indirectly with his hand. I am satisfied that when Edmond's head or neck struck the front of the desk behind him (and possibly the top of the back of his own chair) that it was an accident. Mr. Ko's action throughout was an acceptable corrective action. It did not constitute any assault or any excessive use of force. It was well within the sphere of corrective or disciplinary action delegated by a parent to a school teacher. It did not, nor could it, constitute corporal punishment in any form. It fell far short of the type of school correction which is condemned as wrong and an excess of authority. It may well be that Mr. Ko, bearing in mind the way the school had 'abandoned' him in the face of a strong personality such as Mme. Cheung, sought to suggest he put his other hand behind Edmond's head when he took hold of Edmond's hand. I am not sure that he did do this. I think it had appeared, - "as the wish is father to the thought", in the light of what he was subsequently alleged to have done. In my view he was a caring, interested teacher, however limited his qualification and experience may have been. I am quite satisfied that had he behaved as has been alleged on the Plaintiff's case against him, there would have been some support for it in the evidence given by the other pupils in the class. Although at one stage Maggie spoke of Mr. Ko's hand holding Edmond's hand at the time that Edmond's head struck the desk this was a contradiction of what she had earlier said. Even if, Mr. Ko's hand was still holding Edmond's at the time that his head was hurt, that would not turn a proper, acceptable corrective action into an assault. 39. The inference to be drawn from Edmond's own statement to the Police, the material part of which I have set out fully earlier, is that he well knew that he had not complied with the general instruction to the class to cover their mouths. He said he put his hand over his mouth before any contact by Mr. Ko and as a consequence of seeing what his fellow pupil was doing. I accept the evidence that Edmond did not comply with any instruction from Mr. Ko. Accordingly what he says he did is not true. I have to be very careful as to what a 7 year old says in a statement to the Police. He may well have convinced himself that he covered his mouth of his own volition. This may well be what he felt he was forced to say in the presence of his mother, as a consequence of the stance that his mother had taken on his behalf. Nonetheless it is a feature of his statement which is not unimportant. Also within that statement is a sentence - "I saw teacher Ko Hing Biu standing on my right hand to side, using his left hand to hold the back panel of my chair and using his right hand to cover my mouth." May this be the position Mr. Ko referred to when he said he "my other hand at the back of his head?" I do not find it possible to answer this question one way or the other but, bearing in mind the height of the desk and chair, the size of Edmond and the relative height of Mr. Ko, a positioning of the hand and arm behind Edmond with the hand holding the back panel of the seat would be entirely natural, if not essential. Even if Mr. Ko had put his hand behind Edmond's head, as opposed to behind Edmond on the back of his seat, that does not indicate an acknowledgement of, nor the existence of a foreseeable injury to Edmond's head or neck, consequent upon what Mr. Ko was seeking to do. 40. I am quite satisfied that Mr. Ko did not do as Edmond alleged he did. That does not square with the evidence nor with my assessment of Mr. Ko. But it is argued by Mr. Sarony on the Plaintiff's behalf that there is an alternative picture based on the evidence of Maggie and Mr. Ko himself which is clearly indicative of negligence. It is this. Mr. Ko has made Edmond's hand contact his mouth. He had achieved his purpose. Accordingly there was no need for him to persist once he had seen any resistance on Edmond's part, and that once he had seen Edmond resisting there was an obvious foreseeable risk of injury to Edmond's head or neck - that is why Mr. Ko put his hand behind Edmond's head, the argument runs. There is a variation on this argument too. It is that, given Edmond's likely reaction, he, having failed to comply with the instruction, any attempt to lift his hand to his mouth was likely to cause a resisting reaction which carried with it an obvious risk of head or neck injury - hence again, Mr. Ko saying he put his hand behind Edmond's head. 41. I am unable to accept either of these arguments. In my view, this incident happened very quickly, that is the clear evidence. It lasted a very few seconds. It was not a sustained struggle. It was not reasonable for Mr. Ko to expect that there would be any resistance on Edmond's part. When he picked up the hand of a 7 year old to put it across the mouth, it was reasonable to expect compliance on his part. What Edmond did was to throw his head about to avoid contact with his hand. Had there been any question of Mr. Ko being overbearing and using excessive force I am sure that at least one of the observing pupils would have commented on this. As it is, they all were impressed by Edmond throwing his head to and fro. It hit the desk behind, probably because of the slumped position in which he was sitting by virtue of having his knees up on the desk edge. I am also satisfied that Mr. Ko had not lost his temper, was not angry and did not display impatience. The evidence of the pupils negatives such an idea. I also accept Mr. Ko's evidence in relation to the telephone conversation with Mme. Cheung. 42. Should I draw any inference adverse to Mr. Ko by reason of his absence of memory in respect of some of the material detail on which he had been reasonably clear in his written statements? Mr. Sarony in his careful and tenacious review of the conclusions and inferences which he says can be drawn, has highlighted this as indicating that the memory lapses are false and convenient and indicative of a man who knows he did something wrong. It is necessary to reflect upon the fact that throughout the past five years the crux of the allegations has been of a deliberate dangerous and forceful action causing injury to a 7 year old. Sometimes in the face of such a presentation the human mind and spirit falters and perhaps becomes closed to certain events. I do not think it right or logical to draw an adverse conclusion in the light of all the other evidence. Mr. Ko has not sought to go behind those reasonably contemporaneous records as representing effectively his version of what occurred. 43. I have also considered in detail the whole of the evidence of Maggie. She too was 7 years of age and undoubtedly she relied heavily upon refreshing her memory from the statement she made to the Police some 5 years ago. It is important that I have regard to her evidence rather that to any impressions which she now forms. She was, as I need to remind myself, an observer of an event which lasted but a few seconds, and the impressions or perceptions of a 12 year old who is having to look back that far to events, may be unreliable. What matters are what she says she saw happen. I summarise it as follows: Mr. Ko was lifting Edmond's hand firmly to cover his mouth. Edmond moved his hands about and twisted his head about to avoid it and Mr. Ko did not succeed. When Edmond's head hit the desk Mr. Ko let go of his hand. 44. Having reviewed all the evidence, I have concluded that the Plaintiff's claim must fail. There was neither assault, nor battery, nor negligence. There was no breach of duty of care. There was no reasonably foreseeable harm or injury flowing from Mr. Ko's acceptable actions. What caused the injury was Edmond's own voluntary and unnecessary movements. I do propose however to go on and consider a number of matters in the light of the evidence adduced as to causation and the diagnoses put forward. The Aftermath 45. When Edmond returned home he was complaining of pain in the neck and was, I am satisfied, somewhat upset emotionally. He undoubtedly gave an explanation to his mother on which she relied thereafter. 46. She did not seek medical treatment for him at that stage and I am satisfied that she can in no way be criticised for that. It is well-known that it is not until some hours have elapsed, and often after a night's sleep that the symptoms of a neck injury, particularly a hyper-extension injury, are manifested. However, she says that he had a bad night and I am sure that was the case. The next day, his mother took him to see the family doctor, Dr. Law Chun-wai. He provided two short reports dated 22nd May and 22nd July. He did not give evidence. The effect of those reports, essentially of the first, since the second is largely what was reported back to him, is that Edmond suffered a neck sprain which he treated with a topical analgesic cream and oral paracetamol to relieve the pain. By 22nd July, he has recorded that Edmond had recovered from the neck injury. I have to return to the relevant time-scales but his note about Edmond's recovery from the neck injury is in accordance with the other medical opinion which I am now going to review. It is also the report sent to the Headmistress of St. Francis of Assisi School, which Edmond joined in September 1991, indicating full recovery from the neck injury. 47. After this visit to the family doctor, Mrs. Cheung took him the next day to the out-patients department of the Baptist Hospital where he saw a Dr. Yu. There is no report from Dr. Yu, nor did he give evidence. For his diagnosis, I have to rely on Mrs. Cheung who told me that Dr. Yu said that there was an injury to the neck ligaments. I am satisfied that that is correct because it is entirely consistent with the other qualified medical opinion. 48. After that it is Mrs. Cheung's recollection that she took Edmond to a bone-setter, a Mr. Mak, on the suggestion of Mrs. Hui, one of the former proprietors of the Gloria English School. He prescribed some form of balm applied as a compress. According to Mrs. Cheung, Mr. Mak gave vent to the opinion that "if he (the teacher) had pressed harder, he would have killed him." Mrs. Cheung and/or Edmond must have told Mr. Mak that some person had pressed on his head or neck but whatever he was told it was an ill-considered comment (if he did make it) and he should certainly have not made it. I am satisfied that whatever its source it operated on Mrs. Cheung's mind thereafter and probably on Edmond's thinking as well. 49. Then Mrs. Cheung took him to another bone-setter who prescribed the same type of treatment. The next step, probably within a day or so, was a visit to Dr. Chan Kow-tak, an Orthopaedic Consultant, on 24th April. He gave evidence and said that he saw X-rays which Mrs. Cheung brought to him. These, I assume, must have been taken at the request of the family doctor, Dr. Law Chun-wai, since they are dated 17th April. It is possible that the visit to see Dr. Yu at the Baptist Hospital was also on 17th April in which case they may have been taken at his request. 50. Dr. Chan spoke of finding tenderness over C2-3, localised muscle spasm in that region. There was, in his view, no sub-luxation of the cervical spine, no mal-alignment, and this must have been the view of whoever first looked at those X-rays - Dr. Law, or more probably, Dr. Yu at the Baptist Hospital. Dr. Chan's conclusion was that this was a soft tissue muscle or ligament injury. On 27th April, when Edmond visited him for the second time, the pain had already improved. On the first consultation, he had prescribed an analgesic, and a local analgesic balm, as the family doctor had done. He prescribed syrup paracetamol on 27th April for a week anticipating, it seemed, a return at the end of that week. Because of Mrs. Cheung's concern about her son's neck and her insistence that he observe her son closely, he arranged for Edmond to be admitted to hospital on 1st May for traction and observation. He was discharged after 4 days with further improvement having taken place. It is clear that, left to his own clinical judgment, Dr. Chan would not have admitted Edmond - he would have let nature and the conservative treatment take its course but Mrs. Cheung prevailed upon him. It is equally clear that he did not find Edmond suffering from intolerable, perpetual pain, otherwise he would not have taken the course he did on 24th and 27th April. The discomfort was progressively reducing and accepted that there was genuine pain on palpating the neck in the region of C2-C3. He was not aware of pain at the extremes of neck movement but there is no evidence that he passively assisted any movement. Edmond was co-operative, demonstrating no aversion to being handled. 51. Dr. Chan last saw Edmond on 7th May. He was fine on that day. His mother kept on asking about his future with Dr. Chan reassuring her that if there were any future problem an MRI scan could be carried out. The last contact he, or his staff, had with Mrs. Cheung was a telephone call on or shortly before 24th May asking for a medical report on Edmond as they were going to Canada. No indication of any continuing problem was given to him and indeed Edmond had failed to attend the follow-up appointment for 14th May. In answer to a question from Mr. Mumford, Dr. Chan said that the history of seeing a number of doctors complaining of pain suggested that perhaps nothing was wrong. I regard that as a significant answer, particularly in the light of the remainder of the medical history. 52. Two days before Edmond was due to see Dr. Chan for his follow-up, his mother took him to see another Orthopaedic Consultant, Dr. Li Wing Kin. There are three reports from Dr. Li, namely 22nd May, 24th May and 10th August 1991, but it is the last which is the comprehensive one. He also gave evidence. 53. He noted when he first saw him on 12th May that - "symptoms had improved except for some residual pain and stiffness at the extremes of neck movements". He made it clear that he passively assisted such movement. I find this in accordance with the progressive improvement noted by Dr. Chan. There was some swelling and muscle spasm noted though this is not recorded in his reports. 54. He took some X-rays and these must be the second set referred to in Professor Leong's report. In his initial report, he stated shortly "Displacement of the posterior facet was noted." The second report referred to "slight mal-alignment of the 7th cervical vertebra." He considered that his views of the X-rays, taken with the pain and asymmetry at the same level, confirmed a minute shifting of the cervical joints at the C6-7 level following trauma. His findings are in conflict with those of Dr. Chan and as we shall see Professor Chan and Professor Leong. 55. He decided upon manipulation under anaesthesia. He had tried to carry this out in his clinic but Edmond failed to co-operate because of his fear of pain. In the event, the symptoms improved afterwards. That means that the pain and symptoms at extreme movements of the neck had improved. It is clear that Edmond's complaints had continued to improve progressively over a month with nothing to match Mrs. Cheung's descriptions of pain and discomfort. Edmond was discharged on 20th May. He did not see Dr. Li again until February 1992 and that was for a different matter. It is clear that there was no need for any follow-up by Dr. Chan after 7th May or by Dr. Li after 20th May. When Mme. Cheung made a statement to the Police on the 21st May she said he had gradually recovered. 56. I am satisfied that he was virtually recovered by, at the latest, five weeks after the incident on 16th April. Professor Leong regarded the injury as a relatively minor soft tissue one. Professor Chan did not disagree with this. All medical experts as one would expect were unable to comment on the extent of the pain, that being essentially subjective. However I am satisfied that Mme. Cheung's description of the extent and duration of the pain has been greatly coloured by her own anxiety for her son. 57. It is necessary for me to view the position of Mrs. Cheung over that period and over some time following that period of orthopaedic treatment. 58. She was undoubtedly very worried on her son's behalf. I am told that "doctor shopping" is a known practice in Hong Kong and certainly I can well understand that any parent would want a second opinion. But I have formed the view on all the evidence that she was over-anxious and affected by two opinions which emanated from different quarters - the highly alarmist comment from the bonesetter and the reference to possible malalignment of the neck. It is inevitable, and human nature, that Edmond would have responded to his mother's over protective and alarmist approach. I am satisfied also that she had made up her mind that Mr. Ko had assaulted her son quite brutally. It is impossible to know quite what she said to Edmond, what he heard of the two comments to which I have again referred and what his reaction was. 59. Edmond did not return to the Gloria School save for one relatively brief meeting. At all events he never returned as a pupil. At the one meeting at the school he gave the impression of being reasonably well-recovered and showing no signs of aversion. I accept that evidence. 60. Through the Education Department he was accepted at St. Francis of Assisi School. There was a medical report stating he had recovered. He passed an academic test satisfactorily. 61. He started St. Francis of Assisi School in September 1991. Some time that term he was referred to Dr. Leo Chiu, a consultant psychiatrist whose view, as can be ascertained from those who had direct or indirect contact with him, was that Edmond needed to be kept at school. In fact he was absent that term for 18 days until on the 19th February 1992 he stayed away from school and never returned. Most of those absences were in the form of extended weekends. He emigrated with his parents to Canada in or about July/August 1992. This was not a sudden decision, his parents having decided upon this course in or about 1988 to 1989, and Edmond had been told of their plans. 62. The overall impression of the Headmistress of that school was that he was well-behaved, performing well academically, getting on well with his peers with no apparent problem in school. She was aware of some reports that he had vomited, or had tried to vomit on occasions. She had suggested to Mme. Cheung that he be referred to Dr. Leo Chiu when Mme. Cheung spoke of his nightmares. 63. After he ceased attending St. Francis Assisi School, he was seen by Dr. Peter Lee, a Chartered Clinical Psychologist. He saw him on two occasions, the 22nd and 27th April 1992, a year after the incident. On both occasions he was accompanied by his mother. The direct contact with Edmond was supplemented by telephone interviews with Edmond's mother in June and July. Because of Mrs. Cheung's over-anxious and protective attitude towards Edmond and my findings in that regard, I have to exercise great caution in my consideration of the conclusions of Dr. Peter Lee, however careful he has been. One of the documents to which he had access was Mrs. Cheung's diary on Edmond's daily behaviours and complaints. I fear that in many respects Mrs. Cheung has exaggerated her son's behaviour and elevated naughty behaviour to the level of disturbed almost psychotic behaviour, falling in a bathtub when refusing assistance, running across the road without heeding traffic, and threatening to hang himself with a curtain cord if forced to go back to school, the latter being, in particular, stigmatised as a "suicide attempt", instead of being regarded as possibly the manipulative conduct of a petulant, naughty boy. He was however, on any view, displaying signs of what is agreed to be an obsessive compulsive disorder (OCD). But Dr. Lee gives as his opinion that he "has an unshaken conviction and persecutory delusional belief that (his former teacher) would strangle him." He diagnoses a "delusional paranoid disorder of a persecutory type", applying the diagnostic criteria of the 3rd edition (now superseded by the 4th edition) of the Diagnostic and Statistical Manual of Mental Disorder. 64. Dr. Lee goes on to say that Edmond "also suffers from other secondary disability resulting from his delusional (paranoid) condition. He is unable to attend school." He is certainly unwilling to attend but not unable to attend as his school record at the St. Francis Assisi School indicates. 65. He says Edmond was free from significant psychological disturbances prior to the incident at school but in his later report, dated 5 March 1996, he says, -
A little later on :
It is to be noted that Dr. Brian Harris in his report of 9th March 1993, stated that:
66. That view accords with Dr. William Green's view that there was a constitutional predisposition to such a development. What is also significant is that Dr. Lee clearly predicates his opinion upon an assessment of the incident given by the mother and/or Edmond himself; in paragraph 4 of his original report he says:
67. This acceptance of an extreme incident is repeated in his later report where Dr. Lee characterises the incident as:
68. Unfortunately Dr. Lee was never asked to consider the alternative picture of the incident which was well - documented in the proceedings. He was provided with Edmond's Police statement but not the statements of his classmates, an unfortunate omission. If the incident was as attested to by his classmates and Mr. Ko, then a number of conclusions follow, one of which is that Dr. Lee's opinion must be substantially amended. As far as his view of Edmond's pre-existing disposition is concerned, it follows a 'fortiori' that for Edmond to "crumble under the trigger of similar events", his vulnerability must have been that much greater. 69. With an incident of the nature attested to, but not considered by Dr. Lee, it must clearly fit into the category of something more trivial and day to day than even he considered when he said "one can easily entertain the possibility of so many other children going through similar experiences and yet remain totally unblemished." One cannot therefore escape the conclusion that such a trivial event may have been " just around the corner" for this boy, in the form of jostling, or horseplay amongst pupils, on or off the bus, an incident in a game involving physical contact, or simple 'rough-housing' among friends. 70. Dr. Lee in his understandable concern to put the reaction of Edmond's parents in its proper context, overlooks the mother's reaction to the incident in the months before Edmond starts to display, with effect, his aversion to attending school. By the time he starts St. Francis of Assisi School he has recovered from the "neck injury" and that is some four months later. No-one can have anything but sympathy for his parents in their difficulties in coping with what developed in due course. But Mme. Cheung's over protective and excessively anxious approach in the initial 3 or 4 months have a significance of their own. I accept Dr. Green's conclusion that Mrs. Cheung reactions were not causative of Edmond's condition, but accelerated and possibly aggravated it, although what she did was, I am satisfied, well-intentioned. 71. When Dr. Chung, the psychiatrist to whom Edmond was referred on Dr. Peter Lee's recommendation, saw Edmond, it was for about 11/2 hours in July 1992; - Edmond refused to attend again and so Dr Chung's information was supplemented by telephone contacts with Mme. Cheung. 72. The essential purpose behind Dr. Chung being instructed was to offer his opinion on the effects and side-effects of certain drugs on Edmond, but a full psychiatric assessment was a prerequisite. 73. Dr. Chung, albeit on short acquaintance and limited information, confirmed Dr. Lee's diagnosis of Delusional (Paranoid) Disorder, saying that the disorder was not detected by professionals earlier because it was "masked by the symptoms of a post-traumatic stress disorder." The question of whether the diagnosis of PTSD is a valid one has exercised the minds of all professionals who have given evidence in this trial. In his second report, of 11 March 1996 Dr. Chung was essentially concerned with commenting upon Dr. William Green's report in which the diagnosis of PTSD was doubted. 74. Like Dr. Peter Lee, Dr. Chung was at the disadvantage of not having had referred to him the statements of the classmates of Edmond, and the teacher concerned. It is true he does not characterise the incident in the extreme one-sided terms used by Dr. Lee, but he has proceeded on the basis of the incident being as described by Dr. Lee. One of the most serious handicaps for the consultant psychiatrists and psychologists instructed on behalf of the Plaintiff was the failure to give them all the material relating to the incident so as to enable them to evaluate all the possibilities relating to diagnosis and causation. Dr. Green himself was at the considerable disadvantage in that he was instructed far too late, the circumstances in which he was expected to interview Edmond were inhibiting and, if the exercise was not doomed from the outset, it was certainly doomed by the restrictions and conditions under which the attempt to interview was made. Accordingly his evidence has been limited essentially to a critical review of the overall material and of the reports submitted. 75. One particular aspect of Dr. Harris' evidence with which Dr. Green agreed was, ignoring for the moment whether PTSD was a correct or possible diagnosis in Edmond's case, that such a disorder could result not simply from an incident such as the Plaintiff contends occurred, but in circumstances where a parent conveyed to a child a picture of a life-threatening incident. In other words, the mother, having referred her son to a succession of medical men, professional and otherwise, creating a picture of damage caused by a severe assault with possible fatal consequences (quoting Mr. Mak the bonesetter) or malformation of the cervical spine (Dr. Li Wing Kin), may have caused such anxiety and apprehension in a 7-8 year old, as to cause that disorder to develop. 76. The diagnostic criteria for PTSD are an experience of, witnessing of or confrontation with an event that involved actual or threatened death or serious injury, or a threat to physical integrity of self; the response involved intense fear, helplessness or horror - in children this may be expressed instead by disorganised or agitated behaviour. 77. The characteristic symptoms resulting from the exposure to the extreme trauma include persistent re-experiencing of the traumatic event, persistent avoidance of stimuli associated with the traumatic numbing of general responsiveness and persistent symptoms of increased arousal. The full symptom picture must be present for more than one month and the disturbance must cause clinically significant distress or impairment in social, occupational or other important areas of functioning. If the incident was as described by the classmates and the teacher, it is common ground, expressly or impliedly that it does not meet the criteria for a diagnosis of PTSD, Dr. Garland herself saying that if the event was a minor one, it would not be conceived as life-threatening. 78. There are other diagnoses which have some features or criteria common to a diagnosis of PTSD. It is without doubt that this Plaintiff suffers from OCD. It is contended that this has overtaken the diagnosis of PTSD. Although it may simply be an academic point I have concluded that this Plaintiff did not suffer from PTSD as a result of this incident. It was simply not of the nature which met the essential criteria. If PTSD developed, about which I have serious reservations in the light of the evidence and the complicated similarity to other diagnoses, then the stressor was not the incident itself but the communication by the over anxious mother, with probably the coincident statement of two medical men, to the son that the incident could have proved fatal, may have left him with a malaligned spine, allied to the natural anxiety of being taken from one doctor to another with varying forms of treatment. It was not in that circumstance a direct result of the incident. 79. In any event, however such a disorder resulted, it was overtaken within a short period of time by the OCD to which the boy was predisposed, and certainly by the autumn term of 1991. This condition could have manifested itself as a consequence of minimal stimuli, such as a minor disciplinary action. All medical experts trace the onset or eventual onset of OCD to the trauma experienced on 16th April 1991. Given the nature of that incident as I find it to be, and having regard to the expert medical evidence, it is clear that it has been triggered by a relatively trivial incident. 80. Given Dr. Garland's view that Mme. Cheung could not have 'talked' Edmond into an event being seen as traumatic unless he was greatly distressed, but that it could magnify the incident or give it a greater significance, the reasonable conclusion is that by reason of a predisposition to OCD and his perception of the incident as something much more than a trivial incident, he was susceptible to any magnification of that incident by excessive anxiety and an exaggeration of the incident to the level of something life-threatening or at least threatening to his physical integrity. 81. I therefore accept, in the light of her evidence, that of Dr. Harris, Dr. Lee and Dr. Green, that any of life's day to day physical contacts, unwanted to Edmond, could have triggered off this state of OCD. At that stage of his life, I think he was on risk on an almost daily basis. Conclusion 82. The Defendants have been separately represented, the Second Defendant in fact having to represent himself. I think it right that I should make some findings in relation to them. 83. The attitude of the School towards its former teacher was essentially to wash their hands of him. They have taken the line that nothing wrong happened to Edmond, but if Mr. Ko were to be found liable, then they are not vicariously liable for him. They sought to, and were able to, dispense with his services at an early stage. They contrived to exact from him an indemnity. Although advised to inform their insurers at an early stage, they did not do so. They endeavoured to put the burden of paying for Edmond's medical fees on his shoulders. They did nothing at all to protect his position. In my view they let him down. 84. They employed him as an unqualified teacher. They belatedly obtained a permit for him. He had little if any previous teaching experience and his academic qualifications were very limited. Their supervision and monitoring of his performance as a teacher were perfunctory. They carried out no proper investigation into the alleged incident until the Education Department required them to conduct an inquiry. They adopted an ambivalent attitude. As his employer they are liable for his actions if they authorised his acts or if he did some act authorised by his employer in a wrongful and unauthorised way or fashion. As I have found he did neither of these things but his employers could properly have sought and obtained an indemnity from him if he had carried out an act of correction, such as was alleged against him, which would have been well outside what he was authorised to do. But the school's conduct in relation to the complaint and their employee fell far short of that to be expected from a reasonable employer. He was never advised to seek independent legal advice; he was almost the sacrificial lamb in the school's panic-stricken reaction to Mme. Cheung's strong and forceful approach. I heard evidence from Mr. and Mrs. Hui as well as from Mr. So. Although Mr. So was the proprietor of the school at the material time, the day to day effective control, and the making and implementation of policy were in the hands of Mr. and Mme. Hui. I found their evidence unsatisfactory in a number of respects particularly in relation to the initial reaction to the claim and allegations made by Mme. Cheung on her son's behalf. Mme. Cheung, as I have indicated is quite a strong personality, and that is intended as a statement of fact, and a compliment, not a criticism. If Mme. Cheung was told that Mr. Ko was angry, impatient or lost control of himself, the source was probably Mme. Hui who clearly did not know how to handle the situation and was, with others, eager to lay the blame at Mr. Ko's feet. 85. It is to be hoped that schools, whatever the strength of or insistence with which a claim is pursued against them, will ensure that the position of their employees is not only not compromised, but in fact protected by having a proper regard for their interests. 86. I have in fact in my judgment gone well beyond what is necessary in the light of my fundamental findings of fact but have done so with a view to assisting in certain respects. No-one can feel anything but sympathy for Edmond's parents in the crisis and sad state of affairs with which they have to cope, and admiration for those who are exercising such care and commitment to his present and future well-being. I am satisfied that every conceivable and proper action has been taken on his behalf to ensure that these proceedings have been properly conducted. No stone has been left unturned in the examination of all the pertinent circumstances. It is to seek to do justice to that approach that I have dealt with many additional matters in my judgment in this unhappy case. In his preface to cross-examining Mr. Ko, Mr. Sarony said that Mr. Ko was not other than a very decent man. I concur with that. It is one of the unhappy but inevitable aspects of this case that there has been a confrontation between the very decent parents of a boy who is essentially one of life's victims, and his very decent teacher. (Conrad Seagroatt) Judge of the High Court Representation: Mr. N.L. Sarony, Q.C. and Mr. Andrew S.Y. Li instructed by M/s. K.F. Wong & Co. for the Plaintiff. Mr. E.C. Mumford, Q.C. and Mr. T.C. Chong instructed by M/s. Wong, Hui & Co. for the 1st Defendant. The 2nd Defendant in person. |