Lee Tin Yeung v. Chiu Chow Association Secondary School and Others
Read the full judgment text of HCPI 201/1999 on BabelCite. This High Court CFI judgment was delivered on 27 August 2002.
1. The Plaintiff in these proceedings is a school teacher by profession and is now aged 46. He graduated from the Sir Robert Black College of Education in 1978. Apart from periods totalling approximately 5 years obtaining a medical qualification in China, his subsequent career prior to being engaged by the 1st Defendant school on 1 October 1994 was spent teaching in 3 secondary and 2 primary schools in Hong Kong.
Cites 3 cases
|
HCPI000201/1999 HCPI 201/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 201 OF 1999 ____________
____________ Coram: Deputy High Court Judge Longley in Court Dates of hearing: 9-10, 14-17, 21-24, 27-31 May and 3-5, 21,24 June 2002 Date of Judgment: 27 August 2002 _______________ J U D G M E N T _______________ 1.The Plaintiff in these proceedings is a school teacher by profession and is now aged 46. He graduated from the Sir Robert Black College of Education in 1978. Apart from periods totalling approximately 5 years obtaining a medical qualification in China, his subsequent career prior to being engaged by the 1st Defendant school on 1 October 1994 was spent teaching in 3 secondary and 2 primary schools in Hong Kong. 2.Between 1 October 1994 and 5 March 1996 the Plaintiff was a teacher at the 1st Defendant school in Ma On Shan. He was employed specifically as a teacher under the School Based Remedial Support Programme ("SBRSP") funded by the Education Department. 3.The SBRSP was essentially a remedial programme started by the Education Department in 1994 to cater for students whose academic results fell within the bottom 10% of all students in Hong Kong in the same form. Initially for the academic year 1994 to 1995, the programme was implemented in respect of Form 1 students. Most students in the lst Defendant school who fell within that category were placed in Forms 1A and 1F. The programme was only applied to 3 core subjects: Chinese, Mathematics and English which were taught in split classes (i.e. classes with a maximum of 20 pupils rather than the usual maximum of 40). 4.The Plaintiff was the only teacher within the lst Defendant school exclusively engaged in teaching these split classes under the programme. He taught all three subjects to a split class in Form 1F and Mathematics to a split class in Form 1A. The 1st Defendant school did not attempt to implement the programme for Form 1 students in the following academic year 1995 to 1996. But in so far as it had implemented the programme the previous year, it continued the programme with the same students in Form 2. As a result the Plaintiff taught the same students the same subjects in the academic year 1995 to 1996 as he had in the previous year. 5.The Plaintiff's claim in this action is for damages resulting from psychiatric illness which he alleges is the result of breaches of duty by the Defendants during the time he taught there. These alleged breaches of duty involved a number of incidents and ultimately culminated in an assault on him by a pupil on 5 March 1996. 6.It is not disputed that the Plaintiff is still suffering from a psychiatric illness, though the extent of the illness and the prognosis is not agreed. 7.The 1st Defendant is the school itself. The 2nd Defendant is and was the sponsoring body of the school. The 3rd Defendants were and are the management committee of the school. The 4th Defendant was the supervisor of the school. The respective responsibilities of the Defendants amongst themselves have not been an issue in this trial as a result of a concession helpfully made by Miss Lee on their behalf at the start of the trial that they concede that if one is liable then the liability attaches to them all. I shall therefore refer to the Defendants collectively as "the school". The Incident of 5th March 1996 8.It is common ground that on 5 March 1996 an incident occurred in the Plaintiff's classroom involving a student (who has been referred to throughout this trial as Y) who had a history of disciplinary problems. 9.Conflicting accounts have been given as to what occurred. There is no dispute however that the matter was subsequently dealt with by the police by way of a superintendent's warning to the student and he was suspended for a time from the school. On the Plaintiff's account he was struck on the head from behind. On his account the incident had started when Y had attempted to strike another student with a short metal rod. After he had been persuaded by the Plaintiff to put this rod down Y had then refused to study. He had also crumpled and torn up the papers of other students and put his feet up on the table and started singing. Later he had attempted on a number of occasions to strike the Plaintiff with a chair. The blow to the Plaintiff's head occurred after the class was over and the Plaintiff had asked Y to remain behind to clean his desk and the classroom. Y had attempted to leave the classroom. The Plaintiff had grasped onto his rucksack to prevent him doing so. Believing that the student then intended to comply with his instruction the Plaintiff had gone to his desk. He had then received the blow to the back of his head. Following the blow the Plaintiff had chased Y who sought refuge in another classroom. The Plaintiff had not wished to interrupt that class and after he had returned to his own classroom he collapsed. Medical Treatment 10.The Plaintiff was taken to the Accident and Emergency Department of Prince of Wales Hospital where he complained of head injury. His general condition was found to be good. He was alert and conscious. No external wound or bruise could be found. Nothing unusual was observed in a skull X-ray. 11.The Plaintiff continued to feel unwell. He sought medical help from a number of sources including further help from Prince of Wales Hospital. On 8 March he saw Dr C Wong of Dr Henry Lee and Associates when he complained inter alia of an inability to concentrate and a tingling sensation on his face. He was observed to be emotionally unsettled. Three days later on 11 March, he was seen by Dr Brian Chan when he complained of having had a headache since the assault. A CT scan of the brain and an EEG were performed on 14 March at Baptist Hospital but the results were normal. On 27 March he attended the Specialist out-patient clinic of Yan Chai Hospital still complaining of severe headache since the assault as well as general weakness. He claimed that he had lost the ability to concentrate and could not return to work. He himself then started to consult a Psychiatrist, Dr Chen Chung Mou. 12.On 27 July 1996 he was referred to Dr Leung Tze Ming, a psychiatrist, by Dr Brian Chan. He has been seen by Dr Leung regularly over the following years. He was given sick leave from 5 March 1996 until 30 September 1998. 13.The Plaintiff has only had two periods of employment since 5 March 1996:
The alleged breaches of duty 14.The breaches of duty alleged by the Plaintiff against the school are in contract under his contract of employment and in negligence. 15.It is alleged that there was an express term of his contract of employment, alternatively a collateral warranty made by Mr Wong Ping Man, the Principal of the school, in 1994/1995 that the school would make arrangements for the Plaintiff to attend the in-service training course for teachers of the School Based Remedial Support Programme. 16.Alternatively it is alleged the school was in breach of its general duties under the implied terms of the Plaintiff's contract of employment to ensure the safety of the Plaintiff, alternatively by reason of the same breaches it was negligent. It is alleged that the Plaintiff was under constant psychological and mental distress and was subjected to physical, mental and psychological trauma as a result of a number of incidents at the school culminating in the incident of 5 March 1996. Furthermore it is alleged that the school breached its duties to the Plaintiff by inter alia failing to send him on the course to which I have referred or give him other adequate guidance or assistance and by failing to take reasonable steps to control the discipline and behaviour of students in his class, in particular student Y. 17.The most significant allegation which became more significant as the trial progressed was that the school failed to take appropriate steps in response to incidents of violence involving students in the Plaintiff's classes, in particular violence by student Y. 18.The period covered by the Plaintiff's allegations involved two academic years. During the academic year 1994 to 1995 the Principal was Mr Wong Ping Man. During the following year 1995 to 1996, the Principal was Mr Lam Cho Ki. The head of the Disciplinary Committee for both academic years was Mr So Man Kow, who was also vice-principal in the year 1994 to 1995. Mr Wong, Mr Lam and Mr So all gave evidence in this trial. The Incident of 5 March 1996: Causation 19.Kwok Man Fung who is now aged 21 but who was a student in the Plaintiff's Mathematics class at the material time gave evidence to rebut the Plaintiff's account of the incident of 5 March 1996 to which I have referred. 20.The gist of Kwok's evidence was that although Y had been chasing another classmate in play while holding a metal pipe, he had not formed the impression that Y intended to hit the classmate with it. While he had seen Y with his hands resting on the back of a chair and had heard the Plaintiff talking to Y about Y's intention to throw the chair at him, he had not seen Y attempting to strike the Plaintiff with it. Furthermore on his account the Plaintiff had not received a blow to the back of his head as he alleges. Kwok said that he had seen the Plaintiff grasp Y's rucksack in order to prevent him leaving the classroom. Y's elbow had simply come into contact, albeit forcibly, with the Plaintiff's forearm as Y attempted to escape from the Plaintiff's grasp. 21.I did not find Kwok to be a convincing witness. He had written out a statement on 16 April 1996 as to what occurred during the incident. On Kwok's account he had no knowledge of what the Plaintiff was alleging had occurred that day. Yet on his account quite spontaneously, he had stated in his statement that he had not seen Y use a metal rod to hit his classmate and he had not seen Y using a chair to chase or hit the Plaintiff. I did not accept Kwok's explanation as to why he should attempt to rebut allegations which he claims he did not know the Plaintiff was making. He would not have made these remarks unless he knew what the Plaintiff was alleging or he had seen Y do what the Plaintiff now alleges and was concerned to protect Y. In his statement he made no reference to having seen Y's elbow come in contact with the Plaintiff's arm in the manner he now alleges. I found his explanation that he did not know the Chinese character for arm and felt he should ask the teacher implausible. 22.I find it likely that Kwok's version both to the court and in the statement was designed to protect Y. I consider that the very brief (and inconsistent) statements by his other classmates at the time were probably made with the same intention. I note that Y's own statement is inconsistent with Kwok's in that Y alleges that his hand had come in contact with the Plaintiff's neck. 23.Mr So Man Kow, the head of the Disciplinary Committe said that after the incident he had seen the strap to Y's bag was broken (although he had not mentioned this in his witness statement). The Plaintiff had not denied that the strap to Y's bag had been broken; he simply said that he was unaware of it. 24.The Plaintiff gave a statement about the incident shortly after it had occurred which is consistent with what he now says occurred. I accept that his account is a broadly accurate account of what occurred. The fact that Y agreed to a Superintendent's caution supports this conclusion. It may well be that when the Plaintiff had originally grasped Y's bag, Y had used some force in an attempt to break free resulting in the damage to the strap. It may well equally be that the Plaintiff was in retrospect unwise to attempt to restrain Y from leaving the classroom in this way and that this provoked the subsequent deliberate assault by Y. I am satisfied on the evidence before me that it was an assault and not an accident. 25.That this assault was a precipitating factor of the Plaintiff's current psychiatric condition was not disputed by Dr C K Wong, the Defendant's expert. In his report of 26 November 1999 Dr Wong listed 4 factors in the Plaintiff's background which made him vulnerable to an incident such as that on 5 March 1996 which he found was a "precipitating cause" of the Plaintiff's current psychiatric condition. The same view was expressed by the Plaintiff's expert Dr Leung Tze Ming in his report of 18 April 2002. Express term of contract/collateral warranty: the training course 26.The court heard conflicting accounts of the interview or interviews with Mr Wong Ping Man as a result of which the Plaintiff was offered employment with the school. That there should be some differences in recollection of what was said almost 8 years ago is perhaps not surprising. It is common ground that Mr Wong informed the Plaintiff that he would be employed as an additional teacher specifically for the SBRSP Remedial Programme. Mr Wong accepted that he might have mentioned that there was a training course in this programme but he said that he was sure that he did not say that the Plaintiff would necessarily be released for the course. The plaintiff's evidence was that during a second interview, he had informed Mr Wong during the interview that he had no experience in counselling teaching except by assisting students with their school work after school and that Mr Wong had replied that it did not matter as he would arrange a training course for him. 27.Mr Wong's evidence was that on the contrary, far from emphasizing his inexperience the Plaintiff had claimed that he did have experience in teaching students of lower ability levels, indeed that he had gone on to say that they were only children and that as long as the teacher talked to the students it was a "piece of cake". He said that he was impressed with the Plaintiff who appeared confident and eloquent. 28.While the course may well have been discussed during the interview or interviews, on the evidence before me I cannot be satisfied that Mr Wong gave a specific undertaking that if the Plaintiff joined the school he would go on the course. Bearing in mind that the term had already started, I think it is more likely as Mr Wong said that he was looking for a candidate who had the right experience to start teaching right away. I also consider it more likely that in an interview that Plaintiff would have stressed his experience rather than his inexperience. 29.Even if I had been satisfied that the Plaintiff had been promised before he took up the contract of employment that he could participate in the training course, I would not have been satisfied that a failure to honour that promise was alone causative of the incident. 30.While I have been shown a syllabus outline for the course which includes a topic "Behaviour Management", there is far too little detail of what would be taught on the course to be able to conclude that it alone would have enabled the Plaintiff to handle Y in such a way that the incident of 5 March 1996 would not have occurred. I do not know for instance how far, if at all, what the course covered would have included matters not covered in the Plaintiff's original teacher training which it was common ground included a topic in respect of "class management". 31.Professor Cheng Kai Ming , who holds the chair of Education and is pro-vice Chancellor of Hong Kong University and whose report was before the court described the training provided by such a course as "desirable though not essential". 32.Having said that , I nevertheless consider that the school's failure to make efforts to ensure that the Plaintiff attended the course after he was unable to attend the course in the spring of 1995 is a factor which is relevant to the Plaintiff's allegations of breach of implied term under his contract of employment and in negligence, particularly in light of my findings (to which I shall later refer) that the school was aware of the difficulties that the Plaintiff was experiencing in handling his classes. 33.While I accept that Mr Wong encouraged the Plaintiff's original application for the course the timing of which had to be altered from February to March 1995 because there were no vacancies for the February course, I accept the Plaintiff's evidence that he was told that, because of "manpower considerations" due to another teacher Miss Ng Sau Ming being on a course he could not attend at that time. Although Mr Wong said that Miss Ng's absence would not have been the only reason that the Plaintiff was unable to attend the course, he could not remember the exact reason why the Plaintiff did not attend the course. He agreed that the fact that Miss Ng (who was the class teacher of 1F) was away could have been a factor. 34.Mr Wong's evidence that, before he left the school in July 1995, he had told the Plaintiff that he should take advantage of attending courses if he wished to remain in the teaching field is consistent with the Plaintiff's evidence that Mr Wong had suggested he reapply for the course in September 1995. 35.The Plaintiff's evidence that the School Inspector was keen that he should attend the course is supported by the attitude of the Inspector, Mrs Betty Tsang, who wrote a report following a visit on 9 December 1994, (admittedly at a time when it was still anticipated that the Plaintiff would attend the course), about the reluctance of the school to operate the SBRSP programme, the fact that most of the workload had been given to the Plaintiff and that no teacher had been trained in the SBRSP in the school so far. She commented that the programme appear to be "not under good control". She also wrote "It is advised that more teachers should be sent to attend the SBRSP course in future". Despite these expressions of concern it is agreed that by the time that the Plaintiff left the school in 1996, no teacher had attended the SBRSP course. 36.I am satisfied that the Plaintiff probably did make further attempts to attend the course when Mr Lam Cho Ki took over as principal. The Plaintiff gave evidence of how he had spoken to Mr Lam about the course in August 1995 before Mr Lam formally took up the job of Principal. He also said that Mr Lam had initially stated at the first staff meeting after taking over, that no teachers would be allowed to attend courses for more than 3 days but had been obliged to reconsider that decision after the staff had raised objections. He said that at a later stage when he raised the matter with Mr Lam, Mr Lam had disputed the usefulness of the course and asked the Plaintiff not to bring up the subject again. Mr Lam contradicted this evidence by saying that he had not spoken to the Plaintiff until about the 3rd week in September 1995. He denied placing on any restriction on teachers applying for courses. He denied that he had disputed the usefulness of the course. He said that the Plaintiff had never mentioned at any time about the training course to him but that if he had done so he would have encouraged him to go. He did, however, express a view elsewhere in his evidence that he considered basic teacher training adequate for teachers teaching "Bottom 10" students and that no special training was necessary. 37.Mr Lam's evidence on this matter was in direct contrast to a confidential report he had written on 19 April 1996 about the Plaintiff's complaint. In that report he said this:
38.Despite Mr Lam's background experience in programmes for children with special needs, he conceded that he did not have a clear idea about the contents of the SBRSP course. Given Mr Lam's contradictory accounts and his lack of knowledge of the course and his belief that basic teacher training was adequate to deal with the SBRSP programme, I consider it more probable than not that the Plaintiff is correct at least in so far as he said that he had discussed the course with Mr Lam and had been discouraged from seeking to attend it. 39.Although the Plaintiff pleaded his case based on the "physical mental and psychological traumas" to which he was subjected (paragraph 3 of the Statement of Claim), Mr Simon Lam for the Plaintiff has put forward the Plaintiff's case in court as based upon the consequences of the physical trauma sustained by the Plaintiff in the assault on 5 March 1996. 40.This is not therefore a case like Sutherland v. Hatton [2002] PI QR P241 where the Plaintiff's case was based upon psychiatric illness resulting from occupational stress. In the present case even though the Plaintiff may have sustained occupational stress as a result of earlier incidents, it is not suggested that the Plaintiff's susceptibility to psychiatric illness was foreseeable. 41.What the Plaintiff alleges was foreseeable was the possibility of personal violence by student Y, and that such violence on 5 March 1996 precipitated the Plaintiff's current condition. 42.The principles of law which are applicable in this case have not been in dispute . 43.They were set out by Keith JA in Wong Wai Ming v. Hospital Authority [2001] 3 HKLRD 209 in the following terems:
44.As in Wong Wai Ming's case, two issues arise in so far as liability is concerned:
Forseeability of assault by student Y 45.I have no doubt that there was a real risk to others including the Plaintiff of assault by student Y which the school should have appreciated. 46.The Plaintiff's teaching duties solely related to what were remedial classes. Although there was an understandable reluctance on the part of Mr Wong, Mr Lam and Mr So to say so, I am satisfied that the lack of motivation on the part of some students in these classes did give rise to the possibility of particular disciplinary problems. While some other teachers may well have been able to cope with such problems, I am satisfied that the Plaintiff, who had encountered no serious problems with discipline in other schools where he had previously taught, found it difficult to do so in the 1st Defendant's school. The Plaintiff's problems may well have been aggravated because on his evidence which was not contradicted, a number of students with behavioural problems had been moved into his class because their previous teacher had been unable to cope with them. 47.Although the Plaintiff may not have been specifically designated as the co-ordinator of the SBRSP programme, I find, having heard the evidence, that he was treated by the successive principals as having particular responsibility for the programme. He was the teacher the Education Inspector would meet to discuss the course. He was described as the "mentor teacher" for these students and entrusted with the relevant teaching materials for the course. I find it is probable that because of this role in the programme he was regarded as the appropriate teacher to whom these students with behavioural problems should be assigned. 48.Nonetheless it was apparent to the school that the Plaintiff was having problems with discipline. Mr Wong said that during his time as Principal he noticed the Plaintiff's weakness in classroom management and had heard from other teachers about disturbance emanating from the Plaintiff's classroom. He commented on this weakness in the appraisal report he compiled on the Plaintiff which he gave to and commented on to his successor Mr Lam. The Plaintiff did not have the opportunity to make a fresh start with a new class of students at the beginning of the following academic year. On an occasion in January 1996 the Plaintiff had to send for Mr Lam when he had been unable to control his class. Mr Lam conceded that apart from his incident he had the impression that the Plaintiff had problems maintaining discipline and that once in a while he had passed the Plaintiff's classroom in the corridor and he had found it quite noisy. Mr Lam conceded too that the Plaintiff had made criticism of the way that the Disciplinary Committee dealt with misbehaviour and had alleged that the Disciplinary Committee was "spoiling the naughty students". 49.Knowledge of the fact that the Plaintiff was having problems with discipline does not of course itself mean that the School should necessarily have forseen the possibility of an attack on the Plaintiff. However the conduct of one of the pupils, Y, taught by the Plaintiff should have alerted them to this possibility. In his statement Mr So said that according to his knowledge the Plaintiff had made many complaints in respect of this student. Although Mr So, the head of the Disciplinary Committee only conceded that the student Y was a "below average" student and maintained that only the Plaintiff had ever complained of Y being seriously uncooperative, the records do not bear this evidence out. The only disciplinary record of Y which the school has retained runs from September 1995 to March 1996. It contains a very large number of serious disciplinary complaints by different teachers against Y including at least two incidents of assault on fellow students (on 10 January 1995 and 2 February 1995) (and an incident of "pushing" on 8 January 1996) and a variety of incidents involving disturbing the classroom, disobeying teachers and using foul language. On his own evidence, Mr So admits that the Plaintiff had complained to him in another incident that he had been struck by student Y on the staircase in September 1995. I find that Mr So, despite his attempts to suggest otherwise, had no sufficient grounds for believing that this complaint was not true. Furthermore Mr So knew that Y had run amok in the classroom on 12 January 1996 kicking and damaging the furniture and abusing the Plaintiff. 50.There was not therefore just a mere possibility of assault by student Y on others but a real risk. I find that the incident of 5 March 1996 was forseeable. 51.The question then becomes whether the school should have taken any precautions to reduce the risk of such an assault, and if what they did was reasonable. 52.I am satisfied that as reasonable employers the Defendants should have taken reasonable precautions to reduce the risk to the Plaintiff as far as possible. 53.Those precautions should at least have included reasonable steps sufficient to bring home to his students, including Y, that the use of violence was totally unacceptable, coupled with other measures to ensure as far as possible, that the Plaintiff was placed in a strong position to prevent such incidents occurring. On the evidence before me and in the particular circumstances of this case, I find that the School failed to take such steps. 54.This conclusion is not based upon any criticism of the system set up by the school to deal with the discipline of the students. Teachers were, for instance, given reasonable and sensible guidelines as to how to deal with breaches of discipline in the staff handbook which they were given at the start of each academic year. There was a Disciplinary Committee headed by the assistant principal Mr So Man Kow with different teachers responsible for different forms. There was a Counselling Committee to which students and teachers could turn for advice in case of difficulty. There was a school social worker stationed in the school 4 days a week to whom students with problems could be referred for counselling and follow up. I accept the evidence of the principals, Mr Wong in 1994 and 1995 and Mr Lam in 1995 to 1996 that the Plaintiff could have turned for help to them personally if he had needed too. 55.My conclusion is not based on the system set up by the school but rather on the way that system was operated at the relevant time by the Disciplinary Committee in relation to students taught by the Plaintiff. 56.In reaching my conclusions, I have borne in mind that the courts should not impose upon those who run schools and in particular those with remedial classes, standards with which it is impossible or impracticable to comply. I have also borne in mind that the objective of schools is education in its widest sense not simply the maintenance of discipline. There will often be legitimate differences of view as to the best means of dealing with the behavioural problems of a student. Where there has been a complaint of misbehaviour by a student the court should be slow to find fault with a school which has taken reasonable steps to ascertain the nature of the misbehaviour and taken bona fide and reasonable steps to ensure that the situation does not recur, even if it may be arguable that alternative steps were open to the school which might have been more effective. 57.I have also borne in mind that for practical purposes it is extremely difficult for a school like the 1st Defendant school to expel a student or have him transferred to another school without the consent of the student's parents. 58.The court has heard evidence of a number of alleged incidents of violence by student Y and others which were reported to members of the school's Disciplinary Committee. While the steps taken by the school in respect of some of these incidents may not have been open to serious criticism if looked at individually, I am satisfied that the reaction of the school to the incidents collectively was not a reasonable response so as to bring home to the students of the Plaintiff's classes the unacceptability of such conduct. What is especially serious in this case is that I find that the Disciplinary Committee and in particular its head Mr So did not take proper steps to evaluate the conduct of the student complained of before a decision was taken as to how to deal with it. 59.In evaluating the evidence regarding certain of the incidents complained of by the Plaintiff, I have borne in mind that the School is in some cases handicapped by the fact that its policy was not to retain the disciplinary records of a student after one year. It is therefore being asked to respond to allegations in respect of incidents which occurred several years ago when it has no contemporaneous records upon which to rely and in circumstances when it is running a school with around 900 or more pupils. 60.It is simply not possible for instance for the court properly to evaluate whether the response of the Disciplinary Committee to student Y's assault on a classmate on 10 January 1996 (recording a "minor offence") or his kicking of a student's arm while going upstairs on 6 February 1996 ("deduction of two points") was adequate. If what the Plaintiff had heard of these incidents was correct, namely that the first related to a gang fight and the second had involved the kicking and insulting of a prefect when she tried to stop Y misbehaving and had led to a disagreement between Y's class teacher and the Disciplinary Committee, then the response of the Disciplinary Committee would appear to have been very lenient. Even Mr So admitted that it would not be normal for a teacher only to deduct 2 points for an incident involving in the kicking of another student's arm. What the Plaintiff had heard was however hearsay and the School has no record of the incidents beyond that in Y's disciplinary record. 61.There were other relatively minor incidents referred to by the Plaintiff in para 13(e) of the Statement of Claim which he claimed were the sort of incidents which also commonly happened to other teachers, such as being kicked or elbowed by students obstensibly by accident or having his chair pulled away as he sat down. He claimed to have reported such incidents to other teachers including members of the Disciplinary Committee and the principal Mr Wong, but no action had been taken. He even claimed that amongst the incidents that he reported to Mr Wong were more serious ones such as when he had been pushed in the face and had been threatened with a cutter. Mr Wong's response, according to the Plaintiff, was that he should not have physical contact with the students. I do have some doubt as to whether the incident involving the threat to use a cutter was ever reported to Mr Wong. If the incident involving the cutter had been mentioned to him, I think it probable that he would have recollected it. I do not however dismiss these allegations as fabrications by the Plaintiff. When challenged for instance about the incidents of being pushed in the face and threatened with a cutter, he said he was able to give the name of the student involved. I do however attach limited weight to these matters and base my conclusions on other incidents. 62.There were 4 principal incidents upon which the Plaintiff relies demonstrating the attitude the Disciplinary Committee to offences of violence. Two of them, an incident involving an allegation indecent assault and an incident involving a student spraying a fire extinguisher, concerned members of the Plaintiff's class. Two others, an incident when the Plaintiff was struck when coming downstairs and an incident when Y ran about the classroom kicking and damaging furniture and insulting the Defendant involved Y specifically. In each case the Plaintiff alleges the incident was reported to Mr So of the Disciplinary Committee. In each case it is alleged that his response was inadequate. 63.In respect of each incident, I have heard evidence from Mr So, the head of the Disciplinary Committee, contradicting the account given the Plaintiff. 64.I did not find Mr So to be an impressive witness. He gave the impression that he had lost his objectivity in relation to anything pertaining to the Plaintiff to such an extent that his evidence had become unreliable. He lost no opportunity in denigrating the Plaintiff even when not directly relevant to the question he was answering. Although he was the person involved in instructing solicitors on behalf of the School, he had not himself made a statement about the Plaintiff's allegations until May this year shortly before the trial. Even then he had not dealt with many of the Plaintiff's allegations with the result that significant matters were not put to the Plaintiff in cross-examination. He, for instance, purported to give evidence of conversations with the Plaintiff 6 years ago upon which the Plaintiff had not had an opportunity to comment. As a result I was left with the impression that some of the significant parts of his evidence may well have been made up by him as he went along. I did not consider it fair for him to criticise the Plaintiff on one hand for failing personally to deduct points from his students for misbehaviour while at the same time criticising him for "isolating" the students by sending them to the Disciplinary Committee room when they misbehaved. I formed the strong impression that he categorised each of the incidents in the way most favourable to the students involved even in the face of clear evidence that the incident could not be categorised in that way. The indecent assault incident 65.This incident alleged by the Plaintiff occurred while he was teaching Mathematics to Form 1A (the class in which student Y was a pupil). The Plaintiff did not actually see what had occurred but was alerted when a female student fell to the floor and he saw that she was crying. She eventually alleged that certain of the male students had squeezed her breast. After asking who had done it, one male student said that "as a man" he would not deny that he had done it. Two other students then admitted being responsible in similar terms. The Plaintiff said that he took the 3 students who included Kwok Man Fung and the female student to Mr So as the head of the Disciplinary Committee and related what had occurred. The Plaintiff said that Mr So's response was to ask the students to write out what had occurred. He said that after one or two minutes Mr So had collected the pieces of paper. What little the students had written did not touch upon any allegation of indecent assault. Mr So simply told the Plaintiff that it was alleged by the students that the class had been making a lot of noise and he told the Plaintiff to return to his classroom. As the Plaintiff alleged was usually that case when matters were reported to the Disciplinary Committee, Mr So never informed the Plaintiff as to how he had subsequently dealt with the matter. The Plaintiff had mentioned the incident to the students' class teacher and had talked to the school social worker about the situation of the female student involved in the incident. The social worker agreed to make enquiries but she subsequently told the Plaintiff that the school had said that nothing of the sort had occurred. Later the Plaintiff heard 2 students calling him a "lunatic" as he passed them by. 66.Mr So's evidence is that he was never informed of such an incident. When it was suggested to Kwok Man Fung who was called by the Defendants that he was involved in this incident of indecent assault, he, having been advised of his rights, decline to answer the question. 67.On the evidence I have heard, I consider it probable that there was such an incident. The Plaintiff named the 3 male students and the female student involved. He had mentioned the incident to Dr Leung Tze Ming as earlier July 1996. If there had been no such incident I do not believe Kwok would have declined to answer questions about it. Whether the incident had actually involved an indecent assault or was a horse play among the students followed by an attempt to "bait" the Plaintiff in the classroom, I find I cannot be sure. The manner in which the 3 male students admitted their involvement suggests that the latter is a possibility. 68.I also find on the balance of probabilities that it was reported to Mr So as the Plaintiff alleges. The manner in which he dealt with it was consistent with the way I find he handled other incidents complained of. Effectively it amounted to accepting the students' account of the incident and minimising its significance. The effect of dealing with the incident in such a way was to undermine the authority of the Plaintiff and leave the students with the impression that such incidents were not regarded seriously by the school authorities. The incident involving the fire extinguisher 69.It is not disputed that in the summer of 1995 during the course of one of the lessons of class 1F, a student taught by the Plaintiff (referred to as S) removed a fire extinguisher from the wall of the classroom and ran about the classroom spraying it on his classmates. The Plaintiff with the assistance of other students eventually succeeded in preventing him continuing and told the other students to leave the classroom while he ventilated it. He took the student S to see Mr So and related the incident to him. The Plaintiff then sought advice from the Fire Services Department. Subsequently the Plaintiff said he was told by Mr So that the student had not sprayed too much, that he would be asking the student's parents to pay for the re-filling of the extinguisher and that would be the end of the matter. He said that Mr So had not told him how he proposed otherwise to deal with the incident. 70.Mr So's account was that following the incident, the Plaintiff had told him that S had deliberately activated and sprayed foam from the fire extinguisher. He had responded by saying that he and the Plaintiff should see the student's parents and that in any event he would be asking the parents to pay compensation. He said that the Plaintiff had failed to attend the meeting arranged with the student's mother and later claimed he had forgotten it. Mr So said that he told the mother that a "minor offence" would be recorded against her son's record and that he had subsequently done so. He had told her to keep her son under control. 71.I have no hesitation in preferring the Plaintiff's version of this incident. In his written statement in describing the incident Mr So had referred to the fire extinguisher having been "accidentally displaced" from the wall and had made no reference to it having been deliberately sprayed. He went on to criticise the way the Plaintiff had handled this situation by evacuating the classroom. He made no reference in his statement to a "minor offence" having been recorded against the student S, nor was such reference made in the statement of Mr Lam who (as he had not yet been employed by the school at the time the incident occurred) must have relied on Mr So for information about the incident. Mr Lam indeed said that the fire extinguisher had been "removed" from the wall. I am satisfied that despite Mr So's denials the information is likely to have come from him. I consider it probable that the reference to the fire extinguisher being "accidentally displaced" was an attempt by Mr So to minimise the significance of an incident he had failed to deal with properly. 72.His criticism of the Plaintiff for evacuating the classroom was unjustified. Furthermore I doubted Mr So's evidence that he recorded a "minor offence" against the record of Y. If he had done so, he and Mr Lam would have said so in their statements. Even though he claimed that he had told the student's mother that that was what he proposed to do, it was not recorded in the record of interview with the mother. Furthermore it was not suggested to the Plaintiff in cross-examination that the Plaintiff had a "minor offence" recorded against him. On the country it was put to him in cross-examination that the student was punished either by the deduction of points or the recording of a demerit against him. I accept the Plaintiff's evidence that he was not informed of the interview with the student's mother. 73.I find that Mr So's handling this incident was based on a totally inadequate appraisal of that had occurred and was again likely to lead the student to believe that such incidents occurring in the Plaintiff's classroom would not be treated seriously. Incident on the stairs in September 1995 74.The Plaintiff's evidence was that while coming downstairs holding a stack of books or worksheets at the beginning of September 1995, he had been struck with a very strong force on the right shoulder by student Y who although only aged about 14, weighed approximately 200 lbs. The blow was so strong that it had caused the Plaintiff to fall to ground dropping the books. When the Plaintiff asked Y why he had hit him, Y had asked the Plaintiff what evidence he could produce that he had hit him and had been smiling smugly when he said this. In my view in the circumstances, the Plaintiff justifiably concluded that Y had deliberately assaulted him. 75.The Plaintiff said that he had related the incident to Mr So who had transferred the matter to Mr Yip Ka Wai, another member of the Disciplinary Committee for him to deal with. 76.The Plaintiff said that Mr Yip had never asked him for his version of the incident but when he spoke to Mr Yip later that morning, Mr Yip had said that he has spoken to Y and that Y had said it was only an accident and so he had given him a warning and that was all he intended to do. When he asked Mr Yip if that was the end of the matter, Mr Yip had said that if he wanted to punish him, he should go ahead and punish him himself. The Plaintiff said that he did not impose any punishment on Y because he felt that it was for the school to deal with violent behaviour of this sort. He had, however, reported the incident to Y's class teacher and other teachers and was so angry that he was minded to report to the incident to the police but he had been dissuaded from doing so Y his colleagues "if he wanted to keep his job". 77.The credibility of Mr So's account of this incident was weakened almost as soon as he started giving it by stating that after having been informed by the Plaintiff that Y had hit him, he had said to Y "why did you pat Mr Lee on the shoulder?" He used the word "patting" again later in his evidence showing that he was concerned to attempt to downplay the significance of what had occurred. 78.Mr So claimed that he had asked Mr Yip of the Disciplinary Committee to deal with the incident with the Plaintiff. Mr So said that the Plaintiff had said that he had some work to do at that moment and he had therefore told the Plaintiff that if he had time, he should talk to Mr Yip about the matter. Mr So said that he had later spoken to Mr Yip about the matter after class that day. Mr Yip had told him that Y had said that he had accidentally knocked against the Plaintiff in a hurry to get to the tuck shop and that he had given Y a warning. He said that Mr Yip had also claimed that the Plaintiff, who had not come to see him earlier, had been very dissatisfied on hearing that Y had only been given a warning. Mr So said that he had spoken to the Plaintiff about the incident the following day and had told him that Mr Yip had regarded it is an accident and that if he held a different position he could talk directly to Mr Yip about it or take initiative to punish the student himself. He said that he had talked to the Plaintiff about his relationship with the students and how he should deal with them. 79.Once again I had no hesitation in preferring the Plaintiff's version to that of Mr So. It had never been suggested to the Plaintiff in cross-examination that Mr So had told him that he should go to see Mr Yip and had failed to do so. Nor was it put to him that Mr So had told him the following morning that if he was dissatisfied with a warning he should talk to Mr Yip or take steps himself to punish the student. It had simply been put to him that he was told by the class teacher of Form 1A that the incident had been investigated by the school and it had been shown it was an accident and that the student had been told he should be more careful going up and down stairs. 80.I consider the account given by Mr So of Mr Yip giving Y a warning because the Plaintiff had failed to come to give Mr Yip his version was probably an attempt to cover up the fact that the Plaintiff's version of what had occurred had not been sought. I accept the Plaintiff's account that he had been told by Mr Yip of the decision simply to warn student Y the same morning the incident occurred. 81.In my view, it was unrealistic for Yip to suggest that the Plaintiff should punish Y himself, if Mr Yip a member of the Disciplinary Committee had decided that a warning was appropriate. In any event, if it had been a deliberate assault, the Plaintiff would not have had authority himself to give an appropriate punishment. 82.I did not accept Mr So's belated assertion that Mr Yip had told him that he had contacted Y's parents about the incident. In such circumstances, I believe an entry would have been made of the warning in Y's disciplinary record. No record was ever made. I find that the manner in which the Disciplinary Committee dealt with this incident was likely to lead Y into believing that incidents involving violence would not be treated particularly seriously. 83.In my view, student Y would have reached the same conclusion from the way an incident involving him on 12 January 1996 was handled by members of the Disciplinary Committee. The incident of 12 January 1996 84.The Plaintiff gave evidence that as soon as Y came into the classroom on that day, Y had started running about and kicking at the furniture. He had kicked over 8 to 10 chairs. When the Plaintiff had asked him to pick them up, Y had sworn at him and refused to do so. 85.Eventually, after Y had calmed down, the Plaintiff took him to the disciplinary committee room and related the incident to the teacher on duty. On the way he had tried to telephone Y's parents without success. The teacher on duty had said that he would transfer the case to Mr So. 86.At the recess, Y had come to see the Plaintiff in the teachers' room saying that Mr So had sent him. As the Plaintiff was busy at the time he had told Y to come to see him after school. 87.After school, Y had come to see him and the Plaintiff had told him to write out what had occurred. The Plaintiff said that it was only on the fifth attempt that what Y wrote out was satisfactory. At about 6:30 p.m. the Plaintiff had given the final statement to Mr So who had not said what he proposed to do about the incident. 88.The Plaintiff told Y to stand in the playground and had talked to Y about his behaviour. Soon after 7:00 p.m. when he had still been unable to contact Y's parents, he allowed Y to go home and had notified Y's parents by writing in Y's diary. 89.The Plaintiff said that he had spoken to Y's class teacher about the incident but the Disciplinary Committee had not asked him to make a report as to what occurred nor had they informed him about any disciplinary action. 90.An entry regarding this incident was made by someone who is not identified in student Y's disciplinary record but the entry must have been made at least 3 months later and only after an entry had made about the final incident which resulted in the Plaintiff being taken the hospital. No punishment is referred to. 91.Mr So gave an elaborate account of what he said had occurred. It essentially amounted to an assertion that Y had told him that the reason for his behaviour was that he had been ridiculed by his fellow students and that the Plaintiff had said that he was "crazy" and that he (So) had left it to the Plaintiff to punish Y but the Plaintiff had taken no action. He maintained that the Plaintiff's account could not be correct as the Plaintiff was recorded as having signed out from the school at 5:15 p.m. that day. He maintained that the statement produced to the court was written out by Y on his own instructions without any assistance from him. 92.Once again, I prefer the Plaintiff's version of what occurred. I accepted his account of how he came to have signed out at 5:15 p.m that day. 93.The suggestion that the incident had been at least partially provoked by the Plaintiff calling Y "crazy" had never been put to the Plaintiff in cross-examination, was not included in Y's statement of what had occurred nor was it included in So's own statement or that of Mr Lam. In such circumstances, I believe this was probably an attempt by Mr So to mitigate the seriousness of the incident and shift some of blame for it to the Plaintiff. I did not accept Mr So's account of how the statement came to be written by the Plaintiff. It was obviously well laid out and much more fluent and detailed than the written account before the court made by Y in relation to the incident of 5 March 1996. Mr So was reluctant to admit the quality of the statement and subsequently made what I regarded as unconvincing attempts to explain why the later statement made by Y in relation to the incident on 5 March 1996 might have appeared less competent. He also attempted to suggest when being cross-examined that since Y had been sent to him by the Plaintiff with a piece of paper, that piece of paper may already have contained part or all of what Y subsequently wrote out, presumably having been written out with the assistance of the Plaintiff. This possibility had not been referred to in his evidence in chief. Indeed what he said in chief was that when Y came to see him, Y had said: "Mr Lee had given me a piece of paper. He did not do anything more". 94.I did not accept Mr So's evidence that the matter had been left to the Plaintiff to deal with. If there had been an express request to the Plaintiff to punish Y, I believe it would have been mentioned in Mr Lam's statement. It was not. Mr Lam's evidence was not to the effect that Y should have been punished by the Plaintiff but had not been, but rather that he had received appropriate punishment for what had occurred (presumably by being asked to apologise to the Plaintiff). 95.Indeed Mr Lam's evidence confirms that once again, Mr So dealt with an incident not on the basis of a correct assessment of what had occurred but on the wholly unrealistic basis. Mr Lam said that after talking to Mr So, he got the impression that the situation may not be as serious as appeared in writing, that it was "maybe just playing". Mr So also suggested to him that it was not a deliberate kicking of chairs. He also said that after talking to Mr So, he formed the impression that the Plaintiff might be exaggerating. Mr So also had said to him that Y was being impolite but not deliberately insulting to the Plaintiff. 96.I would add that bearing in mind what Y had admitted having said and done in his written account of the incident, it would clearly have been inappropriate to leave the matter to be dealt with by the Plaintiff. It was not within his disciplinary powers to deal with the incident. Moreover, if it was appropriate for Y's case to be referred to the Counselling Committee or the social worker, it should have been the Disciplinary Committee's responsibility to do so. 97.Mr So's tendency to make a complete unrealistic assessment of the student's conduct was apparent even after the incident of 5 March 1996. On his own account, since he could not obtain a statement from the Plaintiff, he concluded that it was an "accident". In reaching this conclusion, he was ignoring what had been written by fellow students of Y and the fact that Y had agreed to a superintendent's caution. 98.Mr Lam for the Plaintiff has suggested that in so far as causation is concerned, the court has simply to ask itself (as Keith JA did in Wong Wai Ming v Hospital Authority [2001] 3 HKLRD 209, 217 to 218) whether if the defendants had taken the measures they should have done, it could be said that the Plaintiff would undoubtedly still have received his injuries. Miss Lee agrees with that proposition of law. 99.I am satisfied that if appropriate steps had been taken to deal with earlier incidents of violence involving Y and other students of the Plaintiff, demonstrating the gravity with which the school should have viewed these incidents, not only could it not be said that the Plaintiff would undoubtedly have been assaulted on 5 March 1996, but that it would have been improbable that such an incident would have occurred. 100.It would have been even less likely if the Defendant had taken steps, as I find they should have done, to ensure that the Plaintiff attended the SBRSP training course. I find that the probable reason for not ensuring that the Plaintiff attended the course was that the School was a less than enthusiastic participant in the SBRSP programme. Attendance at that course would have been of particular value to the Plaintiff bearing in mind the extent of his involvement with the programme and the fact that it was apparent that he was experiencing difficulties with class management. The course might well have assisted him not only in dealing with incidents of misbehaviour but also of handling the class in such a way that such incidents did not occur. 101.I find that the incident of 5 March 1996 and the injuries that flowed from it were the result of the breach of duties owed to the Plaintiff by the School in contract and in tort. Contubutory negligence 102.This is not a case in which it would be right to attribute any negligence to the Plaintiff. He experienced difficulties in managing his class, and when serious incidents occurred referred them to the disciplinary matter. He cannot be criticised for doing so. Far from assisting the Plaintiff to overcome the difficulties, the conduct of the School, through the disciplinary committee, ensured that he did not do so. In my view, there are no grounds for attributing fault to the Plaintiff. Although the Plaintiff in retrospect may have been unwise in attempting to prevent Y from disobeying him by grasping the strap, his rucksack on 5 March 1996, it was not, in my view, so unreasonable conduct as to amount to contributory negligence in the circumstances in which he was placed nor can he be blamed for failure to call for help in dealing with Y on that does in view of his past experience which had resulted in criticism of himself. I do not find that other disciplinary measures taken or not taken by the Plaintiff can amount to contributory negligence. He chose to refer serious incidents of indiscipline to Disciplinary Committee which failed to deal with those matters appropriately. Quantum 103.Two aspects of the Plaintiff's condition are relevant for the purposes of these proceedings, the orthopaedic and the psychiatric. Orthopaedic Condition 104.The reports of the two orthopaedic surgeons have been placed before the court; two from Dr David Cheng obtained by the Plaintiff's solicitors and one from Dr Richard Lau obtained by the Defendant's solicitors. Neither doctor was called to give evidence. The Plaintiff makes subjective complaints of neck and shoulder pain. But even Dr Chan took the view that such injury was minor. I accept the view of Dr Richard Lau that the Plaintiff suffers no permanent impairment, disability or loss of earning capacity from an orthopaedic point of view. Any impairment is the result of his psychiatric disorder. Psychiatric condition 105.The court heard evidence from Dr Leung Tze Ming, who has been treating the Plaintiff since 1996, and from Dr Wong Chung Kwong regarding the Plaintiff psychiatric disabilities. Both doctors accepted that the Plaintiff's current psychiatric condition was precipitated by the events on 5 March 1996. It was common ground that the Plaintiff's intelligence is within normal limits. There is no deficit in his cognitive functioning except the marginal impairment of concentration. No psychotic features were detected. He is in full contact with reality. He shows no psychomotor retardation. He is alert. He speaks coherently and relevantly. While he is depressed and anxious it is not suggested he is suffering for a major depressive disorder. 106.Dr Wong diagnoses the Plaintiff's current condition as being Dysthymic Disorder. His evidence was that all the Plaintiff's current disabilities can be accounted for by this diagnosis. Dr Leung on the other hand says that while some of the Plaintiff's symptoms (in particular persistent depressive mood) can be accounted for diagnosis of Dysthymic disorder there are some symptoms that cannot. These include persistent headache, dizziness, pervasive anxiety symptoms, his phobia about returning to a school environment and gastric discomfort. He diagnosed for the Plaintiff as suffering from four conditions:
107.A considerable part of Dr Wong's evidence was devoted to his reasons why his diagnosis was the correct one. In particular he gave reasons why his diagnosis of dysthymic disorder was more appropriate than that of a mixed anxiety and depressive disorder. He did however concede that he could accept a diagnosis of mixed anxiety and depressive disorder while still maintaining that the more accurate diagnosis was dysthymic disorder. He maintained that post concussional syndrome was not a discrete psychological disorder and cited various extracts from medical literature casting doubts on its validity as a diagnosis. He described gastric disorder as a symptom not a diagnosis. His view was that the Plaintiff's aversion to returning to school was not a phobia. Although I was impressed with Dr Wong's reasoning, ultimately the validity of the conflicting diagnoses was of limited significance in view of the matters upon which the two doctors were in agreement. 108.Both Doctors accepted that the Plaintiff had made very considerable improvement (up to 80%) while under treatment by Dr Leung. Although Dr Leung had given him some limited psychotherapy both doctors agreed that the plaintiff should receive high quality psychotherapy from a psychologist and was likely to improve further. Dr Wong's suggested programme of treatment namely:
Dr Leung suggested that this treatment should commence after he had begun to tail off medication in the next 1-3 months and after waiting 4-6 weeks to ensure that the plaintiff maintained his current condition. 109.While Dr Wong's view was that such psychotherapy was likely to result in the Plaintiff's complete recovery from his dysthymic disorder, Dr Leung's evidence was that there was a high likelihood that he would make a full recovery from each of the conditions he diagnosed save in relation to his phobia of returning to school. He estimated the Plaintiff's chances of full of recovery from the four conditions as follows:
110.Dr Leung has had long and mainly successful experience of dealing with the Plaintiff and his views must be treated with great respect. Dr Wong on the other hand is of the view that the Plaintiff's aversion cannot be regarded as a phobia in the light of his experiences. To amount to a phobia the Plaintiff's fears must be unreasonable i.e. he must entertain his fear without reason. Dr Wong argues that there is a rational basis for the Plaintiff's fears. He pointed out extracts from Dr Leung's notes suggesting that the Plaintiff did not have an aversion to teaching in general but to the school where the incident occurred. In the witness box the Defendant gave a different impression, namely an aversion to teaching in general. It is difficult to reconcile this evidence with remarks he appears to have made to Dr Leung that he would consider operating a private tuition centre. I consider the explanation is probably that rather than having a phobia to teaching in general he simply feels strongly that he does not want at present to return to an occupation he never really wanted to enter in the first place and which he now associates with failure. On the evidence before me and taking into account Dr Wong's particular expertise in relation to psychotherapy, I consider that when he has completed psychotherapy and when the battle represented by this litigation is over, he would probably be in a position to return to a career in education if that is what he wants to do. There would not be a medical reason for not doing so. 111.It has not been shown to me that at that time he would be any worse position in relation to taking the licentiate examination to practise as a doctor in Hong Kong and taking up a career as a doctor than he was before this incident occurred. 112.In summary after completing his treatment, I feel that although there is a small possibility that he may have some residual symptoms, this will not be such as to affect his full earning capacity. Pain suffering and loss of amenity 113.The optimistic prognosis and the fact that the Defendant suffered no other significant non psychiatric injuries distinguishes this case from many of those to which I have been referred by counsel. On the other hand I have to bear in mind that this case will have resulted in the Plaintiff suffering some distressing psychiatric disabilities for at least 6 years and that this placed great stress on his marriage. 114.Bearing in mind the fact of cases where the courts have found the Plaintiff's injuries are at the lower end of the serious injury category (such as Francine Louse Collins v The Star Ferry Co. HCPI 491/2000, Yu Heung Yuk v Ho Man and Others HKPI 57/1998). I am of the view that this case falls into a less serious category. 115.I award him $350,000.00 under this head. Pre-trial loss of earnings 116.It is agreed that when the Plaintiff left the employment of the school on 1 October 1998, his monthly salary was $29,100.00 per month and that had he remained a secondary school teacher of the same grade, his monthly salary would have been $31,520.00. It is not disputed that his monthly average salary from the 1 April 1998 until trial would had been $30,310.00. 117.The Plaintiff makes no claim for loss of earnings during his sick leave from the date of the incident on 5 March 1996 up to 4 March 1998 as he was paid in full by the school. 118.It is admitted that his loss of income from 5 March 1998 to 31 March 1998 was $25,345.26. 119.It is agreed that his income from July 1998 to June 2000 when he worked as a doctor in the Kiang Wu Hospital in Macau was $272,826.58. There has been no suggestion that by taking this employment he was failing to mitigate his loss. I accept Dr Leung's view that it was reasonable for him to resign from that employment. 120.His only employment thereafter was from December 2000 to November 2001 as a Research Assistant in the Chinese University of Hong Kong. While it is agreed that his total earnings during that period were only $21,200.00, Miss Lee for the Defendants suggested with some justification that he should have looked more widely for employment to mitigate his loss, even if it was not in fields which held particular interest for him. I share that view. I consider that he would have been able to obtain employment at a salary of $11,000.00 per month from October 2000 (3 months after returning from Macau) onwards up until trial (21 months). 121.I find therefore his total loss of income pre-trial (without taking into account his liability for tax) for which he should be compensated on the basis that he would have continued as a certified master is $1,100,328.00 ($30,310.00 x 51 months) - $272,826.58 - ($11,000.00 x 18) + $25,345.26. Promotion as teacher 122.Although I have expressed misgivings about other aspects of Mr So's evidence, I accept that because of the number of other eligible candidates who have been in the school for many years, the Plaintiff would have no significant chance of achieving promotion to the rank of assistant master pre-trial or indeed prior to the conclusion of the future psychotherapy recommended by Dr Wong. Qualification as doctor 123.Mr Lam argues that the Plaintiff was likely to have qualified to practise medicine in Hong Kong by the end of 1996 by passing Part III of the Licentiate examinations had it not been for the accident and therefore the Plaintiff is entitled to be compensated for his pre and post trial loss of income from that profession. If the Plaintiff had become a Hospital Authority doctor on 1 January 1997 his salary would have been $39,290.00 per month (point 32 on the pay scale) and would now be $64,425.00 (point 42). Taking a median salary of $51,858.00 (($39,290.00 + $64,425.00)÷2) over that period, his extra loss over that as teacher would be $21,548.00 per month ($51,858.00 - $30,310.00). Mr Lau submits that he should be compensated for this loss over 66 months from 1 January 1997 until trial in the sum of $1,422,168.00 ($21,548.00 x 66). 124.The Plaintiff has devoted great energy to become a doctor. He has obtained a medical qualification in China and passed the first two parts of the three part Licentiate examination which would qualify him to practise in Hong Kong. 125.Despite these efforts I regard his chance of qualifying to practise as a doctor in Hong Kong as being less than probable. It was only on the fourth attempt that he passed Part I of the licentiate of the examination. He had already failed Part III of that examination (which is the clinical part of the examination) on his first attempt prior to the incident. In that attempt he had not obtained a pass grade in any of the three subjects. Even his own expert Dr Leung Tze Ming did not rate his chances highly. He commented "the Plaintiff had failed in Part III of the licentiate examination even before the incident suggesting that his pre-morbid ability to work as a doctor was only marginal at best. Being a doctor he has to face recurrent dramatic upsearch in both physical and metal stress during work. I think the chance of the Plaintiff being able to work as a doctor is low even after recovery." 126.Although I do not assess his chance of passing the Part III examination and being able to practice as a doctor in H.K. highly I do not consider it can be dismissed altogether. I would put that chance at no more than 20% and probably less. Because the court is dealing with the loss of a chance to become a doctor which inevitably cannot be calculated with any exactitude, it does not appear to me to be appropriate to attempt to quantify that chance in terms of pre and post trial losses but rather to award a global sum to reflect that loss of chance from the time of the incident to the time he would have completed his treatment. 127.In assessing the appropriate figure I bear in mind that he would have been on a progressive salary scale and if he had worked for the Hospital Authority he would have been entitled on top of 15% of his basic salary as provident fund to an allowance of 22% of his salary on the starting salary point rising to 37% in the third year. 128.I award the Plaintiff a sum of $500,000.00 to reflect his loss of chance of becoming a doctor during the period from the date of the incident to the completion of his treatment. I do not consider it appropriate to make any further award in respect of loss of earning capacity. Pre-trial loss of provident fund 129.The calculations in respect of the Plaintiff's loss of provident fund set out in para 3(h)(j) of the amended revised statement of damages is not disputed. It is agreed that by updating those figures to 30 June 2002, the Plaintiff's loss of provident fund from the Defendants is $143,985.00 assuming he had continued to work for them. 130.I consider it reasonable to suppose that if he had moved to another school he would have probably been on similar terms and he is likely to have remained a teacher if he did not become a doctor. 131.From 1 December 2000 any Hong Kong employer would have been obliged to pay 5% of his salary as provident fund. I have found that during the period if he had been properly mitigating his loss, he should have been earning $11,000.00 per month which would have been entitled to him to mandatory provident fund contribution over 18 months from 1 December 2000 to 30 June 2002 of $10,450.00 ($11,000.00 x 5% x 19). 132.The Plaintiff is titled to be compensated for his pre-trial loss of provident fund in the sum of $133,535.00 ($143,985.00 - $10,450.00). Other pre-trial expenses 133.Pre-trial medical expenses have been agreed at $155,374.50. Pre-trial travelling expenses have been agreed at $6,430.00. Future loss of earnings 134.Based upon the agreed time table of treatment, namely 4 months for the tailing off of medication followed by 18 months of psychotherapy the Plaintiff will suffer a diminished loss of earnings during a further period of 22 months. On the basis that his earnings during that period would have been $693,440.00 as a teacher (22 months x $31,520.00) and he is capable of earning $242,000.00 (22 months x $11,000.00) his loss of future earnings is $451,440.00 ($693,440.00 - $242,000.00). Future loss of provident fund 135.The Plaintiff's provident fund over the next 22 months from the Defendants would have been $34,672.00 ($693,440.00 x 5%) but he should be able to receive provident fund contributions from alternative employment of $12,100.00 ($242,000.00 x 5%). His future loss of provident fund is therefore $22,572.00 ($34,672.00 - $12,100.00). Future medical expenses 136.The Plaintiff will have to continue to see Dr Leung for the next 3-4 months. He has previously been seeing Dr Leung approximately once in every 5 weeks and the average charge has been $2,800.00. I award in $8,400.00 in respect of future visits to Dr Leung ($2,800.00 x 3). 137.On the basis of 33 one-hour sessions of psychotherapy recommended by Dr Wong at a cost of $1,400.00 each, I award him a further $46,200.00. I award the Plaintiff a total of $54,600.00 ($8,400.00 + $46,200.00) in respect of future medical expenses. Future travel expenses 138.I award the Plaintiff $1,800.00 under this head (36 visits at $50 per visit). Summary 139.The Plaintiff is entitled to damages as follows:
140.I have not heard submission on the effect that the Plaintiff's liability for tax would have on the figures I have reached in respect of pre and post trial loss of earnings. At counsel's suggestion I have not endeavoured to calculate that sum but left it to agreement between themselves but giving them liberty to apply if they cannot reach such agreement. 141.The Defendants are to pay interest at 2% from the date of issue of the writ until judgment on the award for pain suffering and loss of amenity. 142.Interest is awarded for items of special damage and pre-trial loss of earnings at half judgment rate from 5 March 1996 until the date of payment of employees compensation. And thereafter from that date until judgment interest is awarded at the same rate but less the amount of employees compensation of $1,208,440.00. 143.I make the following order nisi as to costs that unless either party applies to be heard on the question of costs within 28 days, the costs of this action be to the Plaintiff to be taxed if not agreed.
Representation: Mr Simon K C Lam, instructed by Messrs Hui & Lam (assigned by DLA), for the Plaintiff Ms Christina Lee, instructed by Messrs Cheng, Yeung & Co., for the Defendants |
Cases cited in this judgment
Further hearings and rulings under HCPI 201/1999