Tam Sau Fong v. Sheng Kung Hui Diocesan Welfare Council

HCPI 1099/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1099 OF 1999

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Coram: Deputy High Court Judge Muttrie in Court

Dates of Hearing: 5-7 February and 4 March 2002

Date of Judgment: 8 March 2002

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J U D G M E N T

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1.The plaintiff was employed as a home helper by the defendant, which is a government subvented social welfare organisation. In the course of her employment she was assigned to provide home care service to an elderly man, a Mr Ngan. On 4 October 1996, while she was working at Mr Ngan's home, he got into a quarrel with the next door neighbour with whom he shared a balcony, and attempted to attack the neighbour. The plaintiff attempted to restrain Mr Ngan, but in the struggle was pushed against an open louvred window and suffered injuries. She now claims damages against her employer for those injuries. This trial is on liability only.

Background

2.At the relevant time the plaintiff was working for the defendant's S.K.H. Chuk Yuen Canon Martin Service Centre for the Elderly. In charge was the service co-ordinator, Madam Ting Suk Yee who is the only defence witness. Below her in the organisational chain were social workers, welfare workers and then the home helpers, in two teams. The team in which the plaintiff worked consisted of six female and two male helpers, as well as two drivers. That team had over 100 clients, and the Social Worker, (actually a Social Work Assistant) in charge of it was Madam Lee Shuk Ha. The Welfare Worker under her was Madam Yeung Kin Mei. The home helpers were rostered to visit the homes of the various clients; the Welfare Worker would prepare the roster and the Social Worker would approve it. The helpers would carry out work such as cleaning and if need be would accompany the client to the hospital or the offices of the Social Welfare Department.

3.A person desirous of having the services of the Centre would apply, usually being put forward by a relative or a friend, and would be interviewed by a Social Worker who would fill in a standard form and decide whether or not to offer services, and what services to offer. The "guide for completion" of the standard form provided that "assessment should be carried out at least once every six months, or as determined by actual requirements based on opinions of the supervising manager and case worker".

4.One such client was Mr Ngan. He was assessed for service by Madam Lee on 18 May 1995. She described him as being 1.5 metres tall and of thin build. He was 80 years old, and a Chiu Chow speaker who could only understand simple sentences in Cantonese. He was assessed as being independent if provided with groceries but incapable of shopping for himself, in need of regular assistance and guidance with heavy chores, and in need of escort when going out. He was accepted by the Centre and offered weekly service mainly for house cleaning but on occasion he was escorted to a clinic or elsewhere. He was living in a single person's public housing unit in Chuk Yuen South Estate. It consisted of a single room giving on to a balcony shared with the next-door unit. There was a lavatory on the balcony which was also shared.

5.The defendant kept records of what was done for each client. The rosters showed the classifications of work done on each visit. The helpers would fill in a Home Care Service Work Record for each visit and these would be seen by the Social Worker in charge of the team and kept on the client's file. The defendant's "Handbook for Home Care Service Centre" required that, when any special event was encountered, the Manager should be notified immediately and consulted for clarification of the procedure to follow. In addition the team would hold a weekly "experience sharing meeting" to discuss their clients and any problems encountered.

6.Unfortunately certain aspects of Mr Ngan's behaviour were complained of by the home helpers and some incidents were recorded in the Home Care Service Work Records. Specifically, the records show that :

(1) On 30 May 1995 when a home helper named Wong Siu Ling was in Mr Ngan's home he suddenly unzipped his trousers, revealed his private parts, and urinated in front of her and a friend of his who was also present.

(2) On 10 October 1995 when the plaintiff went to Mr Ngan's home but could not get in, she looked in through a window and saw him lying on the bed with a naked woman beside him. She was eventually allowed in after a telephone call to Mr Ngan from the Centre.

(3) On 2 February 1996 a female helper, Oi, went to Mr Ngan's home. He answered the door wearing only his underwear. Later while she was cleaning, Oi heard a female voice asking Mr Ngan to get her some clothes. She was very embarrassed.

(4) On 26 February 1996 the plaintiff went to escort Mr Ngan to the clinic. She found a woman hiding behind him when the door was opened. He did not want to go to the clinic, but went after some persuasion; and then on the return journey he urinated in the elevator and then again after leaving the elevator, in the plaintiff's presence.

(5) On 1 March 1996 while the plaintiff was cleaning in the flat Mr Ngan took off his trousers in front of her. She asked why, and he said that he wanted to apply medical cream. She told him to do that after she had finished her work.

7.In addition the plaintiff says (although this does not appear in the records) that on 29 September 1995 when she accompanied Mr Ngan to the hospital, on the way home in the taxi he put his hand on her thigh. When she told him not to do that he took it away. Then in the lift going up to his flat he suddenly pulled down the zip of his trousers and exposed his lower parts.

8.The plaintiff also says that Mr Ngan was bad tempered and would swear at her and other helpers if they complained that his flat was dirty. She told other helpers and staff about this at the weekly meetings.

9.Madam Lee Shuk Ha, who was called as a witness for the plaintiff, said that she had carried out the original assessment of Mr Ngan. He should have had six-monthly assessments but he did not, because she was in any event visiting him regularly. His case was very frequently discussed in the meetings. The helpers reported that he was seen to have quarrels with his neighbours. He was hot-tempered.

10.Madam Lee said that the plaintiff reported various incidents to her which she caused to be recorded in the work records. She was concerned about the report that Mr Ngan had put his hand on the plaintiff's thigh in the taxi; it was significant because it was very impolite for a male to do that to a female. That was why more male helpers were rostered to Mr Ngan. After the incident on 1 March 1996 when he took off his trousers in the presence of the plaintiff the decision was made to send only male helpers to him. In her mind, said Madam Lee, Mr Ngan was a threat to female helpers. The staff were afraid that he would behave in this impolite way to female helpers in future, and therefore only males were assigned. However, under cross-examination Madam Lee agreed that Mr Ngan was a frail and weak old man; she did not have any impression that he would be prone to violence; and she was not worried about sending female helpers to his place on this account. What she had in mind was his indecent exposure, urinating in public and keeping prostitutes.

11.Madam Lee said that if she had known that Mr Ngan would attack a neighbour with a stick, it would not be a question of sending a male or a female helper; she would have suspended the service and then taken steps to find out more.

12.The rosters show only the names of male helpers (identified as such in evidence by Madam Lee) between mid-March and the end of July-1996. However about that time there was a change of Welfare Worker; Madam Yeung left, and a Madam Lam Chun Mui took over. According to Madam Lee, she consulted the male helpers, went to see Mr Ngan and decided that there was no need for male-only rostering. She put this forward in the weekly meeting and Madam Lee accepted it. Thereafter both male and female helpers were rostered for Mr Ngan.

13.Madam Ting Suk Yee, the service co-ordinator, gave evidence for the defendant. She said that she was aware of the complaints about Mr Ngan but not specifically aware of the decision first to roster only male helpers to go to his home and second to roster both males and females. She did not really know much about this matter; what she knew, it appears, came from the records.

14.Madam Ting said that if the Centre had received a report that there would be harmful behaviour, the service would be withdrawn. That would include violent behaviour where there was a possibility that it would cause harm to the worker. But she believed that if he had had a violent tendency and would pose potential harm to the workers, Lee Shuk Ha would not have arranged for any home helper to serve him. If there were a perceived threat to a worker's health or safety, neither Madam Ting nor anyone else would send a home helper to the client concerned. But one would have to look at all the circumstances of the case. In the circumstances of this case, even knowing of the previous behaviour of the client, the plaintiff could still have been sent to help him.

The Incident

15.The only evidence of the incident comes from the plaintiff herself. The account of the incident given in her oral evidence was as follows. There was some problem about getting water from Mr Ngan's tap in the lavatory. She was standing by the door of the lavatory, which was ajar and had a water bucket in the way of it; and in any event it could not open fully because of various things lying on the balcony floor. Next to her on her left was the louvred window of the neighbour's unit and beyond that the doorway. She was speaking to the neighbour, who was standing in his own doorway, when Mr Ngan suddenly came out of his own unit with a forked stick, used for hanging up washing. He swore at the neighbour and said that the neighbour was playing tricks on him, and tried to hit him with the forked stick. The plaintiff grabbed the stick, as a reflex action, to stop it hitting the neighbour, and the neighbour ducked back into his own unit. At first the plaintiff said that when she grabbed the forked stick, Mr Ngan pushed her so that her left back hit the window louvres; but then she modified that to say that when he let go, she fell back against them.

16.Mr Ngan then got hold of an iron pipe and raised it as if to strike. She did not know whom he intended to strike, but in any event she grabbed it with her left hand. She thought that he was going for the neighbour, for he said "Don't block my way". He shook the pipe and managed to shake off her grip. She felt great pain in her armpit. By this time, it seems, the neighbour was inside his own unit and the attack did not go on. She telephoned the Centre. Madam Lee came shortly thereafter, and then she was sent to the Kwong Wah Hospital for treatment.

17.There are some slight differences between the plaintiff's oral evidence and her written statement, which was to the effect that she was working in the toilet with her back to the balcony when she heard the two men arguing. She turned to find Mr Ngan holding the forked stick so she grabbed it. Mr Ngan pushed her back against the window. He then went and got the iron pipe and returned to the balcony to chase the neighbour, but she caught hold of his right hand with her left hand; he shook it violently off and so she was injured. Really the only difference is as to whether the plaintiff was outside and facing along the balcony when the attack started or whether she was working inside the lavatory and had to turn and come out. I do not think it matters. Either way, she suddenly found herself confronted by Mr Ngan with his forked stick, in a confined space (the balcony being small and cluttered with things lying on the floor of it) and trying to attack the neighbour.

18.Since the defendant pleads contributory negligence and volenti non fit injuria and says that the plaintiff should have sought instructions and not exposed herself to risk of damage or injury it is necessary to consider whether she could have done anything other than what she did. I do not think she could. It all happened too quickly and she was in the thick of it. Where a plaintiff acts to save another from injury he is not deemed to assume the risk of the consequences even if he acts voluntarily and with full knowledge of the danger; see Haynes v. Harwood [1935] 1 KB 146. Further the first attack at least was a sudden emergency and the plaintiff's action as described by her was practically a reflex. As to the second attack, the plaintiff was again trying to save the neighbour from injury. The time lapse was very short. Again the plaintiff would be acting by reflex in response to emergency.

19.There can be no doubt, then, that the plaintiff was injured by Mr Ngan and that there was nothing she could have done to protect herself. There is no question of contributory negligence or voluntary assumption of risk on her part.

The Law

20.The real issue in this case is that of foreseeability of risk. It is the duty of an employer in considering whether some precaution should be taken against a foreseeable risk, to weigh on the one hand the magnitude of the risk, the likelihood of an accident happening and the possible seriousness of the consequences if an accident does happen, and on the other hand the difficulty and expense and any other disadvantage of taking the precaution: Morris v. West Hartlepool Steam Navigation Co. Ltd [1956] AC 522 at 574.

21.In this case the issue is, what should the employer have foreseen? Per Lord Reid in The Wagon Mound No.2 [1967] 1 AC 617 at 642 :

" ... the general principle (is) that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man.

... it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it."

22.An employer's duty to his employee extends to taking reasonable steps to guard employees from criminal assaults or injuries in carrying out their tasks. Where one type of employment is more dangerous than another, a greater degree of care must be taken, but where the employer cannot eliminate the risk its duty is to take reasonable precautions to reduce the risk as far as possible. See Wong Wai Ming v. Hospital Authority [2000] 4 HKC 330 (at first instance) and [2001] HKLRD 209, CA.

23.Obviously the employer does not simply have to guard employees from criminal assaults or injuries in carrying out their tasks, in the sense of guarding them from attack; the duty must extend to taking precautions against putting an employee into physical danger which might arise from proximity to a violent person, such a client or patient, who might become violent in the presence of the employee, so that the employee might be caught up in the violence and injured.

24.Much reliance has been placed on the case of Wong Wai Ming but there is a major difference between that case and this one. In Wong's case the employee was working as a psychiatric nurse employed at a psychiatric centre. A disturbed person, who was not a patient, visited the centre, became agitated and threw sulphuric acid on the persons around her. The plaintiff attempted to scatter the crowd but the disturbed person turned on him. She threw the acid directly at him and he suffered injuries. It is not difficult to foresee that where the employee is working with a number of psychiatric out-patients, someone may become violent. That it is a visitor, not a patient, does not matter. The risk of an attack by a patient triggered the Authority's obligation to take reasonable precautions to reduce it. In the instant case however there was only one client. He had no history of violence nor was there any reason for the defendant to think that he would act violently.

25.The real issue here is whether the defendant knew or ought to have known that there was a real risk in sending the plaintiff to help Mr Ngan that she would be exposed to physical violence. If there was a real risk and the defendant ought to have known of it, then the plaintiff should not have been sent and the defendant must be liable.

26.The defendant's employees at the Social Worker or Social Work Assistant knew that Mr Ngan might, on the basis of his past history :

(1) Indecently expose himself to a female helper;

(2) Urinate in public;

(3) Indecently assault, however mildly, a female helper (the hand on the thigh is hardly serious given that he took it away when told to do so)

(4) Be "bad-tempered", though just what that entailed is not clear;

(5) Quarrel with his neighbours.

27.There simply was no history of violence. Madam Lee admitted that Mr Ngan, whom she says she visited regularly, was a frail and weak old man and she did not have any impression that he would be prone to violence.

28.It is argued that while the defendant may not have foreseen the exact form of assault, Mr Ngan was a threat to female helpers and there was a real risk that he was capable of some form of offensive acts or some kind of physical attack on one of them. This could not be ignored. In particular, given the fact that male helpers had been rostered to visit Mr Ngan there was no good reason to start sending female helpers again.

29.Now no doubt, when the female helpers were re-rostered, they were just as likely to experience the same bad behaviour on the part of Mr Ngan. There is no evidence from Madam Lam Chun Mui, the social welfare assistant who made the decision to send the female helpers to him again as to why she made that decision or if there was any real indication that his behaviour would improve. Maybe there was no good reason for sending the female helpers, other than administrative convenience. But this only matters if the foreseeability of such bad behaviour entails also the foreseeability of physical harm.

30.Of course the defendant would not have to foresee the exact kind of harm which the plaintiff might suffer. It would be sufficient if some form of harm of the same type were foreseeable. Counsel has helpfully referred me to the case of Bradford v. Robinson Rentals Ltd [1967] 1 WLR 337 where an employer sent a driver to drive for a long distance in an unheated van or vans, in extremely cold weather; the driver suffered from frostbite; the employer was found liable because while frostbite might not have been specifically foreseeable, some similar kind of injury such as common cold, pneumonia or chilblains was foreseeable.

31.I think that the plaintiff's difficulty here is that there simply was no reason for the defendant to foresee any kind of physical harm to the plaintiff or any other female worker. The defendant could foresee that a female helper might be embarrassed by Mr Ngan's exposing his private parts; she might be disgusted, by his urinating in the lift; she might be annoyed by his putting his hand on her thigh, or by his losing his temper and swearing at her or the like. But none of his past behaviour was of the type which might cause physical harm.

32.It is true that indecent exposure or indecent assault might amount to a criminal offence but again neither of these is likely or intended to cause physical harm; at least, not in the manifestations in evidence here. So even if there was a risk that the plaintiff would be the victim of a criminal offence it was not the kind of offence likely to cause physical harm.

33.I have considered whether the generally uncontrolled behaviour of Mr Ngan in exposing himself and urinating, coupled with his known hot temper and propensity to quarrel with neighbours might have made it foreseeable that he might do something physically harmful in a hot-tempered quarrel. I do not think so. As I have noted Madam Lee did not have any impression that Mr Ngan would be prone to violence and it does not follow that because someone loses his temper, shouts and swears, he will actually attack someone, particularly if he is a frail eighty-year-old man. Perhaps if there had been evidence of verbal threats or a physical threat like brandishing a weapon, the position would have been different but there is no evidence of anything of that sort. Madam Lee did not see violence as a real risk and I cannot say that she should have done. On the evidence as it stands I can only see violence as a mere possibility. I cannot see it as a real risk.

Conclusion

34.It follows that the plaintiff's claim must fail on liability. The plaintiff's action is accordingly dismissed with costs to the defendant to be taxed if not agreed. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations. The costs orders are nisi.

Representation:

Mr Charles Wong, instructed by Messrs Liu, Chan & Lam assigned by DLA, for the Plaintiff

Mr Patrick Lim, instructed by Messrs Cheng, Yeung & Co., for the Defendant