Yong Fah Chong v. The Tung Wah Hospital

HCA000781/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 781 OF 1970.

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CORAM: Briggs J. in Court

Date of Judgment: 5th February, 1971.

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JUDGMENT

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1. The Plaintiff is a doctor and in July, 1968 was in the employment of the Defendants. On the 30th day of that month he sustained injuries to his right wrist from broken glass when attempting to open a window in a children's ward in the Kwong Wah Hospital, Waterloo Road, Kowloon. He claims damages from the Defendants for negligence.

2. In the Statement of Claim the Plaintiff states that he was in the position of a visitor in the Defendants' Hospital by virtue of his contract of employment and he is claiming damages under The Occupiers Liability Ordinance.

3. The extent of an occupier's ordinary duty of care towards his visitors is contained in Section 3 of that Ordinance. Subsection (2) of that section is relevant to the present proceedings. It reads as follows:-

"The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

4. There are other provisions in Section 3 and Subsection (5) is relevant to this case. It reads as follows:-

"The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)."

5. The Statement of Claim states that the Plaintiff opened the windows "in the only manner possible, namely by pushing the bottom half thereof outwards". And various particulars of the negligence of the Defendants are pleaded.

6. These include failing to provide ropes or handles to the said window in order to facilitate its opening. However when giving evidence, the Plaintiff said he did not now complain that there were no ropes. And photographs and diagrams of the window in question have been exhibited which show that there is a prominent window catch. However the Plaintiff did complain of the failure on the Defendants' part to ensure that the window was working properly, and failure to warn the Plaintiff as a "visitor" of the dangerous state of the window which he alleges, the Defendants should have known about.

7. The defence is a denial that any duty of care owed to the Plaintiff was breached and the Defendants further claim that the accident was due to the sole negligence of the Plaintiff in that he pushed his hand on to the glass of the window in order to open it - which, say the Defendants is a negligent manner in which to open such a window, a catch being provided for this purpose.

8. At the relevant time the Plaintiff was in charge of a children's nursery on the 11th floor of the Hospital. In addition he was under a duty to visit ward E2 which is a children's ward on the second floor. It was in this ward that the accident happened.

9. At about 4.30 on July 30th, 1968 in pursuant of his duty the Plaintiff entered ward E2. This ward was not air-conditioned. The Plaintiff said it was a very hot day. It was during visiting hours and the room was crowded. There were at the time some twelve to fourteen patients in each half of the ward.

10. In order to secure a greater measure of ventilation the Plaintiff opened the windows in doing which the accident occurred.

11. Ward E2 consists of two sections divided by a glass and brick partition. The section with which we are concerned I shall call Cubicle 2.

12. In Cubicle 2 there is room for 12 beds but sometimes an extra bed is set up. This appears to have been the case on July 30th, the day of the accident.

13. The Cubicle is thirty-one feet long and just over eighteen feet wide. At each end there are two windows and one glass door. These doors are kept locked to prevent any patient escaping on to the verandah or balcony on to which they open respectively.

14. Half way down the length of the ward there is on one side the entrance to the ward and on the other side, an open gap leading into the other cubicle, cubicle 1, of the ward. The entrance is a double swing door which was kept closed. There is no door between the two cubicles of the ward.

15. In Cubicle 2 therefore there are four windows: two at each end. I was shown diagrams and photographs of these. The wall of the cubicle is pannelled with tiles up to about 6 feet. Each window has a window sill which is also tiled. It is not a wide window sill but it is wide enough to stand on. The window sill is 2' 9" from the floor.

16. Each window measures 6' x 4'. There is in fact a slight discrepancy in the measurements of the two diagrams exhibited but it only amounts to three quarters of an inch and can safely be ignored.

17. The windows are of a common enough pattern. They are steel framed and consist of three panes of glass all of the same dimensions. Two panes framed in steel placed vertically make up the lower part of the window. These are protected by an iron grille and have handles whereby they can be opened outwards like a door.

18. Above this the third pane, framed in steel is placed horizontally and secured at each end in its centre to the jambs of the window - by a pivot. There is a large latch in the centre of the top of this part of the window to enable the window to be latched or opened. If this is pulled inwards or unlatched, the pane will open inwards on its pivots or swivels, that is the bottom part of the pane will move outwards and the top part will turn inwards allowing air to enter at both the top and the bottom. It will be obvious from this description that if the latch is unlatched and if a person presses the glass at the bottom of the window the window will open: but of course this cannot be done if the latch is fastened. In order to open this part of the window the latch must first of all be released.

19. The Plaintiff said in evidence that when he entered the ward the electric fans were not working. And most of the windows were closed. The room was crowded and he thought there was a real danger to the health of the patients.

20. He said he told a student nurse who was on duty in the ward to take the temperatures of two or more of the patients. And that this was done rectally. The temperatures of the patients were rising and he considered that it was of prime necessity to open all the windows.

21. He opened the lower parts of the windows by using the latches. In order to open the upper parts of the windows, he used a chair to enable him to climb on to the sill. He said 'I gripped the horizontal bar in the window and pushed the lower part of the upper window. They were on pivots and opened easily. I used my palm. They opened outwards and were not locked'. He said all the tops of the windows other than the last one yielded to pressure.

22. He went from window to window and when he reached the sixth window he said he used the same procedure. He pressed his palm on the lower part of the glass his hand went through the glass and he was injured. He does not know if he opened it but he did break the glass.

23. The defence called the Sister who was in charge of the ward and who was on duty at the time. She said she saw the Plaintiff in the ward before the accident and he gave her no instructions. He did however order two student nurses who were there to fetch some ice cubes for those patients who were running a temperature.

24. In the Sister's opinion the fans were working and the lower parts of the windows were open. She said that a special instrument was used to open the upper parts of the windows. It was exhibited during the case and it closely resembles a boat hook. This is inserted with the catch which is at the top of the window and by pulling downwards the catch is released and the window is opened.

25. The Sister said that this was kept in the Amahs' room and was used by members of the staff. Normally, if a doctor wanted a window opened or closed he would order a member of the staff to do it.

26. The Sister gave her evidence in a straight forward way. She was calm and I accept her evidence as truthful. There was no exaggeration. That cannot however be said of the evidence of the Plaintiff. He was far from calm when in the witness box and in one occasion an adjournment was necessary to enable him to recover his composure. I had the impression that he exaggerated his evidence and that much of it was given with hind sight.

27. So far as the Sister was concerned - and she has had many years experience - there was no emergency. She was there herself working in the ward: one of her first duties would be to regulate the temperature so far as that was possible. I accept her evidence in preference to that of the Plaintiff where there is a conflict.

28. Of course she did not see the accident actually occur. The Plaintiff called one Kwan Kiu, the mother of one of the patients in the ward who was visiting her son at the time who occupied a bed half way down Cubicle 2. She said she did not know if the fans were working or not. Her recollection of what occurred immediately before the accident was rather vague and muddled and differed from the evidence of the Plaintiff in some respects. However she did see the Plaintiff try to open the top of the window with his palm on the glass and said that the glass broke damaging the doctor's hand. I do not think that the evidence of this witness materially advances the case for the Plaintiff.

29. The Plaintiff also called two doctors who had worked in the ward before. They were shown the pole which is provided for the opening of the upper part of the windows and said that they had never seen one in the ward. This does not surprise me since it was kept in the Amahs' room and since it is not part of the normal duties of a doctor to open the tops of windows. However, I agree with one of the Plaintiff's witnesses who said that no rule can be laid down as to this. A doctor will sometimes open a window himself provided of course that that does not interfere with his attention to his patient. But if he wishes to open a window like the upper parts of the windows in this ward, he should use the method provided. That is he should either tell an amah or student nurse to open it for him or he should use the catch. One of the Plaintiff witnesses agreed with a suggestion of counsel for the Defendants that one should never try to push open a window by pushing the glass as opposed to the frame with one's hand. Indeed this is common sense.

30. Failing the use of the special instrument for opening the window the Plaintiff should have used the catch provided in the centre at the top of the window.

31. As I have said, the window from the sill to the top of the pane measures 6'. Any one standing on the sill, that is anyone other than a child or a dwarf would be able to reach the catch. And he could not possibly miss seeing it. It sticks out from the frame of the window 2 1/4". Nor in my view could any person be in any doubt as to its use. I have seen the Plaintiff in the witness box and he clearly could have reached the catch. Indeed the Plaintiff himself said that he supposed he could see the catch when he was on the sill, though he surprisingly said also that he did not think the catch was a catch. He admitted that he did not look to see if the catch was on or not. He just pressed the glass and it broke. At the same time he said that he had the impression that the window was open. His witness, Kwan Kiu, said it was slightly open but I disregard her evidence as to this. She would have me believe that she noticed this particular window and only this particular window was ajar. Whether the window was open or not is in my view immaterial. If it was not open it should have been opened with the use of the catch: if it was slightly open it should have been opened by the catch also or perhaps by pulling on the iron frame of the top of the pane. If the Plaintiff had done this he would not have been injured.

32. In my view the Defendants did all that was required of them, they provided a method of opening the tops of the windows which was perfectly reasonable and if I may say so very common. The Plaintiff is putting his hand on the window glass and pushing - pushing moreover sufficiently hard to break the glass - used a negligent method of opening a window. There is no evidence that the window was defective or rusty or would not open. The accident was caused by the Plaintiff's negligence and not by the breach of any duty owed to him by the Defendants. And so I find. There must therefore be judgment for the Defendants.

33. However in case this case is carried further I will make an estimate of the damages which I think the Plaintiff would have recovered had I decided that the Defendants were liable.

34. I was not told what salary the Plaintiff was earning at the time or now. There is however no claim for any loss of earnings. The Plaintiff suffered considerable pain at the time of and after the accident. He also said he suffered great mental anguish. Apparently he very pessimistically thought that he might have to have his hand amputated. Fortunately this has not been found necessary and indeed the Plaintiff is still employed by the Defendants. There is however some permanent injury which has been assessed by a medical board at 10% according to the Workman's Compensation Ordinance. The Plaintiff complains that part of his right hand is numb: that he cannot control his fingers as before and that his grip is weak. He used to be a keen Badmington player but now cannot play. There is no evidence that the Plaintiff intends to study further to become a Surgeon. But that is a possibility which must be remembered when making any assessment of general damages. A weak grip would obviously be a handicap to a Surgeon. No further operation is required: the present state of the hand is permanent. Doing the best I can I would award $20,000.

35. The Defendants have agreed to pay to the Plaintiff the amount of special damages claimed in the Statement of Claim. The claim of the Plaintiff is otherwise dismissed. The Defendants are entitled to their costs.

Representation:

Sanguinetti (Johnson, Stokes & Master) for Plaintiff

Zimmern (Lo & Lo) for Defendant

Judgment read in Court