TANG CHUNG LOI v MTR CORPORATION LIMITED

HCPI 939/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.939 OF 2002

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BETWEEN

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Before : Deputy High Court Judge Fung in Court

Dates of Hearing : 21 – 24 February 2005

Date of handing down Judgment : 28 April 2005

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J U D G M E N T

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1. The plaintiff is suing the defendant for injury inflicted by an election promoter acting for the Third Party within the station premises of the defendant.  The plaintiff has not sued the Third Party directly.

2. The plaintiff claimed that the defendant was in breach of the contractual duty of a carrier, the duty of care under the tort of negligence, the common duty under the Occupier’s Liability Ordinance (Cap. 314), and/or for causing or permitting a nuisance on its premises.  The trial was on both liability and quantum.

The plaintiff’s case

3. 10 September 2000 was election day for the Legislative Council.  At 8:30 p.m., the plaintiff got off the MTR train at Wong Tai Sin Station and was ascending the staircase at Exit A.  He looked up and saw four election promoters of the Third Party standing on the landing at the top of the staircase.  They were holding placards in their hands.  The four of them blocked the better half of the exit, leaving the gap of about one to two persons on the right (from the plaintiff’s standpoint).  When the plaintiff was about four to five steps below the promoters, he began to veer right.  When the plaintiff was about one to two steps from them, the promoter on his left suddenly waved the placard haphazardly and the upper corner of the placard hit his left eye.  The plaintiff did not expect the movement of the placard and he did not use his hand to shield his eye.  He felt sharp pain and covered his eye and stepped aside to rest for a while.

4. The plaintiff could not identify the culprit but he said at all material times, he only saw four promoters in green vests belonging to the Third Party.  He did not see any promoters in yellow vests belonging to the Democratic Alliance for the Betterment of Hong Kong (“DAB”). 

5. The plaintiff did not confront the culprit.  He said he did not think it would be so serious and he was taught to be tolerant and not to take revenge.  Also, it would be bad to get involved in politics. 

6. After a while, the plaintiff met a friend who suggested he go to the MTR office to ask for help.  The plaintiff told an officer of the MTR that he was hit by a placard held by a promoter in green vest of the Third Party.  The officer went to the staircase with him but they never went to the top.  The officer went up to half way of the staircase about seven steps from the top and told the promoters to leave.  The plaintiff stayed at the bottom of the staircase about seven steps behind the officer. 

The defence case

7. Mr So Tin Shan (DW1) was the station officer.  The plaintiff told DW1 that his eye was poked by a placard held by a Democratic Party promoter.

8. DW1 went to top of the staircase and he saw promoters holding placards of at least two parties at the landing and the uppermost steps.  Their numbers were about half and half and they were intermingled with each other.  DW1 asked who injured the plaintiff and whether there was eye witness but there was no response.  DW1 said the plaintiff must have seen the DAB promoters as he was just one to two steps behind him.  They stayed at the top for about five minutes.  The plaintiff did not cover his eye from time to time but not all the time.

9. DW1 said the staircases and exits were patrolled at 7 a.m., 9 a.m., 10 a.m., 1:30 p.m., 3:30 p.m., 6 p.m., 7 p.m., 8 p.m. and 9 p.m. daily.  As far as DW1 was aware, the election campaigning activities were on the street and the MTR did not arrange for more manpower to step up the patrols.

10. Mr Wei Pak Kin (DW2) patrolled Exit A at 8 p.m. and he walked along the pavement outside and then walked down the adjacent Exit E.  He saw election campaigning activities on the pavement but not within the station premises.

The Third Party’s case

11. Mr Lui Wing Kei (TPW1) was the leader of the promoters for the Third Party.  TPW1 said neither he nor the other promoters of the Third Party waved the placards haphazardly at the entrance of the exit.  He said that if that were done, it would create a risk or danger to the passers by.

12. There were four promoters of the Third Party and about 10 promoters from DAB in the area outside Exit A.  The Third Party’s promoters were mixing with the DAB promoters, with each side covering the field taken by the other side rather than standing in a line.  At times, one promoter from each side had got onto the staircase near the landing. 

The medical evidence

13. It was said that the plaintiff malingered and exaggerated the condition of his left eye, and understated the pre-existing condition of diabetic retinopathy of his right eye.  Hence, the medical evidence is relevant in the consideration of his credibility.

14. According to the plaintiff, he felt intense pain at the time.  He realized he had lost vision in the left eye at the hospital.  Subsequent operations did not resolve the problem.  At worst, he could not perceive flash light.  His right eye deteriorated due to overuse in compensation for the left eye.  In 2003, his left eye started to improve.  Apart from his right eyeball shifting to the left, the right eyesight is now normal.

15. The plaintiff was referred to the Eye Hospital on the date of the accident.  The medical report showed that visual acuity in the left eye was light perception only.  Ocular examination revealed left vitreous haemorrhage.  Incidentally, the right eye was found to have exudative maculopathy.  Subsequently, the plaintiff was diagnosed to be suffering from diabetes mellitus.

16. The left vitreous haemorrhage did not resolve and operation was performed on 15 March 2001.  Several laser treatments were also performed on both eyes to control diabetic retinopathy.

17. On 29 December 2001, the plaintiff was examined by his own expert, Dr Kenneth Ng.  He was found to be suffering from quite advanced diabetic retinopathy in the right eye.  Dr Ng referred the plaintiff to the Central Opthalmic Laboratory for the visual field test.  However, the plaintiff refused to have the right eye tested, and his left eye was found to have very gross loss of visual field in all four quadrants.  Dr Ng concluded the loss of visual acuity of the left eye was 100% and loss of visual field of the left eye was 98%, with combined impairment of the left eye of 100%.

18. On 14 May 2003, the plaintiff was examined by Dr Paul Cheung for the Third Party.  On initial testing, the visual acuity impairment for the left eye was 95% and for the right eye was 60%.  However, on administering the “malingering test” (i.e. asking the patient to look at the test chart with both eyes open, while fogging the good eye at times so that the patient is actually looking with the bad eye and vice versa), the genuine visual acuity impairment was 60% for both the left eye and the right eye.  Dr Cheung referred to the finding of 100% loss of visual field in Dr Ng’s report and commented that the visual field test is a subjective one depending on the truthfulness of the patient’s response.  He did not consider repeating the test as the plaintiff was malingering.

19. On 21 July 2003, Dr Cheung and Dr Ng, jointly examined the plaintiff.  There was a 2.5 cm scar on the left eye lid, but that was caused by an traffic accident eight years ago.  They agreed that the gross loss of peripheral visual field of the both eyes was contributed partially by diabetic retinopathy.  They agreed that the loss of visual acuity for the left eye was only 60%, and for the right eye was 30%.  They disagreed on : (1) the cause of vitreous haemorrhage; (2) exudative maculopathy; and (3) percentage of impairment of the left eye as caused by the accident.  These are only relevant to the question of quantum in the light of the plaintiff’s pre-existing condition but are not relevant to the plaintiff’s credibility.

20. On 5 September 2003, Dr Cheung and Dr Ng, gave the further opinion that even without the accident in question and even if the left eyesight were normal, the plaintiff could not resume his pre-accident job as a taxi driver by reason of the deterioration of the right eyesight.  Drivers of commercial vehicles including vans and taxis should have corrected visual acuity equal to or better than 6/9 in the better eye and 6/12 in the worse eye.  The visual acuity plaintiff’s right eye was 6/18, and assuming the right eye were the worse eye, it was worse than 6/12. 

Assessment of the evidence

21. Miss Molloy for the defendant and Mr Shum for the Third Party submitted that the plaintiff was not a credible witness.  At best, he was not sure who had hit him.  Worse still, he was politically motivated in choosing to blame the Third Party.

22. Criticism of the plaintiff’s evidence were as follows :

(1)	The failure of the plaintiff to talk to the negligent promoter when his left eye was hit was unreal.  He said he thought it was not serious but according to him, there was intense pain and some loss of vision and his friend suggested him to seek help from the MTR staff.
(2)	Even if there were other users of the staircase, his inability to identify the culprit when according to him that person was directly in front of him made his evidence inherently improbable.
(3)	His evidence that he only saw promoters of the Third Party and none from the DAB was directly confronted by the evidence of DW1.  His evidence that DW1 and he did not go up to the landing to investigate was but an excuse for him not to have seen any DAB promoters.
(4)	He said he was taught to be tolerant and it was bad to be involved in politics.  But he had been outspoken and active in neighbourhood organizations.  He publicly protested against a candidate of the pro-democracy camp on the day of the 1999 District Board Election where the candidate allegedly insinuated that she would report the plaintiff’s conduct to the ICAC.  He protested against the Hon. Szeto Wah (as he then was) in one of his constituency function in December 2000 and demanded “you give me back my eye”.
(5)	He invited the press to publish his claim in November 2000 no doubt in order to canvass media support.  He was photographed pointing to both his left eye as well as left eye lid near the position of the scar.  However, the scar was left over from a previous accident and had nothing to do with the present case.
(6)	He exaggerated the virtual loss of visual acuity in the left eye to Dr Ng and in his witness statement.  The lie was exposed upon the administration of the malingering test by Dr Cheung.
(7)	He tried to conceal the condition of his right eye from Dr Ng as he refused to have his right eye tested for the visual field.
(8)	He tried to explain that the right eyesight deteriorated due to over reliance on the remaining good eye.  He told his psychologist Prof. Peter Lee that this was the advice of his doctors.  However, both Dr Cheung and Dr Ng stated that the impairment of the right eye was due to diabetes retinopathy.  There is no mention of the cause being over exertion of the good eye.  And the plaintiff disagreed with the medical opinion that diabetic retinopathy is progressive.
(9)	He gave evidence for the first time in court that his right eye has fully recovered apart from mild drooping.  He agreed that he had never told this to the doctors nor his solicitor before.  It must have been a recent invention to salvage his case on quantum in the light of the joint opinion on his inability to resume driving in any case due to diabetic retinopathy.

23. On the other hand, Mr Chan for the plaintiff submitted that at the time, the plaintiff only felt sharp pain and he did not think it was serious enough to confront the culprit.  Mr Chan submitted that there was nothing unreasonable or improbable for the plaintiff not to have seen any DAB promoters.  The plaintiff was blocked by four promoters in green vest when he was near the top of the staircase.  Then he was hit and he said he was not in a mood to see anything.

24. Mr Chan pointed out discrepancies between DW1 and TPW1 as to whether the plaintiff followed DW1 up for investigation.  TPW1 was not aware of the plaintiff and did not feel that DW1 was coming up with another person.  Notwithstanding that both DW1 and TPW1 saw DAB promoters, this issue should not be elevated to making a case of selective vision by the plaintiff.

25. Both Miss Molloy and Mr Shum referred to Prof. Lee’s report where he recorded that the plaintiff told him that the plaintiff saw a man suddenly moved the board and he was hit by “something hard”.  They made the point that the plaintiff was not sure what he was hit by.  It is fair to note in the latter part of Prof. Lee’s report, he did state that the plaintiff was hit by a cardboard.

26. There is no eye witness for the plaintiff, and he never confronted the culprit at the time of the accident.  His credibility is of outmost important in order to succeed.

27. The plaintiff’s malingering in his left eye and his sudden recovery in his right eye contrary to medical evidence is enough to cause one to raise one’s eye brow.  On the evidence of the accident, even if the plaintiff did not think it was serious enough to respond spontaneously upon being hit, he must have thought it serious enough to complain to the MTR staff.  As such, his evidence that DW1 never investigated the matter with the potential culprits is contrary to common sense and incredible.  Be that as it may, upon the return to the staircase, his own inaction in not trying to confront the promoters of the Third Party is also unreal. 

28. All in all, I am not satisfied that the plaintiff is a credible witness and he has failed to his case.  Their being no alternative case that he was hit by an election promoter from any party, his claim is dismissed.

Occupier’s liability

29. On the assumption that the plaintiff’s evidence of the course of the accident is believed, I shall consider whether the defendant is liable.

30. TPW1 admitted that if four promoters of the Third Party lined up to block the better part of Exit A and they waved the election placards haphazardly, it was likely to create a risk and danger of injury to the passer by.  Mr Shum did not strenuously argue otherwise on such a factual basis.  Mr Shum also conceded vicarious liability in the event the defendant were liable and sought indemnity against the Third Party.

31. The plaintiff based his claim against the defendant mainly on the breach of common duty of care and the breach of contractual duty owed to the plaintiff.  There is also an alternative case of public nuisance.

32. There is no dispute that the defendant was the occupier of the locus in quo, and the plaintiff was a lawful visitor on its premises.

33. Under section 3(2) of the Occupier’s Liability Ordinance :

“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.”

34. Under section 6(1) of the Occupier’s Liability Ordinance :

“Where persons enter or use, or bring or send goods to, any premises in exercise of a right conferred by contract with a person occupying or having control of the premises, the duty he owes them in respect of dangers due to the state of the premises or to things done or omitted to be done on them, in so far as the duty depends on a term to be implied in the contract by reason of its conferring that right, shall be the common duty of care.”

35. As the accident occurred in the staircase of the station where the public is allowed to pass as opposed to in or upon the train itself, I see no difference in the duty whether it is based on the statutory liability of an occupier or on contract of carriage.

36. Mr Chan referred to Clerk & Lindsell on Torts (18^th ed., 2000) at para. 10 - 24 :

“It goes without saying that the common duty of care is more than a duty to avoid negligent acts, but extends to negligent omissions as well.  Not only must the occupier avoid creating danger himself, he must also take reasonable steps to protect his visitors from dangers which he did not himself create, as where a nightclub floor becomes strewn with liquor and broken glass.  It seems that the duty may extend to protecting visitors from dangers on neighbouring land not in the occupation of the defendant, for instance by using fencing.  On the other hand, it is submitted that thyere must be some danger arising from the state of the premises: the mere fact that they lack some given amenity will not do, even if injury may be foreseeable.”

Mr Chan also referred para. 10 - 28 :

“In determining whether what was done or not done by the occupier was in fact reasonable, and whether in the particular circumstances of the case the visitor was reasonably safe, the court is free to consider all the circumstances, such as how obvious the danger is, warnings, lighting, fencing, the age of the visitor, the purpose of his visit, the conduct to be expected of him, and the state of knowledge of the occupier.  The difficulty and expense of removing the danger is a relevant factor…”

37. I respectfully agree with the learned authors.  The main issue is whether injury to the plaintiff is foreseeable and whether the defendant has breached the duty to take reasonable care. 

38. Alternatively, Mr Chan submitted that it is a public nuisance at common law in obstructing the highway by rendering it dangerous and inconvenient to pass (see Clerk & Lindsell para. 10 - 04).

39. Assuming that the Third Party’s activities constituted a public nuisance, it is important to consider whether the defendant had adopted or continued the nuisance.

40. Clerk & Lindsell para. 19 - 40 stated that :

“It is clear that in cases where liability is sought to be imposed upon a defendant, not on the ground that he created the nuisance but on the ground that he permitted it to continue, proof of negligence at least is essential.  As Lord Wright said in Sedleigh-Denfield v. O’Callaghan [1940] AC 880 at 897, ‘If the defendant did not create the nuisance he must, if he is to be held responsible, have continued it, which I think means simply that he neglected to remedy it when he became or should have become aware of it.’”

In the circumstances, the consideration is the same be it the continuation of a nuisance or breach of occupier’s liability or common duty of care.

41. Mr Chan submitted that the accident was caused by the defendant’s failure to keep proper control and management of the staircase of the Wong tai Sin Station.  The campaigning activities of the parties created blockage and obstruction of the staircase and constituted nuisance or at least inconvenience to the passers by.  It is the duty of the operator to ensure the safety and a smooth environment for the users of the passageway.

42. Mr Chan said the hourly patrol was definitely insufficient, particularly on the election day of LegCo.  Although Mr Chan did not submit that full time guard be mounted at the exit, he suggested that frequent announcement to warn the promoters not to cause the blockage would have avoided the accident. 

43. Mr Chan referred to Cunninghan & Ors v. Reading Football Club Ltd [1992] PIQR P141 where the occupier of the football field was held liable for negligently failing to control dangerous visitors to cause injury to others, as where football hooligans hurled all too detachable paving slabs at a policeman.  Drake J found on the evidence that the defendant knew very well that the crowd was very likely to contain a violent element and unruly fans might well throw pieces concrete as missiles as only four months ago, similar incident occurred when concrete missiles were easily obtained by spectators breaking up the terracing and no steps having been taken to make it more difficult for that to be done notwithstanding the matter was inquired into by the Football Association and the managing director of the defendant had written to the Association that knew that trouble was likely at the match in question and special precautions had been taken to prevent it.  His Lordship held that while extensive relaying of the concrete would be expansive, much more restricted repairs would have sufficed. 

44. Drake J referred to a number of cases where the liability of a defendant for acts done by third parties has been considered.  With due deference, I repeat those passages as cited.

45. In Home Office v. Dorset Yacht Club [1970] AC 1004, 1030 per Lord Reid :

“The cases show that, where human action forms one of the links between the original wrongdoing of the defendant and loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation.  I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than a consequence of the original wrongdoing.  But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortuous or criminal.  Unfortunately, tortuous or criminal action by a third party is often ‘the very kind of thing’ which is likely to happen as a result of the wrongful or careless act of the defendant.”

In Lamb v. Camden London Borough Council [1981] 1 QB 625, Oliver LJ (as he then was) quoted the above passage and went on to say at 644 :

“Speaking for myself, I would respectfully regard Lord reid’s test as a workable and sensible one, subject only to this: that I think that he may perhaps have understated the degree of likelihood required before the law can or should attribute the free act of a responsible third person to the tortfeasor.  Such attribution cannot, as I think, rationally be made simply on the basis of some geographical or temporal proximity and even ‘likelihood’ is a somewhat undertain touchstone.  It may be that some more stringent standard is required.  There may, for instance, be circumstances in which the court would require a degree of likelihood amounting almost to inevitability before it fixes a defendant with responsibility for the act of a third party over whom he has and can have no control.”

46. Hosie v. Arbroath Football Club Ltd 1978 SLT 122 was also considered in Cunningham v. Reading Football Club, where the occupier of a football field was held liable when a spectator was trampled at a football match when hooligans forced their way into the ground through an inadequately maintained exit barrier.  The pursuer was waiting for admission to a first division match.  Some unruly persons made a deliberate attack upon the gate.  They overcame the gate and carried the pursuer with it.  He was knocked down and trampled upon, and suffered grave injuries which resulted in a complete paraplegia.

47. In the Scottish Outer House, Lord Stewart found that the guide of the exit gate was broken when pressure was exerted upon it by those who were swinging it inwards.  His Lordship found two defects with the gate : (1) the badly corroded guide at the ground level resulted in diminution of its original strength; (2) the absence of any device to stop the rollers from coming off the rail at the top so that the gate could not be lifted up, where evidence indicated that such devices were commonplace and effective.  The difficulty in the case was that door gave way not as the result of ordinary crowd pressure but as a result of a deliberate attack upon it in that whether it could be described as a novus actus interviens.  His Lordship considered that one of the purposes of the gate was to keep people out and that must have included people who were over eager, whether through drink or partisan enthusiasm, to over come the barrier which the gate was constituted.  There had, moreover, been an incident at a previous game when apparently people tried unsuccessfully to break in a gate and a police officer opened the door to let the crowd enter and the defenders’ treasurer was well aware of that.  His Lordship concluded that on the whole evidence, it was reasonable foreseeable by the defenders, that there might be an attempt by unruly members of the crowd to force a gate as it in fact happened.

48. It is quite evident from the cases that the defendants were held liable as occupiers for the independent wrongdoing of independent third parties because : (1) there were some defects in maintenance and/or design in the premises; and (2) the risk of the third parties acting upon the defective premises was known to the defendant as incidents of a similar nature had occurred in the past.

49. In the present case, I find the following factors relevant in the consideration of the defendant’s liability :

(1)	there is no evidence of any defect in maintenance and/or design of Exit A, and if Exit A were rendered too narrow for passage at the material time, it was only due to the blockage by the promoters of the Third Party;
(2)	election campaigning is not an inherently dangerous activity, and the activities in question took place mainly at the public place outside Exit A, with occasional transgression into the upper steps of the staircase at Exit A; and
(3)	the defendant had no control over the activities of the promoters;
(4)	the defendant had neither past experience nor knowledge at the material time of such transgression into the staircase of the exit.

50. I find that it was not reasonably foreseeable to the defendant that the campaigning activities of the promoters would block the passage at Exit A and/or cause injury to the plaintiff.  Hence, no responsibility should be attributed to the defendant even if the plaintiff’s evidence were to be believed.

51. In the circumstances, it is not necessary to consider quantum.

Conclusion

52. The plaintiff’s claim against the defendant is therefore dismissed. 

Costs

53. I make an order nisi that the plaintiff is to bear the costs of the defendant and the Third Party, to be made absolute in 14 days in the absence of any application.

Mr Daniel Chan, instructed by Messrs Lau, Chan & Ko, for the Plaintiff

Ms Joanna Molloy, instructed by Messrs Deacons, for the Defendant

Mr Erik Shum, instructed by Messrs Ho, Tse, Wai & Partners, for the Third Party