Chan Kin Bun v. Wong Sze Ming and Another

HCPI 549/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 549 OF 2004

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BETWEEN

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Before: Deputy High Court Judge Saunders in Court

Dates of Hearing: 19, 20, 21 December 2005, 6 & 7 February 2006

Date of Judgment: 21 February 2006

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J U D G M E N T

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Introduction:

1.In June 2001, the Plaintiff, Mr Chan and the 1^st  Defendant, Mr Wong were aged about 14.  They are now aged 18.  In June 2001, both were pupils at the 2^nd Defendant school, (the School).  On the morning of 21 June 2001, virtually the end of the school year, both were required to take part in a design and technical drawing examination.  Some 200 male students were sitting the exam and all were required to bring with them a technical drawing instrument known as a T-square.  That is a T shaped ruler, made of perspex, some 65 cm long, and 25 cm across the T.

2.At about 12 noon, following the completion of the exam, the students were directed to leave the examination hall.  Sometime after 12 noon, but before 1 p.m., Mr Chan and Mr Wong went to the covered playground where there was a snack bar.  They were permitted, following the exam, to buy sandwiches and snacks there, but were expected to go home shortly thereafter.  There were no further examinations or lessons in the afternoon.

3.Not long after going, apparently separately, to the covered playground snack bar, Mr Chan and Mr Wong began to use their T-squares in the manner of swords in a mock sword fight.  In the course of this game one of the T-squares, (it is not known which), broke, and Mr Chan suffered an injury to his left eye.

4.Mr Chan now brings proceedings against Mr Wong and the School for damages consequent upon that injury.  In this judgement I am required only to determine the question of liability.

The pleadings:

5.The precise terms of the pleadings are important in this case for, as will be seen, Mr Chan departed radically from the case originally pleaded, and by the conclusion of his evidence Mr Cheung was obliged to rely upon the case pleaded by the School.  This situation raises the issue of the circumstances in which a plaintiff is entitled to proceed based on a scenario that he does not plead, but instead, a scenario pleaded by a defendant.

6.The relevant passages of the statement of claim are as follows, (I have omitted passages not relevant to the issue):

“2. (a)   On the 21st June 2001, at about 12:30 p.m., whilst the Plaintiff was queuing up for refreshment at a store in the playground, the 1^st Defendant together with other students behind the Plaintiff were engaged in playing around, hitting each other’s plastic 65 cm T-shaped rulers as though in a mock sword fight.

(b)   No sooner the Plaintiff turned around than the 1^st Defendant hit the Plaintiff’s left eye with his ruler with force with the result that the Plaintiff lost all useful sight in that eye.

3.   The Plaintiff’s injury was caused by a deliberate and/or reckless act of the 1^st Defendant.

Particulars

(a)  he 1^st Defendant was taunting and/or bullying the Plaintiff with his ruler in such a manner tantamounting to an assault.

4.  Further or alternatively, the Plaintiff’s injury was caused by the negligence of the 2^nd Defendant, its servants and/or agents.

Particulars

(b)   Absence of teachers to supervise the students in the playground whereas it was the 2^nd Defendant’s policy that the students would be monitored by staff to ensure their health and safety thereat.”

The claim against Mr Chan, being expressed as a consequence of actions which were “deliberate and/or reckless”, although not precisely expressed in the terms of traditionally compartmentalised torts, is a claim alternatively in assault and battery, and negligence, to a degree of recklessness.  The claim against the School, on the other hand, is plainly a claim in negligence.

7.The defence of the School contained the following averments, (again I have omitted passages not relevant to the issues):

“6.   The 2^nd Defendant avers that:

(e)  the Plaintiff did not line up to buy the refreshments at the tuck shop as alleged.  Instead, the Plaintiff initiated and played fencing with the 1^st Defendant with T-rulers.

(f)  The Plaintiff and the 1^st Defendant were engaged in playful gentle “fencing” of the T-rulers.  The fencing was not forceful or violent.

7.  The 2^nd Defendant says that the accident as pleaded in Paragraph 6 herein was wholly caused or contributed to by the negligence of the Plaintiff and/or the 1^st Defendant.

PARTICULARS OF NEGLIGENCE OF THE PLAINTIFF

(a)  Offering and/or initiating to fence and fencing with the 1^st Defendant with the plastic T-rulers.

PARTICULARS OF NEGLIGENCE OF THE 1^ST DEFENDANT

(a)  Fencing and/or engaging defence and/or agreeing to fence with the Plaintiff with the plastic T-rulers.”

The case for Mr Chan against Mr Wong:

8.Mr Cheung opened the case as a “ruthless assault and battery”.  While consistent with the pleadings, the opening proved to be entirely inconsistent with the evidence of Mr Chan.  From Mr Chan’s evidence it was quite apparent that he and Mr Wong were consensually fighting, albeit in a playful or mock manner, together.  It became apparent from a very early stage in the proceedings that a contention that there had been a ruthless assault and battery could not be established.  What was established was that there was consensual horseplay between Mr Chan and Mr Wong.

The standard of care owned by Mr Wong to Mr Chan:

9.An examination of the authorities shows why it was that Mr Cheung had found it necessary to plead the claim against Mr Wong in assault and battery or negligence to the degree of recklessness.  The question of the duty owed by a participant in horseplay to another arose in Blake v Galloway [2004] 1 WLR 284, where  the Court of Appeal considered a circumstance in which four friends were playfully throwing twigs and pieces of bark chipping at each other.  In the course of the game, described as high-spirited and good-natured horseplay, without any feeling of animosity, the claimant suffered a significant injury to an eye as a result of a piece of bark thrown by the defendant.

10.The judgement was delivered by Dyson LJ, a judgement in which the Vice-Chancellor and Clarke LJ concurred.  The Court adopted the formulation of the standard of care owed by participants in games to each other as that expressed by Diplock  LJ in Woolridge v Sumner [1963] 2 QB 43 in the following terms:

“A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such acts may involve an error of judgement or lapse of skill, unless the participant’s conduct is such as to evince a reckless disregard of the spectator’s safety.”

In relation to games amounting to horseplay amongst participants the court added the following, to Lord Diplock’s formulation:

“…in a case such as the present there is a breach of the duty of care owed by participant A to participant B only where A’s conduct amounts to recklessness or a very high degree of carelessness.”

The claim against Mr Wong in negligence:

11.I am satisfied from the evidence of Mr Chan and Mr Wong that they were engaged in good-natured horseplay.  Each engaged in that horseplay willingly.  There is no evidence at all that in the course of the horseplay either conducted themselves recklessly or with a very high degree of carelessness.  There was plainly no culpable negligence on the part of Mr Wong that might give rise to a claim in damages against him, consequent upon any injury being suffered in the course of the horseplay.

12.On the facts, the circumstances appear to be at all fours with Mullin v Richards & Anor [1998] 1 All ER 920 CA, a case involving to 15-year-old schoolgirls fencing with plastic rulers.  At first instance the judge found for the defendant schoolgirl, a decision which was upheld on appeal on the basis that in the absence of any evidence as to the propensity of rulers to break, or any history of their having done so, and that neither of the girls had used excessive or inappropriate violence, there was insufficient evidence to establish foreseeability.

13.Further, there is nothing in the evidence to establish that Mr Wong was behaving in a manner which could be described either as reckless or a very high degree of carelessness.  The evidence does not establish either which T-square broke, or the precise reason why a T-square broke, and Mr Chan’s eye was damaged.  In those circumstances the evidence necessarily falls far short of establishing recklessness or a very high degree of carelessness, on the part of Mr Wong.

The claim against Mr Wong in assault and battery:

14.I am satisfied that the evidence fell well short of a battery.  A battery is the intentional and direct application of force to another person, save that where there is consent to the application of force there is no battery.  Mr Chan willingly, that is consensually, engaged in mock sword fighting with Mr Wong.  That was a game which inevitably involved the risk of some physical contact.  By willingly taking part in the game, Mr Chan impliedly consented to any contact which could be reasonably expected to occur in the course of the game.

15.As I have said, the evidence does not establish either which T-square broke, or the precise reason why a T-square broke, and Mr Chan’s eye was damaged.  There is no evidence to suggest any propensity on the part of the T-square’s to break.  There is no evidence to suggest that the contact being made by or between the T-squares or the bodies of the participants was anything other than the sort of contact which might be reasonably expected to occur in the course of such a game.  Again, in those circumstances the evidence falls far short of establishing a battery on the part of Mr Wong.

16.In those circumstances the claim against Mr Wong, whether founded in negligence or assault and battery, must fail.

The claim against the School:

17.The claim against the School was based upon the same allegation of an assault and battery upon Mr Chan by Mr Wong, coupled with an allegation of negligence, namely the absence of sufficient supervision.

The pleadings issue:

18.Upon Mr Cheung having to abandon the allegation of assault, in the light of the evidence, it was submitted by Mr Sakhrani that the claim against the School must consequently fail, as the allegation of assault, which was fundamental, he said, to the whole claim, could not be established.  Mr Cheung’s response was to rely upon the case pleaded by the School as set out in para 7 above.

19.I am satisfied, having regard to Poon Hau Kei v Hsin Chong Construction Co Ltd Taylor Woodrow International Joint Venture [2004] 2 HKC 237 CFA, that Mr Cheung was entitled to rely upon School’s pleading.  I am satisfied that no issue of unfairness arises.  The matter became plain on the first day of the trial, and it was consequently open to the School, should they wish to call any additional witnesses, in the light of the changed position, to make appropriate application.  None was made.  No submission was made, nor could any have been made, by Mr Sakhrani to the effect that it would be unfair to allow the Plaintiff to rely upon the very scenario pleaded and asserted by the School.  Significantly, Mr Sakhrani made no suggestion of any prejudice as a result of the changed position.

20.The pleading in Poon Hau Kei was that the accident was “caused solely or contributed to by the negligence of the appellant”.  The pleading in the present case was that the accident was “wholly caused or contributed to by the negligence of the Plaintiff and/or the 1^st Defendant.” Mr Sakhrani mounted a linguistic and grammatical argument based upon the distinction between these two phrases, and in particular the use of the word “solely” in Poon Hau Kei, against the use of the word “wholly” in the present case.  He further relied upon the particular juxtaposition of those words in the respective phrases.  I have considered the argument carefully but find no basis for it.  I am satisfied that there is no essential difference between the two phrases and that have either pleading being used, in the present circumstances Mr Cheung would have been entitled to rely upon it.

The standard of care required of a school:

21.Mr Cheung opened the case by citing the following proposition from Clerk and Lindsell on Torts 18^th Ed, para 7-230:

“A teacher is expected to show such care towards a child under his charge as would be exercised by a reasonably careful parent, taking into account the conditions of school life as distinct from home life, the number of children in the class, and the nature of those children.  This seems to be no more than what would be reasonable in the particular circumstances.  The teacher cannot be expected to insure children against injury from ordinary play in the playground or, indeed the classroom.  It is the duty of the teacher to supervise the children in the playground but supervision before school or as the children leave school may not be required.”

Notwithstanding the criticism made of the test of the reasonably careful parent enunciated in this passage in Beaumont v Surrey County Council (1968) 112 Sol J 704, 66 LGR 580, I am satisfied that it correctly sets out the law as it is in England at the present time.

22.Halsbury’s Laws of Hong Kong Vol 10(1) at para 155.150 adopts the “careful parent” standard, citing Williams v Eady (1893) 10 TLR 41 CA, as authority for the proposition.  That authority was relied upon in the authorities cited in support of the passage quoted above from Clerk v Lindsell.

23.In his final submission however, Mr Cheung sought to rely upon the standard of care upon schools as set out in the Australian decisions of Commonwealth v Introvigne (1982) 150 CLR 258 and El-Sheik v ACT Schools Authority & Ors (1999) ACTSC 90.  Mr Sakhrani contended that the Australian authorities have restated the duty at a much higher level.

24.I am satisfied that the true distinction between the English authorities relied upon in Clerk & Lindsell, and the Australian Law as stated in Introvigne and El-Sheik, is that the former deal with the duty of an individual teacher, whereas the latter deal with the duty of the school authority.  The Australian authorities are dealing with the vicarious liability of a school authority.  I am satisfied that the law as stated in Australia in that respect, namely that a school authority owes to its pupils a duty to ensure that reasonable care is taken of them whilst they are on the school premises during the hours when the school is open for attendance, is the duty that is imposed upon a school authority in Hong Kong.

25.Consequently I am satisfied that it is the law in Hong Kong that a school authority in Hong Kong must ensure that a system is established that will enable the teachers at the school to show such care towards children under their charge as would be exercised by a reasonably careful parent.

The system of supervision:

26.The evidence as to the system established by the School came from the discipline master Mr Leung Kam Por.  His evidence was, and it was not successfully challenged, that on a normal school day there were both prefects and teachers patrolling the playground, including the covered playground where the incident took place, at lunchtime.  Additionally there were required to be teachers patrolling before school started and after school finished.

27.The requirement on the teachers patrolling was not to be stationed at a particular area about to walk around the relevant areas, primarily corridors and playgrounds, observing what was taking place and disciplining students when required.

28.The School has a formal written manual in relation to the requirements to patrol.  That manual was neither discovered by the School nor was it produced in evidence.  I am obliged to say that I am somewhat surprised that those advising Mr Chan did not seek such a manual, and that those advising the School did not produce it.  For my part I would have thought that such a document would have been fundamental in the preparation of a case such as this.  Be that as it may, it was not produced and I rely upon the evidence of Mr Leung as to the system of supervision.  Other than questioning the absence of the manual, that evidence was not challenged.

Supervision on the day of the incident:

29.Mr Leung’s evidence, again unchallenged, was that until 1 p.m. on the day of the incident, there were four teachers, including himself, responsible for patrolling.  As well as himself there were two vice principals and a teacher.  Consequently, during the period of time following the completion of exams, when the students were at the covered playground shop, there were teachers on patrol.

30.Mr Leung’s evidence was that he had passed through the coveted playground area between five and 10 minutes prior to the accident, and had seen nothing out of the ordinary.  He did not pay particular attention as to whether there were any other teachers on patrol in the covered playground.  The evidence of Mr Leung was that when making inquiries after the incident he was told by Lee Tak wing, a vice principal, and that he had just finished patrolling in the area of the covered playground.  Mr Lee was not called to give evidence, and consequently the statement is hearsay.  I have regard to that fact in relation to the weight I place upon that evidence.

31.Ms Wu, who was operating the shop on the day in question gave evidence that in a normal school day, or after exams of exam days, there were teachers patrolling in the school grounds.  Her evidence was that she did not see any teachers on patrol in the playground in the 20 minutes after the exams finished.  It is not clear from her evidence however whether she was paying any attention to whether or not there were teachers in the area.  None of the students were asked whether or not there were any teachers on patrol in the playground.

Has the School discharged its duty:

32.The duty lying upon the school is to ensure that reasonable care is taken of the children.  The steps taken by School to discharge that duty has been to prepare a manual containing instructions which direct the teachers to carry out appropriate patrols at relevant times.  At the end of the day, Mr Cheung conceded that the School had established a system requiring teachers to patrol.  There was no evidence to establish that that system was not satisfactory.  From the description of the system, notwithstanding the absence of the manual, I find that a satisfactory system of patrol was established.

33.Although the English authorities leave open the extent to which the duty of care exists before and after school I have little difficulty in concluding that the duty of care exists so long as the School is aware that there will be students on the premises.  That period must plainly include the period before school, when the school gates are opened to admit students prior to classes, and for the period at the end of either lessons or exams, during which students are permitted to remain on the premises.

34.I am satisfied that the evidence of Mr Leung establishes that an appropriate system of patrol was duly established, and that thereby the School has satisfied the duty of care on it to ensure that reasonable care was taken of the children at the School.  However the School will be vicariously liable should the teachers at the School fail to adhere to the system of patrol that has been established by the School.

35.I accept the evidence of Mr Leung that the system of patrol was in place and being undertaken by four teachers during the hour after the conclusion of exams on the day in question.

36.In this case the burden of proof lies upon Mr Chan to establish first that there has been a failure on the part of the School to establish an appropriate system of patrol.  Second, if the School has established an appropriate system Mr Chan must show that that system was not properly operated or in place at the relevant time.  He has failed on both counts.  It is clear that there is no duty on the School to provide continuous supervision of all students in the school at all times: see Ricketts v Erith Borough Council & Anor [1943] 2 All ER 629 and Hunter v Perth & Kinross Council & Anor [2001] Scot CS 191.  To so hold would be to impose an unreasonable burden upon a school authority.

37.The evidence is not such as to establish, on the balance of probabilities, that the system of patrol that was established was insufficient, or that on the day in question it was not properly put into effect.

Causation:

38.Even assuming that the system of patrol established was not, on the relevant day, properly carried out, the evidence does not establish that a proper carrying out of the patrol would have prevented the accident.  It is important to note the following passage from Introvigne, p 275:

“It is enough that Introvigne’s injuries were due to the inadequate system of supervision and care.  The system did not provide for sufficient staff to exercise proper supervision over the children in the playground.  As well, there was a failure to ensure that the system was carried out.”

Both as to system, and the carrying out of that system, there had been a failure on the part of the school authorities.  In that case the court was of the view that had there been sufficient staff present supervising the children the incident which gave rise to the injury would not have occurred. 

39.That was also the situation in Beaumont, a decision described by Clerk & Lindsell as “much criticised”: para 7-230 fn 35.  Those cases, on the facts, may be compared with Mullin where, at the time of the incident, the two students were at their desks in a classroom, with a teacher present throughout.  In the present case the incident which was one which took place in a very short period of time.  Bearing in mind that the obligation on the School and teachers does not extend to constant supervision, the evidence does not establish that had a teacher been on patrol in the playground, the incident would necessarily not have occurred.

40.For these reasons I am satisfied that the claim against the School must also fail.

Judgement and Costs:

41.There will accordingly be judgement for the defendants on the issue of liability.  There will be an order nisi to be made absolute in 14 days that the defendants will have their costs, to be taxed on a party and party basis, with the 1^st defendant’s costs to be taxed on Legal Aid Regulations.

Mr Jeremy Cheung, instructed by Messrs Martin Law & Co, for the Plaintiff

Mr Victor Gidwani instructed by Messrs Cheng Yeung & Co, for the 1^st Defendant

Mr Ashok Sakhrani, instructed by Messrs Szwina Pang & Co, for the 2^nd Defendant