Tam Kam Hoi v. Commissioner of Correctional Services

HCPI 155/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 155 OF 2005

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BETWEEN

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Coram: Recorder A. Chan, SC in Court

Date of Hearing: 15 & 16 August 2006

Date of Judgment: 12 September 2006

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J U D G M E N T

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1.On the 6^th October 2003, the Plaintiff was an inmate at the Lai Chi Kok Reception Centre (“the Centre”).  He was being detained there pending the trial of certain offences which he was alleged to have committed.  On that day, during the daily 1 hour outdoor exercise session, the Plaintiff took part in a basketball game with other inmates.  According to the Plaintiff, someone collided into him during the game and as a result of which he sustained injuries (“the Accident”).  This is an action by the Plaintiff for damages in connection with the Accident.  This trial deals with the issue of liability.

2.The facts of the Accident are quite simple.  At about 10:30 am on the 6^th October 2003, the Plaintiff together with a number of other inmates (60 to 70 people in total) were allowed into an outdoor exercise area.  The bulk of that area was used as a basketball court and a volleyball court positioned side by side.  According to the Plaintiff, the inmates were quite keen to take advantage of the opportunity to exercise and they did so by playing basketball or volleyball or simply jogging round those courts.  Because of the size of the area and the number of users, the place was crowded and at times joggers would run into the basketball area.

3.About 10 people took part in the basketball game, with 4 to 5 people on each side.  The Plaintiff said that due to the crowdedness (with joggers coming into the court from time to time), the lack of proper arrangement and lack of training given to the players, the situation was confusing during the game.  From time to time collision between players occurred.  At one point during the game, the Plaintiff was in possession of the basketball and someone suddenly collided into his back from the left hand side.  He is unable to tell this court who collided into him or how that took place.  As a result of the Accident, the Plaintiff has suffered back injuries.

4.The Plaintiff’s cause of action is that of negligence.  He alleges that the Accident was due to (a) the lack of proper supervision on the part of the Correctional Services Department (“CSD”) and the two trainers who were present at the time and (b) their failure to take proper action to prevent inmates from running around and colliding with other people recklessly.  Further, the Plaintiff complains that he was not given proper medical care after the Accident.

5.There is no dispute that whilst the Plaintiff was being detained at the Centre the CSD was under a duty to take reasonable care of the Plaintiff.  The precise extent of such duty must depend on the circumstances. 

6.The Plaintiff accepts in cross-examination that he had played the game of basketball many times before the Accident.  Bodily contact during the game would be inevitable.

7.In respect of the supervision during the outdoor session, it is uncontroversial that the open area was at all material times monitored by cameras.  The Defendant has adduced evidence on the number of cameras and the control room in which the picture produced by those cameras was monitored by a staff.  There is dispute on the number of trainers who were in the exercise area at the time of the Accident.  The Defendant’s case is that there was only 1 trainer and he (“So”) was called to give evidence before this court.  Significantly, it is the Plaintiff’s own case that a trainer was at a short distance from him at the time of the Accident.

8.I am persuaded by the evidence that there was at all material times supervision exercised by the CSD over what was going on in the exercise area.  It must be in their interest to do so, because unruly behaviour might result in inmate(s) being injured and I have no doubt that such incidents would have to be reported and explained.

9.On the other hand, I find the Plaintiff’s evidence of reckless behaviour of other inmates lacking in specificity.  Was it merely a matter of energetic contest in a physical game?  The Plaintiff was certainly not put off by the behaviour.  He accepted in cross-examination that it was entirely his choice as to which activity to participate in.  He could have chosen to jog around the exercise area if he found the situation unsafe.

10.Common sense dictates that the CSD cannot normally be held responsible for injuries suffered by reason of bodily contact which took place during a sporting contest.  Under normal circumstances, the participants who willingly engaged in a vigorous sport must have impliedly consented to assuming certain risk of injury [see Charlesworth & Percy on Negligence, 10^th ed., paras. 3-76a to 3-77, p.209].  If I were to hold otherwise, the inmates of the Centre may find that they would not be allowed to engage in any vigorous sport.

11.In the premises, I am not persuaded that a case of lack of proper supervision has been made out.  Equally, I reject the suggestion that the Defendant was negligent in failing to prevent reckless behaviour in the exercise area.

12.There is another insurmountable hurdle with the Plaintiff’s case.  Given the lack of evidence concerning the precise circumstances of the collision in question (It may be unfortunate for the Plaintiff in that he did not see how it took place and there was no eye witness.), I cannot be satisfied that the Accident was caused by any action or omission of the CSD.  The collision might have been caused by the energetic challenge of an opposing player who wanted to obtain possession of the ball that was in the Plaintiff’s hands.

13.As regards the allegation of lack of proper medical attention, that simply flies in the face of the evidence before me.  By two memorandums dated respectively the 18^th October 2004 [p.51-4 of Trial Bundle] and 14^th August 2006 [Exhibit D2], over which there is no dispute save for immaterial details, the Defendant has demonstrated that the Plaintiff had in fact been given continuous medical treatment since the Accident until January 2006.  Such treatment included consultations with visiting Orthopaedic specialist and numerous admissions into “centre hospital”.  I have no hesitation in rejecting this claim of the Plaintiff.

14.For these reasons, this action is dismissed with costs to the Defendant to be taxed if not agreed.

Plaintiff in person (Plaintiff has changed his name to ZHAN, Jun Shan)

Mr. Victor Gidwani, counsel-on-fiat for the Secretary for Justice, for the Defendant