H v. Lau Ka Yee Michael and Another

HCPI 901/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 901 OF 2004

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BETWEEN

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Before : Deputy High Court Judge Gill in Chambers

Dates of Hearing : 20 December 2005, 28-29 September 2006 (Not open to public)

Date of Judgment : 20 October 2006 (Open to public)

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J U D G M E N T

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1.When he was 15 years old H, the plaintiff, then an altar boy at St. Joseph’s Catholic Church in Ngau Tau Kok, was sexually assaulted by Michael Lau, the 1^st defendant.  Lau was then a Deacon of the Church and assigned to be in charge of the altar boys at St. Joseph’s.  About 18 months later in similar circumstances, by which time he had been ordained a Priest, Lau sexually assaulted H again.  Many years passed.  Then, following a police investigation, Lau was charged and convicted after trial for these crimes and sentenced to a term of imprisonment of 4½ years.  Meanwhile within a year of the first violations H suffered a mental breakdown and was found to be suffering from schizophrenia and post-traumatic stress disorder.  Subsequently H was examined and interviewed by a psychiatrist.  He found that the abuse he suffered at the hands of Lau might have been the principal precipitating factor which caused the schizophrenia. 

2.By this action H sues Lau in damages for the loss occasioned by Lau’s actions.  The 2^nd defendant, the Catholic Diocese of Hong Kong, is joined and sued vicariously as Lau’s employer and in negligence for failure to prevent the assaults or properly investigate them once they became known.

3.This is an application made in two summonses by the Catholic Diocese to strike out the causes of action brought against it.

Legal Principles

4.Two emerge in the context of this case.

5.The first is that striking out should be ordered only in plain and obvious cases.  It is not the appropriate forum for the determination of difficult points of law.  The claim has to be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed.

6.As Litton VP stated in Yue Xiu Finance Ltd & Anor v Agnew & Ors [1996] 2 HKC 122 at p.127:

“It must be emphasized that the judge was concerned in the court below only with an application to strike out the plaintiff’s claim under O 18 r 19(1)(a) of the Rules of the Supreme Court … What the defendants were seeking to do, by their summons, was in effect to drive the plaintiff from the judgment seat.  This is a drastic remedy and it follows that no court should give effect to it unless it is satisfied that the legal basis of the claim is unarguable or almost incontestably bad: and … where the legal viability of the cause of action is sensitive to the facts, an order to strike out should not be made.”

7.The second is that on the matter of what actually happened the evidence adduced in support of the claim and allegations in the statement of claim are assumed to be true.  There can be no trial upon affidavit.  As Le Pichon J said in Re Forecast Nominee Limited [1996] 4 HKC 12 at p.18:

“	It is common ground that for the purposes of an application to strike out, all the facts alleged in the petition and in the affidavits in support are assumed to be true.
	The burden is on the applicant to show that it is ‘plain and obvious’ that the petition is bound to fail.  This is because the exercise of the power to strike out would summarily drive the petitioner from the judgment seat when otherwise it would be entitled to have a full hearing after discovery of documents and with oral evidence …”

8.With these in mind I now summarize H’s account of events leading up to the action.

History

9.H was born into a Roman Catholic family in 1975 and was baptized into the Catholic Church.  He became an altar boy in 1987.  From September 1987 to June 1990 he attended St. Joseph’s School.  In September 1990 he was sent to the UK to be a boarder at Sacred Heart College in Weymouth.

10.In December 1990 H returned home for the Christmas holidays, resuming his altar boy duties.  It was then that he met Lau, who had been assigned by the Diocese to take charge of the altar boys of St. Joseph’s Church.

11.The first series of assaults took place on or about 4 January 1991.  Lau invited H to spend the night with him, in his quarters at St. Joseph’s, for the purpose of undertaking what he called sexual therapy.  In the shower and then in his bed Lau violated H, which in the fullness of time gave rise to three convictions of indecent assault, gross indecency and attempted buggery. 

12.On 6 January H returned to England.

13.In September that year he suffered a mental breakdown which was diagnosed to have been caused by schizophrenia.  He was put on a medication called Sulpiride, an anti-psychotic drug.

14.The second time H was sexually abused by Lau was during the Summer holidays of 1992.  By this time Lau was an ordained Priest and the appointed school manager of St. Joseph’s School.  Again he invited H to his quarters.  The abuse gave rise to the fourth conviction of indecent assault.

15.H was still mentally ill and except for a short period did not attend school for the 1992/1993 year.  During this time he was treated at the Yung Fung Shee Psychiatric Centre.

16.H returned to England for the 6^th form school year of 1993/1994 but did not complete it because of his ill-health.

17.Having come back to Hong Kong in July 1994, this time for good, H made a complaint to the police; that he had been molested and by whom.  But no action was taken.

18.After that there was a deterioration in his condition and on two occasions he was admitted to Castle Peak Hospital, each for weeks on end.  Thereafter he was regularly treated at Yung Fung Shee until September 2003.  Throughout this time he remained on the medication Sulpiride.

19.Meanwhile in 1995 H confided in a Priest whom he had met in the course of his duties as an altar boy, called Father Chiu.  This led to a series of meetings, the most significant of which took place in June 1995.  Chaired by Father Chiu, it was attended by H, a friend of H, and Lau.  It was tape-recorded by Father Chiu.  During the course of it Lau admitted abusing H, broke down and begged forgiveness.

20.That month Lau was suspended from the priesthood.  In September 1995 he resigned from the priesthood.

21.H records that he expected that the Diocese would follow-up on his complaints and Lau’s admissions and report the assaults to the police.  That did not happen; moreover, the tape of the June meeting was erased.

22.In 1999 H made another complaint to the police.  Again there was no action.

23.But in May 2002 the police invited a further complaint and H complied.  This led to Lau’s arrest on 4 May 2002.

24.H was interviewed by a senior medical officer of psychiatry called Dr Wong Ming Kong.  Dr Wong concluded that it was possible that the abuses had occurred, and that they might be the single precipitating factor of H’s schizophrenia.  H records that that was the first time he had been told and realized there was or might be a link between the abuses and his mental ill-health.  It was only then that he came to realise that he might have a claim in damages against Lau and as well the Catholic Diocese.

25.Lau’s trial was conducted in the District Court in January 2003.  Lau chose not to give evidence.  The result was a conviction in respect of both incidents, and the sentence of 4½ years.  Lau appealed to the Court of Appeal and then Court of Final Appeal.  Both appellate courts rejected his arguments and dismissed the appeals.

26.Following letters before action H filed his writ; so began this action in October 2004.  Prior to this he had applied for and been granted an anonymity order.

27.Before going to the claims made by H in his statement of claim there is one further matter to deal with, which arose after Lau’s convictions.

28.In an announcement published in the February 2003 edition of Kung Kao Po, the Catholic Church’s official periodical, the head of the Catholic Diocese in Hong Kong Bishop Zen wrote of the saga giving rise to Lau’s conviction and imprisonment.  In the article he admitted the Diocese had been negligent in the selection and then training of Lau as a Roman Catholic Priest and apologized to H and his family.  He was also critical of the handling by the Diocese’s head at the time the violations first came to light, the late Bishop Wu.  He admitted the Bishop was unprofessional according to today’s standards in not investigating fully whether Lau’s wrongdoing amounted to criminal offences.

The Claims against the Catholic Diocese

29.There are three in all.

30.The first is a breach of a duty of care to H.  Particulars of this breach include failing to take reasonable care in the selection and training of Lau, failing to take reasonable care in his attachment and his supervision, failing to take precautions to protect H from a foreseeable injury, and permitting his abuse by Lau.

31.The second is vicarious liability for the sexual abuses H suffered at the hands of Lau.  The third is that H’s suffering and loss was aggravated by negligence.

32.Particulars of that include a failure by the Diocese to respond to H’s complaints of abuse by Lau following the July 1995 meeting, failing to report the abuses to the police and the erasing of the tape-recording of the meeting and Lau’s admissions.

The Summonses to Strike out

33.Two were filed.  The first, of 14 January 2005 was a claim under O.18 r.19 RHC and the court’s inherent jurisdiction that the action was time barred under the provisions of the Limitation Ordinance, Cap.347; alternatively that it was frivolous and vexatious, or an abuse of process.

34.The second summons, of December 2005, introduced additional grounds that the statement of claim did not disclose any reasonable cause of action; in particular:

(a)	the vicarious responsibility of the Diocese does not extend to deliberate acts of assault;
(b)	there was no duty to respond to an event which came to its notice subsequent to its taking place including reporting the same to the police;
(c)	there is no duty of care to prevent acts of assault.

The Argument against Striking out

35.Mr Fung SC for H referred to the three causes of action as negligence or breach of duty of care owed to H, vicarious liability for breach of duty of care owed by Lau to H and vicarious liability for breach of fiduciary duties owed by Lau to H.

36.I shall deal with each in term.

Vicarious Liability for Lau’s Breach of Duty Owed H

37.Mr Fung took me to a series of cases to support the premise that an employer may be liable for the tort of an employee in circumstances which pertained akin to those of this case.

38.The first was the House of Lords decision in Lister v Hesley Hall Ltd [2002] 1 AC 215.  In that case boarders in a boarding house attached to a school run by the defendants were systematically sexually abused by the warden employed by the defendants.  The plaintiffs sued to recover from the defendants for being vicariously liable for the warden’s torts.  The Court of Appeal held against the plaintiffs, on the basis that the warden’s acts could not be regarded as the unauthorised mode of carrying out his authorized duties.  The House of Lords allowed the plaintiff’s appeal.  It was held that having regard to the circumstances of the warden’s employment including the close contact with the pupils and the inherent risks it involved, there was a sufficient connection between the work he had been employed to do and the acts of abuse that he had committed, for these acts to be regarded as having been committed within the scope of his employment.  The defendants thus should be held vicariously liable for them.

Lord Steyn said at p.230:

“The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.  On the facts of the case the answer is yes.  After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in [the boarding house].  Matters of degree arise.  But the present cases clearly fall on the rate of vicarious liability.”

Lord Clyde made reference to two Canadian cases, Bazley v Curry (1999) 174 DLR (4^th) 45 and Jacobi v Griffiths (1999) 174 DLR (4^th) 471 at page 237: 

“The Canadian case of Bazley v Curry … concerned vicarious liability for acts of sexual abuse carried out by an employee of a children’s foundation who had been engaged to act as a parent-figure caring for emotionally troubled children in a children’s home.  The careful and comprehensive discussion of the problem by McLachlin J was presented in the context of policy consideration, but the essence of the decision seems to me to lie in the recognition of the existence of a sufficient connection between the acts of the employee and the employment.  This in turn was explored by reference to various factors by reference to which the strength of the connection can be established.  In that case vicarious liability was held to exist.  On the other hand in Jacobi v Griffiths … vicarious liability was not established.  In that case the acts, with one minor exception, took place in the employee’s home outside working hours and away from the club which was the principal place of employment.  That the club had provided an opportunity to establish a friendship with the children did not constitute a sufficient connection.  These two decisions seem to be consistent with the traditional approach recognised in this country.”

39.Bokhary PJ picked up on the close connection terminology in Ming An Insurance Co. (HK) Ltd v Ritz-Carlton Ltd [2003] 1 HKC 225 at p.233:

“By ‘close connection’ is meant a connection between the employee’s unauthorized tortious act and his employment which is so close as to make it fair and just to hold his employer vicariously liable.  I consider close connection to be an intellectually satisfying and practical criterion for vicarious liability.  It imposes vicarious liability when, but only when, it would be fair and just to do so.  And it provides a workable concept, namely a sufficiently close connection, for determining in each case whether doing so would be fair and just.”

Earlier he had said that the close connection text was pioneered in Canada in Bazley v Curry and Jacobi v Griffiths. 

40.In John Doe v Bennett (2004) 235 DLR (4^th) 577, also a Canadian case, the Supreme Court held that the diocesan corporation which employed a Priest who had committed sexual assaults on young boys who were members of his parish was liable vicariously for these acts by its employee.  It was said that the Priest’s wrongful acts were strongly related to the psychological intimacy inherent in his role as a Priest.

41.Another Canadian case was K(W) v Pornbacher (1997), 32 BCLR (3d) 360 (SC).  In that case the acts of sexual assault were by a Catholic Priest on an altar boy at his church.  The church through its Bishop was found to be vicariously responsible.  Oujano J said at para.45:

“

This is particularly true for priests of the Catholic Church in light of their vows of celibacy.  The bishop had a duty to take care of his flock and to ensure that his priests maintained their vows.

… a person or institution placed in a position of authority over children owes a very high duty of care to the children over whom he, she or it, has that authority.  Implicit in this reasoning is the recognition that in an adult-child relationship children are vulnerable, they do not have equal power and as a result they require more protection.  A relevant factor in assessing the duty of care expected of an adult in a position of authority over a child is the role of the adult in relation to the child.”

42.Mr Fung submitted that the alleged circumstances surrounding Lau’s role as being the Deacon, then Priest in charge of the altar boys justifies the proposition that there was a close connection between his duties and wrongful acts, a test approved by the CFA and found appropriate in Hong Kong.  Thus the Diocese on the facts should be found to be vicariously liable for Lau’s breach of duty of care owed to H.

Vicarious Liability for Lau’s Breach of Fiduciary Duty

43.Mr Fung took me to M(K) v M(H) 96 DLR 4^th 289.

44.This was yet another Canadian case in which the plaintiff, the victim of systematic incest committed on her by her father from the age of 8 until the age of 17, many years afterwards sued the father for assault and battery and breach of fiduciary duty.  At first instance the action was dismissed as being time-barred.

45.But the Supreme Court reversed the decision.  It found the claim founded in the tort of assault and battery was a separate and distinct tort and was subject to the limitation defence.  But it further held that the relationship of parent and child is fiduciary in nature.  Incest is a breach of the parent’s fiduciary duty to protect the child’s wellbeing and health.  An action for compensation for breach of that duty being an equitable action, was not time-barred.

46.In Pornbacher (supra), Oujano J said at para.45:

“Here the plaintiff and defendants were in a fiduciary relationship based on trust reposed in the church and its representatives as spiritual leaders of the catholic community.  In addition the plaintiff was a child at the time of the assaults.  There is no question that in 1975 it was understood that the sexual abuse of children, whether by priests or others, was not acceptable behaviour.  This is particularly true for priests of the Catholic Church in light of their vows of celibacy.  The bishop had a duty to take care of his flock and to ensure that his priests maintained their vows.”

47.In Bennett (supra) it was stated by Cameron JA in the Newfoundland Court of Appeal at p. 360:

“

In respect of [the priest] and therefore those against whom vicarious liability for his actions might arise, the trial judge held [the priest] was in a position of authority because he was a priest directing altar boys or the boys were in his care while travelling or on excursions, parents having entrusted their children to him …

The trial judge further concluded that a fiduciary relationship existed between [the priest] and the victims (parishioners who were children).  Certainly, priest and penitent would be included in any list of traditional fiduciary relationships … I see no basis to overturn the trial judge’s findings in this respect.  The Limitations of Actions (Personal) and Guarantees Act would not prohibit the claims against [the priest] nor the vicarious liability claims based on [the priest’s] behaviour.”

48.Mr Fung submitted that these cases clearly establish that a Priest as spiritual adviser of those under his care stands in a fiduciary relationship with his follower, particularly where his follower is an altar boy, of tender years, whose primary role is to assist at mass and other services run and controlled by the Priest.  He submitted that with Lau patently in breach of the twin fiduciary duties owed H, namely:

(a)	a duty to act honestly, in good faith, and only in the best interests of H; and
(b)	a duty not to place himself in a position where his personal interests conflicted with those of H,

the Diocese was also vicariously liable.  And because of that limitation constitutes no defence.

Negligence

49.As pleaded this goes to the failure by the Diocese to act upon the information gleaned from the series of meetings convened by Father Chiu which culminated in the tearful admissions by Lau, captured on a tape-recording.  It was particularly said of the Diocese that:

“	(5)	With full knowledge of the Sexual Abuses having taken place, together with [Lau’s] admission at the Meeting, the [Diocese] nevertheless failed to respond adequately or at all to [H’s] complaints of the Sexual Abuses and/or failed to report the matter to the Police.  In addition, the tape-recording of the Meeting was erased.  Such conduct of the [Diocese] added difficulty in the Police investigation and the ultimate conviction of [Lau] …
		(b)	In the premises, the conduct of the [Diocese] prolonged the mental suffering, physical depression and trauma of [H], which all aggravated the schizophrenia and post-traumatic stress disorder of [H] sustained as a result of the Sexual Abuses.”

50.Mr Fung referred me to the case of M(FS) v Clarke (unreported) of 30 August 1999, decided by the Supreme Court of British Columbia.

51.In that case the Anglican Church was inter alia sued in negligence arising from the parental role undertaken by the church within a residential school.  The dormitory supervisor in the school called Clarke repeatedly sexually assaulted the young plaintiff.

52.It was held that the Anglican Church owed a duty of care to the child residents of the school to ensure that there would be proper supervision and protection from harm, as would be expected of a careful and prudent parent.

53.It was held that the church had failed unreasonably to protect the plaintiff from harm.  The failure to supervise Clarke adequately and to detect signs of sexual abuse when apparent to a reasonably prudent teacher or administrator materially contributed to the likelihood of harm befalling the victim.  And it was further said, at paragraph 182:

“The Anglican Church was in further breach of duty to the plaintiff in failing to investigate properly and report Clarke’s sexual abuse after it became directly known to them and in failing to provide any counselling or care to the plaintiff after the disclosure.”

There then followed a purported excuse or explanation which had been rejected on the facts.

The judgment continued:
“	Failure to take proper care of the plaintiff in the circumstances of a horrible personal crisis is inexcusable and clearly a breach of the obligation upon the church to take moral care of [the plaintiff] …
	When the Anglican Church did nothing after disclosure of the sex assaults, the Crown was deprived of an opportunity to contain the psychological injury and [the plaintiff] was denied rehabilitative measures to deal with his trauma, shame and guilt.”

54.Mr Fung also referred to the published admissions of the Diocese’s neglect made by Bishop Zen in February 2003.  He submitted this, a statement against interest, is powerful evidence in support of H’s claim of negligence against the Diocese, relying on the observation of Ching PJ in Wong Tak Yue v Kung Kwok Wai David [1998] 1 HKC 1 when he said at page 15 that there can be no better evidence of wrongdoing by a person than his express declaration against his own interest.

The Arguments in Support of Striking out

55.The first proposition made by Mr Duncan, SC representing the Diocese was aimed at the claim of vicarious liability for Lau’s breach of duty of care.  He ventured that the attempt to rephrase this ground from vicarious liability for the assault was to circumvent the unanswerable; that the actual assault is time-barred.  But a deliberate act, and the assaults can only be described as deliberate, cannot be construed as a breach of duty of care; he prayed in aid the English Court of Appeal case K R v Bryn Alyn [2004] 2 All ER 716.  He quoted from the headnote part of which reads as follows:

“

(3)

The correct approach to vicarious liability for abusive conduct was, …, to identify the wrongful act, deliberate or otherwise, in respect of which vicarious responsibility was claimed and to assess the closeness of its connection to the employment in question.  If the act was sufficiently closely connected with the employment, there was vicarious responsibility.  In such circumstances, there was no justification or need, for the purpose of establishing vicarious responsibility, to elide the duty in respect of which the employee’s deliberate act was a breach with a duty of care delegated or ‘entrusted’ to him by the employer.  The two were quite distinct.”

56.Mr Duncan submitted that the so-called admission by Bishop Zen could not be elevated to one of culpability in the legal sense.  What he did was to accept moral responsibility by commenting on two areas; the way priests in the making are selected and their training, and whether misconduct should be reported to the police.  Mr Duncan submitted comments such as this do not create a cause of action.  There was no legal liability for the Diocese to take any step; no obligation to report a crime or otherwise respond to an already committed act of trespass to the person that had been committed years before.

57.Clarke (supra) is distinguishable because in that case the sexual abuses were continuing, as the administrators in the church stood by.  There it was that there was a duty to step in and protect the victims. 

58.He further submitted that the cases relied upon to support a duty of care, reflected circumstances vastly different from those of this case.

59.In the facts of this case H was an altar boy of St. Joseph’s and thus under the direction of the cleric in charge of the altar boys when performing his duties at the altar.  This was an intermittent relationship; there was no live-in residency, no in loco parentis relationship that could be said to have developed.  Furthermore, H was by the time he met Lau already at school in England, and had only met him a short while before the acts were committed.

60.In the majority of the Canadian cases an ingredient vital to the outcome was that the victims lived in the establishments where they were violated and were under the control of the wrongdoer 24 hours in the day.

61.Further, that the Canadian cases were fact specific and could not be called upon to extend in Hong Kong the concepts of breach of duty of care and fiduciary duties. 

62.The plaintiff had other remedies available to him, or would have had, had his action been made in timely fashion.  The fact that he was time-barred was not good cause to permit the introduction of these alternative remedies.

Should the Claims or Any of Them, be Struck out? 

63.This is not the occasion for detailed consideration of the arguments in support of and opposing the striking out applications.  Suffice for me to say that I am not satisfied that the claims or any of them are obviously unsustainable or unarguably bad as warrants the plaintiff H being summarily driven from his suit.

64.The Canadian cases cited reveal a developing trend where in cases of sexual violation of young children by their custodian, the employer and owner of the establishment can be held liable.  Mr Duncan’s primary argument that the facts of these cases are radically different from the facts in this case is a compelling one. But it seems to me that this is an issue that should be determined only after an analysis of all the evidence. 

65.For my part I think that whether or not the role of a Deacon or Priest who is put in charge of youthful altar boys equates in terms of power and control over them with that of a warden of a hostel, giving rise to a close connection between his employment and acts of abuse committed by him on an altar boy, is not something that can be dismissed on the reading of an affidavit and statement of claim.  This would only be possible on a full trial of the issues.

66.This deals with the claims going to breach of duty of care and of fiduciary duties.

67.Insofar as the negligence claim is concerned: support for liability under this head lies in Clarke (supra).  There are factual differences of course.  Whether these render the cases distinguishable is again a matter for determination after all the evidence is aired.

Limitation

68.It is the 2^nd defendant’s case that the arbitrary time constraints of section 4 of the Limitation Ordinance (the LO) apply to render the action out of time and unsustainable.  By virtue of my findings this ground falls away.  But for completeness and in case it becomes relevant I come now to consider the provisions of the LO.

69.Section 4 prevents the bringing of an action founded on a tort after six years from the date on which the cause of action accrued; i.e. the date of commission of the tort.

70.Section 22 provides that where the person to whom such right of action accrued was under a disability at the time, the six years does not begin to run until the person ceases to be under a disability.  Disability includes infancy and being of unsound mind.

71.Section 27 provides that the absolute limitation imposed by section 4 shall not apply to actions for damages for negligence or breach of duty.  In such actions the date by which the action must be brought is three years from when it accrued or of the claimant’s knowledge if later, but subject to the provisions of section 30.

72.Section 30 gives the court a discretion to override the limits imposed by section 27 having regard to the extent to which the parties may be prejudiced by those limits on the one hand and the exercise of such discretion on the other.

73.Section 30(3) states:

“	(3)		In acting under this section the court shall have regard to all the circumstances of the case and in particular to:
		(a)	the length of, and the reasons for, the delay on the part of the plaintiff;
		(b)	the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 27 or 28, as the case may be;
		(c)	the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
		(d)	the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
		(e)	the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
		(f)	the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

74.It is the 2^nd defendant’s case that the act of Lau being a tortious act the court would be compelled to find that H failed to bring his action within the time constraints of section 4 of the LO, that is within six years of the date he obtained his majority, and that is by 13 July 1999.

75.The response from H is that he was not of sound mind at the material time having suffered schizophrenia and post-traumatic stress disorder.  This is evidenced by the diagnosis of 1992 and prescription of Sulpiride for the next 11 years, the psychiatric treatment at Yung Fung Shee, the in-house treatment on two occasions at Castle Peak, and the finding of Dr Wong in his report of May 2002.

76.Mr Fung referred me to a line of cases to show that the courts have tended to adopt a liberal approach to the meaning of “disability” in section 22 of the LO, such that it should not be confined to mental incapacity, or a general incapacity to manage one’s own affairs.

77.He cited three Hong Kong cases on the point, at first instance:

Shek Chi Wai v Chai Jennifer, HCA 6295/93 unreported (Yam J);

Leung Tai Seng v Hospital Authority, HCPI 481/04 unreported (DJ Poon);

Yeung Shea Chun v The Director of Legal Aid, HCA 8439/96 unreported (Waung J)

78.Mr Fung submitted that applying such law H must be treated as being under a disability at least until May 2002; thus the action is not time-barred having been brought in October 2004.

79.Mr Duncan’s response is that if H is found to have been disabled until May 2002, there is no evidence to show that the disability at that point was over.  There is only a bare assertion to that effect and with the burden on H to establish that he was disabled and when he stopped being disabled he has failed to achieve that.  He quoted from Dr Wong’s report as to his condition as at May 2002 which indicated there was no disability:

“

9.

When last seen on 8 May 2002, he was calm and settled, polite and cooperative, with good rapport, coherent and relevant speech, with neutral stable and congruous mood, and free from any cognitive, psychotic or suicidal impairment.”

80.And further, that whilst during the years prior H might have been suffering from a continuing mental illness, this was controlled by medication, leaving him able to manage his own affairs and thus not be disabled.

81.My view is that the issue of disability and cessation of that disability has to be determined from an evaluation of the evidence on the point. 

82.It is not challenged that H suffered long term from a recognized mental illness which required medication and psychiatric treatment both in-house and as an outpatient.  Such treatment came to an end in May 2002.

83.That might suggest, at least arguably, that there was a disability, and that H had recovered from it in May 2002.

84.That being so would not render this action out of time.

85.I am satisfied on the case law submitted that the claims are sustainable and that resolution of the outcome should be following trial.

86.I dismiss the applications.  Costs are nisi.  They are to the plaintiff in any event.

Mr D Fung, SC, leading Mr L Ng, instructed by Messrs Kwok Ng & Chan, assigned by Director of Legal Aid, for the Plaintiff

Mr P Duncan, SC, leading Mr A Wong and Miss J Ho, instructed by Messrs Wong Hui & Co., for the 2^nd Defendant

The 1^st Defendant was excused from attending