MUHAMMAD RIAZ KHAN v. COMMISSIONER OF CORRECTIONAL SERVICES

DCPI 2039/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2039 OF 2013

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JUDGMENT

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Introduction

1.  This case turns on the question of whether the prison authorities can be held liable for the injuries sustained by an inmate which were inflicted upon him by another inmate.

The plaintiff’s case

2.  The plaintiff’s case is simple.  He was an inmate in Stanley Prison.  On 3 October 2010 while he was in the toilet of dining hall 5A (“dining hall 5A”), he was attacked by an inmate No PRN 345720 by the name of Tahir Kaleem (“TK”) with a plastic cup (“October 3 incident”).  As a result, the plaintiff sustained injuries to his nose and neck.  It is the plaintiff’s case that his injuries were caused by the breach of implied terms; negligence; breach of duty as an occupier under Occupiers Liability Ordinance, Cap 314; breach of statutory duty contrary to section 9 of the Prisoners (sic) Ordinance, Cap 234 on the part of the defendant.

The defendant’s case

3.  The defendant said at the material time, the plaintiff and TK were fighting inside the toilet of dining hall 5A by punching and pushing each other.  The defendant put the plaintiff to strict proof of the alleged duties, implied duties and negligence. The defendant also pleaded contributory negligence on the part of the plaintiff.

Issues

4.  Despite the pleading of various breaches of duties in the statement of claim, counsel for both sides have rightly agreed that the following issues are for the determination by this trial:-

(1) whether the plaintiff was attacked by TK, or it was a fight between the plaintiff and TK;

(2) whether the defendant had discharged his duty of care towards the plaintiff;

(3) whether the plaintiff was liable in contributory negligence; and

(4) what is the quantum of damage.

Whether the plaintiff was attacked by TK, or it was a fight between the plaintiff and TK?

5.  After a conviction in March 2003, the plaintiff served a sentence of 24 years imprisonment in Stanley Prison.

6.  The plaintiff came to know TK when he was allocated to dining hall 1A for daily meal and other recreational activities.  There, he met inmates Saleem (“Saleem”), Bilal Ahmad (“BA”) and TK. The plaintiff and BA shared the same cell whereas TK and Saleem shared another.

7.  On 21 July 2010, BA told the plaintiff and other inmates that TK had attacked an unknown inmate in the bathroom (“July 21 incident”).

8.  On 29 July 2010 while the plaintiff was waiting at the lobby of the Stanley Prison Hospital for medical checkup, he saw TK was held by a few officers by his arms and legs with his face down towards the ground. BA overheard that TK had attacked an officer and force was used to control him (“July 29 incident”).

9.  On 2 September 2010, the plaintiff was transferred to dining hall 5A for daily meal and other recreational activities.  On an occasion, the plaintiff asked TK about the July 29 incident, TK told him that he was provoked and pushed by one of the officers during an argument. He became angry and attacked the officer.

10.  The plaintiff recounted the October 3 incident in his witness statement as follows.  At about 10.00 am on that day, the plaintiff attended dining hall 5A together with other foreigner inmates.  After breakfast, the plaintiff brushed his teeth in the toilet.  While he was in front of a basin at the corner, TK entered the toilet. The door closed automatically. TK took a plastic cup which was on the toilet partition wall.  The plaintiff thought that TK wanted to get water for toilet use.  So he moved a bit towards the corner to give room for TK.  When the plaintiff was facing TK, he suddenly grabbed the cup in his hand and forcefully struck the plaintiff’s nose with the sharp bottom of the cup.  The cup then slipped and fell to the ground.  In pain, the plaintiff cried for help.  TK then grabbed the plaintiff’s head and struck against the wall and then against the toilet gate in the course of which his nose bled.  The plaintiff pushed TK back and extended his hand towards his face to keep him away.  At the same time, TK also used force and pushed the plaintiff back.  In the course of the attack, the plaintiff lost his foothold and knelt down.  TK started to beat the plaintiff with his fist violently and indiscriminately.  Finally, an officer entered the toilet and stopped TK’s attack.  The plaintiff sustained a fracture of the nasal bone, internal and external bleeding of the nose and neck injury.  He was admitted to Queen Mary Hospital (“QMH”) for treatment.

11.  There was no eye witness as to how the October 3 incident began and TK was not called to give evidence.

12.  Mr Shek Chiu Yin (“Shek”), Assistant Officer I of the Correctional Services Department (“CSD”), was deployed to supervise prisoners who were having recreational activities in dining hall 5A in the morning of 3 October 2010.  He was the only officer on duty at dining hall 5A at the material time.   He said around 9.53 am when he walked past the staff table and reached the other end of the dining hall near the prisoners’ toilet and the pantry, he heard noise from the toilet.  He immediately went to the toilet.  He saw TK and the plaintiff was fighting and jostling with each other in the corridor of the toilet.  He immediately shouted loudly to order them to stop and dashed forward to separate them.  After they calmed down, he reported to his superior through the radio handset.  The two of them were escorted to the Centre Hospital for treatment separately.  Shek said the toilet door was neither closed nor locked at the material time.  When he entered the toilet, he saw the plaintiff was close to the door of the toilet while TK was close to the washing basin.  He saw the plaintiff and TK were entangling and hitting each other.  He did not see the plaintiff trying to run away.

13.  It can immediately be seen that the plaintiff is alleging an unprovoked attack by TK out of the blue.  From the plaintiff’s own account, he was friendly with TK.  For example, he showed his concern for TK after they were transferred to dining hall 5A in September 2010 asking him about the July 29 incident.  There was no indication that TK was unfriendly to the plaintiff.  At least, they were on speaking terms as he was responsive to the plaintiff’s enquiry of an unhappy incident of the past.  Against this background, I am doubtful that TK would attack the plaintiff for no reason at all.

14.  Initiating unprovoked attack seems not to be the modus operandi of TK.  In the prisoner’s disciplinary hearing in relation to the July 21 incident, the reporting officer testified that the fight between TK and a Chinese inmate was preceded by a verbal argument[1].  TK also told the plaintiff that he was provoked and pushed by an officer before fighting back in the July 29 incident.  To my mind, the plaintiff has been less than truthful in relation to the events that led to the entanglement between the two of them.  I do not believe that the entanglement happened all of a sudden without cause.

15.  The plaintiff alleged that TK attacked him with a cup.  Because of the imminent danger of bodily harm, the act of TK must have given the plaintiff a vivid and strong impression.  However, he made no mention of it to Shek at the scene.  Neither did he tell the treating doctor who examined him in less than 1 hour’s time after the incident at the prison nor the treating doctor at QMH who examined him in less than 2 hours’ time after the incident[2].  In re-examination, the plaintiff said that in the hospital, he communicated with the doctor in English.  The medical chits were completed in English.  I do not think the doctor would have any difficulty in understanding English.  As a matter of fact, in the discharge summary of the plaintiff issued by QMH, it was recorded that the plaintiff was assaulted in prison cell by cell mate with bare hand only[3].  The first time the plaintiff mentioned that TK attacked him with a tea mug was at the disciplinary hearing 8 days after the incident on 11 October 2010[4]. I do not believe that the treating doctors had failed to record what the plaintiff had told them. I take the view that the alleged use of a tea mug was a concoction of the plaintiff in an attempt to put the blame on TK who had already pleaded guilty to the charge.

16.  Indeed, if a cup or mug was used as weapon, Shek as the first officer attending the scene must have seized it as an exhibit.  No such exhibit was seized by Shek.

17.  By comparison, TK had a weight of 136kg and was much bigger than the plaintiff who weighted 80kg. If a hard object such as a cup or mug was used as weapon, I have no doubt that the injuries that would havecaused to the plaintiff would be much more serious.

18.  The plaintiff has given me the impression that he was exaggerating the act of TK during the entanglement.  I am not convinced that a cup or mug was used as weapon during the entanglement.

19.  The plaintiff maintained that while he was attacked by TK, he was near the washing basin of the toilet while TK was near the door.  This is the symmetrical opposite of what TK said in the disciplinary hearing.  At the disciplinary hearing, TK pleaded guilty to the charge of engaging in a fight inside the toilet of dining hall 5A whereas the plaintiff pleaded not guilty.  He concurred with the description of Shek that he was near the washing basin and the plaintiff was near the door at the material time[5].  As TK had already pleaded guilty to the charge, common sense dictates that the likelihood of his obscuring the truth is indeed less than that of the plaintiff.  I note that by conduct TK had shown that he was ready to admit his wrongdoing.  In the disciplinary hearing of the July 21 incident, although he initially pleaded not guilty, he changed his plea at a later stage of the proceeding[6].

20.  Although Shek did not witness the whole incident, he did enter the toilet during the course of the entanglement.  He is an independent witness.  I see no basis to doubt his observation.  I accept his evidence as credible and reliable.

21.  On balance, I find that during the course of the entanglement, TK was near the basin whereas the plaintiff was near the door.  I also find that the plaintiff made no attempt to run away until stopped by Shek.

22.  It is true that after the incident, the plaintiff sustained injuries the following injuries:-

(1) Both eyes redness, visual acuity intact;

(2) Nose tenderness, swelling and bruise;

(3) Patch of redness over left shoulder (posterior aspect), size 4cm x 3cm;

(4) Patch of redness over anterior chest, size 3cm x 3cm;

(5) Left mid-arm region, patch of bruise and redness, superficial abrasion, size 3cm x 3cm;

(6) Patch of circular area of redness over right mid-arm, size 3cm x 3cm; and

(7) Linear superficial redness over left forehead region.

23.  At QMH, the plaintiff was found to have a fracture of left nasal bone.

24.  At the same time, TK also sustained the following injuries:-

(1) Left side oral mucosa, near angle of mouth superficial abrasion, size 0.5cm x 1cm; and

(2) Patch of red mark over left anterior chest size 3cm x 4cm.

25.  In his evidence, the plaintiff said he was attacked by TK solely.  All he did was just pushing TK away. It seems to me that the plaintiff has toned down his part in the entanglement.  Pushing action alone would not have caused injury to TK’s mouth and red mark on his chest.

26.  Bearing in mind that TK was much bigger than the plaintiff, it is not surprising that the injuries that have caused to the plaintiff were comparatively more serious than those to TK if they were engaged in a fight.

27.  On the evidence before me, I take the view that it is more probable that the plaintiff and TK were fighting against each other at the material time and I so find.

Whether the defendant had discharged his duty of care towards the plaintiff?

Legal principles

28.  The duty of care of that the prison authorities owes to the prisoners has never been canvassed by the courts in Hong Kong.  It is necessary to resort to the authorities from other jurisdictions.

29.  The starting point is the English Court of Appeal case of Ellis v Home Office [1953] 2 ALL ER 149.  In this case, the plaintiff and another prisoner H, who was thought to be mentally defective, were put in the hospital wing of the prison.  On the date of the attack, the prison officer on duty after opening the doors of some of the cells to allow the prisoners to empty their slops, left the wing for a period. In his absence, H went into the plaintiff’s cell and hit him violently on his head thereby causing injuries.  The Court of Appeal held that the common law duty owed by the prison authorities to the plaintiff was to take reasonable care for his safety.  There was no reason to think that H, though a mental defective, was more violent or dangerous than an ordinary prisoner, the conduct of the prison officer in leaving the hospital block, and in leaving the doors of the cells open so that H had access to the plaintiff, could not have been reasonably expected to result in an attack being made by H on the plaintiff.  The principle is followed in subsequent English case [7] and adopted by the courts in other common law jurisdictions including Northern Ireland [8], Scotland[9] and Canada[10].

30.  Where the prison authorities were not aware of an enmity between the plaintiff and the attacker such that chance contact between them should have been prevented or greatly reduced or closely supervised, the prison authorities cannot be held liable in negligence: see Smylie v The Governor of Her Majesty’s Prison Magilligan [2013] NIQB 141 at para 17.

31.  In Wiebe v Canada (Attorney General) 2006 MBCA 159, the plaintiff brought to the attention of the corrections officers his concerns of the so-called tension between the residents of the same house which was anywhere close to resulting in assaultive behaviour on the part of anyone including the attacker.  The Manitoba Court of Appeal held that the assault that occurred was not reasonably foreseeable.

32.  The prison authorities cannot be held liable in negligence for the assault perpetrated by an inmate where there was no evidence at all that anyone thought he posed an immediate threat to a fellow inmate: see Stenning v Secretary of State for the Home Office [2002] EWCA Civ 793

The pleaded case of the plaintiff

33.  The plaintiff pleaded the following particulars of negligence on the part of the defendant:-

(1) Failing to take any or any adequate measures to quarantine    and/or separate the inmate (PRN345720), ie TK, from the plaintiff when the defendant should have known that the inmate was previously charged with and convicted of fighting against another inmate and a CSD staff of the Prison in July 2010;

(2) Failing to adequately or at all to heed that TK was a person of violent nature and hot temper;

(3) Failing to provide adequate supervision and/or instruction in order to monitor the daily performance of TK at the Prison, especially because the defendant should have known that TK had been violent and hot-tempered;

(4) Causing and/or permitting TK to assault and/or wound the plaintiff; and

(5) Failing to take any or any adequate disciplinary action against TK in time or at all.

34.  In essence, the plaintiff says that in view of the July 21 incident and the July 29 incident, the defendant knew or ought to have known that TK was likely to assert violence and therefore should have put him in segregation or keeping him in close monitor.  In failing to do so, the defendant was negligent.

35.  To my mind, the 2 incidents are of different nature.  Whilst the July 21 incident was a fighting incident which involved the use of violence, the July 29 incident was a self-harm incident which indicated that TK had lost control of his emotion.  There is a difference between the use of violence against other people and a temporary loss of control of emotion resulting in hurting oneself. I do not regard the latter as a manifestation of violence.

36.  Mr Yip Man Leung (“Yip”) was the Principal Officer (Security) of Stanley Prison responsible for security matters between 3 July 2010 and 24 October 2012.  He was also a member of Works and Vocational Training Allocation Board of Stanley Prison.  He explained that under the Prison Rules, Cap 234A (“PR”), under some circumstances, officers of CSD are required to segregate individual prisoners from association with other prisoners for the maintenance of good order and discipline of penal institution, or in the interests of individual prisoner. Under Rule 68B of PR, the removal from association is for a period of no more than 72 hours.  Any extension has to be recommended by a Board of Review comprising of, inter alia, a Superintendent and a Medical Officer.  In court, Yip said that in relation to the July 21 incident, TK was sentenced, inter alia, to 5 days removal from association which was carried out from 2 to 6 August 2010.

37.  In the circumstances, the prison authorities considered that the sentence TK received was sufficient punishment for his misdeed in the July 21 incident and did not find it necessary to extend the segregation.

38.  Mr Gary KH Chung, counsel for the plaintiff, submitted that in the light of the July 21 incident and the July 29 incident, the defendant should take extra care in order to protect the plaintiff from attack.

39.  I believe that within the confine of prison, the inmates therein, though incarcerated, are to be treated as living in a miniature society.  The defendant is committed to assist them to integrate into the society in the future.  As such, Yip informed this court that people with different backgrounds would be assigned to the same place subject to security and other management consideration.  Therefore, a prisoner would normally enjoy association with other prisoners except for those subject to solitary confinement.  It is not uncommon for a prisoner to find himself to be in the company of prisoners with violent-related criminal conviction and/or with disciplinary record involving violence.   

40.  Therefore, unless there was evidence that TK would use violence against other prisoners when he was put back to normal association, there is no basis to deprive him of his right to normal association.  TK having been penalized for his misdeed in the July 21 incident, there is no basis to treat him differently after he resumed normal association.

41.  It seems that in the eyes of the defendant, TK was not considered as posing a threat of violence to other prisoners.  His segregation was therefore not extended.  Upon resumption to normal association, TK should be treated in the same way as other prisoners as he was entitled to.  I do not accept that he should be closely monitored as suggested by Mr Chung.

42.  It is not the plaintiff’s case that TK was a threat to him.  According to his own description, he was on speaking terms with TK in September 2010 as he asked him about the July 29 incident.  In any event, the plaintiff made no attempt to inform the prison officers that TK had shown animosity to him or that he was threatened by TK with the use of violence.

43.  That being the case, there is no basis at all to say that the defendant should keep TK in close monitor.

44.  For the above reasons, I am not persuaded that that the defendant was in any way negligent in the treatment of TK.

45.  Mr Chung made submission on the categorization of TK as Category B prisoner.  Mr Chung submitted that this suggested that higher level of security condition was necessary due to his propensity to use violence and being emotional.

46.  The purpose of categorization is for the security of the prison.  Yip explained that prisoners are classified into 4 categories according to the need for security control.  In classifying a prisoner into a particular category, CSD would take into account a number of factors including the remaining length of his sentence, the nature of his present criminal conviction, his criminal record, the security background (such as family background and triad affiliations) of the prisoner, his institution conduct and behaviour.  Therefore, I do not accept that the fact that TK was classified as Category B prisoner was indicative of his propensity to use violence or being emotional.  

47.  Finally, Mr Chung submitted that if TK was closely monitored and/or supervised, and/or he was quarantined/separated from others when using the toilet, the attack on the plaintiff could be avoided.

48.  With the benefit of hindsight, it is of course theoretically correct to say that if TK were put in segregation or closely monitored at least up to 3 October 2010, the October 3 incident would not have happened.  With respect, however, negligence is not to be proved by reverse logic.  The burden still remains on the plaintiff to prove negligence on the part of the defendant.  The plaintiff has evidently failed to discharge the burden of proof.

49.  In my judgment, the plaintiff had engaged in a fight with TK which was not reasonably foreseeable by the defendant. The plaintiff only has himself to blame.

50.  My finding as such is sufficient to dispose of the plaintiff’s claim.  For the sake of completeness, I shall deal with the remaining issues.

Whether the plaintiff was liable in contributory negligence?

51.  The defendant pleaded contributory negligence based on the following particulars:-

(1) failed to shout for help;

(2) failed to make escape from the toilet as soon as practicable;

(3) continued fighting with TK in the toilet notwithstanding that he was close to the door of the toilet; and/or

(4) engaged in fighting with TK.

No further submission was made by Miss Abigail Wong, counsel for the defendant.

52.  In view of my finding that the plaintiff was engaged in a fight with TK thereby causing injuries to himself, I hold that should the defendant be liable in negligence, the plaintiff should bear contributory negligence to the extent of 50%.

What is the quantum of damage?

53.  At the beginning of the trial, Mr Chung indicated that the plaintiff would not pursue the claim on loss of earnings.

Pain, suffering and loss of amenity

54.  The plaintiff alleged to have sustained the following injuries:-

Nose

55.  The plaintiff had sustained fracture of the nasal bone.  He complained of nasal stuffiness and difficulty in breathing whenever he lied down.  However, he had had symptoms of chronic nasal blockage and was treated in QMH since 2002 which preceded the October 3 incident.  Dr Yeung Sai Hung, the medical expert engaged by the defendant, opined that his residual nasal symptom should be the result of his pre-existing chronic allergic rhinitis and its natural progression with time.

Neck

56.  After the October 3 incident, the plaintiff’s neck became stiff.  He was given a neck collar for the support of his neck.  He complained of neck pain with radiation to the left trapezius region and upper back associated with remarkable neck stiffness.  However, the plaintiff had a history of having neck pain and stiffness since 2005, associated with left arm weakness and numbness, which also preceded the October 3 incident.  He had received treatment at QMH and was diagnosed as having cervical spondylosis (ie degenerative disorder for the cervical spine).  Dr Li Wing Kin, the medical expert engaged by the plaintiff, opined that although the neck symptoms are compatible to be the aftermaths resulting from soft tissue injuries sustained in the October 3 incident, the pre-existing degeneration was also likely to give rise to his condition.  Dr Yeung opined that his cervical spondylosis would have deteriorated to his current extent even if the subject accident had not occurred.  The October 3 incident probably had advanced such changes by about 1 year.  Dr Yeung further opined that the October 3 incident should be responsible for half of the impairment due to his neck problem.

Left shoulder

57.  After the October 3 incident, the plaintiff complained of left shoulder pain.  X-ray examination found no bony lesion in his left shoulder.  The plaintiff complained of left shoulder pain associated with significant stiffness.  Dr Li opined that the left shoulder symptoms are compatible to be the aftermath of the October 3 incident.  However, at the time of the joint medical examination on 25 November 2014, the plaintiff was suffering from typical symptoms of “frozen shoulder”, which should not be a primary result of the October 3 incident.  Dr Yeung opined that the plaintiff’s complaint of persistent pain and stiffness was likely due to frozen shoulder which is a common complication of any problem of the upper limb resulting in decreased movement of the shoulder joint.

58.  Miss Wong submitted that there is a suspicion of malingering because at the medical examination, the plaintiff was observed to pay submaximal efforts in the tests, and the medical experts felt that “the apparent weakness is not genuinely a result of compromise of its original strength”.

59.  I bear in mind the opinion of the medical experts.

60.  In Lo Hin Fong v Chan Chi Shing, DCPI 60/2001, 1/8/2002, unreported, the plaintiff was assaulted by the defendant resulting in fracture of the nasal bone with nose bleeding. $100,000 was awarded under this head.

61.  In Dayawon Fe Batiancila v Toepker Chien Chi, DCPI 118/2012, 5/6/2013, unreported, the plaintiff fell through a staircase thereby sustaining right shoulder and back injuries. $100,000 was awarded under this head.

62.  In Law Tze Ho v Li Man Kin HCPI 692/2009, 15/11/2011, unreported, the plaintiff sustained neck sprain and had acute psychotic symptom after a road traffic accident. $150,000 was awarded under this head.

63.  In Wong Chi Wing v Leung Wing Keung, DCPI 1367/2007, 15/8/2008, unreported, the plaintiff sustained persistent neck and shoulder pain after a public light bus collision. $80,000 was awarded under this head.

64.  In my view, an award of $120,000 is appropriate.

Pre-existing condition

65.  In relation to the injuries to the nose and the neck, the plaintiff had had a pre-existing condition.

66.  In Chan Kam Hoi v Dragages of Travaux Publics [1998] 2 HKLRD 958, the Court of Appeal approved the trial judge’s application of a percentage deduction in the calculation of general damage in order to reflect the effect of a pre-existing condition.

67.  In respect of this case, I take the view that a 50% deduction is appropriate.

68.  This brings me to the conclusion that the award under this head should be $60,000 ($120,000 x 50%).

Loss of earning capacity

69.  This head of damage arises where a plaintiff is at the time of the trial in employment, but there is a risk that he may lose this employment at some time in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job: see the speech of Lord Browne, LJ in Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at 140B.

70.  For obvious reason, the plaintiff is not entitled to this head of damage.  He had been incarcerated since 2003 and is therefore not in employment.  Further, according to what he told the medical experts, due to his criminal record, he would not be able to work as a lawyer again in Pakistan upon his release. The disadvantage he has suffered in the labour market is due to his criminal conviction rather than the injuries that he had sustained in the fight.

71.  Accordingly, no award should be given under this head.

Conclusion and order

72.  By reasons of the foregoing, the plaintiff’s claim is dismissed.

Costs

73.  Costs should follow the event. I make an order nisi that the plaintiff shall pay the defendant costs of this action with certificate for counsel, to be taxed if not agreed.

74.  In the absence of any application by summons to vary the same within 14 days from the date of this judgment, the order nisi shall become absolute.

75.  The plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.

76.  It remains for me to thank counsel for their diligent research and submission.