NG CHING YING v. LEE SIU YEUNG DANNY

HCPI 173/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 173 OF 1998

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J U D G M E N T

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1. This is a claim for damages for severe scarring to the upper body of the Plaintiff caused by sulphuric acid thrown deliberately at the Plaintiff by the first Defendant on the 13 August 1996. The first Defendant was subsequently convicted of an offence of throwing corrosive liquid with intent to do grievous bodily harm.

2. The action was originally commenced against a second Defendant as well, being the first Defendant's brother who ran a hardware business with him. Their stock-in-trade included a range of toxic and inflammable liquids being, in addition to sulphuric acid, kerosene, thinners, turpentine, acetone, lacquer and white spirit.

3. The Plaintiff was a casual decorator and on that afternoon went with a friend, Lau Kam Ting, to the Defendant's premises to purchase some screws. It is common ground that the Plaintiff and his friend were not quite certain of the size of the screws they wanted and that the first Defendant had produced several types in order to meet their request. Both Plaintiff and the first Defendant became irritated with each other, the first Defendant initiating it with what appears to have been a testy comment to the effect that he did not like running to and fro as they seemed uncertain as to what they wanted and if they did not want to buy anything, or could not make up their minds, they should leave. Further exchanges were along the lines "Do you want to do business or not?" Matters deteriorated to an exchange of vulgar abuse.

4. Versions of what took place thereafter vary. The Plaintiff said he responded to one particularly vulgar comment, a traditional one concerning his mother, with extra abuse. The first Defendant started to rush out from behind his counter but his way was barred by his mother. The Plaintiff picked up a pair of pliers which, he said, he had done only in self-defence. The first Defendant tried to grab him but the Plaintiff's friend Lau intervened to say to the Plaintiff. "Let's go." As he went out with Lau the abusive exchange continued, and the first Defendant made as if to follow him out and was looking for something. The Plaintiff picked up two metal ladles. The next thing he knew was that the first Defendant had thrown some liquid at him from a bottle. He felt scorching pain.

5. The Plaintiff's statement to the Police on the day in question made no mention of his picking up any pliers or ladles. When questioned further, a week later, he conceded that he had picked up a wrench first, and then two ladles. I accept of course that he would have been in acute pain on that first occasion.

6. The only other oral evidence came from the first Defendant. As I stated earlier, there is common ground as to the exchanges before matters got out of hand. He described the Plaintiff as picking up the pliers and striking out at him but he was able to ward off the blow with his left elbow. His brother took the pliers from the Plaintiff and the Plaintiff was pushed out of the store.

7. The Plaintiff then picked up a ladle and asked him to go outside and have a fight. His mother asked him not to go but the Plaintiff rushed in striking out at his brother and picking up another ladle, clanged them together. He was about to rush in when the first Defendant picked up a bottle and splashed the Plaintiff with the contents. At that stage he had moved away from the counter towards the Plaintiff despite the efforts of his mother and brother to try and pacify him.

8. The evidence concerning how the first Defendant came into possession of a bottle of sulphuric acid is highly material to this action.

9. It was in what he described as an ordinary San Miguel beer bottle of about a litre size, which had a cork or plastic cap in it. He said he had to bend down to take the cork or cap out of it. He told the police that the bottle must have been there for a customer. In fact he initially told the police that he found a bottle of water on the counter and splashed it on the Plaintiff not realising that it was sulphuric acid. He then explained that the bottle of acid was on the counter ready for a customer.

10. The practice of this hardware business was to keep the toxic liquids such as sulphuric acid, thinners, turpentine, etc. in identical beer bottles on the shelves. The only means of distinguishing one bottle of toxic liquid from another was the level of shelf upon which the bottles were stacked.

11. As far as the consumer is concerned this is an appallingly insecure means of identifying such liquids. It is highly dangerous. Even the system of bottling by the suppliers viz. an old beer bottle with a cork or plastic cap, is fraught with danger. If such a business can be licensed to supply such goods without conditions as to container, labelling storage and inspection then there is something patently wrong with that system. If there is no licensing required, then there is a clear permanent threat to the public which needs eliminating.

12. I am satisifed that when the first Defendant picked up this bottle and uncorked or uncapped it to throw its contents at the Plaintiff, he well-knew, at least, that the contents were toxic and therefore harmful in some respect if thrown at some person. He intended harm to such person as a consequence.

13. The question remains as to whether any action of the Plaintiff disentitles him to recover damages wholly or in part from the first Defendant on the basis of his own conduct. In investigating this incident the police took statements from the Plaintiff's friend, Mr Lau Kam-ting, from the second Defendant, and from an independent witness, Mr Leung Chi Ming.

14. The Plaintiff's friend, Lam Kam-Ting, confirmed that the first Defendant came out from the counter in the course of the exchange of abuse, before the Plaintiff picked up the pliers. It is reasonable to assume that the first Defendant was acting aggressively. The Plaintiff left the premises as his friend encouraged him to do.

15. It seems the Plaintiff then re-entered the shop after his friend who had gone back in either to reason with the first Defendant or to pursue the exchange. He went back into the shop with a ladle. It was following that that the acid was splashed on the Plaintiff. As a parting shot, after the damage was done, the Plaintiff threw a couple of tins of paint into the shop.

16. The first Defendant's brother also confirmed that he moved out into the shop from behind the counter, followed by the Plaintiff picking up some pincers or pliers, and trying to hit the first Defendant with them. He took the pincers from the Plaintiff who then picked up a ladle. He tried to get back into the shop but the brother pushed him out. The brother was aware of being hit on his back twice but not aware of the identity of the striker. He too was struck by some of the sulphuric acid thrown by the first Defendant.

17. Finally amongst the statements is that of the businessman Leung Chi-Ming, who was intending to buy a burglary chain. He heard the quarrel and vulgar abuse. He saw pliers in the Plaintiff's hands and someone - probably the first Defendant's brother - take them away from him. The Plaintiff challenged the first Defendant to come out and fight him. The Defendant responded and left the counter. The brother stood between the Defendant and the Plaintiff to try and defuse the situation. The Plaintiff picked up a ladle and made as if to hit the Defendant. This man then went up to the Plaintiff to try and hold his hand at which stage he saw the Defendant pick up a bottle from the ground, take off the cap and throw liquid from it towards the Plaintiff. He too was splashed by the acid.

18. What importance should be attached to these versions, only one of which could be described as wholly independent? None has been tested by cross-examination. Experience dictates that no witness sees a series of events in exactly the same way or detail as another. All versions were however given within a very short time of the event. There has emerged a general picture from all versions which is not inconsistent with that given by the oral witnesses in this short trial. I have come to the following conclusions.

19. The first Defendant became irritated with the lack of decision (or precision) of the Plaintiff and his friend. There was a heated exchange and then some mutual abuse. The first Defendant then emerged some what threateningly from behind the counter, as a consequence of which the Plaintiff picked up some pliers. The mother and brother tried to pacify the Defendant, and in turn the Plaintiff's friend tried to persuade him to leave the shop. The quarrel got worse, there were threats and challenges. The Plaintiff picked up some ladles at some stage and struck them together probably near the entrance/exit to the shop. Both men were behaving childishly and unreasonably. The Defendant then picked up the bottle of sulphuric acid, knowing its contents, and taking off the cap, threw its contents at the Plaintiff. At some stage the pliers may well have come into contact with the first Defendant's arm or elbow but I am not satisfied that this was as a result of a deliberate attack upon him and was more likely the indirect consequence of the struggle to keep both apart.

20. Mr Meyrick Wong on behalf of the Defendant argued that the Plaintiff in an attack received in reply something which he did not bargain for and, as a consequence, is not entitled to use the Court as a means of obtaining compensation. In particular he relies upon two decisions of the English Court of Appeal. In the first - Cross v. Kirby - The Times, 5 April 2000 - the Court considered the concept of self-defence in the context of an initial attack by a Plaintiff who had armed himself with a baseball bat and had gone in pursuit of the owner of land who was escorting the Plaintiff's partner off the land. The landowner acting in self-defence had been able to wrest the bat from the Plaintiff and struck him once on the side of the head. The Plaintiff had succeeded at first instance in his claim for damages to the extent of 40 per cent.

21. The Appeal Court (Beldam, L.J.) stated that the question to be answered was whether the Plaintiff was precluded from recovering damages because of his illegal and criminal conduct. The principle applied when the Plaintiff's claim was so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct. It seems to me with respect, that those statements are impeccable both in law and in common sense.

22. An earlier decision - Murphy v. Culhane 1997. 1. Q.B.94 - was concerned with a claim for damages on behalf of the estate of a man who was killed in the course of an affray, which, it was alleged by the Defendant, had been initiated by the deceased or at least in which he had participated with the intent of assault the Defendant. The Defendant had pleaded guilty to manslaughter of the deceased.

23. The appeal proceeded not on the facts, which had yet to be determined, but on whether the defences of "ex turpi causa ...." and "volenti non fit injuria" could apply, or whether, in the alternative, the Defendant could rely upon the Law Reform (Contributory Negligence) Act, 1945. Denning M.R. said, whilst disregarding provocation as reducing damages in a case where the conduct of the injured man was trivial, that where, by his own conduct, he can fairly be regarded as partly responsible for the damage he suffered, then damages can be mitigated. He also held that it was open to the Defendant to raise both the other defences, and accordingly it was decided that the case should go for trial.

24. That decision distinguished Lane v. Holloway [1968] I.Q.B. p.379 and the Australian decision of Fontin v. Katapodis 108 C.L.R. 177. It is however necessary to bear in mind the importance, which Winn LJ in Lane's case attached to the facts of the case, in determining whether there was "fault" within the meaning of section 1(1) of the Act, - "The character of any particular fight must be judged as a fact."

25. In the action before me I am satisfied that the first provocative words and the first overtly challenging act came from the first Defendant. Unwisely, stupidly even, the Plaintiff responded and there then took place mutual vulgar abuse to which each responded. The Plaintiff took up pliers and later, ladles, to counter the first Defendant's advance. The first Defendant needed to be pacified by two persons who failed in their endeavour, and the Plaintiff resisted entreaties and efforts to get him to leave the premises and made counter threats. There is a degree of fault on the part of the Plaintiff which does not exceed one-third.

26. There will therefore be judgment for the Plaintiff for two-thirds of his claim. Damages have been agreed in the sum of $720,000 inclusive of interest. The Plaintiff is entitled to $480,000. He has already received $60,000 from the second Defendant and so the net sum is $420,000. There will also be an order for his costs to be taxed, if not agreed, and paid by the first Defendant.