WONG WAI MING v. HOSPITAL AUTHORITY

HCPI 1136/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 1136 OF 1999

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J U D G M E N T

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1. This is a trial on the issue of liability of the defendant.

The facts

2. The plaintiff was employed as a psychiatric nurse by the defendant and worked at the Yung Fung Shee Psychiatric Centre ("the Centre") in Cha Kwo Ling Road, Kowloon, Hong Kong. On 23 October 1996, when the plaintiff was working at the Centre, he was injured by a person called Choy Po Lan ("Madam Choy") who threw acid on his face and body.

3. Madam Choy was not a patient at the Centre, but she was suffering from mental problems and was a former psychiatric patient at the United Christian Hospital. As a result of the accident, she was charged with the offence of throwing corrosive fluid with intent, contrary to section 29(c) of the Offences Against the Persons Ordinance, Cap.212. She pleaded guilty to the offence and was sentenced to be detained in the Siu Lam Psychiatric Centre for an unspecified period under a hospital order.

4. The Centre deals with mental patients attending follow-up treatments after being released from mental institutions, new cases and walk-in patients. As part of his duty, the plaintiff was required to work from time to time at a long table which was used as a reception counter in the waiting hall on the second floor of the Centre. He performed the work of reception and registration of psychiatric patient who attended the Centre.

5. Prior to the accident on 23 October 1996, Madam Choy had been to the Centre a few times, shouting and complaining about the doctors of the Centre prescribing medicine to her daughter. On these occasions, she was asked by the plaintiff's colleagues to write down her complaint and leave. She did as was told and left the Centre peacefully.

6. On the day of the accident, the plaintiff was working at the long table at the reception hall with two colleagues. One of them was his senior Mr Wong Shing Tat ("Mr Wong") who was a Registered Nurse and Miss Lam Suk Fong ("Miss Lam") who was an Enrolled Nurse. The plaintiff was an Enrolled Nurse himself. At about 9:30 a.m., Madam Choy came to the waiting hall of the Centre and complained to Mr Wong about the doctor's prescription for her daughter. Mr Wong asked for her identity card and thereafter made telephone calls to enquire from other psychiatric centres about Madam Choy. Upon discovering that she was a psychiatric patient registered with the United Christian Hospital, Mr Wong instructed Miss Lam to give to Madam Choy a piece of paper written with the address of the psychiatric department of that hospital. He told Miss Lam to ask Madam Choy to go to see the doctors there. Mr Wong then left the scene. When Miss Lam handed the paper to Madam Choy and asked her to go to the United Christian Hospital and consult the doctor there, Madam Choy became furious and immediately tore the paper to pieces. She was agitated and she shouted "you think I am crazy". Madam Choy returned to her seat which was a short distance away from the long table and took out a bottle of liquid from the plastic bag on the floor and started to throw the liquid to the people around. At that moment, the plaintiff suspected that the liquid might be corrosive which would cause harm, he tried to warn and scatter the people nearby including Miss Lam. While he was doing so, Madam Choy threw the corrosive liquid at him. As a result, the plaintiff sustained very severe injuries. The evidence showed that earlier that morning, Madam Choy had bought two bottles of drainpipe cleaning fluid from a shop near the Centre. The fluid was concentrated sulphuric acid.

Employer's duty

7. It is the duty of an employer, in considering whether some precaution should be taken against a foreseeable risk, to weigh, on the one hand, the magnitude of the risk, the likelihood of an accident happening and the possible seriousness of the consequences if an accident does happen, and, on the other hand, the difficulty and expense and any other disadvantage of taking the precaution : Morris v. West Hartlepool Steam Navigation Co. Ltd [1956] AC 552 at 574. The employer's duty extends to taking reasonable steps to guard employees from criminal assaults or injuries in carrying out their tasks : Charlesworth & Percy on Negligence, 9th ed., para. 10-82. Mr Chan, counsel for the plaintiff, had referred to three cases involving attacks on employees by robbers. These cases are : Houghton v. The Mayor, Alderman, and Burgesses of Hackney, (1961) The Times, May 18, Williams v. Grimshaw and Others (1967) 112 SJ 14 and Charlton v. Forrest Printing Ink Co. [1980] IRLR 331 CA. In these three cases, although the duty of care on the employer was recognized, the injured persons failed because it was found that there had been no lack of reasonable care by the employers. It is useful to refer to Charlton first. In that case, Lord Denning MR referred to the decision of Lord Reid in Wagon Mound No.2 (1967) 1 App Cas 617 at 642 :

"...the general principle (is) that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man."

"...it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it."

The employee in that case was one of five senior members of the staff who were made responsible for collecting the wage money from the bank. The managing director emphasized the need for those concerned to take precautions, such as varying the route, using different methods of transport, and sending different people. The employee was injured when he was attacked by robbers while he was collecting money from the bank to pay the company's wages. The Court of Appeal accepted the finding that it was not necessary for the firm to have employed a security company to collect wages which was of comparatively small sums. However, Lord Denning said that "it would have been different if it had been established that the managing director had not taken proper steps, or had not given proper directions as to the making of variations or the giving of proper assistance to the employees in collecting money from the bank. ...the employers did what was reasonable in the circumstances to eliminate the risk - although it was there - and no more could be expected of them."

8. In Houghton, a rent collector was injured by robbers who stole the money collected by him for his employers. The room used for collecting rent was without any barriers or grilles. There were three previous attacks on rent collectors. In that case, it was thought that a grille could not be conveniently provided in the room, but the police was asked by the employer to keep an eye on the place. In addition, a uniformed porter was instructed and a car called for the rent collector to take him to the bank. Diplock J (as he then was) held that :

"...It was the employers' duty to see that the employee was not exposed to unnecessary risks. Other things being equal, a thief was more likely to choose a place without a grille to rob, but it did not follow that the defendants had therefore been negligent. There had been no evidence that prudent employers always took the precaution of having a barrier. The test must be whether the employer had taken reasonable precautions in all the circumstances, paying a proper regard to the risks. In this case having a uniformed porter outside was a greater deterrent than having a telephone or a barrier in the room. To have a man stationed inside the room might make a thief use greater violence. The defendants' actions fulfilled the requirements of reasonable care in all the circumstances." (my emphasis)

9. Accordingly to the case of West Bromwich Building Society Limited v. Townsend [1983] 1 ICR 257, Diplock J in Haughton had said that "I do not doubt ... that it is an employer's duty to take reasonable care to see that his employees are not exposed to unnecessary risk, even if it be the risk of injury by criminals." (This part of the judgment does not appear in The Times Report.)

10. In Williams, the employee was responsible for taking home the earnings of the bar of a sports club in which she worked. The practice was for her husband, a member, to help her lock up and they would go home together; in his absence, another member would accompany her to a well-lit road about 160 yards from the club. The club was broken into five times. On the day of the accident, the employee in the company of her husband was leaving with some of the earnings of the bar and she was injured in an attempted robbery. Phillimore J held that the precaution taken was reasonable and the employers could not be said to have failed in their duty to use reasonable care for the safety of the employee.

The defence

11. The defendant accepts that it owed a duty to the plaintiff to take reasonable care for his safety. However, it contends that it was not in breach of the duty because there was no real risk of injury or violence to the plaintiff reasonably foreseeable by the defendant. Alternatively, if there was a risk, such risk was so small that a reasonable man would think it right to ignore it. Further, the risk of injury was an occupational hazard and the defendant had not failed to take reasonable steps to eliminate this real risk.

The nature of the plaintiff's employment

12. The setting of the plaintiff's employment was a psychiatric centre. In my view, it really is a matter of common sense that in such a setting, the employees would come across persons who are emotionally unstable and who at times may behave irrationally, or even violently. The defendant drew a distinction between patients of the Centre and visitors like Madam Choy, who are not patients of the Centre. I do not think the distinction is one of substance. The real issue is that in such a setting the employees are likely to encounter persons who are emotionally unstable.

13. According to Miss Tai Yuk Hing, who is the Department Operations Manager (Psychiatry) of the defendant, it is not unusual that psychiatric patients display violent behaviour when receiving treatment at the Centre; it is because some of them do not like being treated and examined by doctor and they will act violently to the staff of the Centre; there are also occasions when the patients are emotionally unstable when receiving treatment. Miss Tai concluded, "As said, violent behaviour is not abnormal at the Centre." Mr Ismail, counsel for the defendant, after making his closing submission, applied to recall Miss Tai to explain her evidence. The application was refused by me as I was not satisfied that there was any valid basis for doing so. It was submitted that there may be different degrees of violence. I do not think there is substance in this distinction because the real issue is that psychiatric patients do display violent behaviour.

14. The defendant also referred to the fact that Madam Choy had visited the Centre on previous occasions and she had not behaved violently towards the staff of the Centre. Mr Ismail referred to a number of cases such as Smith v. Crossley Brothers Ltd [1951] 95 SJ 655, Hudson v. Ridge Manufacturing Co. Ltd [1957] 2 WLR 948 and Coddington v. International Harvester Company of Great Britain Ltd [1969] 113 SJ 265 in which a relevant factor in deciding whether an employer had breached his duty towards his employees was whether a potentially dangerous misbehaviour had been known to the employer beforehand. Although Madam Choy had not behaved violently before, clearly, the defendant must have known that Madam Choy was someone who was mentally unstable. According to the plaintiff, he was told by his colleagues that Madam Choy was a psychiatric patient.

Previous acts of violence

15. Apart from the fact that because of the nature of the Centre, the defendant ought to have known that there is a real risk that those who visited there may be emotionally unstable and may suddenly turn violent, there is evidence that the defendant actually knew that there had been incidents of violence at the Centre before. A specific incident of violent had taken place on 13 May 1996 in which a patient and his wife suddenly became emotionally unstable. The patient threw the articles from the table to the floor and attempted to pick up a plastic file stand on the table to hit the employees. When the employees tried to restrain him, the patient pushed one of them to the ground. This incident was also witnessed by Miss Lam as well.

What precautions were undertaken?

16. In my view, on the evidence before me, the defendant knew or ought to have known that there was a real risk of injury by violence of the visitors to the Centre towards the staff who were working there. This being the case, one may ask what precautions had been undertaken by the defendant to safeguard the safety of the staff? Miss Lam said that they were trained to calm down the patients and also not to provoke them. Furthermore, when the patients became violent, the staff may subdue them by force, or restrain them by fitting them with strait-jackets.

17. Before the staff at the Centre could carry out any of these measures when a visitor suddenly became violent, there was no other measures they could resort in order to safeguard their personal safety. For example, there was no partition or barrier between the staff working at the reception table and the visitors and there was no emergency buttons which the staff could press in order to summon help. There was no evidence showing that, in 1996, it was impracticable to install the partition or emergency button in the waiting room. As a matter of fact, after the accident, the defendant had installed an enclosed reception counter and emergency push buttons.

Looking at event with hindsight

18. One must, of course, judge the likelihood of harm with reference to the state of knowledge which could be attributed to the defendant at the time of the occurrence. As Lord Denning said in Roe v. Minister of Health [1954] 2 QB 66 "We must not look at the 1947 accident with 1954 spectacles". In Glasgow Corporation v. Muir and Others [1943] AC 448, Lord Thankerton stated at 454-455 :

"...The court must be careful to place itself in the position of the person charged with the duty and to consider what he or she should have reasonably anticipated as a natural and probable consequence of neglect, and not to give undue weight to the fact that a distressing accident has happened or that witnesses in the witness box are prone to express regret, ex post facto, that they did not take some step, which it is now realized would definitely have prevented the accident..."

Earlier in Hart v. Lancashire & Yorkshire Railway Company [1869] 21 LT 261, Bramwell B stated that :

"...people do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that, because the world gets wiser as it gets older, therefore it was foolish before."

The purpose of referring to what the defendant had done after the accident is not for the purpose of showing that these are the measures that ought to be carried out at the time of the accident, but merely to show that such measures could be practicably carried out in the first place. Clearly there is no law to prevent such evidence being introduced.

19. Miss Tai stated that the enclosed counter would not prevent similar incidents because unless the nurse refused to go out from the enclosed counter, the tragedy would occur again. The plaintiff had stated in his evidence that he would have pressed the emergency button and shouted for help and would have thought twice before he came out of the enclosed counter. This clearly rebuts the defence's case on this point. In my view the defendant had not undertaken any reasonable precaution to safeguard the plaintiff from the risk of injury by Madam Choy.

Occupational hazard

20. In Michie v. Shenley and Napsbury General Hospital Management Committee, The Times, 19 March 1952, a male nurse sued his employers for injuries he received when he was attacked and injured by a patient suffering from epilepsy. The facts revealed that the plaintiff was on sole night duty in a ward in a mental hospital when one of the patients became restless and started interfering with the other patients. After sedative was administered to the patient, he became quieter and returned to bed. Within 10 minutes, the patient jumped from his bed and rushed to the exit door of the ward and finding the door locked, he smashed the glass in the doors with his fists, breaking one or more panels. The plaintiff tried to stop him, but as he approached, the patient stopped battering the door, turned towards the plaintiff and smashed him in the face with his fists.

21. The plaintiff claimed that the ward in question was reserved for mild patients and was a ward in which violence on the part of the patients would not normally be anticipated and the patient should not have been in that ward, or at least that the plaintiff should have been warned by the defendants that he was likely to do acts of extreme violence. The court find that there was no negligence on the part of the defendants. The report stated that :

"He (his Lordship) was quite unable to find that the accident was due to any negligence or breach of duty on the part of the defendants. A mental nurse chose his occupation knowing that it was subjected to certain hazards, one of which was the unpredictable conduct of mental patients, epileptics or others: any person making the care of mental patients his life's work must have some expectation of assault and violence. Although epileptics were by no means always violent, the fact that they might be violent was well known to any person with experience of them. The medical evidence showed that the decision, based on clinical reports, to transfer the patient to the M.A. ward was perfectly proper: neither the defendants nor their doctors had any reason to anticipate that there was more than a remote chance of him becoming violent.

On the night in question, on the other hand, the plaintiff had had the clearest possible warning from the patient's behaviour that there was a likelihood of his becoming violent. It had not been disputed that there were several ways in which the plaintiff could have obtained assistance, and if he had shown greater care for his own safety he would have obtained help before approaching the patient. His courage could not but be commended, but it was impossible to say that since he had showed courage he was entitled to blame the defendants for the consequences."

22. In my view, each case must depend on its own facts. The decision in Michie could only be used as an illustration of how, in the circumstances of that case, the employer had discharged its duty of care towards their employee. In this case, the precautionary steps were clearly lacking. Furthermore, an employer can only escape liability in relation to damages arising out of the ordinary risk of the service when there is no negligence on his part (see Charlesworth & Percy, para.10-83). As pointed out by the authors, where one employment happens to be more dangerous than another, a greater degree of care must be taken, but where the employer cannot eliminate the risk, he is required to take reasonable care to reduce it as far as is practicable. In this case, no reasonable care had been taken to reduce the risk.

Control over third party

23. In Longworth v. Coppas International (U.K.) Limited [1985] SC 42, Lord Davidson held that :

"...where the danger to be guarded against is one caused by the activities of independent third parties over whom the defendants have no control, the court should examine the pursuer's averments of fact and fault with more than usual care and caution..."

In this case, although the defendant may have no control over the visitors who might suddenly become violent in the Centre, clearly, it ought to take reasonable measures to ensure the safety of the employees who were confronted with the violent behaviour. Mr Ismail had referred to other cases in the course of his submissions, it is not necessary for me to deal with each of them, since these decisions turned on their own facts.

Negligence of Mr Wong

24. The plaintiff also relied on the negligence of Mr Wong of which the defendant is to be made vicariously liable. It is said that Mr Wong had provoked Madam Choy by asking her, through Miss Lam, to consult her own psychiatric clinic. It is not necessary for me to express any view on this matter in the light of my decision earlier.

Conclusion

25. In my view, the defendant was negligent in this case. Accordingly, there shall be judgment to the plaintiff with damages to be assessed by the master. The plaintiff is to have cost nisi of this action.