HUI KIN FAI v. DIRECTOR OF HOUSING

________________

__________

JUDGMENT

__________

Clough, J.A. :

1. This is the judgment of the court.

2. On the 28th December 1984 the plaintiff, who was then about 16½ years old and visiting a friend who resided at the Shek Wai Kok Housing Estate in Kowloon, received injuries when he came into violent contact with a substantial metal framed basket ball stand in the playground of the estate.

3. On the 20th March 1986 the plaintiff began proceedings in the Victoria District Court to recover damages in respect of his injuries against the defendant, the Director of Housing, as the occupier and owner of the estate playground. The plaintiff contended that his injuries were caused by the negligence of the defendant or his servants or agents and by their breach of the occupier's common duty of care to the plaintiff as a visitor under the Occupiers Liability Ordinance (Cap. 314). On the 26th August 1986 Deputy Judge Petrus Chan dismissed the plaintiff's claim but made no order for costs in favour of the defendant.

4. Relatedly, but with the necessary leave, the defendant now appeals against the judge's order regarding costs. Even more belatedly, but again with the necessary leave, the plaintiff appeals against the judge's decision on the issue of liability and on two aspects of the judge's assessment of the damages he would have awarded had he found in favour of the plaintiff on that issue. For reasons which were not explained the plaintiff's appeal was brought by way of a separate notice of appeal and not by way of a respondent's notice given in the defendant's appeal pursuant to Order 59 rule 6.

5. This court heard argument on the plaintiff's appeal first because it concerned inter alia the issue of liability. As we were not in a position to decide that appeal immediately after it bad been argued, we heard argument on the defendant's appeal in case the dismissal of the plaintiff's appeal on the issue of liability should make it necessary to decide the defendant's appeal.

THE PLAINTIFF'S APPEAL

Liability

6. The case pleaded on behalf of the plaintiff in the Particulars of Claim was that at about 4:15 p.m. on the 28th December 1984 the plaintiff "happened to stand underneath" the basket ball stand in question and that it had suddenly collapsed, falling down and striking him on his head. The particulars of negligence and breach of common duty of care alleged against the defendant and his servants or agents were failure to take down and remove the stand which was or ought to have been known to be defective and dangerous, failure to make regular or any inspection of the stand, failure to warn the plaintiff not to go underneath or close to it and failure to keep him away from it.

7. By his Amended Defence the Defendant denied negligence and breach of any common duty of care owed by him to the Plaintiff. He pleaded that at the time of the alleged accident the basket ball stand had been taken down and laid flat and stationary on the ground by the defendant. It was alleged that a warning notice and signs were fixed to the stand, giving warning to the public. The plaintiff's allegation of failure to make regular inspection of the stand was denied.

8. It was also pleaded that further or in the alternative the accident had been caused or contributed to by the plaintiff's negligence in "playing around" the stand with "other children" and that his injuries had been caused by his climbing up the stand and falling down himself.

9. Photographs of the scene of the accident and of the basketball stand were exhibited at the trial. The stand appears to be a substantial metal framed structure with a projecting top bearing, a large board to which is fixed a metal goal ring. The base of the frame is secured, or intended to be secured, by bolts to the hard surface of the playground.

10. The substance of the plaintiff's evidence was that prior to the accident he had been playing netball and with a plastic hall at the playground with several others since 1:15 p.m. on the afternoon in question. The accident had, he said, happened when he was walking away after finishing playing and was in the area of the Goal circle in the vicinity of the defective goal stand. His evidence was that as he walked along slowly the stand fell on him, causing him to lose consciousness.

11. According to him he and others had only played basketball at the left hand stand because when he arrived at the playground he had noticed that the opposite stand was damaged and leaning over so that the board at the top of the stand almost touched the head of a person if he walked under it. He said that two metal vertical poles supporting, the stand were broken and three stones were resting on top of a horizontal bar at the back of the stand, but it tilted up a little bit. He denied the presence of any red flags or nylon string on the stand on the day of the accident.

12. The plaintiff's evidence was supported by his friend Mr. POON Kwok-hung, a youth of 17 at the time of the trial and by FOOK Ka-man, a boy of 14 at the date of the trial. They both testified that the stand in question was inclined before the accident and they confirmed his evidence about the stones and the absence of any warnings. Neither of these witnesses said they had seen the accident, but POON's evidence was that when he was returning his ball to the sound goal stand he heard a bang from behind and then saw the plaintiff underneath the defective stand. He said the frame had fallen down and the board was lying on top of him.

13. On the issue of liability the plaintiff also relied on the evidence of Dr. WONG Yau-tak, a medical officer in the Princess Margaret Hospital who had made a report on the plaintiff's injuries on the 13th March 1985 which indicated that he had sustained multiple abrasions over the head, lower jaw, abdomen and right upper chest, and also a swollen left wrist which X-ray showed to be due to a fracture of the left radial styloid. When cross-examined Dr. Wong added that on admission to the hospital the plaintiff had a swelling on the top of his head about 5 cm. in diameter and a 5 cm. laceration over the chin, below the lip.

14. Asked under cross-examination about the cause of the accident in the light of the plaintiff's injuries Dr. Wong said. that it was possible that the plaintiff had fallen from a height and that he might have fallen to the ground when swinging from the stand. He expressed the view that the plaintiff's injuries were more consistent with the plaintiff being hit on the head and then falling down and sustaining the injuries to the front of this body.

15. The evidence for the defendant was that of a Mr. LEUNG Kwai, a resident of the estate, Messrs. LAU Pak-lam and LEUNG Ping-kwong, who were caretakers on the estate, and Miss HUNG Chui-lan, the Supervisor responsible for the playground.

16. Messrs. LEUNG Kwai and LAU Pak-lam testified that the stand was lying on its side on the ground on the date of the accident. Mr. LEUNG Kwai, who has lost the sight of one eye, had been playing chess that afternoon in the vicinity of the accident. His evidence was that the basketball stand was lying on the ground at the time and had been in that position for as long as a week. He said that he saw children playing on the stand and eventually there was a bang like somebody falling to the ground shortly after 4 p.m. when the accident happened. He said he did not actually see the person falling. He looked up when he heard the sound and then saw the person on the ground but he could not identify him. His evidence was that he saw red flags and string attached to the stand prior to the accident.

17. Mr. LAU Pak-lam was the caretaker of Block 'B' on the estate. The other caretaker, Mr. LEUNG Ping-kwong was responsible for Block 'A' which included the playground where the accident occurred. However on the day of the accident Mr. LAU Pak-lam was responsible for the playground because his colleague was on leave. The evidence of Mr. LAU Pak-lam was that he was put in charge of the playground on the 26th December 1984. He said that from that date onwards the stand was lying on the ground, red cloths were tied to it with string and there was a warning notice posted up.

18. Mr. LAU Pak-lam said that he patrolled the playground twice daily, once in the morning and once in the afternoon. His evidence was that on the day of the accident he had patrolled at 9:35 a.m. and 3:30 p.m. when he found the stand lying down with the warning notice on it. However he admitted under cross-examination that the notice had been torn away. He said that on both occasions that he patrolled the playground he saw children climbing up on to the stand and told them to come down as it was dangerous.

19. The other caretaker, Mr. LEUNG Ping-kwong and Miss Hung gave evidence about the action they had respectively taken concerning the defective stand. The substance of their combined evidence was that Mr. LEUNG Ping-kwong had reported to Miss Hung on the 14th December 1984 that the ring on the stand was loose. Miss Hung gave an order for the repair of the stand, but on the 21st December the contractor informed Mr. LEUNG Ping-kwong, who reported to Miss Hung, that the base of the stand was loose and that a covering order for the additional repair was necessary.

20. Miss Hung's evidence was that when she received this report she inspected the stand, finding that the contractor had laid it down on the ground with paper warning notices tied to it with string and pieces of cloth attached to it. She also referred to two stones being there she was transferred to another site on the 24th December 1984. She admitted that between the 21st and 24th December she had received oral reports that the notices on the stand had been torn off and that new ones had been put up. She also admitted during the course of extensive cross-examination that apart from asking, the contractor to repair the stand she had taken no steps to prevent others from using the stand. However at the end of her cross-examination she said that she had instructed her caretaker to keep an eye on the stand and not to let people approach it.

21. In his final submissions Mr. Yip, counsel for the defendant, appears from the judge's notes to have submitted that the main issue (on which he invited the court to disbelieve the plaintiff and his two supporting witnesses) was whether the stand was lying down on the ground at the time of the accident. He referred to the Occupiers Liability Ordinance, emphasised that the plaintiff was 16½ years old at the time of the accident and relied on the maxim volenti non fit injuria.

22. Mr. Choi, the solicitor representing the plaintiff relied on Dr. Wong's evidence as supporting the plaintiff's evidence that the stand had fallen on to hip. When Mr. Chui received an indication from the court that it did not regard the defendant's witnesses as untruthful he invited the court to consider the possibility, in the light of the defence evidence, that children may have tampered with the stand while the plaintiff and his companions were concentrating on their play between 2 and 4 p.m.

23. He appears to have gone so far as submitting that if the court believed all the witnesses it could speculate as to what had actually happened After attacking the reliability of the evidence of  Mr. LEUNG Kwai, who had said children were playing at the stand, Mr. Chui stressed that the caretaker, Mr. LAU Pak-lam had said that he had seen children playing on the stand at 3:30 p.m. on the day of the accident and warned them off because it was dangerous. He went on to criticise the absence of a warning notice, the presence of stones at the stand and the failure of Mr. LAU Pak-lam to report these matters. Likewise he criticised the preventive measures or lack of them on the part of Miss Hung and Concluded by submitting that the accident had been caused because the defendant had failed to discharge his "common law duty".

24. In an extempore judgment the judge began by finding, in reliance on the evidence of the caretaker Mr. LAU pak-lam which he accepted, that at 3:30 p.m. on the day of the accident the stand was still on the ground. (The judge mentioned the time as being 3 p.m., but this was clearly a slip). He observed that neither the plaintiff nor the defendant were in a position to tell what was happening at about 4 p.m. when the accident occurred. By this we take him to mean that there was no reliable direct evidence on the matter, because although Mr. LEUNG Kwai's evidence had been that children were playing on the stand immediately before the accident, the judge referred to that evidence but commented that Mr. LEUNG Kwai had not beep paying particular attention to the stand.

25. The judge then said this:-

26. The judge was at this stage making a finding of primary fact in favour of the plaintiff to the effect that the stand had fallen on to the plaintiff's head because Dr. Wong's evidence supported the plaintiff's evidence to that effect. Having reached that finding of fact the judge had gone on to infer that (1) immediately before the stand fell on to the plaintiff it must have been in the process of being raised up, possibly in order to provide a second goal for a proper game, and (2) the plaintiff might have been involved in raising the stand or alternatively he was a spectator who failed to keep at a safe distance while watching the operation.

27. The judge added that if this was not the reasonable inference he failed to see how at 3 p.m. (it was in fact 3:30 p.m.) the stand was still on the ground but at about 4 p.m. it was standing upright and happened to fall on to the plaintiff's head. He emphasised that the plaintiff had been in the vicinity since 2 p.m. that afternoon and held that it would be highly unlikely that the stand would have been erected so quickly that the plaintiff did not notice it. He concluded by saying that it would have been too much of a coincidence for the stand to fall on to the plaintiff. By this we take him to have been meaning to reject the plaintiff's evidence that, in effect, the stand had fallen on to him fortuitously as he walked beneath it.

28. By his notice of appeal the plaintiff sought to have the judge's finding on the issue of liability set aside and to obtain judgment for the plaintiff or alternatively an order for a re-trial, but at the hearing of the appeal his counsel, Mr. Murray, sought only an order for a re-trial. He argued two grounds in support of that relief.

29. Mr. Murray's first ground was that the judge was wrong to infer, after his finding that the stand did fall on to the plaintiff, that at the time of the accident the stand was being raised up and that the plaintiff was either participating in the operation or watching from an unsafe distance. It was contended that the judge had indulged in unwarranted speculation and ignored the real issues in the trial.

30. Mr. Murray's second ground was that, in any event, even if the judge was entitled to draw the inference that the plaintiff was involved in or watching the raising up of the stand immediately before the accident, there remained the issue whether the defendant or his servants or agent had been negligent or in breach of the occupier's common duty of care under the Occupiers Liability Ordinance in relation to a youth of 16½ years in all the circumstances and having regard, in particular, to the evidence on this issue which had been adduced at the trial.

31. For the defendant, Mr. Marshall contended that the judge had rejected the plaintiff's case as pleaded and advanced at the trial by evidence and argument to the effect that the stand had been standing up, albeit inclining forwards, at all material times prior to the accident. On that basis, Mr. Marshall argued, there had never been any issue of allurement raised. Had such an issue been raised the defendant would have called additional evidence including evidence regarding the weight of the stand. The defendant had, Mr. Marshall argued, come to court to face a straightforward allegation of negligence and breach of the occupier's common duty of care by permitting an upright stand to fall spontaneously on to the plaintiff when he happend to be underneath it.

32. Mr. Marshall contended that the acceptance by the judge of Mr. LAU Pak-lam's evidence that the stand was lying on the ground at 3:30 p.m. was a crucial finding which meant that the accident was not caused as pleaded or alleged by the plaintiff. He contended that although the judge was troubled by Dr. Wong's evidence about the likelihood of the stand falling on the plaintiff, the inferences he made regarding the role played by the plaintiff immediately before the acident were merely ancillary to his conclusion that the stand did fall on the plaintiff. Those inferences did not detract from the crucial finding, that the plaintiff had failed to prove that the accident had happened as pleaded and alleged by him. There was, Mr. Marshall contended, no further issue arising on the pleadings.

33. We were initially attracted by these arguments, but on reflection we do not accept them. It seems to us that having found that although the stand was lying on the ground at 3:30 p.m. on the day of the accident it nevertheless did fall on to the plaintiff at about 4:00 p.m., the judge went on to indulge in unwarranted speculation regarding the role played by the plaintiff immediately before the accident. He regarded himself as having made "the reasonable inference" and not mere ancillary comment when he went on to explain why he was holding that it followed, from Dr. Wong's evidence (regarding the cause of the accident), that the stand was being raised up and that the plaintiff was either taking part in the operation or watching, it from an unsafe distance.

34. This had never been alleged in the pleadings, in evidence or in argument by either side and it was never put to the plaintiff. The latter had only had it put to him in cross-examination that he had seen the goal on the ground and had Played around it. Moreover it cannot be said that the judge's inference was the only inference to draw once the judge rejected both the possibility that the stand could have been raised between 3:30 and 4.00 p.m. without the plaintiff noticing it and the plaintiff's evidence of fortuitous collapse, because it was reasonably possible in all the circumstances that the stand was in fact raised by someone who had completed the operation with the plaintiff's knowledge or assistance some appreciable time before the accident happened. It was also reasonably possible that, notwithstanding the denials in evidence by the plaintiff and his two young supporting witnesses, the plaintiff was in fact playing basketball beneath the stand when it collapsed.

35. Once it is accepted, as we do, that there is more than one possible reasonable inference that can be drawn as to what the plaintiff was doing when, as the judge found, the stand fell on to him, it must follow that the judge misdirected himself in selecting one of the possibilities without any evidential basis. Even if all the possible inferences are adverse to the plaintiff in the sense that they show his voluntary involvement with a dangerous object, there remain the questions whether and to what extent the defendant was negligent or in breach of his common duty of care to a 16½ year old visitor in a playground and whether or not the plaintiff was guilty of contributory negligence.

36. These issues were sufficiently raised on the pleadings and should not have been ignored by the judge after his finding, contrary to the evidence of the plaintiff and his supporting witnesses, that the stand was still lying on the ground at 3:30 p.m. on the day of the accident. The judge's finding that the stand was standing upright and happened to fall onto the plaintiff was strictly within the ambit of the allegations in paragraph 2 of the Particulars of Claim and, in our judgment, it was essential, if justice was to be done between the parties, for the judge to deal with the allegations of negligence and breach of the common duty of care made in paragraph 3 of that pleading. He had rightly been. invited by the plaintiff's solicitor to do so even if he found that the stand had not been upright at all material times prior to the accident.

37. The judge having failed to take that course after drawing inferences which were not permissible on the evidence before him, we consider that this case is one in which it would be just to order a re-trial on the issue of liability. In the terms of Order 59 rule 10(4) such an order would "ensure the determination on the merits of the real question in controversy between the parties."

Damages

38. The plaintiff contended on appeal that the judge's assessment of $8,500.00 as non-pecuniary general damages in respect of pain, suffering and loss of amenities was entirely erroneous and manifestly inadequate. The plaintiff also contended that the judge wrongly refused to award him a sum of $16,000 claimed as expenses prospectively to be incurred by him in undergoing plastic surgery to remove the keloid formation on the scar resulting from a cut on his chin caused by the accident. This sum was treated as special damages below but it should be treated as a component of general damages because it relates to prospective expenses: Shearman v. Folland^(l) per Asquith L.J. at p.51.

39. An order for a re-trial made on this appeal will for all practical purposes have the result of causing the effective trial of this action to be deferred from the 26th August 1986 to a date at the end of this year or early in 1988. The proper time to assess damages in a personal injuries case is the date of the trial by reference to the value of money and to the known condition of the plaintiff at that date. This was emphasised in relation to general damages for pain and suffering and loss of amenities in Birkett v. Hayes(2) per Lord Denning M.R. at p.820E and in Wright v. British Railway Board(3) per Lord Diplock at p.782 C-D.

40. By the time this action comes to re-trial there may well have been material changes in the circumstances material to the assessment of general damages. Thus the actual cost of the relevant plastic surgery may have increased since it was estimated by Dr. Raymond Wang on the 21st April 1986 or the plaintiff may have decided to undergo the surgery in a government hospital or not to undergo it at all.

41. Accordingly, although we have heard full argument on the two items of damages in respect of which the judge's decision was challenged by the plaintiff on this appeal we consider that the proper course, as there is to be a re-trial, is for this court to decline to make what would amount to an anticipatory award of damages which might prove to have been based on circumstances which have altered by the date of the re-trial. We resist the temptation to express any view on the judge's approach to the two relevant items of damages because they would only be obiter in relation to issues which have yet to be effectively tried on the evidence which will be before the judge who conducts the re-trial.

42. Accordingly, subject to the defendant's appeal, we allow the plaintiff's appeal to the extent only of setting, aside the order made below and ordering a re-trial of the action on the footing that damages both general and special will once again be in issue.

THE DEFENDANT'S APPEAL

43. The defendant's appeal against the judge's order denying him the costs of the action is only sustainable on the basis that he obtained judgment below as the successful defendant to the action. This will, no longer be the case once the judgment below is set aside and there is an order for a re-trial. The defendant's appeal therefore falls away and we dismiss it accordingly.

(1)    [1950] 2 K.B. 43 (C.A.)

(2)    [1982] 1 W.L.R. 816 (C.A.)

(3)    [1983] 2 A.C. 773 (H.L.)