Wong Yiu Wing v. To Chark Wah AND ANOTHER

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HEADNOTE

TORT - negligence - breach of statutory duty - window-frame falling from 33rd floor of block of flats - res ipsa loquitur - evidential effect of conviction - psychiatric illness suffered by person suffering slight injuries - whether foreseeable or compensatible as "nervous shock".

STATUTE - section 4B, Summary offences Ordinance (Cap.228) - whether liability for allowing object to fall is strict - no civil cause of action for contravention of statute.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

ACTION NO. : 30743 OF 1992

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JUDGMENT

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1. On the 21st August 1990 an aluminium window frame fell from the 33rd floor of block 7 of Richland Gardens, in Wang Kwong Road, Kowloon, and struck the roof and tailgate of a van (ED 9475) parked on the ground floor level of that block of flats. At the moment of impact the plaintiff, Mr. Wong, was underneath or near the tailgate arranging the goods in the van. He heard a loud bang; jumped back and was then covered with small pieces of glass which, I find, must have come from the shattered pane of glass in the window frame and/or the fragments of the shattered window of the tailgate of the van.

2. Fortunately, Mr. Wong suffered very slight physical injuries as a result of the impact and its immediate consequences or aftermath. He was found to have multiple abrasion wounds over his right index finger, third right toe, and anterior chest wall. But these injuries did not prevent him from taking immediate steps, with help from others, to locate the person supposedly responsible for the fall of the window frame, and having done so, to negotiate for compensation for the damage caused to the van, which belonged to his employer. It is not disputed that the window frame fell from flat B ("the flat") on the 33rd floor of Richland Gardens. These premises are owned and occupied by the defendants Mr. To Chark Wah and Madam Sin Kam Ling, who are husband and wife. Madam Sin refused Mr. Wong's request for $2,500 compensation to cover the cost of repair to the van. If she had agreed to meet that request it is very probable that the present action would never have been commenced or resulted in a trial. However, because of subsequent developments the defendants now face a claim by Mr. Wong for damages for negligence and breach of statutory duty arising out of this incident.

3. These proceedings were commenced by a writ issued on the 25th July 1991. Nine months previously, Mr. Wong had filed a claim in the Small Claims Tribunal seeking to recover $9,100 from Madam Sin for medical expenses and loss of earnings resulting from the incident. Although there is very little evidence before the court, it seems to be common ground that the claim before the Small Claims Tribunal was not pursued. The defendants have not sought to have the present proceedings stayed. Nor do they rely on any form of estoppel or similar defence. On their behalf, Mr. Sham has merely sought to make use of this conduct of Mr. Wong in order to support his submissions that Mr. Wong's present application is not made in good faith. At best, it is suggested that Mr. Wong's claim is inflated or exaggerated; at worst it is fraudulent because Mr. Wong's later complaint of a psychiatric illness lasting until September 1991 is not genuine, or is not attributable to the incident.

4. I recognise that there is some merit in Mr. Sham's submissions on the quality of the evidence adduced on behalf of the plaintiff. There are apparent inconsistencies in his evidence and previous conduct. There are gaps in the evidence, which would normally be filled without much difficulty. For example, Mr. Wong's employer has not given evidence, in court or by other means, of Mr. Wong's actual earnings during the material period or periods. Sick leave certificates have not been produced. Receipts for medical expenses have not been produced. These features are clearly relevant to the question whether the alleged loss has been satisfactorily proved. They are also relevant matters to be taken into consideration on the issue of liability. I have considered all these apparent weaknesses of the case. But, I have also reminded myself that my decision must be based on the totality of the evidence placed before me. I must and do exclude speculation on matters or questions which the admissible evidence might excite but cannot lead to findings of fact based on reasonable inferences from proved facts. At the same time, unlike Mr. Wong, neither of the defendants has given evidence before me. Apart from the evidence of two psychiatrists (Drs Lo and Lau), I have a bundle of documents consisting of 43 pages. (By agreement, two pages (42-43) were added to the two bundles prepared by the parties before the trial to form one agreed bundle.)

5. I have not overlooked the apparent discrepancies between the actual evidence of the plaintiff and the pleadings filed on his behalf. The latter had to be amended to correct mistakes which were, in my view, clearly due to oversight or carelessness on the part of his lawyers. In this respect, the defendants' lawyers cannot avoid some degree of criticism for the manner in which the defence has been pleaded or argued. On several occasions Mr. Sham had to be checked in the course of his final submissions against attempting to make points which departed from the defendant's pleaded case, or the actual evidence. At times I gained the impression that he felt extremely embarrassed by the pleaded case. He tried to avoid the clear implications of the admission that Madam Sin's conviction for an offence against section 4B(1) of the Summary Offences Ordinance (Cap.228) was relevant to the alleged negligence and/or breach of statutory duty, by seeking to argue that the conviction was irrelevant or erroneous. He persisted in that submission by seeking to rely on the case of Hollington v. Hewthorn & Co. Ltd [1943] KB587, although its authority had clearly been removed by subsequent legislation; and despite the fact that the defendants had not complied with the requirements of Order 18 rule 7A of the Rules of the Supreme Court.

6. I have considered all these and other aspects of these proceedings, which have caused some degree of disquiet on my part. But, at the end of the day, my unease rests solely upon the assessment of the quantum of Mr. Wong's alleged loss. I am satisfied on the balance of probabilities that he did suffer a genuine psychiatric illness which lasted until the end of September 1991. I am also satisfied that he has rebutted the suggestion of malingering. On the contrary, I find that throughout this illness he was very motivated to get well. So far as the medical evidence goes there is very little disagreement between the two doctors, i.e. Dr. Lo and Dr. Lau. But, in general, I prefer the evidence of Dr. Lo because he saw the plaintiff approximately every week over a 10 months' period; whereas Dr. Lau only saw him twice in May 1993, some 18 months after he had been cured of that illness.

7. Before I turn to the question of liability it is necessary to indicate some further findings of fact. The defendants bought the flat in June 1985 and have lived there since that time. The incident occurred at or about 1.30 p.m. Later that afternoon, after an investigation by police, Madam Sin was arrested and taken to the police station. She was later charged with the offence of allowing the window frame to fall from her flat, contrary to section 4B(1) of the Summary Offences Ordinance (Cap.228). On the 24th August 1990 she was convicted of that offence, after admitting the same; and fined $500.

8. Although the particulars of breach of statutory duty do not specify the relevant statutory provision, it is tolerably clear, from the pleading of Madam Sin's conviction, that the plaintiff relies on section 4B of the Summary Offences Ordinance. Mr. Sham's arguments on this statutory provision and the conviction were really aimed at persuading the court to dismiss the conviction as evidence of little or no weight as proof of the alleged negligence of the defendants. He did not really address any argument to the question whether section 4B of Cap.228 gives rise to a civil cause of action in favour of persons injured by objects dropped from buildings. Nevertheless, I conceive that I must be satisfied that it does give rise to a civil remedy, because I do not think that the failure to argue the point can be treated as a concession on the part of the defendants.

9. I have not been referred to any of the more recent authorities on breach of statutory duty as a separate cause of action. Mr. To reminded me of some of the general principles and contended that section 4B of Cap.228 was intended to afford protection for a special or particular class of individuals, to which the plaintiff belonged; and was not imposed to benefit the public at large. But he did not cite any authorities to support or illustrate his submissions. The Summary Offences Ordinance consists of several provisions dealing with disparate activities which can be loosely regarded as public nuisances. They are not really designed to protect or give redress to victims of private nuisances, although the fact that the express sanctions enable such victims to invoke police action means that they can achieve in practice an abatement of the nuisance without resort to civil proceedings. In my view, section 4B(1) of Cap.228 does not give rise to a civil cause of action against any person offending against its provisions. The section does not impose any duty on the owner or occupier of a building. It imposes a criminal liability on any person who drops or allows something to fall from a building. The culpable person could be the owner or occupier; an independent contractor employed by the owner or the manager of the building; a guest of the occupier of part of the building; or even a burglar who drops his jemmy. If the culprit can be identified the victim has ample and adequate civil remedies without resort to breach of statutory duty. If the culprit cannot be identified, the statute does not impose any duty on any other person, unless the building is under construction, repair or decoration. In the present case, the plaintiff must prove that the defendants were negligent if he is to succeed.

10. Originally, the only particulars of negligence alleged in the statement of claim were :-

"failing to check and/or otherwise to maintain the said window frame to prevent its falling;"

At the trial, I allowed the plaintiff to amend his pleadings to rely on the doctrine of res ipsa loquitur. It is strictly not necessary to specifically plead the doctrine, but it is usual and, in my view, good practice to do so. Contrary to Mr. Sham's submission, the doctrine does not shift the burden of proof to the defendant. Cf. Ng Chun Pui v. Lee Chuen Tat [1988] 2 HKLR 425. But, in my view, it should be pleaded so that the defendant is put on notice that the court may expect some explanation from the defendant or other evidence explaining the cause of the occurrence.

11. On this aspect of the case, Mr. Sham relied heavily on a passage in Goldman v. Hargrave [1967] AC 645 at 663. In addition, he sought to impugn Madam Sin's conviction by contending that it should be given no weight because of the circumstances in which it was reached; and, further contended that it was not even proof of negligence because the offence was one of strict liability. With respect to counsel, I do not think that the cited authority is apposite to the circumstances of the case before me. It was concerned with the hazard of fire thrust upon the occupier of land through no seeking or fault of his own, and whether he had adopted reasonable measures to deal with the hazard. In the present case, there is absolutely no evidence to suggest that the window frame was dislodged by some freak occurrence. Although it happened in August, there is no evidence that it might have been due to typhoon conditions. Mr. Sham sought to suggest that it may have been due to faulty workmanship by those employed by the developer, which the defendants could not reasonably expect or foresee. I reject that explanation as being highly improbable. If it was badly fitted, it is more probable that it would have become dislodged at some earlier time, instead of 5 years after the defendants took possession of the flat.

12. As Madam Sin's conviction and its relevance to the alleged negligence was expressly admitted in paragraph 4 of the Defence, I do not think that I can accede to Mr. Sham's contentions that no weight should be given thereto because Madam Sin was not legally represented and the facts were not fully investigated. She has not given evidence. From the notes of the hearing of her case (p.18AB) I do not think that there was sufficient ambiguity in her answers to the charge to justify a finding that her guilty plea should not have been accepted. No steps have been taken to appeal against the conviction. Accordingly, I consider that I must regard the conviction as imposing on Madam Sin a burden of rebutting what is presumed against her by the conviction. Cf. Wauchope v Mordecai [1970] 1WLR 317; Stupple v Royal Insurance Co. Ltd [1971] 1QB50. Furthermore, I consider that the 'presumption' or inference to be derived from the conviction is that Madam Sin allowed the window frame to fall from the building. Mr. Sham argued that the conviction was not evidence of negligence because the offence created by section 4B(1) of Cap.228 is one of strict liability. In my view, allowing something to fall from a building necessarily implies some element of knowledge of, or advertence to, the probability of that event happening. I do not think that the offence created by section 4B(1) of Cap.228 is one of strict liability. It implies knowledge of the hazard, i.e. the risk of something falling, and some deliberate act which causes that occurrence or some conscious failure to prevent the occurrence. In my view, the offence cannot be committed without proof of some degree of negligence. It does not follow that subsection (1) implies strict liability because it is not subject to the "due diligence" defence contained in subsection (3). The latter was no doubt enacted to alleviate any harshness in the effect of subsection (2), which makes contractors constructing, repairing or decorating a building vicariously liable for any offence against section 4B(1), committed by another person who may not be an employee.

13. Although neither defendant gave evidence, Mr. Sham submitted that there was sufficient explanation or other evidence in the agreed bundle to prevent the operation of the doctrine of res ipsa loquitur or a finding of negligence against them. According to Mak Wun Man, a police constable called to the scene after the incident, Madam Sin heard a bang and discovered that one of the aluminium windows in a room of her flat was missing. After being cautioned she told the police constable :

"I have lived at the Richland Gardens for 5 years, I often check the door and windows to see if they are all right. As to the falling down of the window to the street, I do not know such accident would happen." (See pp 9-10 AB).

This statement is inconsistent with her admission to the learned magistrate a few days later that she did "neglect matters in this case" (p.15 AB) but, perhaps, consistent with her denials of actual knowledge of unspecified facts or matters. These vague and slender indications, gleaned from the agreed bundle of documents, are not, in my view, sufficient to rebut the presumption or inference which arises from the conviction. In the absence of any oral testimony by Madam Sin, it is not possible to reconcile her various claims or statements in a way which would exonerate her from negligence. In all the circumstances, I consider that the plaintiff has discharged the burden or proving negligence by the combined effect of the conviction and the application of the doctrine of res ipsa loquitur. I appreciate that the evidence before me does not directly implicate Mr. To. But, as the co-owner of the flat, the husband of Madam Sin, and a decoration worker by occupation, I think that I am entitled to infer (as I do) that he shared his wife's apparent knowledge of the state or condition of the window frame at the material time. On the totality of the evidence I find that the defendants were negligent. They failed to take any or any reasonable steps to maintain the window frame, which they knew or ought to have known was liable to fall from their flat.

14. I now turn to the more complicated issue of whether the plaintiff can recover damages for what I have found to be a genuine psychiatric illness. Mr. Sham contended that such illness was not compensatible because it fell outside the scope of the defendants' duty of care. It was not a reasonably foreseeable consequence of their negligent act or omission. Furthermore, the type of illness was not the kind of loss which could be brought within the "nervous shock" cases. Mr. Sham relied almost exclusively on a dictum of Nolan LJ which appears at the end of his judgment in Jones v Wright [1991] 3 All ER88 at 123, to the effect that the law does not recognise psychiatric illness "brought about by an accumulation of more gradual assaults upon the nervous system." Quite apart from the fact that the present case is far removed from the authority cited on the facts, I respectfully suggest that the dictum has been overworked or misunderstood by Mr. Sham in his final submission.

15. In the present case, I am satisfied that the plaintiff suffered from anxiety disorder in which phobia symptoms were prominent; and this was caused by what Dr Lo described as the "frightening experience" of the incident. The illness and the symptoms did not develop gradually, as Mr. Sham suggested in his first question in cross-examination of Dr. Lo. They manifested themselves within 2 or 3 days of the incident and were very acute. It must also be remembered that the plaintiff suffered some physical injuries as an immediate consequence of the incident. He suffered multiple abrasions from the shards of glass. Fortunately, he was saved from more serious injuries by the roof or tailgate of the van. But, his proximity to potentially fatal or serious injury from this terrifying incident would be clearly foreseeable as "a reaction to an immediate and horrifying impact." That form of "nervous shock" is, in my view, recognised by the law as compensatible, provided the other conditions for liability are satisfied. In my respectful view, this was recognised by Nolan LJ in the first sentence of the last paragraph of his judgment in Jones v Wright, supra. He was not endeavouring to limit the categories of nervous shock or psychiatric illnesses for which compensation could never be awarded. He was merely explaining why one particular plaintiff (Mr. Capoc), in his judgment, fell "beyond the margin of what, as a matter of law, was reasonably foreseeable." In my view, the learned Lord Justice was not saying that persons suffering from "anxiety disorder" could never recover damages if that condition was caused by a clear breach of a duty of care. The fact that he recited passages from the expert evidence (at 117-118) is some indication that he recognised that anxiety disorder could be made the basis of a valid claim.

16. The case of Jones v Wright concerned plaintiffs who had suffered psychiatric illness from nervous shock as a result of seeing or hearing news of the disaster at Hillsborough football stadium in 1989, in which their relatives or friends were killed or injured as a result of police negligence in controlling crowds at the match. They were not directly injured by the negligence of the police, because most of them witnessed the disaster through the medium of live television transmission and subsequent news reports. The four who attended the match did not suffer nervous shock through any fear for their own safety. In my view, the case has no bearing on the present case, where the plaintiff suffered immediate physical injury, albeit of a trivial nature, and shock which manifested itself a few days later in the form of phobic symptoms of acute anxiety disorder. In Jones v Wright the essential and principal question was whether any of the witnesses of the disaster or its aftermath could bring themselves within the range of foreseeability apparently set by the House of Lords in McLoughlin v O'Brian [1983] 1AC 410.

17. In the present case, I consider that the defendants must have foreseen that someone might be injured by the fall of the window frame from their flat on the 33rd floor. They must be taken to have foreseen that their negligence in allowing it to fall from that height might result in the infliction of serious or fatal injuries to persons such as the plaintiff. Even though the fall of the window-frame caused no direct or serious injury to any person they must, in my view, be regarded as foreseeing that it would at least frighten or cause shock to persons in the vicinity, even if they were not hit or injured by the falling object. In all the circumstances, I am satisfied that the plaintiff has established a claim to be compensated for the psychiatric illness he suffered as a direct result of this incident.

18. As indicated earlier, quantification of Mr. Wong's actual pecuniary loss is not easy because of the paucity of evidence of the usual kind. It is not even easy to determine his medical expenses. Although the doctor who treated him for some 9 or 10 months in 1991 was called, he was unable to testify as to the amount Mr. Wong had paid for his treatment. He hazarded a guess that there were 25 consultations at $300, and a final consultation for which he charged $1,600; and the total amount was in the region of $9,000 to $10,000. In general, Dr. Lo testified that Mr. Wong was in his care for about nine months; and consultations took place approximately every week. Mr. Wong testified that his medical expenses amounted to about $12,000. He consulted Dr. Wong Ling Ling on 2 or 3 occasions between October and December 1990 at $100 per session; and saw Dr Lo between 30 and 40 times at $300 per session. Regarding the number of consultations, I think that Mr. Wong's evidence is the more realistic. Weekly consultations over some 9 months would give a figure slightly in excess of $10,000. Dr Lo's final consultation cost $1,600 and the earlier consultations with Dr. Wong would have cost $200 to $300. In all the circumstances, I assess Mr. Wong's loss in the form of medical expenses at $12,000.

19. On behalf of the plaintiff, Mr. To invited me to award a sum of approximately $35,000 for pain and suffering and loss of amenities. This amount was arrived at by adopting the $20,000 awarded in Kung Kit Shing v. Star Synthetic Flower Factory (HCA No.8967 of 1981; 24 March 1987)(1987) HKCL 57 and adjusting it to reflect the impact of inflation since 1987. Apart from the fact that Mr. To merely cited a digest of that judgment, there is before me very little evidence to justify an award under this head of damage. Nothing is expressly pleaded; it is left to be inferred from the pleading and evidence as a whole. Mr. Wong's injuries from broken glass were fortunately not serious. Indeed, he was initially prepared to waive compensation for them if Madam Sin had agreed to pay compensation for the damage to his employer's van. Nevertheless, I think that he is entitled to an award to compensate him for the suffering which began shortly after the accident and must have continued for the next year, albeit to a diminishing extent as his treatment gradually restored him to his pre-accident condition. He suffered from loss of sleep and violent dreams three or four times a week until he sought medical treatment. He was obliged to give up driving until his disorder was brought under control. But this deprivation can only be measured by reference to his loss of earnings, as there is really no evidence to show that he normally derived some pleasure or recreation from driving. For the 3 or 4 months before he was referred to Dr Lo I would award $10,000 for pain and suffering and loss of amenities.

20. Damages for actual loss of earnings are also difficult to quantify for reasons already given. Mr. Wong's evidence was rather vague and difficult to understand. I find that his average monthly earnings at the time of the incident were $8,500. They included overtime pay on top of a basic wage of $6,000. Immediately after the accident he was given sick leave, although its duration is not clear. According to Mr. Wong he received no wages or periodical payments of employee's compensation until his employer later agreed to pay him his normal wages. It is not clear whether he received his usual wages (including overtime) or his basic wages. But, on the evidence before me I do not think that Mr. Wong has proved a real loss until he was advised by Dr. Lo to cease driving motor vehicles, at or about the end of 1990, because his acute anxiety disorder was causing him to lose concentration and was aggravated by his phobia symptoms. I find that this began in January 1991, when he was given light work as a messenger for which he was paid $1,500 per month.

21. Mr. Sham suggested that the plaintiff could have found more remunerative employment during the ensuing 9 months when he was undergoing treatment from Dr. Lo. That may be the case; although the evidence does not stretch to suggesting the nature or expected rewards from any alternative employment. But, in the present case, I do not consider that Mr. Wong's acceptance of reduced wages for different employment by his employer was a failure to mitigate his loss. It would seem that his employer had adopted a very sympathetic and generous attitude at all times. Mr. Wong was keen to get cured of his disorder; and believed that it would take less time than it did. He did not wish to take on commitments to other employers in case they prevented him from returning to his job as a driver for an employer, who had shown him understanding and some generosity in allowing him to work flexible hours. It may be the case that his employer's sympathetic attitude contributed to Mr. Wong's eventual recovery. Dr. Lau considered that "the symptomatology was unusually protracted in duration", whereas Dr. Lo considered that it was not uncommon. I have already indicated that I am satisfied that Mr. Wong has rebutted any suspicion of malingering. On the duration of his illness I have no hesitation in accepting Dr Lo's opinion. He described Mr. Wong's disorder as very acute. He saw him weekly for the next 9 months. Dr. Lau only saw Mr. Wong 18 months after his recovery.

22. I do not know when Mr. Wong resumed work as a driver. I do not even know whether he was paid more than the $8,500 he had received at the time of the accident, some 12 or 13 months earlier. I must assume that there was no change in his average earnings. I find that his illness prevented him earning $8,500 per month as a driver for the 9 months from the beginning of January to the end of September 1991. During that period he received a substitute wage of $1,500 per month. Accordingly, I assess his loss under this heading at $63,000. For these reasons, the plaintiff is entitled to judgment in the sum of $85,000 against both defendants. I will hear further submissions on the rate and duration of interest prior to judgment.