T v. KAN KI LEUNG, STEPHEN AND ANOTHER

HCPI 443/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 443 OF 2000

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J U D G M E N T

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1. The plaintiff, who was born on 12 November 1978 was a student at the 2nd defendant ("the School"), of which the 1st defendant was the headmaster. He entered the school for his secondary education in September 1991. In September 1996, he entered the 6th Form. At this stage he neglected his school work somewhat, and in particular came to school late and failed to hand in his homework on time. In April 1997, because of this, the 1st defendant punished him. There is a dispute about the exact form and duration of the punishment, but it involved the plaintiff's being suspended from classes and made to complete his unfinished homework. He was required to do some of the work while sitting at a desk in the main entrance hall of the school. About 12 May 1997 the plaintiff's family noticed that he was behaving strangely and took him to hospital. He was ultimately diagnosed as schizophrenic. He claims that his schizophrenia was caused by the 1st defendant's treatment of him and claims against both defendants for damages. This trial has been on liability only.

The plaintiff's case

2. The plaintiff's pleaded case is that it was an implied term of the plaintiff's studies that the 1st defendant should only administer such punishment to the plaintiff which was moderate and reasonable, not dictated by bad motive, and such as was usual in the school, and which a parent might expect the child to receive if it did wrong; and further that any such punishment must not be excessive, must be with suitable means and must not be carried out in an improper manner.

3. The plaintiff goes on to plead that from 21 April 1997 to about 9 May 1997, the plaintiff was forced by the 1st defendant to finish outstanding homework and write apology letters at a desk placed outside the school office, about ten feet from the main entrance of the school premises. The incident was noticed by many students in the school and caused anxiety, distress, depression and a sense of humiliation and or psychotic disorder to the plaintiff. The incident was caused by the negligence or breach of duty on the part of the 1st defendant and the 2nd defendant is vicariously liable for the same.

4. The plaintiff goes on to particularise that the defendants exposed the plaintiff to a risk of damage or injury of which they knew or ought to have known, and caused the plaintiff to do his homework and write apology letters in circumstances where they knew or ought to have known that this would cause personal and psychiatric injuries to the plaintiff. Further voluntary particulars of these allegations have been provided. These include allegations that the 1st defendant, having concluded that the plaintiff had educational problems failed to exercise proper skill and to assess the impact of escalating the punishment on the plaintiff and his educational needs. Having requested professional assistance from the school's educational psychologist, the 1st defendant did not wait to receive it before proceeding with the punishment; and he did not obtain other professional advice which he should have obtained as to alternative methods of dealing with the plaintiff. Further, all this was done without informing the plaintiff's parents of the commencement and continuation of the punishment.

The defendants' case

5. The defendants' case as pleaded is long and detailed but the salient points of it are that the plaintiff had problems with his school performance from the beginning of his sixth form year, i.e. September 1996. In particular, he failed to hand in homework for nearly all subjects. In March 1997 the 1st defendant and the plaintiff's form teacher had a discussion with him. They warned him of the action that would be taken if he did not mend his ways. The 1st defendant met the plaintiff's parents on about 15 April 1997 to discuss his behaviour and explain what would happen, including in particular that if he did not do his homework and hand it in, duly countersigned by the parents, that he would be suspended from class and required to do homework that in the school library or, if that did not work, in the school office waiting room or, ultimately, outside the general office. The parents agreed to this course of action. The plaintiff did not hand in his homework, so from 21 to 29 April 1997 he was suspended from class and sent to do it in the library during class times. He did not do his homework there so he was put in the office waiting room. He did not do it there either, so he was put in the entrance hall. Ultimately he did complete at least some of his homework. The defendants say that their course of action towards the plaintiff was proper, appropriate and reasonable and they deny negligence or breach of duty.

6. The defendants did not in their defence aver any pre-existing liability to schizophrenia. However in their answer to the plaintiff's Statement of Damages they averred :

"Without prejudice to the issue of liability, the defendants aver that the plaintiff had a genetic vulnerability or predisposition to schizophrenia which was such that he was destined to develop schizophrenic illnesses and full blown schizophrenia in adolescence or early adulthood irrespective of the matters complained of in the Statement of Claim".

7. In the early part of the trial the defendants' position changed somewhat, as indeed had that of their expert witness, Professor Lee; I will deal with this in greater detail in due course. The defendants were permitted to amend their defence so as to bring an alternative case in the following terms :

"The Defendants say that the Plaintiff was genetically disposed to suffer from schizophrenia and as a result of his genetic disposition and the multiple stresses he experienced in the course of his childhood and adolescence, the Plaintiff suffered from Schizophrenia as from approximately September or October 1996 alternatively between September or October 1996 and March/April 1997 but before the matters complained of."

8. To put it in a nutshell, the defendants' case as it now stands is that they did not cause the plaintiff to become schizophrenic; if any one did, it was his family; and before the incident that he relies on as causative of his disease he was already suffering from it, in a form which, though not readily recognisable, was present and would inexorably manifest itself in active symptoms, with or without the matters complained of. The very problems which he had, including lateness to school and failure to hand in homework amounted to symptoms of the prodromal phase of schizophrenia. I would draw the analogy with a bacterial or viral disease which may be present for an incubation period without the patient showing any symptoms except perhaps a general malaise, but which will inexorably, once the incubation period has run its course, make the patient ill, with obvious symptoms such as fever.

9. There was some argument, and it has persisted into the final submissions, as to whether following this amendment the court should deal with the two aspects of the defence case, namely whether there was a genetic predisposition which might cause the plaintiff to become schizophrenic in future, and whether he was in fact schizophrenic before the incident complained of, in the course of the trial on liability. The first aspect will have to be dealt with in the inquiry into quantum, if one becomes necessary, but it is impossible to avoid dealing with it to some extent here.

Evidence

10. Before considering the plethora of expert evidence, it is necessary first to establish what happened to the plaintiff, before and during the incident complained of, as well as those facts which relate to his family history which might have a bearing on whether or not other stresses had caused him to enter the prodromal phase of schizophrenia before that incident.

11. I propose to deal first with the punishment itself and the period immediately before it in which there was a meeting between the 1st defendant and the plaintiff himself, and between the 1st defendant and the plaintiff's parents. In dealing with the question of liability, I will refer to the plaintiff's earlier life and the period from the beginning of the school year up to April 1997 because what happened in that period goes to the question of the state of the plaintiff's mental health and whether he was in the prodromal phase of schizophrenia.

The punishment

12. The evidence of how the plaintiff was punished comes primarily from the plaintiff himself and from the 1st defendant. There is some assistance, but not much, from other students and two teachers, Mr Chow Chung Yiu and Miss Ng Wai Lee who was the plaintiff's form teacher. The lengthy account given in the statement of the plaintiff's mother, comes entirely from what she was told by another student, after the plaintiff had first been to hospital, so it is of little value. As to the meetings, the plaintiff, Miss Ng and the 1st defendant can speak to what happened when Miss Ng referred the plaintiff to the 1st defendant in March 1997. The meeting between the 1st defendant and the parents on 16 April 1997 is spoken to by the former and the plaintiff's mother only; the plaintiff's father, though he was present in court throughout the trial, has not given evidence.

13. The plaintiff's own evidence has to be seen in the light of his illness; his expert Professor Lee said that the illness would affect the accuracy of his memory, and his own expert Dr Wong accepted that. Further he largely accepted the defence case in cross-examination. So where there is a conflict between him and the 1st defendant I think the evidence of the latter must be preferred. As to the plaintiff's mother, she is obviously very much involved emotionally. She feels that he has been grievously wronged. She seemed to be concerned to tell the truth as she remembered it but her evidence has to be looked at in this light.

14. It is not in dispute that the plaintiff had been frequently late for school since the beginning of the school year in September 1996. Miss Ng says that he was late 41 times; twice as often as the next most serious offender. It is also not in dispute that he had homework outstanding. Unfortunately we do not now know how much; his own account is pretty vague and while Miss Ng says that she and other teachers kept records of what was outstanding those records are not available. But it seems obvious that there must have been a lot, for the form teacher to refer the matter to the headmaster. Further the other students seem to have known that there was a problem. It seems to have been generally known that, though the plaintiff had been made a prefect he was dismissed from that post in February 1997 because of the homework situation.

15. It appears from the evidence of the 1st defendant and Miss Ng that because of these problems the 1st defendant had a meeting with the plaintiff in March 1997, some time before the Easter holidays which ran from 26 March 1997 to 4 April 1997. Miss Ng was present, but only at the end of the interview. According to the 1st defendant, the plaintiff's attitude was not serious and he did not think his results were too bad; he failed to appreciate that his performance would affect his promotion to Form 7 and hence his future. The plaintiff said that he had a small amount of homework outstanding, but the 1st defendant says that he knew, from what the other teachers had told him, that most of what the plaintiff had had to do since September was outstanding. He told the plaintiff to make a list of the subjects and work outstanding and the plaintiff agreed. He told the plaintiff to do his homework and obey the rules or else his parents would have to be told, and this would be followed by a sequence of actions like suspension from class and from school. The plaintiff understood and agreed. It does not appear that any deadline was given at this meeting but the 1st defendant said in cross-examination that at a later brief meeting, of which there were several, he had told the plaintiff that he must hand in all his homework after the Easter holidays.

16. The plaintiff denied that there was any meeting in March. He said in his statement that the only meeting was on 16 April and that the 1st defendant then told him to hand in all his homework by a date in the following week, i. e. after 21 April, and make a daily progress report in the meantime. This, he said, was very hard, because he had to work for Organised Tests at the same time, though he tried to do his homework as well. However, under cross-examination he accepted that this meeting could have taken place in March. He also accepted that he had been told to make a list and that, as the 1st defendant had indicated, he had left out the outstanding English homework.

17. As to the meeting with the parents which according to the 1st defendant took place on 15 April the major area of dispute is as to what the parents were told. The 1st defendant says that he laid out a plan whereby the plaintiff would be required to hand in a considerable portion of homework, checked by the individual teachers after the holidays and the Organised Tests. This homework was to be countersigned by the parents and handed to the 1st defendant. If that was not done the plaintiff would be suspended from class and required to do the work in the library. If he did not do it there, he would be put in the waiting room outside the general office; and if that did not work he would be required to do the work sitting outside the general office. Here, the 1st defendant would be able to see and supervise the plaintiff. Some junior students had been working there but he did not want to start a precedent for a senior student by putting him there. The parents agreed to this. Later the 1st defendant told the plaintiff what was to happen and he also told Miss Ng. Because of other things which the parents told him about the plaintiff's behaviour at home the 1st defendant thought that he was misbehaving because of quarrels at home and decided to refer him to the School Educational Psychologist, Mr Ma.

18. The plaintiff's mother gave similar evidence as to the course of the meeting in some respects but said that the subject matter was more the plaintiff's lateness and his home circumstances than his homework. However the 1st defendant did mention that he had punished junior students by making them work in the entrance hall though he said that he would not do that to the plaintiff who was a senior student. He would try to make the plaintiff do his homework, and if he failed, would put him into the library or the classroom opposite the office to do it. All this was casual talk and the plaintiff's mother says she did not pay much attention to it. He said that the plaintiff had only two essays and some homework to do. He did not mention any date by which the work should be done.

19. As to what actually happened on 21 April and subsequently, the plaintiff's evidence as it appears from his written statement is in effect that he went to the 1st defendant at the morning recess, to submit his daily progress report, but was then sent to sit in the school entrance hall even though the deadline for finishing the homework was not yet reached. That lasted for about a week until the homework was finished. Then the 1st defendant told him to remain there and write letters of apology to the teachers and get them countersigned by the teachers. He could not find all the teachers, but submitted some of them and was then made to re-draft the letters, still in the entrance hall. In all he was there for eight or nine days. Even after that the 1st defendant accused him of lying about the amount of English homework outstanding and made him remain in the entrance hall for another two days or so to complete the English homework. While he was in the entrance hall other students nicknamed him the "floor manager". It was during the time in the entrance hall, according to the plaintiff, that he started feel guilt and embarrassment and to hear voices saying that he was a devil.

20. The plaintiff's oral evidence in chief was similar. He said that he started to hear the voices about the end of the first week or the beginning of the second week. He asked a social worker for help but got none. Under cross-examination, he also mentioned a Christian Fellowship meeting he had attended under Miss Ng at which he had mentioned hearing voices but Miss Ng had asked if it was the voice of God, which confused him further.

21. However, under cross-examination, as I have indicated, he largely admitted that matters had gone according to the 1st defendant's version of the sequence of events. He accepted that he had started working in the hallway on a Wednesday and had continued until the following Tuesday; though he insisted that he had been made to write apology letters after that.

22. The 1st defendant's version was that the plaintiff was sent to the library on Monday 21 April, where he did no work but lounged around reading books. He was put in the office waiting room on the following day, but read magazines. He was put in the entrance hall the next day; and then he started to do his work. He finished a reasonable amount by the following Tuesday i. e. 29 April and was allowed to return to class. According to the 1st defendant the plaintiff was not required to write apology letters. He was required to prepared notes to the teachers stating the types and amounts of unfinished homework. This was done, and because the notes were of poor quality he was asked to redraft them. All this was before the suspension started, and in fact when the plaintiff handed in the last of his homework on 1 May it was accompanied by a set of such notes countersigned by the plaintiff's father.

23. In his oral evidence the 1st defendant said that he had told the plaintiff at the end of each day that if he managed to hand in a reasonable amount of work on the following day, he would not have to remain in the hall. This did not appear in the written statement but it did appear quite spontaneously in evidence-in-chief. It has been argued that this indicates later fabrication to deal with points raised in the expert evidence, particularly in respect of punishment "with no time limit". I note in particular that under cross-examination the 1st defendant maintained that :

"a limit was given on each day, that if he could hand it in next morning; even 21st was a deadline. At the end of each day also a deadline; if he completed it, it would be acceptable. Even on 21st when he was in library I told him, if he completed it there, that would be the end of it. "

24. It was further suggested to the 1st defendant that this was unreal; he replied :

"This is something absolutely real. It was only the student himself who failed to do it in the deadline. Or perhaps this way; failed to do what he should have done by the deadline. Later, when he did part of it, we let him off. " (These are extracts from my own notes.)

25. He also dealt with such matters as a letter to the parents dated 23 April giving the plaintiff a demerit for lying about the amount of English homework he had to do. Apparently it was to do with a lost book. He also mentioned having made the plaintiff stand in the hallway for 15 minutes on one day, because he sneaked into school late. This it seems was on 30 April. There is some evidence from other witnesses about the plaintiff's having been seen standing in the hall rather than sitting at a desk and working.

26. As I have indicated there is some assistance from these other witnesses. Five classmates gave evidence, and all of them had seen the plaintiff in the hallway at some time but they were not particularly clear as to how many days he had been there except for Wong Hiu Chong who estimated the time at two weeks of school days, though this included several days when the plaintiff was in the school library. Wong Hiu Chong and Leung Mei See said that he had been taken out of class again after returning, in order to write apology letters; Wong had helped the plaintiff to write them, though in the classroom in free time, and Leung had seen them. Others had been told of them. One witness claimed to have seen him working in the hallway at lunchtime and recess but others said that he had been able to return to the classroom at these times, and I think ultimately he agreed to that. Miss Ng had seen him in the hallway one day but reading a magazine rather than working. She said that he came back to class on 1 May. Another teacher, Chow Chung Yiu had seen him in the hall on several days.

27. Significantly many of these students knew of the homework problem, and that it was the reason for the plaintiff's earlier dismissal as a prefect; and they knew that he had deadlines to meet for his outstanding homework.

28. All the witnesses appear to agree on one thing, namely that after he had been made to work in the hallway the plaintiff's mood changed. He became depressed; he was dull, unhappy and sleepy. Chan Chi Yeung was told about the voices which the plaintiff claimed to hear, but just when he was told is not clear. It appears that there was a Christian Fellowship meeting under Miss Ng on about 25 April, but her evidence of what the plaintiff told her, and what she replied is not clear. Shum Chun Tai said that he had seen tears in the plaintiff's eyes when others laughed at him in the hall. Mr Chow the teacher spoke to having seen the plaintiff react with extreme embarrassment when some people from another Christian group came into the hall. However I have to treat Mr Chow's evidence with some care because he himself has had psychiatric problems, subsequently to the incident but before the trial, and apparently blames the 1st defendant for them. As for the 1st defendant it does not appear that he noticed any particular change in the plaintiff in the course of the two weeks after 21 April.

Findings of fact

29. The trial took many days and the evidence is lengthy. Of necessity what I reproduce here is fairly sketchy, in the hope of keeping this judgment to a manageable length. Witnesses were dealing with matters which happened quite a long time ago. I have already dealt with my views of the reliability of the evidence of the plaintiff who must have been affected by his illness, and of his mother who obviously feels very strongly about what has happened to her son. Generally other factual witnesses including the 1st defendant seemed honest but their reliability on specific points varied somewhat. This is, I think, not a case where one can say that the plaintiff's side or the defendant's side is obviously right on all points.

30. From the evidence I am satisfied that the plaintiff was told, some time in March, that he must hand in his homework and stop being late for school, otherwise his parents would be told and he might be suspended. He was given until after the Easter holidays and the Organised Tests to do this; which would bring him up to about 21 April. Much has been made of an alleged threat to suspend the plaintiff from school for a year. This is shown in the plaintiff's statement as coming at the end of the punishment, but under cross-examination, although he said that he could not remember if it came in this first meeting, from the tenor and context of his answers on the point it seems to me that it must have done; and also that it came rather as a suggestion for a possible way ahead, than a threat.

31. As to the meeting with the parents I am satisfied that the 1st defendant told them in terms what he was going to do, if the plaintiff did not improve; there is really no reason for him to have mentioned making the boy do his homework in the hall if not as a probable course of action in the last resort. I am satisfied that the parents agreed to the total course. I do not believe the mother's evidence that all was left vague. I do not believe that the punishment was sudden and unexpected as the plaintiff seeks to show. The 1st defendant may not have given a very specific date but I have accepted that he had earlier given an indication to the plaintiff based on the Easter holidays and the Organised Tests. Further as to this meeting I accept the evidence of the 1st defendant that the parents had some arguments in his presence and that the plaintiff's mother appeared to be the dominant one.

32. As to the punishment itself I am satisfied that it went according to the account given by the 1st defendant. The plaintiff was put first in the library, where he did no work; and then in the waiting room, where he did none; and he was then made to sit and work in the entrance hall from Wednesday 23 April 1997 until the following Tuesday, 29 April. During this time, he went first to his classroom in the morning for roll call and he was able to leave the entrance hall during recess and the lunch break. I am also satisfied that the 1st defendant saw him each day and told him that if he handed in a reasonable amount of work the next day, he would be allowed to go. I also accept that on one occasion when the plaintiff came late, namely 30 April, the was made to stand in the entrance hall as a punishment.

33. The matter of the apology letters is a little less clear. Other students speak to the plaintiff's having written them, and indeed Wong Hiu Chong says he helped with the re-drafting. This was done when the plaintiff came back to the class in a free period. Also Miss Ng says that the plaintiff returned to normal classes on 1 May and an apology letter addressed to her and countersigned by the father has been produced. She being the form teacher is likely to be accurate on such a matter. It seems that the 1st defendant's memory must be at fault about this and I accept that the plaintiff had to write apology letters and was kept out of class until 1 May 1997.

34. After he had seen the parents the 1st defendant contacted Mr Ma who is the educational psychologist for the Methodist church schools, told him that the plaintiff was often late for school and had failed to submit homework and suggested counselling. Mr Ma contacted the plaintiff's mother, he says, some time in the week after the parents' meeting. He spoke to her for about 45 minutes about the plaintiff and the family. She told him that the plaintiff was very dependent on her, lazy and disorganised and did not care about his living habits; that her husband often quarrelled with the plaintiff and with herself; and also that she was often depressed because of home conflicts and had to take medication. After this call, but it is not clear when, Mr Ma reported selectively to the 1st defendant. He was never told that the 1st defendant planned to punish the plaintiff in the way he did, but it seems this punishment came as no great surprise to Mr Ma.

35. I accept therefore that, before he began to punish the plaintiff the 1st defendant had identified that there may be a problem for which the plaintiff needed counselling. He went ahead - and his counsel puts much emphasis on this - without waiting for such counselling to be done and indeed on his own, without going through other counselling channels within the school, and without following Education Department guidelines as to what should be done before suspending a student from class or school. There is evidence on this and I do not need to go into it specifically.

36. As to when the plaintiff began to hear voices, which I think can be taken as indicative of his having begun to suffer from the active phase of schizophrenia, rather than any prodromal phase, I think this must be taken as some time in the week beginning 21 April 1997. We have only the plaintiff's word for this; no one else seems to remember clearly when he told them of it. But he remembers the Christian Fellowship meeting and it seems probable that he was hearing voices by that time.

37. It is necessary to consider what it was that the 1st defendant was trying to do. As he put it in his statement Miss Ng first consulted him about how to correct the plaintiff's problems; the teachers' repeated advice and warning did not bring about any change in attitude. He was cross-examined on the "change of attitude" point and agreed in part at least that he was trying to make the plaintiff change his attitude and improve his learning attitude. Part of this was to be done by punishment. He accepted that there was an element of ridicule and humiliation in the punishment though that was not, in his view, caused by the school and the plaintiff would be exposed to it even in library.

38. There can be no doubt in my view that the 1st defendant was trying to change the plaintiff's attitude. To that end he caused the plaintiff to do his homework and probably also write apology letters in the entrance hall from 23 to 30 April 1997 inclusive, i. e. 8 days. He gave the plaintiff the choice; do a reasonable amount by the end of the day, and he need not come back tomorrow; and eventually that worked. The plaintiff's presence in the hall exposed him to some ridicule and humiliation from others, in particular students; the 1st defendant obviously knew that would happen. So a chosen ingredient of his plan to change the attitude of the plaintiff was humiliation. There is nothing in itself wrong with that in appropriate amounts; probably everyone educated has experienced it, from the primary student made to stand in the corner to the young advocate made to look a fool in court. It is a spur to learning and to better performance.

Liability

39. Counsel for the plaintiff argues that the defendants had a duty of care to avoid harm to a student by excessive or improper punishment. In support of this he relies on R v. Hopley (1860) 2F & F 202, a case in which a schoolmaster beat his pupil in order to "subdue his obstinacy". Unfortunately he managed to beat the boy to death. He was convicted of manslaughter. In his direction to the jury Cockburn CJ said :

"By the law of England, a parent or a schoolmaster (who for this purpose represents the parent and has the parental authority delegated to him) may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable. If it be administered for the gratification of passion or rage, or if it be immoderate and excessive in its nature or degree, or if it be protracted beyond the child's powers of endurance, or with an instrument unfitted for the purpose and calculated to produce danger to life or limb; in all such cases the punishment is excessive, and the violence unlawful, and if evil consequences to life or limb ensue, then the person inflicting it is answerable to the law, and if death ensues it will be manslaughter."

40. Of course this case is vastly different No corporal punishment was involved; that is now unlawful in Hong Kong schools. But the principles must still apply; any punishment which goes beyond what is moderate and reasonable is unlawful.

41. It is further argued that the school had its own regular system of correction, which ought to have been used in order to avoid the risks of excessive and improper punishment; but the 1st defendant went outside the system and acted on his own without taking care to prevent risk. He intended to cause mental change and it was clearly likely or reasonably foreseeable that the breach of the duty can lead to psychiatric harm; it was the natural and probable result of this sort of mental punishment. Since the 1st defendant's actions were intentional he and his employer must be liable for all the consequences, however remote. The plaintiff relies for this on Clerk and Lindsell on Torts, 18th Edn. pp.78-82.

42. The plaintiff says that the factors which show that it was reasonably foreseeable that the 1st defendant's actions would cause personal injury, in this case mental injury, are the specific duties of care, above; the school guidance system which the 1st defendant did not use; the purpose of changing mental attitude with mental punishment; the inherently stressful and traumatic nature of the punishment; and the unorthodox method and long duration of the punishment.

43. It is further argued that the nature of the schoolmaster's duty is so specific that it presupposes or is predicated on the basis that it is foreseeable that excessive punishment causes the risk of excessive harm. If the schoolmaster punishes excessively with a mental method of punishment the natural and probable, or reasonably foreseeable consequence is the risk of mental harm.

44. To succeed on negligence the plaintiff must prove the existence of a duty of care, the breach of that duty, a causal connection between the careless conduct and the damage and that the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote.

45. I accept that the defendants had, and knew they had, a duty to avoid harm by the imposition of immoderate and unreasonable punishment. The 1st defendant and the plaintiff were in the relationship of teacher and pupil and the duty would flow from that relationship. I do not see that it makes any difference that the plaintiff in this case was aged 18. He was in a position equivalent to that of a minor so far as the defendants were concerned and I do not see that they would owe him any different duties from those they owed to a younger student.

46. Of course the position is now far different from that in Hopley's day. A schoolmaster is no longer allowed to beat a student to subdue his obstinacy, which is another way of saying to change his attitude. Here however the 1st defendant was trying to change the plaintiff's attitude so he had a duty of care to see that the means he used were moderate and reasonable.

47. In fact the duty goes somewhat further than the simple requirement of avoiding immoderate and unreasonable punishment. There is a positive duty to protect the student's well-being. See Gower v. Bromley London Borough Council, The Times, 29 July 1999, per Auld LJ at p.3:

"1. A head teacher and teachers have a duty to take such care of pupils in their charge as a careful parent would have in like circumstances, including a duty to take positive steps to protect their well-being. Those responsible for teachers in breach of that duty may be vicariously liable for their negligence. See Williams v Eady [1893] 10 TLR 41, CA; Van Oppen v Clerk to the Bedford Charity Trustees [1989] 3 All ER 389, [1990] 1 WLR 235, CA, per Balcombe LJ at 250E-G of the latter report and per O'Connor LJ at 268C-G; and Hippolyte v London Borough of Bexley [1995] PIQR 309, CA, per Steyn LJ at 314."

48. Counsel for the plaintiff argues that the 1st defendant breached his duty to the plaintiff by failing to use the school's guidance and counselling system, and failing to follow Education Department guidelines on suspension. I have some difficulty with this argument. I have no evidence as to why these systems and guidelines are in place but it seems reasonable to suppose that they are intended rather for the purpose of avoiding a bad educational result than for safeguarding the health of students who may be punished unreasonably. After all, since corporal punishment can no longer be carried out, one would not normally expect any school punishment to produce a deleterious effect on the health of a student. Suspension may mean the student misses classes and be educationally counter-productive but no one will reasonably expect it to make a normal student ill.

49. In any event leaving aside the question of whether the 1st defendant breached an educational duty, I think the question is whether he breached a duty of care for the safety and well-being of his student.

50. The 1st defendant had identified that there may be a problem in the plaintiff's home situation which would require guidance and counselling. That is why he contacted Mr Ma. Whether the modern panacea of counselling would have done any good is not known, but if the 1st defendant had identified a problem which might need it, it is difficult for him to escape criticism for not giving time for counselling to be tried, even though he says that the two methods of correction could go ahead at the same time.

51. The 1st defendant knew that the proposed course of punishment would involve ridicule and humiliation, even if his view was not that the school caused it. So the question must be, was the amount of humiliation intended reasonable and appropriate? In the event it lasted for nine days; one in the library, one in the office and the rest in the hall. The 1st defendant says that working in the library would also be humiliating. Seven or nine days of humiliating exposure, even if punctuated by recess and lunchtimes, seems to me to be a great deal of humiliation. The 1st defendant says that it was always in the plaintiff's power to put an end to the humiliation by doing "a reasonable amount". It is unfortunate here that we have had no evidence as to what the total amount was; and no evidence as to the reasonable amount that the plaintiff was expected to perform in the daytime or overnight for handing in the next morning. It does not appear that any agreed amount was fixed. What was reasonable would be something for the 1st defendant to decide when he saw what was handed in. If the plaintiff did not know how much he had to do, he could be expected to feel powerless or that, as he complained, the punishment was "never-ending".

52. It seems to me that to subject a student to humiliation by exposure to the rest of the school and outsiders in this way, for such a long period, cannot be moderate and reasonable. In this connection it must be remembered that he was a senior student who had been a prefect; his shame, for as such it would be perceived, would be exposed to the most junior. It must have been stressful and I think it must have been intended to be stressful. I do not go as far as to say as did the plaintiff's expert Dr Wong that it is "a severe degree of psychological abuse and cruelty to children" but there was a degree of cruelty in it.

53. I turn to causation. There are before me, apart from agreed medical reports, three reports by the plaintiff's expert, Dr Chung Kwong Wong, and four by the defendants' expert, Professor Peter W.H. Lee, Dr Wong's view is that the plaintiff was healthy before the incident, and that the incident caused him to become schizophrenic. He first expressed this view in a report to Dr Tang of the Yaumatei Child Psychiatric Centre but later wrote a second report for the purposes of this litigation. Professor Lee originally held that the plaintiff before the incident had a genetic predisposition to schizophrenia, because his grandmother is schizophrenic; schizophrenia is not caused directly but is triggered by stresses in vulnerable individuals; and in this case, the punishment triggered the illness in the vulnerable defendant. However, having seen the statements of the 1st defendant and Mr Ma the school psychologist, as well as Dr Wong's second report, Professor Lee changed his opinion and decided that the plaintiff's behaviour in the pre-incident period indicated that he must have been in the prodromal phase, but that nevertheless the punishment had triggered the change from the prodromal to the full phase of the disease. Dr Wong's answer to this is to disagree with the idea of the prodromal phase except perhaps for a very short period immediately before the active symptoms came out. He takes the view that the plaintiff did not suffer from pre-schizophrenic personality features; that the idea of the prodromal phase is a rather vague one with not too much psychiatric credibility, in that it has been dropped as a separate entity from the latest Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) although it appeared as such in the previous DSM-III; and that the family stresses which are supposed, according to Professor Lee, to have put the plaintiff into the prodromal phase are unlikely to have done that. He also points out that while the genetic disposition would raise the plaintiff's chances of suffering from the disease from 1% (the normal percentage of the population at large) to 2-3%, this would still mean that he had a 97% chance of remaining healthy even if stressed. What is important, he says, is vulnerability which is not the same thing as statistical probability.

54. There are also reports by Dr Peter Ho Pang-nin, who did not give evidence. He seems to have started from the position that the plaintiff did not appear to have a fragile personality before the punishment but he thought that there was evidence to support a genetic basis for the illness. Later he accepted that there might be some basis for the prodromal theory but did not seem to favour it greatly. Perhaps the most telling part of his second opinion however is that in which he points out that "the exact aetiology of schizophrenia itself is by and large as yet uncertain and thus most 'theories' on the causation of schizophrenia might remain at the 'hypothesis' level". However he said that for practical purposes the stress-diathesis hypothesis (i.e. that the illness is triggered in persons with an existing vulnerability) would be a reasonable theory for clinicians to work on.

55. Both Dr Wong and Professor Lee gave their original opinions on the basis of the plaintiff's account of the punishment, as having lasted rather longer than the 1st defendant said, and being coupled with the matter of the apology letters (on which I have accepted the plaintiff's account) and the threat of a year's suspension (on which I have not). However Professor Lee does not resile from his view that the punishment, as described by the 1st defendant, was causative of a change, if not the same change which he originally found; and Dr Wong, when I asked him, said that if the punishment had gone as the 1st defendant described it, he would still regard it as causative of the illness, because of the humiliation, shame and feelings of alienation produced and because of fear and anxiety.

56. I think it must be accepted that the punishment brought on the illness as it manifested itself on about 10 May 1997. There was no other particular immediate stress in the plaintiff's life and from the evidence of the classmates he started to show signs of dullness after the punishment, though neither the 1st defendant nor the mother seem to have noted any great change in him either during or immediately after the punishment period.

57. If the defendants are to rely on the prodromal phase theory as a defence against causation, the onus is on them to prove that it is more probable than not that the plaintiff was suffering from that phase before the punishment happened. They give particulars of a number of what they say are prodromal symptoms, as follows:

a. lateness for school;

b. inability to be punctual;

c. failure to do and/or hand in homework;

d. reduced ability to fulfil responsibility as a student (including extra-curricular activities), a prefect and at home;

e. tendency to appear to be out of contact for a few seconds;

f. refusal or inability to follow parental instructions; and

g. failure or inability to respond to reminders and advice about homework;

h. failure or inability to concentrate on studies and prepare for tests and examinations.

58. The difficulty with some of these particulars is that they beg the question. Failure to do something may be because of inability, or it may be because of choice. Really the question here is whether the plaintiff did all these things because he wanted to or because he was incapable by reason of illness of doing anything else. I have to say that some of the matters relied on in his home life, e.g. failing to pick up the empty cardboard roll when changing the toilet paper, sound more like normal (bad) adolescent behaviour than anything else. Further the matter of bring in the washing from the roof seems to refer back to some time in his childhood and to be totally irrelevant to the period under discussion.

59. Professor Lee's opinion on the prodromal phase is based largely on the defendants' and Mr Ma's report of what the plaintiff's mother told them about the interactions between the parents and the plaintiff. He further refers extensively to what the plaintiff and family members told the doctors when the plaintiff was under treatment. I have some difficulty with this because all these reports are at second hand and what a reporter, particularly a professional, records is inevitably influenced by his own opinion.

60. I have heard the plaintiff and the mother and have to say that they do not give the impression of an unhappy family. Granted that the mother is probably more dominant than the father they all seem fairly happy together and even if the plaintiff and the father did quarrel the impression is that they all managed to stay together on a pretty even keel. I do not have the impression of the serious marital discord on which Professor Lee relies. One wonders why there would be any particular causative factor for the prodromal phase. Further, granted that the plaintiff was consistently late and consistently failed to do his homework, there does not seem to have been much else wrong with him. He seems to have engaged in many other activities which were more enjoyable than studying in what he and others call the "honeymoon year" of Form 6. Further he did manage to complete at least one large Chinese review which was to count towards his marks, which the rest of the homework would not; and he did have enough motivation to re-sit some of his O-level exams.

61. The prodromal phase is described as a phase in which the patient appears to be slipping away or in a downward spiral. Professor Lee refers to negative symptoms such as "affective flattening, alogia or avolition". It is true that there are some reports of symptoms which could be said to be referable to that phase, e.g. being momentarily out of contact in conversation. But that is explained by the mother as not being the same as after he took ill. Further, Dr Wong explains that often adolescents go through a phase in which they exhibit some of the prodromal symptoms without ever developing the full-blown illness. Dr Wong went through the statements of the schoolmates very thoroughly and drew the conclusion that the plaintiff presented a picture of normal personality functioning before the punishment.

62. The plaintiff does not seem to have been in a downward spiral before the punishment. Perhaps he showed some of the behaviour which a prodromal schizophrenic might show, but I think Dr Wong has explained this. It is very difficult to say at all, and impossible to say as a matter of probability that the aspects of behaviour referred to were the result of illness rather than choice. Without going into further detail, having considered the reports and oral evidence of the experts I find Dr Wong's opinion to be more probably correct. For these reasons I am not satisfied on the balance of probabilities that the plaintiff was suffering from the prodromal phase of schizophrenia before the actual punishment period.

63. I turn to consider whether the full-blown illness was caused by the punishment, or was triggered in one who had a previous vulnerability. I have referred above to Dr Pang's view that the stress-diathesis hypothesis (i.e. that the illness is triggered in persons with an existing vulnerability) is a reasonable theory for clinicians to work on but not necessarily any more than a theory. Dr Wong says in his last report :

"I do not think Tik man had an increased vulnerability. To have an increased risk of Schizophrenia is a statistical probability. Whether one does have an increased vulnerability should be based on observable evidence of the manifestation of such vulnerability. "

64. He goes on to explain particularly by reference to what the witnesses saw that there was no such observable evidence. This seems to me to make excellent sense. Percentages are all very well but they cannot predict the individual case. Again having considered both experts' reports and evidence I find the opinion of Dr Wong preferable. I find it more probable than not that the plaintiff, whatever his statistical probability of manifesting full-blown schizophrenia at some time in his life, was most likely normal before the punishment, and that the punishment caused the full-blown illness. In other words I find therefore that the punishment in fact caused the schizophrenia.

65. I turn to the question of foreseeability. My first reaction is, how can it be reasonably foreseeable that punishing a student in this way will, to use archaic but graphic language, drive him mad? Teachers humiliate students every day. They hurt their feelings. Sorrow does not sound in damages; see Mount Isa Mines Ltd v. Pusey [1970] 125 CLR 383, per Windeyer J at p.394. Neither do the hurt feelings which result from humiliation. If they did, every teacher would be at risk of litigation; to say nothing of just about everyone else who has to exercise authority over others, and make them do what is required of them. However that is only a first impression.

66. A precedent such as Hopley based on corporal punishment can only help so far, because the nature of the punishment is totally different though the principles are the same. The same goes for the long line of cases based on the idea of "nervous shock", e.g. Bourhill v. Young [1943] AC 92. In any event where the plaintiff is the primary victim of the defendant's negligence, the cases following on from Bourhill v. Young where what is in issue is liability to a secondary victim, are not in point. Further, what we have here is not a sudden, dramatic and horrifying experience but a slower process of prolonged or repeated humiliation.

67. The Wagon Mound (No 2), Overseas Tankship (UK) Ltd v. Miller Steamship Co Pty Ltd [1967] 1 AC 617, established that the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen (see [1961] AC 388 at 426).

68. The defendants rely on the decision of the Australian High Court in Mount Isa Mines Ltd v. Pusey [1970] 125 CLR 383. In that case the plaintiff's efforts to rescue workmates who had suffered horrific burn injuries caused him to develop schizophrenia. The trial judge held that although this particular manifestation of psychiatric injury could not have been foreseen, it was within the broad category of psychiatric damage which was foreseeable. The High Court affirmed the proposition that what the defendant had to foresee was the occurrence of the class of injury, namely mental disorder, rather than a particular mental illness.

69. With respect I think this must be right. It seems to me that the plaintiff must show that it was reasonably foreseeable that the punishment would cause some mental disorder. But the defendants' argument goes on that what must be foreseeable is some recognisable category of mental disorder. With respect I do not think it is necessary to show that the precise category was foreseeable. Psychiatrists label patients as schizophrenic, or paranoid, or whatever, so far as I can see, by comparing the symptoms presented with a number of symptoms which a person suffering from the various labelled disorders may from past studies be expected to show, perhaps for a specific or fairly specific length of time. So, for instance, the DSM-IV, Chapter 4, headed "Schizophrenia and Other Psychotic Disorders" lists the various disorders and sets out criteria by which they can be diagnosed. Schizophrenia is categorised as a disturbance which lasts for at least six months, with at least one month of showing two out of six of a list of active symptoms. Schizophreniform Disorder has the same symptoms but shorter duration, and there is no requirement of a decline in function; and so on. Either way there is a mental disorder but it is a question of how to label it. In this case the plaintiff was not formally labelled as schizophrenic at the outset; it took the psychiatrists some time to decide how to label what was wrong with him; but there is no dispute that he suffered from some mental disorder from May 1997. So I think that what must be shown as foreseeable is that the plaintiff may suffer some form of mental disorder which goes further than mere hurt feelings; but that is all.

70. However, if one looks for a recognisable category of mental disorder which might have been foreseeable, stress reaction and post-traumatic stress disorder seem to be possible candidates. Dr Pang in his report took the view that "without the seemingly obvious vulnerability factor it is doubtful whether Mr Tsang could develop schizophrenia but not the other common form of mental disturbance because of stresses like stress reaction or post-traumatic stress disorder for example". I take this to mean that in his view, some other common form of mental disturbance such as stress reaction or post-traumatic stress disorder would perhaps not have come as a surprise to him if he had seen no vulnerability factor.

71. The punishment was in my view something which could be expected to be stressful to a normal individual. It is well known nowadays that prolonged stress at work or school can cause mental disorder. Suicide by Hong Kong schoolchildren is not unknown. Post-traumatic stress disorder is well known also. It seems to me that one would have to be a very strong and well-balanced student not to suffer from some reaction to stress of this sort which went further than the mere feeling of embarrassment. I think it must have been foreseeable as a general proposition to the 1st defendant as a reasonable man that prolonged and repeated humiliation might cause some sort of mental disorder to the plaintiff or indeed to any normal student. Further the 1st defendant does not seem to have noticed anything wrong, but the classmates did and it would follow that the 1st defendant, if he had been taking proper care, should have noticed also.

72. This is based on my finding that the plaintiff was normal. If he was as Professor Lee says subject to a vulnerability to schizophrenia then he could be regarded as having an "eggshell personality". The defendants argue that if he did he cannot recover unless it can be shown that the defendants knew or ought to have known of his sensitivity, which is not the plaintiff's case. They argue that :

"Unless a plaintiff's extraordinary susceptibility to psychiatric illness induced by shock is known to the defendant, the existence of a duty of care owe to the plaintiff is to be determined upon the assumption that he is of a normal standard of susceptibility"- per Brennan J in Jaensch v. Coffey (1984) 155 CLR 549.

73. This is I think a concept which comes from the Bourhill v. Young line of cases where a secondary victim seeks damages for nervous shock. However as Lloyd LJ put it in Page v. Smith [1996] 1 AC 155:

"Nor in the case of a primary victim is it appropriate to ask whether he is a person of 'ordinary phlegm'. In the case of physical injury there is no such requirement. The negligent defendant, or more usually his insurer, takes his victim as he finds him. The same should apply in the case of psychiatric injury. There is no difference in principle, as Geoffrey Lane J pointed out in Malcolm v Broadhurst, between an eggshell skull and an eggshell personality."

74. Here the plaintiff was the primary victim. There is no need to look into the question of "ordinary phlegm". As I understand it all that is needed is that some mental disorder be reasonably foreseeable as a result of the defendant's actions, which in my view it was.

Conclusion

75. The 1st defendant, for whom the 2nd defendant is vicariously liable, owed to the plaintiff a duty of care to avoid harm to him when imposing punishment on him and indeed to take positive steps to protect his well-being. He breached that duty by imposing on the plaintiff a punishment which involved humiliation, something not objectionable in itself, but objectionable in this case because of the length of the punishment and the fact that although the plaintiff might have ended it by doing what was required of him, what was required was never fully specified. The punishment caused the plaintiff, who was previously normal, to become schizophrenic. It was reasonably foreseeable to the 1st defendant that the punishment which he imposed and continued would by reason of being stressful cause the defendant to suffer from some kind of mental disorder.

76. The defendants are accordingly found liable in damages to the plaintiff. This is a split trial and there will now need to be an inquiry as to damages. I have said that I will hear that inquiry because I have already heard the expert evidence on liability. The parties should therefore take the necessary steps to bring the matter before me to deal with quantum, interest and costs.

77. Because the plaintiff successfully applied at the start of the trial for an order that no publicity be given to his name I have decided that the title of the action as it appears on the court documents and court lists simply show his name as "T".