WAI YIP HIN v. WONG PO KIT

HCPI 56/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 56 OF 2005

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J U D G M E N T

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Introduction

1. The plaintiff claims damages for personal injuries suffered by him during a Kendo class taught and supervised by the defendant on 13 April 2004.  Kendo is a Japanese martial art which has also been practised as a sport.

2. The plaintiff’s case is that he was injured on 13 April 2004 when he was the subject of a demonstration conducted on him by the defendant for the participants of the class.  The plaintiff’s case is that he was struck very forcefully by the defendant a number of times with a bamboo sword (“shinai”) over the helmet worn by the plaintiff as part of the protective equipment.  He was struck at the top of the helmet near his forehead.  As a result of this he sustained neck injury.  As found by the joint medical experts he sustained significant injury to the cervical spine when he was hit on his helmet with a shinai.

3. On the first day of trial the issue of the quantum of damages was settled by the parties.  Although in the further revised statement of damages there was a substantial claim for loss of future earnings this was not pursued at trial.  The quantum of damages for pain and suffering and loss of amenities and special damages was agreed in the total sum of $260,000 subject to the issue of liability.  The trial proceeded on the issue of liability.

Background

4. The plaintiff was 41 years old at the time of the Kendo class held on 13 April 2004.  He is a solicitor by profession.

5. In or around September 2003 he was interested in taking up Kendo as a sport.  He checked the website of the Hong Kong Kendo Association (“the Association”) and made enquiries about joining classes organized by the Association.  He attended a class at the Queen Elizabeth Stadium (“the stadium”) to observe how Kendo classes were being conducted.  After that he signed up to join classes and usually attended classes on Tuesday evenings at the stadium.  He wanted to maintain adequate exercise and for health reasons he decided that this was a suitable sport for him to engage in.

6. The defendant is and was at all material times the President of the Association.  The Association is the only Kendo Association in Hong Kong and is affiliated with the International Kendo Federation.  The Association holds the Asian Kendo Championship each year.

7. Apart from holding tournaments and competitions, the Association also provides classes for students wishing to take up the sport.  The defendant was the head instructor for classes conducted at the stadium.  He, like the other instructors, volunteered their time to give instructions in classes.

8. The defendant and the other instructors were Kendo enthusiasts who wished to promote the sport in Hong Kong.  I was referred to an article appearing in the sports section of the Sing Tao Newspaper for 5 July 2004 which shows that Kendo was promoted as a sport suitable for persons of all ages including the elderly, middle-aged and youngsters.  The article also gives an overview of the principles of Kendo and the protective equipment to be worn.

9. It is not disputed that Kendo is a highly disciplined sport where one is required to respect the instructors.  As the plaintiff said, which I accept, the defendant was very serious about the Kendo principles including obedience, discipline and ritual.

10. The defendant is a skilled and accomplished Kendo practitioner.  There are several levels of achievement in Kendo these being called dan.  The defendant has attained the 6^th dan level plus one level higher called renshi.  It has taken the defendant 10 odd years to attain this level.  The highest level one can achieve is 8^th dan plus one further level.

11. The defendant had participated in and had won Kendo tournaments in the past.

12. The plaintiff joined Kendo classes as from about 30 September 2003 as a beginner.  Beginners joined existing classes comprising of about 20 persons.  Some had more experience than others and some were complete beginners.  Students came from all walks of life.  They included the elderly, middle-aged and youngsters.

13. The students started off by using the shinai (Exhibit D1) and learning how to hit the air with it as part of Kendo practice.  This was one of the moves learnt in Kendo practice.  There were other exercises which the student learnt and practised in the classes.

14. After about 3 to 6 months of learning Kendo the students would purchase and use the set of protective equipment called the bogu which consists of the helmet called the men (Exhibit P1), a set of gloves covering the wrist and hand called the kote (Exhibit P2), protective gear for the chest and upper abdomen called the doh and protective gear for the waist and lower abdomen called the tare (Exhibit P3).  A helpful diagram of the bogu is at page 182 of the trial bundle.

15. By 13 April 2004 the plaintiff had been to classes for about 6 months.  The class that he attended on 13 April 2004 (“the class”) was the first occasion that he had put on the full bogu that he had purchased through the Association.  There is a dispute as to whether or not he (as the plaintiff said) had put on parts of the bogu prior to the class or whether that was the first occasion (as the defendant said) that the plaintiff had put on any part of the bogu.  Nothing turns on this.  What is clear and not disputed is that the first time that the plaintiff had put on the men was at the class.

16. The defendant picked the plaintiff as one of the students that he was going to do a demonstration on at the class.  There were one or two other students of the class also picked by the defendant for a demonstration.

17. The demonstration conducted on the plaintiff by the defendant consisted of hitting the plaintiff on the men a number of times using the shinai.  The purpose of the demonstration was to show the students how to hit the opponent on the men.  This was to strike the shinai held up above the head and striking down at the part of the men in the area of the forehead as demonstrated by the defendant in court and shouting out ‘men’ almost simultaneously when hitting the target.  It was usual to shout out the designated area to be hit.

18. The plaintiff was also hit on the men by fellow students during Kendo practice in the class.

19. As a result of being hit by the defendant on the men the plaintiff said, and this was not challenged, he was disorientated by the end of the class.  In the evening he began to feel tension and fatigue and a pain in the neck, shoulders and upper back.  He also found that the point of impact in the frontal part of his head was a bit swollen from the impact of being hit on the men.  The following day the pain and tension in his neck, right shoulder and back was worse and he consulted a doctor.

20. The above facts are not really disputed and I have no hesitation in finding them proved.

The plaintiff’s claims

21. The plaintiff’s claims damages for negligence against the defendant.

22. Alternatively, the plaintiff claims damages for trespass to the person.

The main issues

23. On the claim for damages for negligence, the main issues are :

(1) Whether the defendant owed the plaintiff a duty of care;

(2) If so, what is the nature and extent of the duty of care;

(3) Whether there been a breach by the defendant of the duty of care;

(4) If so, whether it caused the plaintiff’s injuries.

24. On the alternative claim for damages for trespass to the person, Mr Lam, for the plaintiff, made it plain in his closing submissions that the alternative claim for damages for trespass was founded on the premise that the defendant was actuated by malice or spite towards the plaintiff and that unless he succeeded in establishing malice or spite he would not be entitled to succeed on the alternative claim.  The main issue on the alternative claim is therefore :

(5) in carrying out the demonstration on the plaintiff whether the defendant was actuated by malice or spite towards the plaintiff.

The witnesses

25. I heard evidence from the plaintiff and from the defendant.  I also heard evidence from Agnes Lee Shuk Ling another instructor of the Association.  She did not attend and was not present at the class and in my view her evidence is of limited assistance.

26. There are marked differences in the recollection of the plaintiff and the defendant as to what occurred in the class.  Having heard and seen the witnesses, I prefer the recollection of the plaintiff to that of the defendant.  I found the plaintiff’s recollection of events more reliable than the defendant’s.

27. I find that the plaintiff is a truthful, honest, credible and reliable witness.  I believe him.  I cannot say the same for the defendant.  There are parts of his evidence that I believe but there are also parts of his evidence that I do not believe.  Where his evidence is at variance with the plaintiff’s evidence, I prefer the evidence of the plaintiff, whose evidence I accept, to that of the defendant, whose evidence I reject. 

Duty of care

28. There is no dispute that the defendant owed a duty of care to the plaintiff.  The dispute between the parties is the nature and extent of the duty of care.

Nature and extent of the duty of care

29. Mr Cheung, for the defendant, submitted that the defendant had a duty to any member of the public attending his Kendo classes to give proper guidance of Kendo activity.  He had a duty to inform the plaintiff of the proper and safe equipment to be used and how to follow Kendo practice safely and that the defendant had to exercise reasonable care is so doing.  He submitted that this had been provided by the defendant. 

30. Mr Lam, for the plaintiff, submitted that the defendant as the head instructor of Kendo classes organized by the Association owed a duty of care to students attending such classes including the plaintiff.

The applicable principles

31. It is well settled that a teacher owes a duty of care to his students.  It is a teacher’s duty to take all reasonable and proper steps to prevent any pupil suffering injury (para 8-181 Charlesworth & Percy on Negligence 11^th edn.).

32. In Smith v Horizon Aero Sports Ltd et al (1981) 130 DLR (3d) 91 it was held that the high degree of care required by the law in a teacher-student relationship does not depend simply on the student being a young person.  It may apply where the student is an adult and it depends upon many factors which include the relationship of the student to the teacher, the student’s relative inexperience in the area of activity as known to the teacher, the magnitude of risk associated with the activity and the degree of harm that may reasonably be expected to flow from the risk if it materializes.

33. In that case liability was established by the plaintiff against, inter alia, the plaintiff’s parachuting instructor.  As regards the degree of care required in a teacher-student relationship, Spencer J said at page 100 :

“It depends upon many factors which include the relationship of the plaintiff to the defendant, the plaintiff’s relative inexperience in the area of activity as known to the defendant, the magnitude of risk associated with the activity and the degree of harm which may reasonably be expected to flow from the risk if it materializes: see Paris v. Stepney Borough Council, [1951] A.C. 367 at p. 380, per Lord Normand.  The circumstances of the relationship and of the occasion may attract the high degree of care expected of a teacher towards a student even where that student is an adult.”

34. In Fowles v Bedfordshire County Council (Lexis Transcript, Court of Appeal 17 May 1995) a local authority was held to be in breach of statutory duty and negligent in permitting young persons at a youth centre to undergo gymnastics without supervision and without a proper system of instruction that should include an express prohibition against practising hazardous manoeuvres in the absence of a qualified supervisor.  In that case the plaintiff suffered serious injury when he attempted to perform a forward somersault without supervision.  The plaintiff had laid out the crash mat on which he was performing the somersault right up against the wall, and when he over-rotated in performing the somersault his forward momentum catapulted him into the wall.

35. Millett LJ (as he then was) said at page 9 of the transcript :

“Having assumed the task of teaching [the plaintiff] how to perform the somersault, the defendants voluntarily assumed a duty to teach him properly and to make him aware of the dangers.”

36. And at page 10 of the transcript, he said :

“Anyone who assumes the task of teaching the forward somersault is under a duty not only to teach the technique involved in the exercise and to explain the dangers associated with its performance but to teach the steps which must be taken to prepare for it, including the laying of the crash mat, and to explain the dangers of performing the exercise in an inappropriate environment. It matters not how obvious a danger may be, it should be pointed out.  This is particularly the case where the danger of a minor accident (such as hitting an obstruction) may be obvious, but the risk of really serious injury is unlikely to be appreciated by the inexpert.”

37. As it is clear that there was a duty of care on the part of the defendant, the question to consider next is whether such a duty included :

(a) a duty to take reasonable precautions to ensure that students are not injured in the defendant’s Kendo classes;

(b)    in relation to classes for beginners, a duty to warn of the risk of injury that may be encountered by students attending the defendant’s Kendo classes and in practising Kendo generally;

(c) having regard to such risks, a duty to take reasonable precautions to ascertain whether beginners are physically suitable for attending the defendant’s Kendo classes or for practicing Kendo generally.

38. Mr Lam, for the plaintiff, submitted that the defendant was under the duties as set out in (a), (b) and (c) above.  Mr Lam, however, correctly in my view, did not press the point that the defendant was under the duty in (c).  It seems to me to be particularly onerous to impose a duty on the part of the defendant to ascertain from each beginner whether he is physically suitable for Kendo.  In my judgment it is far too onerous a duty to be imposed on the defendant to take reasonable precautions to ascertain whether beginners are physically suitable for Kendo classes.  Whether or not a beginner is physically suitable for Kendo classes is ultimately a question for a medical expert and not for an instructor to determine.  I reject the submission, which was not pressed, that the defendant was under the duty in (c) above.

39. I am of the view, and I so find, that the defendant was under the duty in (a) namely, a duty to take reasonable precautions to ensure that students are not injured in his Kendo classes.  This cannot seriously be disputed in my view.

40. As for the duty in (b), Mr Cheung submitted that as the risk of injury was so obvious, there was no duty to warn beginners like the plaintiff of the risk of injury that may be encountered by students attending class and in practising Kendo generally.  He also submitted that there was no duty to warn of a risk when the claimant can reasonably be expected to have the knowledge and consents to the risk.

41. In Darby v National Trust [2001] PIQR P372 the claimant’s husband drowned whilst swimming in a pond.  It was contended that there should have been “No Swimming” notices around the pond.  It was held that the risks to competent swimmers of bathing in the pond were obvious and that therefore there was no duty to warn against swimming in the pond.

42. I accept that where the risk of injury was so obvious there was no duty to warn of the risk of injury.  Whether the risk of injury is obvious or not is a question of fact.

Breach of duty

43. There is no dispute that the defendant knew that the first occasion that the plaintiff had put on the men was at the class.  He recalled that the plaintiff had difficulty putting the same on and asked another instructor to help him put it on.

44. As accepted by the defendant, the bogu appears to provide good protection from injury when the wearer is hit by the shinai on the parts of the body protected by the bogu.  This includes the men which protects the head.  Before the men is put on the wearer puts on a cloth around the head as did the plaintiff with the assistance of an instructor at the class.  The men is then properly put on the head and secured by the strings attached to the men.  The plaintiff did not himself put on the men but relied on the assistance of the instructor on that occasion.  It can be inferred that the men was properly put on for the plaintiff. 

45. Although the bogu would appear to provide good protection from injury when the wearer is hit on the protected parts of the body, it is clear from the evidence of the defendant, which I accept, that if the student does not hit the bogu of his opponent properly with his shinai then it could be very painful depending on the person.  This would include hitting the men.  The defendant knew that.

46. The defendant accepted that when being hit on the men for the first time there would be dizziness, vibration and discomfort.

47. It was clear from the defendant’s evidence, which I accept, that he knew that being struck on the men for the first time would result in dizziness, discomfort and vibration to the head and depending on the person it could be very painful.  It seems to me, and I so find, that there was a real risk of injury to the head and the neck.  The defendant did not, however, warn the plaintiff of any risk of injury.

48. The defendant accepted that the plaintiff and the other students were never told by the Association or the defendant that there was a risk of injury even if they were hit on an area covered by the bogu.  In Mr Cheung’s opening it was admitted that the instructors including the defendant did not give the plaintiff any verbal or written warning or advice on any risk which may arise in Kendo practice.  Mr Cheung submitted that the risk of injury was obvious.

49. By 13 April 2004 the plaintiff had attended classes for about 6 months.  In that time he had practised hitting instructors on the men with his shinai.  He had, however, prior to that day never put on the men and had never been hit by the shinai on the men.  He must have realized that when hit on the unprotected parts of the bogu there was a risk of injury.  However, the bogu appeared to provide good protection from injury on the protected parts of the body as was accepted by the defendant.  This provided the plaintiff with a false sense of security and safety.  Unless he was told that it could be very painful when hit on the men for the first time with feelings of dizziness, vibration and discomfort, the plaintiff would not have known this.  The defendant accepted that he did not tell the plaintiff this or any risk of injury when being hit for the first time on the men.  He did, however, say that even if he did not tell him about this many other instructors would have told him this during the lessons prior to 13 April 2004.  However, there is no evidence of this whatsoever and this was never put to the plaintiff when he was giving evidence.  I reject any suggestion that others would have told him that there was a risk of injury.  I find as a fact that the risk of injury was not obvious.

50. There is a dispute of fact as to how the demonstration on the plaintiff by the defendant was conducted.  There is also a dispute of fact as to how many hits the plaintiff received on the men with the shinai by the other students in the class.  

51. The plaintiff gave evidence that during the latter part of the class on 13 April 2004 he put on the men with the assistance of an instructor.  This took some time as the instructor was helping other students.  When he put on the helmet it was about 8.20 pm.  The class was due to end at 9 pm.  During the latter part of the class the students were broken up into two groups, one wearing the full bogu and the other consisting of those not wearing the full bogu.  The plaintiff said that of those wearing the full bogu this group was further broken up into two smaller groups and he practised Kendo with those in his small group.   The defendant disputed that those wearing the full bogu were broken up into two smaller groups contrary to his earlier evidence that it was so broken up.  On this dispute of fact, I prefer the evidence of the plaintiff.

52. The plaintiff said that those in his smaller group of 5 or 6 persons practised hitting each other on the men.  The routine that his small group practised on that day was, as the plaintiff said, for one of them to be the target and for the others to line up to hit the target.  For each round, each of those lining up would hit a designated area like, kote, dor and men and each would approach the target with a sliding movement and the participants would take turns to hit designated parts of the bogu of the target.

53. The defendant, however, said that the routine described by the plaintiff was not the routine practised by the small group in the class.  He said another routine was practised in that class.  The defendant said that the small group which included the plaintiff were practising hitting each other.  They were paired up and sliding and hitting the men with the shinai.  He said that in the small group exercise the plaintiff would have been hit on the men on the forehead, on the right and left temple and would have been hit when the participants were sliding forward which he described as rushing the men.  He said that the plaintiff would have been hit 30 to 40 times on the head by the other participants.  He said that what the plaintiff described as the exercise that he had conducted with the other participants in the small group exercise in the class did not take place on that day but on earlier occasions.  

54. The defendant gave inconsistent and contradictory evidence about the number of times that he said that the plaintiff was hit on the men by the other participants.  I accept that in view of the lapse of time it may be difficult to have a clear recollection about this.  However, the defendant has changed his evidence from the time of his first witness statement, when he said that the plaintiff was hit at least 10 odd times, to his evidence in court, when he said that the plaintiff was hit 30 to 40 times.  Even at one stage in his evidence he said that this did not include the hitting of 30 times on the men at the end of the class before the meditation which would mean that the plaintiff was hit 60 to 70 times on the men by the other students.  I do not believe the defendant’s evidence.  In my view he grossly exaggerated the number of times that the plaintiff was hit by the other participants in the class to try and shift the blame away from him.

55. I also do not believe the defendant that on that evening the practice at the end of the class before meditation involved participants in the small group striking the men of his opponent for 30 times.  I prefer the plaintiff’s evidence on this.  I accept the plaintiff’s evidence and find that at the end of the class the practice with the other students in his small group was as he described.  One of them would be the target and the others would line up.  For each round, those lining up would each approach the target with a sliding movement and take turns to hit the designated parts of the bogu of the target.

56. I find that the plaintiff was hit several times by the other participants on the men that evening.  As he said, and as I find, they were light taps instead of forceful strikes on the men with the shinai which did not cause him any discomfort in contrast to the strikes that the defendant carried out on his men in the demonstration that he conducted on the plaintiff.  I would observe that the defendant in his original defence admitted that the plaintiff was hit lightly by the other participants.  No satisfactory explanation has been given for the subsequent withdrawal of this admission.

57. I believe the plaintiff when he said that when he was practising with the other participants in the small group the defendant stepped in and asked him to stand still.  Without telling him what he was going to do he hit him very hard on the men with his shinai twice.  He shouted ‘men’ at the point of hitting him on the men.  The plaintiff said, and I accept, that he was totally surprised and was unprepared.  He did not step back after being hit.  He said that the defendant used him as a demonstration for two separate occasions on that evening and he was hit on the men by the defendant with his shinai on the second occasion for 2 to 3 times.

58.The defendant gave evidence that the purpose of the demonstration on the plaintiff was to demonstrate how to strike the men properly.  The force that he used when demonstrating on the plaintiff was the same force that he typically used in Kendo practice.

59. He disagreed with the plaintiff that he used him as a demonstration on two separate occasions.  He said that it was only on one occasion when he struck him possibly 4 to 5 times with his shinai.  When he asked the plaintiff to come over for the demonstration the defendant said that he had already conducted a demonstration on 2 to 3 other students.  The defendant gave evidence that he told the plaintiff that it was now his turn and he hit him on the men 3 to 4 times.  Each time he hit him on the men the plaintiff stepped backward.  This happened 3 to 4 times until the plaintiff reached the wall.  On the defendant’s evidence, the plaintiff well knew that he was going to be hit on the men and there could not have been any element of surprise.

60. I prefer the evidence of the plaintiff to the defendant’s evidence on these matters.  I find that without warning him the defendant struck the plaintiff on the men shouting ‘men’ just before he struck him.  I do not believe the defendant when he said that he told the plaintiff that it was his turn before hitting him in the demonstration.  This was neither put to the plaintiff when he gave evidence nor was it in the defendant’s witness statements.  I find that the defendant struck him twice on the first occasion and about 2 to 3 times on the second occasion.  I also find that he was struck very forcefully with the shinai.  The defendant said, and I accept, that he used the same force as he used for practising Kendo when striking the plaintiff’s men in the demonstration.

61. I also find that, as the plaintiff said, when he was hit by the defendant the full impact of the force and impact transmitted from the top of his men onto his head and down to his neck.  He felt dizzy and a resounding noise and a very strong force transmitted from the top of his men to his head down to his neck.  Towards the end of the class he was unable to finish the routine whereby he had to swing the sword overhead and hit the opponent’s sword placed horizontally above his head because of his difficulty in raising his right arm.  He was also feeling disorientated by the end of the class and unable to kneel down and remained standing while the other participants had knelt down to meditate to conclude the class.  This led the defendant to shout to him “Sit down, big lawyer”.  I believe the plaintiff and accept his evidence.

62. I am satisfied that there has been a breach of the duties in (a) and (b) set out at paragraph 37 above.

63. As to what are reasonable precautions, Mason J (as he then was) in Wyong Shire County Council v Shirt and others (1980) 29 ALR 217 said at page 221 :

“ In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk.  A risk which is not far-fetched or fanciful is real and therefore foreseeable.  But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.  The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

64. The defendant has been in breach of duty by failing to take reasonable precautions to ensure that students like the plaintiff are not injured in his Kendo classes.  He knew that being struck on the men for the first time would result in dizziness, discomfort and vibration to the head and it could be very painful.  He failed to warn the plaintiff who put on the men for the first time that there was a risk of injury when being struck by the shinai on the men.  There would have been no difficulty in giving such a warning.

65. Although the plaintiff was hit by other participants in the class I find that he was hit lightly by the other participants and his practice with the other participants did not cause him any discomfort as he said and as I accept.  

66. I find also that the plaintiff was hit very forcefully by the defendant with his shinai on the men in the region of the forehead.  By asking him to stand still and hitting him with the same force as he used when practising Kendo he was in my judgment using excessive force on the plaintiff who was wearing the men for the first time.  This was also a breach of his duty to take reasonable precautions to ensure that students are not injured in the class.

67. I am satisfied that reasonable precautions were not taken by the defendant to ensure that beginners wearing the men for the first time like the plaintiff would not result in injury.

68. The defendant could easily have asked one of the other instructors in the class to be the subject of the demonstration instead of the plaintiff who was wearing the men for the first time.  In evidence the defendant said that as the other instructors did not wear the men on that evening he did not ask them to be the subject of a demonstration.  He said that when he asked the plaintiff to come out for the demonstration the other instructors were not wearing the men because if they had he would have asked them to help with the demonstration and there would be no need to invite beginners to do that.  In my view this demonstrates that it would have been safer to have performed the demonstration on another instructor.  There would have been no difficulty for the defendant to have asked one of the other instructors to put on the men and to be the subject of the demonstration instead of the plaintiff.  By failing to do so he was also in breach of his duty to take reasonable precautions to ensure that beginners wearing the men for the first time would not result in injury.

69. Mr Cheung also submitted that unless the court found that there was recklessness or gross negligence on the part of the defendant the court should not find any breach of the duty of care.  I am unable to accept this submission.

70. The cases of Caldwell v Maguire and Fitzgeral [2002] PIQR P45 and Dickson Poon v Kan Wai Yu and The Hong Kong Jockey Club (HCA 20262/1998, Stone J 27 March 2002) decided that a higher threshold is required to establish negligence of one jockey to another in the context of a horse race.  Those cases do not assist the defendant.  Here there was clearly a teacher-student relationship between the defendant and the plaintiff which is quite different from the relationship of the parties in those cases.  

71. Blake v. Galloway [2004] 1WLR 2844 and Chan Kin Bun and Wong Sze Ming and another [2006] 3 HKLRD 208 also do not assist the defendant.  Those cases involved games amounting to horseplay where it was held that the duty of care owed by one participant to another was breached only where his conduct amounted to recklessness or a very high degree of carelessness.  In my view, those cases have no application to the situation in this case where the plaintiff was a student and the defendant was his instructor in a Kendo class.  The plaintiff said, and I accept, that he trusted the defendant.  The plaintiff was not participating in horseplay and he was not in a competition or tournament when he got injured.  He was injured when struck by the defendant in the course of a demonstration conducted on him in a Kendo class. 

72. The defendant’s contention that the defendant is only liable if recklessness or gross negligence is established is misconceived and I reject it.

Causation

73. According to the joint medical report dated 13 January 2006 of Dr David Fang and Dr Chun Siu Yeung the orthopaedics specialists, the specialists agreed that the plaintiff sustained significant injury to the cervical spine on 13 April 2004 when he was hit on the helmet with the shinai.  There was already a pre-existing cervical spine degeneration at C3-4, C4-5 and C5-6 levels.  They found that 15% of the whole person impairment was appropriate for the plaintiff’s disability but that due to pre-existing degenerative change 50% apportionment was in order.  Hence they assessed 7.5% whole person impairment on account of the injuries sustained when he was hit on the men with the shinai on 13 April 2004.  Dr Chung further commented that in view of the radiological findings and the recurrences of neck pain prior to 13 April 2004 Kendo was not a suitable sport for the plaintiff to engage in.

74. It is necessary to consider whether the plaintiff would have suffered the injury had the defendant given sufficient warning of the risk of injury.  Although the plaintiff’s credibility was challenged, I believe him and accept his evidence that if he had been warned of the risk of injury to his neck or any serious injury in practising Kendo he would have stopped doing that.  He was only interested in taking up Kendo for exercises to keep fit and if he were told of such risk of injury I am satisfied that he would have stopped Kendo activity and he would not have been injured.

75. In my judgment the injuries that the plaintiff sustained were caused by the defendant.

76. The proper approach in considering the question of causation in the light of the medical evidence was re-affirmed by Cheung JA in Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434 at paragraph 54 as follows :

“The proper approach

54. The approach of the court in considering the question of causation in the light of the medical evidence is stated by this court (per the late Hunter JA) in Lee Kin Kai v Ocean Tramping Co Ltd (r/a Ocean Tramping Workshop) [1991] 2 HKLR 232 :

1.      a)    Causation is essentially a matter for the judge and not for the doctors.

b)    The judge will be assisted by the medical evidence but is not bound by it.

2.      a)     The law and medicine apply different standards.

b)    In law there is a causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury.  A cause is sufficient, it does not need to be the sole cause.

c)    The doctors on the other hand practise the science of aetiology.  They look for ‘clinical cause’ or ‘irrefragable chain of causation’ which is to be proved beyond reasonable doubt or beyond any doubt.

3.    The judge when considering causation is not only entitled, but is bound to use his common sense.”

77. I am satisfied that the injuries that the plaintiff received in the class were caused by the defendant.

78. Mr Cheung also submitted that the court should not find personal liability on the part of the defendant as he was a volunteer at the Association.  I reject this submission.  There was clearly a teacher-student relationship between the defendant and the plaintiff and as the defendant was negligent and has caused the injuries to the plaintiff, he is a tortfeasor who is personally liable to the plaintiff.

79. I am satisfied that the plaintiff is entitled to judgment for damages on his claim for damages for negligence.

80. The alternative claim for damages for trespass to the person does not arise in the light of my findings.  In case this matter goes further I shall deal with this alternative claim briefly.

81. Mr Lam made it plain that unless he could establish that the defendant was actuated by malice or spite in hitting the plaintiff in the demonstration he could not succeed in this claim.

82. Although the plaintiff believed that the defendant was actuated by malice or spite towards him when picking him out for the demonstration and hitting him very forcefully, I believe the defendant when he said that he was not actuated by malice or spite towards the plaintiff.  I accept that the defendant believed strongly in the principles of Kendo which included obedience, discipline and ritual.  I accept also that in view of the past incidents mentioned by the plaintiff in evidence, the defendant would have had reason to be annoyed and frustrated with the attitude of the plaintiff in earlier Kendo classes.  The plaintiff had failed to arrive at classes on time and had also failed to learn the rituals properly e.g. folding up the robe properly at the end of the class.  Notwithstanding the incidents mentioned by the plaintiff, I do not accept that the defendant was actuated by malice or spite towards the plaintiff when conducting the demonstration on him.  I am not satisfied that malice or spite has been established and that being so, I would dismiss the alternative claim in trespass to the person.

83. I give judgment to the plaintiff against the defendant in the agreed sum of $260,000.  I also make an order nisi that the defendant should pay the plaintiff costs of the action, such costs to be taxed in the District Court scale with certificate for counsel in view of the quantum of damages agreed.