LAM TAM LUEN v. ASIA TELEVISION LTD

cacv 134/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 134 of 2007

(on appeal from HCPI NOs. 1394 and 1395 of 2003)

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HCPI 1394/2003

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal in a consolidated action brought by the plaintiff on her own behalf and as administratrix of the estate of her late husband (“the deceased”).  The action was brought against the defendant in both negligence and contract.  The matter before the judge was the trial on the issue of liability only.  The judge below dismissed the claims.  At the conclusion of the hearing of this appeal judgment was reserved which we now give.

Background

2.  The deceased, operated a Chinese medicine shop in Sham Shui Po.  One Tang Kin Kong (hereinafter referred to as “Tang”) held himself out as a Chinese herbal medicine practitioner and had a clinic which was 2 shops away from that of the deceased.  Some time prior to April 1999 Tang had advertised that he was capable of curing cancer by the use of tree roots as a medicine.

3.  The defendant produced and aired a television series entitled “Hong Kong Today”.  That was a current affairs programme which included from time to time exposés of what it considered were wrongdoings or attempts to deceive the general public.  As part of that series it was decided that an exposé would be conducted in respect of Tang to show him as a charlatan who made extravagant claims about being able to cure cancer and about his method of charging his patients.

4.  The deceased was asked to give an interview as part of the preparation for the programme.  He was apparently reluctant to do so.  The judge held that when persuading the deceased to give an interview despite his reluctance, one of the television crew had mentioned that there were technical means by which a person’s image could be blocked out and prevented from being shown if the interview were broadcast.  The judge did not accept that the deceased had been promised that the interview would not be broadcast, but he said at paragraph 85 of the judgment:

“That having been offered by one of the crew, it would follow that the Deceased’s acceptance of the interview would likely be due to his belief that the image of his face in the interview would be blocked out by technical means.”

5.  The judge thus held that an assurance had been given by the television crew to the deceased that his face or image would be blocked out when the interview was shown on the programme.  In doing so he went on to say “…at any rate the Deceased was led to believe that would be done before he agreed to the interview.”  The judge also went on to say that the deceased’s wish in this respect had not been conveyed to those at the defendant who were responsible for the programme.  What is clear is that when the programme was aired, Tang’s face was distorted in the early sequences and blocked off in later sequences but the deceased was shown full face during the interview.

6.  The interview with the deceased was very short in comparison with the rest of the programme.  The translation of it was as follows:

“ (Deceased):    Nowadays Hong Kong is different.  It’s not so easy to be--to be coaxed by you.

  (Interviewer):  That means you think he is cheating people right?

  (Deceased):    Well, no one says so.”

7.  The programme was aired on 8 April 1999.  There was evidence, which the judge records in paragraphs 63-69, that from the time when Tang moved to the clinic in question he claimed to have detected a smell similar to that of roasting meat and thought that it was poisonous gas.  He had complained to the police who had referred him to a hospital but he had refused psychiatric treatment.  In February 2000 Tang had written to the Commissioner of Police that the police had told him that there was no “criminal element” in respect of the matters about which he complained.

8.  The plaintiff said in evidence that after the television programme had been aired, on occasions she and the deceased would see Tang outside his shop staring at them from a distance or pointing his finger at them or muttering some words which they could not hear.

9.  As the judge recorded, on 30 December 2000, some 18 months after the television programme had been aired, Tang attacked the plaintiff and the deceased when they went to their own shop with a pole that he had bought for the purpose.  The plaintiff was injured but the deceased died of his injuries to his head.  Tang was still at the scene when the police arrived and apparently muttered to himself that he was being poisoned by poisonous gas.  The judge accepted that when the attack took place Tang had said words to the effect that he was beating the plaintiff and the deceased because they had called for the “TV” to expose him.

10.  At his trial in 2002 Tang represented himself and his defence was one of self defence on the basis that he was being victimised and poisoned primarily at the instigation of a master mind.  He was convicted of murder.  One of the matters relied upon in this appeal was that at the end of his own evidence Tang said:

“I want to tell the whole world on this occasion, even Chan Kong (i.e. the deceased) died 10 times, that won’t match the scene (presumably “sin”) he has committed”

11.  After he was convicted Tang said during mitigation:

“Well, I have something to tell the deceased.  I hope that in the other world he would behave and not be greedy.  Even if he died 10 times, it would not be able to offset what he had committed.”

12.  Tang’s conviction for murder was quashed on appeal and a conviction for manslaughter was substituted.  The basis for that was that Tang had been suffering from a delusional disorder at the time of the killing and that has been the common ground of the parties in this case.

13.  As already indicated, the plaintiff’s case was founded on two causes of action.  In the first place it was said there had there was a contractual claim based on the agreement by the film crew that the deceased’s face would not be shown when the programme was aired.  In so far as the claim is a contractual claim it was, given the facts and, indeed, the pleadings, a claim on behalf of the deceased’s estate; the plaintiff was not herself said to be a contracting party.  The case in negligence was put on two bases.  It was said that there was a special relationship giving rise to a duty which arose because of the deceased’s agreement to be interviewed solely on the assurance that his face would be blocked out when the programme was aired.  The case in negligence was also put on the basis that it was clear when the programme was shown that Tang was not a mentally well person and that, therefore, the defendant knew or should have known and foreseen that by putting the deceased’s full face on the air and by exposing Tang to mockery, the deceased was being put at risk of being attacked by Tang because of the programme.

14.  The trial of the action lasted some 16 days.  It would appear that there was a great deal of expert evidence from psychiatrists.  The judge was clearly not favourably impressed by either the plaintiff’s or the defendant’s expert.  The judge said that little weight could be given to a number of the opinions expressed by the defendant’s expert psychiatrist and this court was not asked to reverse that holding.

15.  The judge was also unable to accept a suggestion from the plaintiff’s expert psychiatrist that the television programme had caused or brought on the delusional disorder in Tang.  Importantly, also, the judge said at paragraph 141 of the judgment that given the plaintiff’s expert’s acceptance that there was no evidence of any psychiatric or mental illness, in particular delusional disorder, which was apparent from the television programme, then the fact that an expert might have been able to detect it was of little relevance because what mattered was whether the television crew or the production team could or should have recognised Tang’s mental illness or his propensity for violence.

16.  The judge came to the conclusion that he could not accept that the television programme was the cause or even one of the causes of the attack on the deceased.  In doing so he referred to the judgment of Hunter JA in Ocean Tramping Co. Ltd v Lee Kin Kai [1991] 2 HKLR 232.  The passage he quoted from that judgment bears repeating because it demonstrates that the judge had what I consider the correct test in mind.  Hunter JA said at page 235:

“First causation is essentially a matter for the judge not for the doctors.  It is a matter upon which the judge will no doubt be assisted by the medical evidence but he is not dictated to by it.  Secondly, it is important to bear in mind that the law and medicine here, it seems to me, applied quite different standards.  In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantial contributing cause of the injury.  A cause is sufficient; it need not be shown to be the sole cause.”

17.  In relation to the claim in negligence, the judge approached the matter by saying that “Even if the plaintiff was able to establish a special relationship between the defendant and the Deceased to bring the plaintiff’s case within the exception to the general rule that a defendant cannot be held responsible for the voluntary tortuous act of a third party …”  In saying that I consider that the judge did not purport to decide the matter finally because he came to the clear conclusion that the defendant could not reasonably have foreseen that Tang would attack the plaintiff and the deceased.  He considered that because neither Tang’s delusional disorder, nor any kind of mental illness, nor his propensity for the type of violence, which he ultimately exhibited, would have been apparent it was thus not reasonably foreseeable to the defendant at the time of showing the television programme that Tang would attack the deceased.  In those circumstances and for those reasons the judge dismissed the plaintiff’s claims.

This Appeal

18.  On this appeal Mr Lee SC, who appeared on behalf of the plaintiff, sought to reverse both the holding on causation and foreseeability.  In so far as reliance was placed on the evidence of the plaintiff’s expert psychiatrist I consider that the judge’s approach to his evidence was correct.  For the most part that evidence was conjectural and argumentative.

19.  Counsel relied upon what Tang had said at the time of the attack upon the plaintiff and the deceased.  He said that that showed that Tang had clearly borne a grudge against the plaintiff and her husband because of the television programme.  He also supported that with reference to what Tang had said at his trial, which has been quoted above.  Counsel referred to that as being the two curses and placed heavy reliance on the fact that the judge had not referred to it in his judgment.  In addition whilst giving evidence Tang had referred to the plaintiff and the deceased as being greedy.

20.  However, it seems to me that the two curses and the reference to greed as well as the plaintiff’s evidence about Tang’s conduct between the time of the airing of the television programme and the attack could relate as much to Tang’s belief that the plaintiff and her husband were part of a conspiracy organised by a mastermind which manifested itself in attempts to poison him with gas.  Indeed, at one point during his trial, Tang said of his own volition that what the deceased had said during the interview had been an attempt to protect him.

21.  Whilst accepting the proposition that in law an effective cause need not be the only cause, I consider that the judge below was entitled to come to the conclusion which he did, given the totality of the evidence, particularly what Tang had said to the police both immediately on their arrival at the scene and thereafter, including his defence his trial.

22.  Turning to the question of foreseeability, I consider that the matter is clear beyond peradventure.  I can see no basis for this court to disagree with the judge’s conclusion at paragraph 163 of the judgment that the defendant could not reasonably have foreseen that Tang would attack the two victims in the manner he did.  As the judge said neither his delusional disorder nor his propensity for the type of violence shown by Tang was reasonably foreseeable to the defendant at the time of the airing of the television programme.

23.  This court declined the invitation to view the recording of the television programme as part of the hearing of this appeal.  We were urged to view it in private.  That has been done, but in my view it provides no assistance for the plaintiff’s case.  If anything, it damages it.  The deceased’s appearance is brief to the extreme and, as already indicated, was apt to be non-critical of Tang.  Viewing the programme also gave some credence to the suggestion that if Tang were to be annoyed about anything arising from it, it would be in respect of the reporter and the production team.

24.  The judge’s approach as to what was reasonably foreseeable was in my view correct and the findings of fact upon which his conclusion was based would appear to me to be sound.  In those circumstances, it is clear that the plaintiff’s claim both in contract and in negligence must fail.

25.  Because of the judge’s conclusion at paragraph 102 of the judgment that the defendant had breached the agreement to block out the deceased’s image when it showed the television programme, Counsel was asked whether the plaintiff sought nominal damages for the breach.  It was made clear that nominal damages were not sought.

26.  I would therefore dismiss this appeal and make an order nisi as to costs in favour of the defendant.

Hon Cheung JA:

27.  The plaintiff and her family have suffered a great tragedy to which I express sympathy.  However, the Court is concerned with whether as a matter of law, ATV is liable to the plaintiff for the wrongful acts of a third party, namely, Tang.

Wrongful act of third parties

28.  The starting point is that there is no general duty to prevent a third party from causing damage to another.  The rationale is based on the reluctance of the common law to impose liability for what are called pure omissions : Smith v. Littlewoods Organization Ltd [1987] AC 241 at 279 per Lord Goff of Chieveley.  Like all general principles, there are exceptions.  As Smith recognized, there are four situations where a duty may be imposed :

(1)      there is a special relationship between the defendant and claimant based on an assumption of responsibility by the defendant;

(2)      there is a special relationship between the defendant and the third party based on control by the defendant;

(3)      the defendant is responsible for a state of danger which may be exploited by a third party; and

(4)      the defendant is responsible for property which may be used by the third party to cause damage.

29.  The plaintiff in this case is relying on the first and second exceptions.  I have great reservation on whether the second exception applies at all.  How can it be said that ATV ‘controlled’ Mr. Tang?  In respect of the first exception, in Swinney v. Chief Constable of Northumbia Police [1997] Q.B. 464, a police informant claimed damages against the police caused by third parties as a result of the police negligently allowing the informant’s name to become known to the criminal fraternity.  The English Court of Appeal refused to strike out the claim because it was arguable that the police had assumed a responsibility of confidentiality to the plaintiff.  It is to be noted that at the subsequent trial it was held that although a duty was owed, there had been no breach: Swinney v Chief Constable of Northumbria Police, (1999) 11 Admin. L.R. 811; The Times May 25, 1999.

30.  The Judge in the present case did not decide whether a duty existed but proceeded on the basis that even if there was such a duty it was not breached.  As this point was not fully argued in this appeal, it is not necessary for me to express a concluded view on whether a special relationship was established.  I would adopt the same approach as the Judge and proceed to consider whether liability was established.

Causation

31.  There was dispute between the parties as to whether the applicable principles are to be found in McGhee v. National Coal Board [1973] 1 WLR 1 or in Wilsher v. Essex Area Health Authority [1988] 1 A.C. 1074.

32.  In McGhee a worker worked in a brick kiln in hot and dusty conditions in which brick dust adhered to his sweaty skin.  His employers were held to be at fault in failing to provide adequate washing facilities which resulted in the worker having to bicycle home after work with his body still caked in brick dust.  The worker contracted dermatitis and the evidence that this was caused by the brick dust was accepted.  Brick dust adhering to the skin was a recognised cause of industrial dermatitis and the provision of showers to remove it after work was a usual precaution to minimize the risk of the disease.  The precise mechanism of causation of the disease, however, was not known and the furthest the doctors called for the worker were able to go was to say that the provision of showers would have materially reduced the risk of dermatitis.  They were unable to say that it would probably have prevented the disease.

33.  The House of Lords found for the worker on the basis that it was sufficient for a claimant to show that the defendants’ breach of duty made the risk of injury more probable even though it was uncertain whether it was the actual cause.

34.  In Wilsher a pre-mature baby required extra oxygen for survival, but received excess oxygen as a result of negligence by junior doctors.  He developed retrolental fibroplasia (RLF) rendering him almost blind.  The expert evidence suggested that excess oxygen could have toxic effects on the retina, but RLF also occurs in premature babies who do not receive oxygen, and a causal link exists between RLF and at least four other conditions common in very premature babies.  The House of Lords ordered a re-trial of the case.  It held that the onus of proving causation rested on the plaintiff; that where a number of different factors, including the administration of excess oxygen, could have caused retrolental fibroplasias, its occurrence following the defendants’ failure to take a necessary precaution to prevent excess oxygen causing the condition provided no evidence and raised no presumption that it was excess oxygen rather than one of the other factors which caused or contributed to the plaintiff’s condition.  Lord Bridge said that McGhee propounded no new principle of law but simply exemplified a robust and pragmatic approach to the undisputed primary facts of the case.

35.  However, McGhee and Wilsher were not the last words on the topic because the House of Lords in Fairchild v. Glenhaven Funeral Services Ltd [2003] 1 AC 32 reviewed these two cases.  It rejected Lord Bridge’s view in Wilsher that McGhee did not establish a principle of law, but was simply concerned with the circumstances in which it is legitimate to draw an inference that causation has been established in fact.  Although in Fairchild it was said that Wilsher was still correct on its facts, the House of Lords considered that there can be some circumstances where, for reasons of justice and fairness a claimant should be permitted to succeed on causation even though the “but for” test was not satisfied.

36.  These cases were concerned with the burden of proof where there were multiple causes.  Although, Mr. Bharwaney, counsel for the defendant, had referred to passages in Clerk and Lindsell on Torts 19^th Ed (para 2─26, 2─31, 2─32, 2─33, 2─34, 2─48) which commented on these cases, the implication of Fairchild and which approach should be adopted were not fully argued before us, I would therefore refrain from commenting on this issue.  In any event the present case is not one which turns on which approach should be adopted.  It is sufficient for the purpose of this case to rely on the statement of Lord Reid in Bonnington Castings Ltd v. Ward Law [1956] AC 613 at 620 that,

‘ the employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury.’

37.  In the present case the Judge first of all found that the programme did not cause the delusional disorder of Tang.  He further found that the programme was not the cause or one of the causes of the attack which occurred some 20 months after the programme was broadcasted.  Rather it was the delusional disorder which caused the attack.  This is a finding of fact with which this Court would not interfere in the absence of any error by the Judge.  Mr. Martin Lee S.C. who appeared together with Mr. Y. L. Cheung for the plaintiff focused on the words of Tang during the attack, and submitted that the programme contributed to the attack.  Tang said,

‘ You called the TV to expose me, I’ll beat you to death, I’ll beat your whole family to death.’

38.  The Judge had clearly considered the significance of this piece of evidence.  He held that,

‘ Even what was said by Tang during the attack on the two victims, to the effect that the Deceased and/or the plaintiff had called the TV to expose him and to cause him a hard life.  As the evidence stand in this case, it was the television crew who approached the Deceased for the interview and not the Deceased or the plaintiff who had gotten the television people to expose Tang.  In the circumstances, what was said by Tang at the time of the attack merely further highlights his fixed delusion of being persecuted and that Tang believed that the Deceased and/or the plaintiff being directly involved in that persecution of him had called the TV to expose him.  Moreover, those words of Tang has to be viewed in its proper context, as coming from a person suffering from the kind of delusional disorder that Tang was suffering from at the time of the attack.’  (emphasis added)

39.  In my view this is clearly an inference that the Judge was entitled to draw from the circumstances of the case.  The Judge’s finding that the cause of the attack was due to Tang’s delusional disorder cannot be faulted, bearing in mind that,

1)     the attack occurred 20 months after the broadcast;

2)     the plaintiff and her family were the neighbours of Mr. Tang;

3)     the claim by Mr. Tang that he was being poisoned by the plaintiff and her family using pipes to emit poisonous gas into his home and shop; and

4)     his claim that he had seen decoration workers installing the pipes.

40.  As the plaintiff failed to establish the causal link of the attack and ATV’s breach of duty this will dispose of her case based on tort.

Remoteness in contract

41.  The plaintiff’s claim on behalf of the estate of her deceased husband was also based on contract.  Based on the Judge’s finding that there was an assurance by ATV to hide the face of the deceased when the programme was to be aired, there was a breach of the assurance.  However, the real problem faced by the plaintiff is still on the issue of causation.  A useful summary of this requirement can be found in Chitty on Contracts 29^th Ed Vol 1, para 26─09,

‘ Requirement of a causal connection. The important issue in remoteness of damage in the law of contract is whether a particular loss was within the reasonable contemplation of the parties, but causation must first be proved: there must be a causal connection between the defendant’s breach of contract and the claimant’s 1oss.  The claimant may recover damages for a loss only where the breach of contract was the “effective” or “dominant” cause of that 1oss.  The courts have avoided laying down any formal tests for causation: they have relied on common sense to guide decisions as to whether a breach of contract is a sufficiently substantial cause of the claimant’s 1oss.’

42.  Since the Judge found that the programme was not the cause of the attack, the plaintiff could not have succeeded in contract even if there was a breach by the ATV to cover the face of the deceased.  Causation was not proved.  Her case in contract should be dismissed as well.

Conclusion

43.  I agree with the judgment of Rogers VP that the appeal should be dismissed with costs.

Hon Burrell J:

44.  I agree.

Hon Rogers VP:

45.  There will therefore be an order in terms of paragraph 26 above.