WONG WAI MING v. THE HOSPITAL AUTHORITY

CACV 86/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 86 OF 2001

(ON APPEAL FROM HCPI NO. 1136 OF 1999)

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J U D G M E N T

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Keith JA (giving the first judgment at the invitation of Rogers V-P):

Introduction

1. The Plaintiff is a psychiatric nurse. On 23 October 1996, he was attacked by a visitor to the psychiatric centre at which he worked. He brought a claim against his employers. They disputed liability, but Cheung J (as he then was) held that their liability for the Plaintiff's injuries had been established. They now appeal against that finding to the Court of Appeal.

The facts

2. The facts were not in dispute, and I take them from Cheung J's findings and the unchallenged evidence of the relevant witnesses. The Plaintiff is an enrolled nurse. He specialises in psychiatric nursing. He was employed by the Hospital Authority ("the Authority") and worked at the Yung Fung Shee Psychiatric Centre ("the Centre"). The Centre provides out-patient psychiatric care, and is the psychiatric out-patient clinic for the United Christian Hospital. Its patients include patients who have been discharged from other psychiatric institutions and who require follow-up treatment as well as patients who have not been treated elsewhere.

3. On the day of the attack, the Plaintiff was working in the waiting room of the Centre. He was one of three nurses manning the reception counter, which consisted of a long table parallel to one of the walls, with chairs for the nurses manning the counter between the table and the wall. The other two nurses on the reception counter that day were Wong Shing Tat (a registered nurse) and Lam Suk Fong (an enrolled nurse).

4. At about 9.30 a.m. on the day in question, Choy Po Lan came into the waiting room. Her daughter was a patient at the Centre, and Madam Choy had visited the Centre a few times before complaining about the medication which her daughter had been prescribed. There was some evidence to the effect that on those occasions she had been shouting, but whether she had been or not, she had been asked to put her complaint in writing, and having done so she had left the Centre quietly.

5. On the day in question, Madam Choy was again complaining about the medication which her daughter had been prescribed. She was being attended to by Nurse Wong. He asked to see her identity card, and then made various telephone calls to see if Madam Choy was known to any other psychiatric centre. He discovered that she had been a psychiatric patient at the United Christian Hospital, but that she had failed to return for follow-up treatment.

6. Nurse Wong was called away, but before he left he asked Nurse Lam to give Madam Choy the ward number at the United Christian Hospital where Madam Choy had been treated, together with the address of the United Christian Hospital. Nurse Lam did so, adding that the doctors at the United Christian Hospital would be able to help her. Madam Choy became very angry. She tore up the note which Nurse Lam had given her, threw the pieces at Nurse Lam and shouted: "You think I am crazy". The Plaintiff and Nurse Lam tried to calm her down, but they were not successful. Madam Choy continued mumbling to herself and was plainly very agitated.

7. Madam Choy then returned to the bench where she had been sitting. From a bag on the floor, she took out a bottle. The Plaintiff suspected that the bottle contained corrosive fluid of some kind, and displaying exemplary courage he came out from behind the counter to do what he could to disperse the members of the public who were there and to get them out of Madam Choy's way. As he did so, Madam Choy opened the bottle and sprayed its contents in his direction. He turned away but slipped and fell to the floor. She then poured the contents of the bottle over him. As a result, he sustained serious injuries which have left his face and body noticeably scarred. The fluid turned out to be drainpipe cleaning fluid consisting of concentrated sulphuric acid which Madam Choy had bought that morning from a shop near the Centre.

The employer's duty of care

8. An employer is under a duty to its workforce to take reasonable care for their safety. Where one employment happens to be more dangerous than another, a greater degree of care must be taken, but where the employer cannot eliminate the risk of danger, it is required to take reasonable precautions to reduce the risk as far as possible: see Charlesworth & Percy on Negligence, 9th ed., para. 10-83. However, an employer is not required to take reasonable precautions to remove every risk which might confront its workforce. In a classic statement of the relevant principles, Lord Reid said in The Wagon Mound ( No. 2) [1967] AC 617 at pp. 642E-643A:

".... it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of .... a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. .... [T]he general principle [is] that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. .... [I]t is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it."

9. These principles have been applied to the employer's duty to protect its workforce from attacks while they carry out their duties. The reported cases in this area tend to involve criminal attacks on staff whose duties include the handling or banking of cash. These cases include Houghton v. Hackney Borough Council (1961) 3 KIR 615 (the robbery of a rent collector who worked in a room without bars or grilles), Williams v. Grimshaw (1967) 3 KIR 610 (the robbery of an employee taking home the evening's takings of the bar of a sports club), and Charlton v. The Forrest Printing Ink Co. Ltd. [1980] IRLR 331 (the robbery of an employee collecting money from the bank to pay the staff's wages). In each of these cases, the obligation on the employer to take such precautions as were reasonable to reduce the risk of robbery of persons who handle cash was not doubted, though in each case it was held that, having regard to all the circumstances, reasonable precautions had in fact been taken to reduce the risk.

10. There is no dispute in the present case about these principles. Two issues arise in the present case about their application. First, was there a real risk, as opposed to a mere possibility, which the Authority ought to have appreciated, that nurses carrying out duties at the reception counter in the waiting room might be attacked? Secondly, if so, what precautions, if any, should the Authority have taken to reduce the risk of injury to its nurses as a result of such an attack?

11. (i) The nature of the risk. Psychiatric patients display a whole variety of different symptoms. The behaviour of some patients may be entirely predictable, and it can confidently be said of them that they pose no risk to persons they encounter. But other patients may not be so predictable. They may be prone to bouts of irrational behaviour, which might take the form of wholly unexpected acts of violence. Some of the visitors to the Centre were not patients at the Centre (Madam Choy herself is an example of that, though she had been a psychiatric patient elsewhere in the past). But many of the visitors to the Centre were psychiatric patients there. There must have been a real risk that at least some of them had behavioural problems which rendered their behaviour unpredictable, and there must have been a real risk that at least some of those whose conduct was unpredictable might resort, if sufficiently disturbed, to violence. In short, because a psychiatric centre naturally has persons of known instability visiting it, the risk of an eruption of violence in such a centre is a real one.

12. Moreover, Cheung J found as a fact that a psychiatric patient's instability may be heightened when he is receiving psychiatric treatment. Some patients do not like being treated, and the risk of them resorting to acts of violence when visiting a psychiatric centre is therefore increased. In making these findings, Cheung J relied on the evidence of Tai Yuk Hing, one of the Authority's witnesses, who was experienced in the management of psychiatric facilities and who had worked as a psychiatric nurse in the past. Ms Tai had said in her witness statement (which was treated as her evidence-in-chief):

"It is not unusual that psychiatric patients display violent behaviour when receiving treatment at the Centre. It is because some of them do not like being treated and examined by Doctor and they will act violently to the staff of the Centre. There are also occasions when the patients are emotionally unstable when receiving treatment. As said, violent behaviour is not abnormal at the Centre."

Similar comments were made by Nurse Lam in her witness statement (which was also treated as her evidence-in-chief). Indeed, less than six months before the attack on the Plaintiff by Madam Choy, a patient had become violent in the waiting room of the Centre when routinely discussing whether an appointment could be brought forward, and he had had to be physically restrained.

13. It is, of course, true that Madam Choy was not herself a patient at the Centre. Although she had visited the Centre before, and although (as I have already said) there was some evidence that she had been shouting on those occasions, it may well not have been foreseeable that she might pose a risk to the staff there. But that is beside the point. In determining whether there was a real risk of injury to staff which the Authority ought to have taken precautions to have protected them from, the fact that the attack happened to come from a person who did not come within the category of people (i.e. persons who were psychiatric patients at the Centre) who should have been regarded as potential risks is irrelevant. The real risk of an attack from Madam Choy may not have been foreseeable, but the real risk of an attack from someone who was a psychiatric patient at the Centre was. It was the existence of a risk from that source which triggered the Authority's obligation to take such precautions as were reasonable to reduce it

14. It is also true that the particular form which Madam Choy's attack took may well not have been foreseeable. It would, I think, have been too much to expect the Authority to have anticipated that there was a real risk that even a patient at the Centre would have come to the Centre with a bottle of corrosive fluid and would have sprayed its contents over whoever was in the waiting room at the time. But again that is beside the point. In determining whether there was a real risk of injury to staff which the Authority ought to have taken precautions to protect them from, the fact that the attack happened to take an unexpected form is irrelevant. The form of the attack by Madam Choy may not have been foreseeable, but the real risk of an attack of some kind was. It was the existence of a risk of an attack of any kind which triggered the Authority's obligation to take such precautions as were reasonable to reduce it.

15. (ii) Reasonable precautions. Since Madam Choy's attack on the Plaintiff, the Authority has taken various steps, in Ms Tai's words, "to reduce anxiety and to raise morale". Two are relevant for present purposes. First, the counter in the waiting room is now enclosed. Access into it is through doors at each end, and staff are protected by a glass screen which extends up to, but does not quite reach, the ceiling. To use Ms Tai's words again, this "is meant to give a greater sense of security" to staff working on reception. Secondly, an emergency push button system has been installed in the treatment rooms and in other places where patients gather, including behind the enclosed counter.

16. The taking of these steps should not, of course, be regarded as an admission by the Authority that it ought to have appreciated at the time of the attack on the Plaintiff that precautions needed to be taken. As long ago as the 19th century, Bramwell B said in Hart v. Lancashire & Yorkshire Railway Co. (1869) 21 LT 261 at p. 263:

"... people do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that, because the world gets wiser as it gets older, therefore it was foolish before."

The only relevance of the precautions which the Authority has taken since the attack is that they demonstrate that it would have been practicable to take those measures before the attack.

17. Broadly speaking, three points are taken on behalf of the Authority. First, it is said that when a psychiatric patient gets agitated, an attempt should first be made to calm the patient down, and only if that fails will staff subdue him by force, if necessary by using a straight-jacket. Nursing staff are trained both in the techniques of calming a disturbed patient and in the use of the requisite degree of force which is necessary to subdue him. In the overwhelming majority of cases in which a psychiatric patient is sufficiently disturbed to cause concern that there might be an eruption of violence, these procedures are sufficient to defuse the situation. Secondly, the use of a screen which serves as a barrier between staff and patient is said to be the antithesis of what psychiatric treatment is all about. It will only serve to distance the patient from those concerned with the patient's treatment and will only aggravate the problems which caused the patient to need psychiatric help in the first place. Thirdly, there are some patients whose violence takes such an unpredictable form that no measures can be taken to reduce, let alone eliminate, the risk of injury to staff. The use of acid by Madam Choy is said to be an example of that (though whether such precautions as the Authority should have taken would in fact have prevented the Plaintiff being injured is more relevant to the question of causation than to whether the Authority has been in breach of its duty of care).

18. I see the force of these arguments, but like Cheung J I have not been persuaded by them. It may well be that in most cases persuasion (followed, if necessary, by physical restraint) will result in calm being restored. But such measures can only work if there are a sufficient number of staff present at the time - including staff qualified to restrain a patient by the use of a straight-jacket. If only one member of staff is in the waiting room at the time, and if he fails to calm the patient down, it may be quite impossible for him alone to subdue the patient physically. In such a situation, the ability to call for assistance immediately is crucial, and therefore a panic button which can be used to alert other members of staff (whether clinicians or otherwise) would be invaluable. And if the waiting room is empty but for the violent patient, so that the member of staff needs to be concerned only for his own safety and not for the safety of other patients, the enclosure of the reception counter would afford him at least some measure of protection. I accept, of course, that violence can take so unpredictable a form that no measures can be taken to reduce the risk of injury to staff, but what the installation of a panic button and the enclosure of the counter can do is to provide a measure of protection for those cases in which the conventional measures of persuasion and physical restraint would only work if there were sufficient members of qualified staff present at the time.

19. Nor do I believe that enclosing the counter behind a glass screen could have an adverse impact on the ability of patients to respond positively to the treatment they receive. I can see, of course, how screens in the treatment rooms would distance the patient from the clinician, but it is fanciful in the extreme to say that a glass screen around the reception counter in the waiting room - which merely separates patients from nursing staff performing administrative duties - is counter-productive to the rapport which has to exist between patient and clinician.

20. For these reasons, I agree with Cheung J that (a) there was a real risk, as opposed to a mere possibility, which the Authority ought to have appreciated that nurses carrying out duties at the reception counter in the waiting room would be attacked, and (b) the precautions which the Authority should reasonably have taken to reduce the risk of injury to its nurses as a result of such an attack included enclosing the counter with a glass screen and installing a panic button. The failure of the Authority to take such precautions resulted in the Authority failing in its duty to its workforce to take reasonable care for their safety.

Causation

21. However, that is not quite the end of the matter. The question which then arises is whether the attack on the Plaintiff would have occurred even if these precautions had been taken. If the Plaintiff would have been injured even if the Authority had taken these steps to protect its staff, the injuries which the Plaintiff received would not have been caused as a result of the Authority's breach of its duty of care.

22. The point taken by the Authority is that when Madam Choy appeared to have a bottle of acid in her hand, the Plaintiff would have had the other members of the public uppermost in his mind, and he would have left the reception counter even if it had been screened off. Cheung J rejected the premise on which this argument was based. He accepted the Plaintiff's evidence that had the counter been screened off, and had a panic button been installed, the Plaintiff would have pressed the button and shouted for help, and would have thought twice before emerging from the relative safety of the counter. That would not in any way have reflected adversely on the Plaintiff's courage. The fact that the counter was not screened off and the absence of a panic button had in fact left the Plaintiff with little alternative but to behave in the brave, instinctive and selfless way in which he did.

23. In my opinion, the presence of a panic button could have made all the difference. Not only might the alarm which it would have raised have itself stopped Madam Choy in her tracks, but the Plaintiff would have expected help to come from other members of staff almost immediately, and their arrival on the scene might have caused Madam Choy to pause. It is, of course, dangerous to speculate on what might have happened if the measures which were subsequently taken had been in place on the day in question, but one thing is for sure: it cannot be said that the Plaintiff would undoubtedly still have received his injuries if a panic button had been installed and the reception counter had been enclosed. For these reasons, the conclusion which Cheung J reached on the causal connection between the Plaintiff's injuries and the Authority's breach of duty cannot be faulted.

The negligence of Nurse Wong

24. The Plaintiff's alternative case was that the injuries he received were caused by negligence on the part of Nurse Wong for which the Authority was vicariously liable. The allegation is that Nurse Wong's behaviour that morning was insensitive and was likely to provoke Madam Choy. In this connection, the Plaintiff's case as pleaded in an amendment to the statement of claim made only a few weeks before the trial was that

(a) Nurse Wong should not have made his inquiries about Madam Choy while she was within earshot,

(b) having discovered that Madam Choy was a psychiatric patient elsewhere, Nurse Wong did not assess the risk of Madam Choy becoming agitated and violent if she was bluntly confronted with that knowledge and therefore did not warn either the Plaintiff or Nurse Lam of the risk, and

(c) Nurse Wong should not have instructed Nurse Lam to hand the notice to Madam Choy and he should not have left her and the Plaintiff to cope with Madam Choy without further supervision.

The judge did not address the question of Nurse Wong's negligence in view of his finding that the Authority was liable to the Plaintiff in any event.

25. In a statement which Nurse Wong gave to the police, he said that when Madam Choy had returned to the counter after he had discovered that she had been a psychiatric patient at the United Christian Hospital, he had told her to see a doctor at the United Christian Hospital, and that that doctor would help get her daughter off her medication. He added that what he had told Madam Choy had been untrue, and that what he had really been trying to do was to get Madam Choy back to the United Christian Hospital. It was then that he was called elsewhere, and that he asked Nurse Lam to write down the ward number and the address of the United Christian Hospital. If that account is correct, it seriously undermines the suggestion that Nurse Wong had been negligent, because far from acting in a way which might have provoked her, Nurse Wong was doing what he could to ensure that he said nothing to upset her.

26. However, Nurse Wong did not give evidence at the trial, and no witness statement from him of the kind to which Ord. 38 r. 2A applies had been filed. His statement to the police was simply in a bundle of agreed documents which was placed before Cheung J. Unfortunately, there is a difference of recollection between counsel who appeared at the trial as to whether the agreement related to their authenticity and production without the makers of the documents being required to give evidence or whether the agreement was also to the effect that the contents of the documents were true. Having listened to the relevant extracts of the tape of the hearing before Cheung J, it is apparent that such discussion as there was on the topic at the hearing related to the contents of a supplemental bundle of documents, not the bundle of documents in which Nurse Wong's statement to the police was included. The uncertainty as to the evidential status of Nurse Wong's statement to the police makes it difficult to dismiss the statement from consideration altogether.

27. Different considerations apply to the pleadings. In para. 6 of the Amended Statement of Claim, the relevant facts had been pleaded. It had not been alleged in those facts that Nurse Wong had had a conversation with Madam Choy after he had discovered that she had been a patient at the United Christian Hospital. There had therefore been nothing in para. 6 which the Authority had needed to deny. However, if the Authority was intending itself to rely on what Nurse Wong had claimed in his statement to the police, it was necessary for that to have been specifically pleaded.

28. As it was, neither the Plaintiff nor Nurse Lam dealt with the issue in their evidence. They did not refer in their witness statements to anything which Nurse Wong may have said to Madam Choy at that stage. Whether that was because they did not think that Nurse Wong had spoken to Madam Choy at all, or because they did not hear what Nurse Wong had said to Madam Choy, or because they were not asked whether Nurse Wong had spoken to Madam Choy then, we do not know. Nor were they asked about it when they gave evidence, though again we do not know whether that was because it was thought that the state of the pleadings meant that the issue was not a live one.

29. Against that background, I turn to Cheung J's findings of fact. He did not say whether Nurse Wong had actually said anything to Madam Choy when she returned to the counter. That may have been because he was finding that nothing had been said. Alternatively, it may have been because he thought that the issue was not a live one in the light of the pleadings. But I think it more likely that it was because he was only making those findings of fact which it had been necessary for him to find in order to determine whether the Authority had been in breach of the duty of care which it owed to the Plaintiff. Accordingly, I proceed on the assumption that Cheung J did not make any findings, one way or the other, about what Nurse Wong had said, if anything, to Madam Choy when she returned to the counter. In these circumstances, I do not think that it would be appropriate to address the question of Nurse Wong's negligence - particularly when the determination of that question could not affect my ultimate view as to the outcome of this appeal.

30. I have not overlooked the fact that, from the technical point of view, the state of the pleadings in fact meant that it had not been open to Cheung J to rely on what Nurse Wong claimed in his statement to the police to have told Madam Choy after discovering that she had been a patient at the United Christian Hospital. But I am not comfortable about deciding the question of Nurse Wong's negligence (which would not alter the result of the appeal) without taking into account material evidence, simply because that evidence cannot be considered as the need to plead it specifically had been overlooked. I therefore propose to leave the issue of Nurse Wong's negligence to one side.

Conclusion

31. For these reasons, therefore, I would dismiss this appeal. At present, I see no reason why costs should not follow the event, and the order nisi which I would make as to costs is that the Authority must pay to the Plaintiff his costs of the appeal to be taxed if not agreed, and that the Plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.

Le Pichon JA:

32. I agree that this appeal should be dismissed. I agree with Keith JA that the defendant was in breach of its duty of care as employer owed to the plaintiff and that causal connection existed between the injuries received and the defendant's breach. These matters have been fully dealt with by Keith JA in his judgment. However, I also find for the plaintiff on the alternative ground that his injuries resulted from the negligence of Wong Shing Tat ("Mr. Wong") for which the defendant was vicariously liable.

Vicarious liability

The plaintiff's pleaded case

33. The Statement of Claim was amended on 14 September 2000, some 11 months after the writ was issued. Paragraph 6 of the amended Statement of Claim read:

"6. On or about 23 October 1996, the Plaintiff was, in the course of his employment, working at the long table at the waiting hall on the Second Floor of the Centre with a Registered Nurse, Mr Wong Shing Tat ('Mr Wong'), and an Enrolled Nurse, Miss Lam Suk Fong ('Miss Lam'). At about 9:30 a.m. on that day, Madam Choy attended at the waiting hall of the Centre again and talked to Mr Wong complaining about the doctors' prescription for her daughter. Mr Wong asked to see Madam Choy's Hong Kong Identity Card and thereafter made telephone calls to inquire from other psychiatric centres about the information of Madam Choy. Upon discovering that Madam Choy was a psychiatric patient registered with the United Christian Hospital, Mr Wong instructed Miss Lam to give to Madam Choy a piece of paper with the address of the Psychiatric Department of the United Christian Hospital written on it and to ask Madam Choy to go to see the doctors there. Thereafter, Mr Wong left the scene. When Miss Lam handed the paper containing the address to Madam Choy and asked her to go to the United Christian Hospital to consult the doctor there, Madam Choy became furious and immediately tore the piece of paper to pieces. Madam Choy was so agitated that she shouted 'you think I am crazy'. Thereafter, Madam Choy took out a bottle of corrosive liquid and threw the liquid onto the people around. While the Plaintiff was trying to warn and scatter the people at the scene. Madam Choy threw the corrosive liquid onto the Plaintiff. As a result, the Plaintiff sustained very severe injuries."

Paragraph 7(k) contained particulars of Mr Wong's negligence. The plaintiff alleged that Mr Wong, being a registered nurse and the more senior of the 3 nurses on duty in the waiting hall from whom the plaintiff and Miss Lam would take instructions, failed to properly handle the situation in that Mr Wong (i) caused Madam Choy to wait in the waiting hall while inquiries were being made about her through calls to other psychiatric centres; (ii) having discovered that Madam Choy had been a psychiatric patient at the United Christian Hospital (UCH), did not assess the risk of Madam Choy losing control of herself and becoming violent if bluntly confronted with that information; (iii) failed to warn the plaintiff and Miss Lam of the risk; (iv) by giving instructions to Miss Lam to hand the piece of paper containing the address of the Psychiatric Department of UCH, thus provoked and agitated Madam Choy; and (v) left the plaintiff and Miss Lam who were only enrolled nurses to handle the situation without further supervision. Sub-paragraphs(l) and (m) of para 7 contained particulars of the defendant's negligence in causing or allowing the matters pleaded in paragraph 7(k) to happen and in failing to give any or any adequate training, supervision, instruction or direction to the nurses at the waiting hall to ensure their safety while working there.

34. In its amended defence, the defendant admitted paragraph 6 of the amended Statement of Claim. The facts, as alleged, were thus never put in issue. The defendant denied paragraph 7 of the amended Statement of Claim and pleaded that:

"In particular, it is denied Mr Wong had failed to properly handle the situation as alleged in paragraphs(k)(i)-(v) inclusive of particulars to the said paragraph 7 or at or and/or that Madam Choy was provoked or agitated into becoming violent."

There were further averments made by the defendant but there was no positive case pleaded by way of defence that Mr Wong had taken positive steps to placate or otherwise calm Madam Choy down before he went to take the telephone call and before Miss Lam handed the paper containing the address of UCH to Madam Choy.

35. The hearing bundle before the court contained a statement made by Mr Wong to the police dated 23 October 1996 which set out a sequence of events that is different from that pleaded in paragraph 6 of the amended Statement of Claim. In this account, there is some suggestion that Mr Wong had a conversation with Madam Choy and had placated or somehow soothed her before he was called away to answer the telephone. If that was the defendant's case, it was plainly incumbent on the defendant to advance it positively by pleading the relevant facts and adducing evidence in support.

The hearing below

36. As noted above, the defendant never put the facts in issue: it admitted the facts pleaded in paragraph 6 of the amended Statement of Claim and never sought to advance a different version of events. The trial commenced on 30 October 2000, a month or so after the filing of the amended defence. At no stage did the defendant seek to amend its defence in this respect or seek leave to file any witness statement from Mr Wong to rebut the allegations of negligence made against him. Mr Wong was not called to give evidence and none of the witnesses who gave evidence at trial was either examined or cross-examined on the basis that the sequence of events was other than that pleaded by the plaintiff.

37. After hearing all the evidence, the Judge made findings of fact. As to the events that are relevant to the issue of the negligence of Mr Wong, the Judge made findings (at page 2, line Q - page 3, line N) which, not surprisingly, reflected, verbatim, paragraph 6 of the amended Statement of Claim.

38. The police statement itself could not have been treated as evidence of the truth of its contents in the absence of any agreement to that effect by the parties. The fact that it appeared in the hearing bundle did not make it "evidence" for this purpose. Further, since counsel who appeared at the trial have a difference of recollection as to whether or not there was any such agreement, the defendant has failed to establish that there was an agreement to that effect. In any event, there is the further difficulty that that was never its pleaded case.

Was Mr Wong negligent?

39. Since there was and is no issue as to the facts, the only question is whether the allegations of negligence particularized in paragraphs 7(k)(i)-(v) are made out on the facts as found. I have little hesitation in concluding that Mr Wong was negligent for the following reasons. Mr Wong knew from the enquiries he had made that morning that Madam Choy had had out-patient treatment at the Psychiatric Unit of UCH. So, here, he was dealing with someone who was likely to be emotionally unstable. Given this knowledge, Mr Wong ought to have known and appreciated that the situation was delicate and that Madam Choy had to be properly handled. Mr Wong was the person in charge at the reception desk. He was the registered nurse, the other two, namely, the plaintiff and Miss Lam were only enrolled nurses and worked under him. Instead of handling the matter himself, he delegated the task to an enrolled nurse. By this time, Madam Choy had been at the Centre for at least half an hour if not more. Miss Lam was given the task of confronting Madam Choy with the fact that Madam Choy herself who had not come to the Centre as a patient needed psychiatric care at a different hospital. That approach was little short of waving a red rag at a bull and it was plainly foreseeable that she might react violently.

40. Moreover, this was not Madam Choy's first visit to the Centre. On previous visits, she had been shouting and complaining about the doctors of the centre prescribing medicine for her daughter. On each of these visits, she had to be calmed down.

41. Although the judge did not consider it necessary to consider the alternative case based on Mr Wong's negligence in respect of which the defendant would have been vicariously liable, his findings of fact are sufficient for a finding to be made as to the negligence of Mr Wong. In my judgment, the defendant is also liable to the plaintiff on this alternative ground.

Rogers VP:

42. I agree with the judgment of Le Pichon JA. In particular I agree with the conclusion as to the liability of the defendant in respect of Mr Wong's negligence. The findings of fact by the judge are clear. In view of the pleading of the facts in paragraph 6 of the amended statement of claim and the admission of those facts in the amended defence it is clear that no issue at the trial arose on those facts. Whilst the statement made by Mr Wong to the police was contained in the trial bundle, it has not been established that there was any agreement as to the admission of that statement in relation to the truth of its contents. Indeed, Keith JA has pointed out that there was no discussion as to that at the trial. For the reasons given by Le Pichon JA I, too, conclude that Mr Wong was negligent in giving the instructions to Miss Lam and leaving the scene immediately.

43. In the circumstances this appeal will be dismissed. There will be an order nisi that the costs of this appeal be to the plaintiff and that the plaintiff's costs be taxed in accordance with the Legal Aid Regulations.