CHENG LOON YIN v. SECRETARY FOR JUSTICEAND ANOTHER

CACV 55/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 55 OF 2005

(ON APPEAL FROM HCPI NO. 118 OF 2003)

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J U D G M E N T

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Hon Tang JA:

1. On 31 May 2000, the plaintiff, a senior hawker control officer, whilst acting in the course of his duties, was attacked and injured by the 2^nd defendant.  This is what the Deputy Judge Carlson said in his judgment about the attack:

“4.     The Plaintiff’s case is that he and Mr Pang having seen that the 2^nd Defendant had two baskets of lychee (durian) at the edge of the pavement which took up about one square metre and that he was offering these for sale from there decided to arrest him.  Pang went first and the Plaintiff asked for assistance by means of walkie-talkie radio from other members of their team and for their vehicle to carry away the offending fruit.  As he approached he also saw that the 2^nd Defendant had other goods in the side alley next to the shop.  He ordered the 2^nd Defendant to remove them from there into the shop.  At this point, he says that without warning the 2^nd Defendant rushed at him, swore at him and punched him in the mouth and nose and then again on the right cheek.  He says that the force of the blows knocked him senseless onto the ground.  He did not recover consciousness until he was in the ambulance that was taking him to Princess Margaret Hospital.  He remained in hospital for 10 days being treated for his facial injuries and for what the medical experts have described as a hyper-extention injury to his neck which I will need to make further reference to when I consider the quantum of damages.”

2. The plaintiff sued the 1^st defendant, his employer, and the 2^nd defendant.

3. The judge held in favour of the plaintiff in relation to his claim against the 2^nd defendant and awarded him $357,104.40 as damages.

4. The plaintiff’s claim against the 1^st defendant for breach of duty as employer was dismissed by the judge.

5. The plaintiff has appealed against the dismissal of its claim against the 1^st defendant.  There is no appeal from the 2^nd defendant.

6. Essentially, the appeal involves only one point and turns on the failure by the 1^st defendant to provide the plaintiff with an alarm.  This is what the judges said about the alarm:

“21.   Dealing with two matters in particular – it has been suggested by Mr Kwok that the Plaintiff and his colleagues should have been provided with an alarm which might have had the effect of deterring any would-be attacker.  The knowledge that the officer could set it off would cause a potential assailant to think twice.  The short answer to this is that whilst it would undoubtedly make a loud noise if set off it is difficult to see how it would really add to the walkie-talkie as a means of summoning assistance.  Any would-be assailant would know that the officer equipped with a radio could easily summon help in that way.  In my judgment the alarm, a small black box-like device, would have added nothing to the overall safety of this officer.”

7. Mr Kwok, counsel for the appellant, argued before the judge that an alarm would not only have enabled the plaintiff to summon help but the fact that he had an alarm (if known to a potential assailant) would have acted as a deterrent to the potential assailant.  He no longer maintained those arguments.  He referred us to a Memorandum for members of the Markets and Street Traders Select Committee dated 14 October 1998 prepared by the Urban Services Department where this was said:

“Personal Attack Alarm

20.    The Department is examining the feasibility of issuing to each market staff a personal attack alarm which they could use in case of emergency.  The alarm device, when activated by staff in an emergency situation, would give out an alarming sound which might scare off the assailant and also attract the attention of other people in the market who might come to the assistance of the staff concerned at the earliest opportunity.  The cost of an alarm is about $100.  The estimated total cost for issue of the alarm to all the enforcement staff in the markets is about $21,000.”

8. He argued that had an alarm been provided to the plaintiff he could have triggered the alarm before the first blow was struck or between the first and second blow, thereby lessening the injuries.

9. We were shown a specimen alarm.  It is designed to be worn on the waistband and could be activated by pulling a cord free.

10. Mr Kwok has frankly accepted that the arguments which he now presents to the court was not put in such terms before the judge.  That explains why that there was no reference to it in the judgment.

11. However Mr Kwok told us that he has argued before the judge that it was unnecessary for him to show that the failure to supply the alarm caused or contributed to the assault on the plaintiff or the injuries that he suffered.  He submitted that the foreseeability of attack or injury was enough for liability.

12. Mr Kwok argued that even if the plaintiff had been attacked from behind without any warning, the fact that no alarm had been supplied to him would mean thathe was entitled to succeed, although admittedly the absence of the alarm made no difference.  In other words, it would not matter even if on the facts of the particular case the plaintiff would have had no opportunity to use the alarm at all.

13. He relied on McGhee v National Coal Board [1973] 1 WLR 1.  There, a worker, who was sent to empty brick kilns contracted dermatitis.  The employer admitted that the dermatitis was attributable to his work in the brick kilns.  The breach of duty relied on by the worker was the employer’s failure to take reasonable care to provide adequate washing facilities, including showers and it was pleaded that had they been provided he would have not contracted the disease.   The employer admitted the breach of duty but contended that it was not proved that it had caused the contraction of the disease.  Mr Kwok submitted that the principle decided by McGhee can be found in the judgment of Lord Kilbrandon at page 10C, where he said:

“… This is a case in which the actual chain of events in the man’s body leading up to the injury is not clearly known.  But there are effective precautions which ought to be taken in order to prevent it.  When you find it proved (a) that the defenders knew that to take the precaution reduces the risk, chance, possibility or probability of the contracting of a disease, (b) that the precaution has not been taken, and (c) that the disease has supervened, it is difficult to see how those defenders can demand more by way of proof of the probability that the failure caused or contributed to the physical breakdown … Suppose it to be the duty of employers in certain circumstances to supply safety-belts.  They do not do so, and an employee is injured in a way which would not have happened if the belt had been provided.  But he cannot prove that the failure to provide it contributed to the accident, because it is certain that if it had been provided he would not have used it.”

14. Far from being authority in support of the proposition that causation is presumed, dicta in McGhee show the contrary, for example, Lord Salmon said at 11G:

“I, of course, accept that the burden rests upon the pursuer to prove, on a balance of probabilities, a causal connection between his injury and the defender’s negligence.”

15. Indeed Lord Kilbrandon himself said, at p 10:

“the pursuer has after all, only to satisfy the court of a probability, not to demonstrate an irrefragable chain of causation, which in a case of dermatitis, in the present state of medical knowledge, he could probably never do.”

16. These dicta relied on by Lord Bridge of Harwich in Wilsher v Essex Area Health Authority [1988] AC 1074 where he said (with the concurrence of the other Law Lords) at page 1090D:

“The conclusion I draw from these passages is that McGhee v. National Coal Board [1973] 1 W.L.R. 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders’ negligence had materially contributed to the pursuer’s injury. The decision, in my opinion, is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.”

17. Charlesworth and Percy on Negligence, 10^thEdition, also referred to McGhee as:

“… an example of legal inference which falls near to the boundary of what is permitted …”

18. It follows that the burden is on the plaintiff to show that the absence of the alarm caused or contributed to the attack or injury.

19. Mr Kwok also relied on Wong Wai Ming v Hospital Authority [2001] 3 HKLRD 209, a decision of this court.  Mr Kwok relied on these passages in the judgment:

“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.”

20. But in Wong Wai Ming, the trial judge:

“… accepted the Plaintiff’s evidence that … had a panic button been installed, the Plaintiff would have pressed the button and shouted for help …”

It does not matter whether there was direct evidence to that effect or that (more commonly the case) the trial judge was able so to infer on the evidence before him.  But it does not support Mr Kwok’s argument that it was authority for the proposition that unless the defendant could prove “that the plaintiff would undoubtedly still have received his injuries if a panic button had been installed”, the defendant would be liable.

21. Here the judge drew no such inference because the point was not argued before him.

22. The plaintiff’s case was not pleaded on that basis, nor was the case so argued.

23. Had it been, evidence on the speed or suddenness of the attack would have received greater attention.  We have not been provided with the transcript of evidence.  Nor can I go outside the facts found by the judge.  On that basis, I am not satisfied that I could draw the desired inference.

24. On the facts as found by the judge, the assault was sudden and unexpected.  It was over in a split second.

25. Moreover, this is analogous to a new point taken on appeal which is fact sensitive and the facts would have been more thoroughly investigated had the point been taken below.  So even if, on the fact such an inference might have been drawn, I would not do so.  The judge who has heard the evidence, especially relating to the suddenness or the speed of the attack was best placed to decide the point, had the point been taken.  As I said, if it had been, no doubt the evidence would have been carefully explored.

26. Mr Kwok has confirmed that no evidence was led from the plaintiff on the issue.

27. Instead, as I gather from Mr Kwok’s submission, he relied instead on the proposition that causation was presumed.

28. Mr Kwok also relied on Cekan v Haines [1990] 21 NSWLR 296.  Cekan v Haines is about the standard of care owed by the authority to persons held in its custody.  It seems that Mr Kwok cited this case for the following propositions:

“The countervailing considerations of cost:

         So far as the economic costs involved in the appellant’s case are concerned, it is appropriate to take these into account when determining what reasonable conduct on the part of State authorities required in the custody of the appellant.  Obviously, the greater the cost of the modification of institutions and procedures inherited from earlier times, the less likely it is that the common law would impose the obligation that the modifications should be introduced, at least rapidly.  This is but the corollary of the principle that the greater and more obvious the risk of injury, the heavier is the obligation to attend to it without delay.”

29. He drew attention to the fact that an alarm would only cost $100 therefore it was reasonable to have supplied one having regard to its possible utility.  But this goes to the standard of care and not whether a breach of it had caused the injuries.

30. Mr Shum, counsel for the 1^st defendant, has argued that Mr Kwok has confused foreseeability or standard of care with causation.  I think this is force in that argument.

31. For the above reasons, I would dismiss the appeal.

Hon Cheung JA :

The ‘Personal Attack Alarm’

32. For my part, I would allow the appeal.  The failure to provide an alarm to the plaintiff was expressly relied upon as a breach of duty of the 1^st defendant as an employer of the plaintiff. 

33. The provision of a ‘personal attack alarm’ was one of the measures proposed by the ‘Markets and Street Traders Select Committee’ (‘the Committee’) of the Food and Environmental Hygiene Department in 1998 to safeguard the hawker and market staff.  The proposal was made after consultation with the Police who recommended, among other things, the provision of the alarm.

34. Paragraph 20 of the Memorandum prepared by the Committee stated that:

‘Personal Attack Alarm

20.    The Department is examining the feasibility of issuing to each market staff a personal attack alarm which they could use in case of emergency.  The alarm device, when activated by staff in an emergency situation, would give out an alarming sound which might scare off the assailant and also attract the attention of other people in the market who might come to the assistance of the staff concerned at the earliest opportunity.  The cost of an alarm is about $100.  The estimated total cost for issue of the alarm to all the enforcement staff in the markets is about $21,000.’

35. The Memorandum was issued in response to a series of physical attacks in 1998 on front-line staff engaged in hawker and market duties.  According to the evidence the alarms had first been issued to market staff in 1998 and were subsequently extended to all law enforcement staff in mid-2002. 

36. The department in a later memorandum dated 12 March 2003 actually reinstated that the purpose of distributing the alarm was ‘for the use of officers when they encounter assault totally unexpectedly so as to produce signal of help in a second and deter and scare assailant’ (emphasis added).

The issues

37. Two issues arise in this appeal.  First, would the plaintiff have used the alarm if it was provided to him.  Second, was there a causal connection between the failure to provide an alarm and the injury sustained by the plaintiff in the hands of the 2^nd defendant.

Would the plaintiff have used the alarm?

38. On the first issue, the finding by the judge on the attack was that:

‘without warning the 2^nd defendant rushed at him, swore at him and punched him in the mouth and nose and then again on the right cheek’. 

39. The plaintiff’s evidence as disclosed in the witness statement was that when the 2^nd defendant threw the punch at his head, he ducked immediately, but at the end he was still hit at the area near the nose and he was hit again at the left side of his face.

40. Whether the plaintiff would have used the alarm which became a prominent feature in this appeal was not a contentious issue at the trial.  From the judgment, it is apparent that the judge proceeded on the basis that it would have been used by the plaintiff.

41. It was argued by Mr Shum, counsel for the 1^st defendant, that the attack happened so quickly that the plaintiff might not have time to use the alarm.  While the attack might have occurred in split seconds, the finding showed that the 2^nd defendant did not immediately hit the plaintiff but had rushed forward and swore at him first.  This would still give the plaintiff enough time to activate the alarm.

42. It was said that the plaintiff had not been asked in evidence whether if he was provided with an alarm he would use it at the attack.  In my view, this is not fatal to the plaintiff’s claim.  Even if such a question was asked, one can readily see the sceptical comment that might be made, namely, it was a hypothetical question and the answer was self-serving and probably given with the benefit of hindsight. 

43. In my view even without this evidence the Court could still come to a view on the matter.  If the alarm was to be provided by the relevant authority then obviously a staff like the plaintiff would know that its purpose was to deter an attacker.  The device was a small one to be clipped onto the waist belt.  As demonstrated to us in Court the setting off of the alarm was made by the simple movement of pulling the lanyard attached to the alarm.  It gave a loud shrieking sound.

44. Given the circumstances in which the alarm came to be considered by the authority as a relevant preventive measure and the nature of the alarm itself, at the very least, one cannot rule out the possibility that the plaintiff would have used the alarm during the attack.  This remained to be so, even if, at the heat of the moment, the plaintiff did not tell the attacker to stop or summon help from his colleague. 

45. There really was nothing to show that the plaintiff would not have used the alarm in any event.  In fact, I would go one step further.  In all probabilities, on the facts of this case, it was more likely than not that the plaintiff would have used it.  As the evidence showed, the plaintiff who was an auxiliary policeman, had even during the sudden attack, the presence of mind to duck from the first blow.  It would be a natural thing for him to activate the alarm.

Causal connection of the lack of alarm and the injury

46. Proceeding on the basis that the plaintiff would in all probabilities have used the alarm, there clearly was a causal connection between the failure to provide the alarm and the injury sustained by him in the attack.  Unlike a walkie-talkie which is used to summon help, the setting off of an alarm might serve the immediate purpose of scaring off the assailant.  It cannot be said that a sudden alarm sound might not have stopped the 2^nd defendant and deterred him from pursuing the attack on the plaintiff or continuing with the attack after he had landed the first blow on him. 

47. This is not a mere speculation.  After all, the Committee with the help of the Police had carried out a study and considered that the alarm might indeed scare off the assailant and had in fact issued such a device to the market staff as early as 1998 and later to all staff in 2002.

48. The importance of the alarm was not lessened by the presence of another hawker control staff at the scene.  The issue here is the effect of a sudden alarm sound on the 2^nd defendant who was about to attack the plaintiff.

49. When the judgeheld that the alarm ‘would have added nothing to the overall safety of the officer’, he had not dealt with the deterrent effect of the alarm.  He merely stated that the alarm would not ‘really add to the walkie-talkie as a means of summoning assistance’. 

50. In the present case the emphasis must be on what effect it would be on the 2^nd defendant if he was suddenly confronted with a loud shrieking sound.  One would have thought that this sudden alarm sound would stop anyone, and in this context, the 2^nd defendant, from continuing with the unlawful act he had in mind.  This is the purpose of an alarm.  Even if this halting of action was momentarily, it still would have made a difference in terms of response by the plaintiff who was confronted by a person who had suddenly lost his temper.  Preventive steps could be taken by the plaintiff to avoid being hit by the 2^nd defendant. 

51. In my view, the Court is not inferring with a finding of primary facts by a trial judge but rather deciding what should be the proper inference to be drawn on liability based on the finding of the accident by the judge.

52. In Wong Wai Ming v. Hospital Authority [2001] 3 HKLRD 209 the issue there was whether if safety measures had been implemented at a psychiatric clinic they could be have prevented an employee from being injured by a patient with psychiatric problems who threw acid on him.  Keith JA stated that,

‘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.’

I would respectfully adopt the same approach.  This is a case where causation can be established on the facts.

53. Mr Kwok, counsel for the plaintiff, also relied on McGhee v. National Coal Board [1973] 1 W.L.R. 1 to show that it is not necessary to show further that the failure to provide the alarm caused or contributed to the injury.  Lord Kilbrandon at page 10 held that,

‘This is a case in which the actual chain of events in the man’s body leading up to the injury is not clearly known.  But there are effective precautions which ought to be taken in order to prevent it.  When you find it proved (a) that the defenders knew that to take the precaution reduces the risk, chance, possibility or probability of the contracting of a disease, (b) that the precaution has not been taken, and (c) that the disease has supervened, it is difficult to see how those defenders can demand more by way of proof of the probability that the failure caused or contributed to the physical breakdown.’

54. I would also adopt this approach.  The authority was aware of the incidents of attack on hawker control staff.  It also knew that the alarm could be a preventive measure in such attacks.  The alarm was not provided to the plaintiff and he was attacked while on hawker patrol.  To adopt the words of Lord Kilbrandon, it is difficult to see how the authority can demand more by way of proof of the probability that the failure caused or contributed to the injury sustained by the plaintiff.

The appropriate principle

55. As Mason J (as he then was) observed in Wyong Shire Council v. Shirt (1980) 146 CLR 40 the relevant test is ‘what a reasonable man would do by way of response to the risk’.  This is to be determined by 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.  This is in effect the approach of this Court in Wong Wai Ming v. Hospital Authority.

56. As the Court of Appeal of New South Wales observed in Cekan v. Haines (1990) 21 NSWLR 296,

‘in some areas of government activity, the standard of care is not fixed but evolving.  I mean by this that, though the legal formula (“... the reasonable man’s response.....”) may remain the same, the actual precautions which that response requires a defendant government to take change: as the evidence in the present case suggests, as time goes on that response will require Government to take further or more stringent precautions.’ (per Mahoney JA)

Further,

‘... the greater and more obvious the risk of injury, the heavier is the obligation to attend to it without delay.’  (per Kirby P)

The present case

57. In the present case the risk of an attack was obvious to the relevant authority.  It had considered the provision of the alarm as one of the preventive measures to deal with attacks on its staff.  As disclosed in the Memorandum the cost of an alarm was $100 as contrasted with a portable radio which cost $3,100.  If there was a need to provide the alarm to the market staff all the more it should be provided to officers like the plaintiff who was doing frontline duties.  Had it done so the attack might have been avoided.  In my view the authority was negligent in not providing the alarm to the plaintiff.

Hon Woo VP:

58. I have had the advantage of reading the judgments of Cheung JA and Tang JA in draft.

The crucial issue

59. As both of their Lordships agree, the crucial question that we have to decide is causation, although Mr Kwok, counsel for the plaintiff in this appeal and at trial, has argued before us that the Government would be liable to the plaintiff unless it could prove that the plaintiff would undoubtedly still have received his injuries if an alarm had been provided to him. 

60. Mr Kwok’s argument is, in my view, incorrect not only because it is putting the burden of proof on the defendant on the issue of causation, but also because Wong Wai Ming v Hospital Authority [2001] 3 HKLRD 309 on which he relied, when properly analysed, does not lend him support.

61. We are hampered in making a decision on this single issue of causation because the judge did not specifically deal with it in his judgment.  It appears to me that he should not be blamed for not having done so.

62. The failure to provide an alarm was pleaded in the further and better particulars of the Amended Statement of Claim, but it was not pleaded how the alarm would have contributed or made any difference to the incident that resulted in injuries being sustained by the plaintiff or the seriousness of the injuries.  Nor was either of the following two matters put forward, by way of evidence or in argument, to the judge, namely,

(a)   the plaintiff would have triggered the alarm in the incident; and

(b)   the sound of the alarm as triggered would have scared off the assailant (the 2^nd defendant) or at least would have made him pause, so that he would not have given the plaintiff the first blow or the second blow, resulting in a less serious injury suffered by the plaintiff.

63. While it seemed that point (b) above was accepted by all concerned during argument before us, including Mr Shum (for the 1^st defendant, here and below) and the three members of this Court and that it is consonant with the view expressed by the Market and Street Trades Select Committee in paragraph 20 of its Memorandum in 1998 and in another one in 2003 (referred to in Cheung JA’s judgment, at paras 34 and 36 above), point (a) has remained hotly contested.

64. In order to decide the point, it is necessary to examine the findings of the judge.   The relevant findings are contained mainly in the following two paragraphs of the judgment:

“4.   The Plaintiff’s case is that he and Mr Pang having seen that the 2^nd Defendant had two baskets of lychee (durian) at the edge of the pavement which took up about one square metre and that he was offering these for sale from there decided to arrest him.  Pang went first and the Plaintiff asked for assistance by means of walkie-talkie radio from other members of their team and for their vehicle to carry away the offending fruit.  As he approached he also saw that the 2^nd Defendant had other goods in the side alley next to the shop.  He ordered the 2^nd Defendant to remove them from there into the shop.  At this point, he says that without warning the 2^nd Defendant rushed at him, swore at him and punched him in the mouth and nose and then again on the right cheek.  He says that the force of the blows knocked him senseless onto the ground.  …” (Emphasis added)

“21.  Dealing with two matters in particular – it has been suggested by Mr Kwok that the Plaintiff and his colleagues should have been provided with an alarm which might have had the effect of deterring any would-be attacker.  The knowledge that the officer could set it off would cause a potential assailant to think twice.  The short answer to this is that whilst it would undoubtedly make a loud noise if set off it is difficult to see how it would really add to the walkie-talkie as a means of summoning assistance.  Any would-be assailant would know that the officer equipped with a radio could easily summon help in that way.  In my judgment at the alarm, a small black box-like device, would have added nothing to the overall safety of this officer.”

65. In the way that the judge described the point taken by Mr Kwok in paragraph 21 of the judgment, it is reasonable clear that Mr Kwok was referring to the deterrent effect of the alarm on a would-be attacker, and not an attacker such as the 2^nd defendant in this case who was apparently overcome with rage and struck the plaintiff despite his knowledge that another officer (ie Pang) was close by.  The presence of immediate help of a colleague to the plaintiff and the likelihood of Pang identifying him as the assailant in a possible prosecution apparently did not pose as deterrence to the 2^nd defendant.  It seems to me that the availability of an alarm and its use by the plaintiff would not probably have the desired effect of deterrence to the would-be attacker as argued.  However, it does not mean that setting off of the alarm by the plaintiff would not have the effect of suddenly scaring the 2^nd defendant off so that he would not attack the plaintiff or would not have at least halted him from giving a second blow to the plaintiff.  Nevertheless, whether this effect would be obtained depends on whether the plaintiff would have triggered the alarm if it had been made available to him.

66. The description of the incident in paragraph 4 of the judgment is “without warning the 2^nd Defendant rushed at him (the plaintiff), swore at him and punched him in the mouth and nose and then again on the right cheek.”  It appears to me that the confrontation between the 2^nd defendant and the plaintiff and his assault on the plaintiff took place in a very short span of time, and the judge’s opinion in paragraph 21 of the judgment that “the alarm … would have added nothing to the overall safety of this officer” seems to support my understanding.

67. The question remains: is this Court entitled to draw the inference that the plaintiff would or might have triggered the alarm if he had been provided with one so that the 2^nd defendant’s assault could have been stopped or the second blow could have been thwarted?

68. While no transcript of the evidence before the judge was made available for the purposes of this appeal, Mr Kwok has fairly accepted that he did not raise the question as posed above at the trial, either by way of evidence or in argument.  That is the reason why I say that the judge should not be blamed for not having dealt specifically with it.

New point

69. Thus, it is plain that the issue of causation relating to the probable use of the alarm by the plaintiff if it had been available is a new point that had not been raised at the trial.   It has to be jealously scrutinised: see para 59/10/7 of the 2006 Hong Kong Civil Procedure, at p 883.

70. Apart from the description of the incident in paragraph 4 of the judgment, the plaintiff’s witness statement before the judge was that when the 2^nd defendant threw the punch at his head, he ducked immediately, but at the end he was still hit at the area near the nose and he was hit again at the left side of his face.  We have also seen the demonstration that the alarm can be easily and quickly set off producing a loud squeaking sound.  I do not, however, consider that in the totality of the evidence before the judge and his findings this Court would be justified to draw an inference that the plaintiff must be treated as having proved that he would or might have used the alarm, if provided, in the circumstances.  In my judgment, unless the point was taken and all the surrounding circumstances carefully examined a decision cannot fairly be made on the subject, which is fact-sensitive.  As Mr Kwok did not take the point before the judge, the 1^st defendant did not have any opportunity to deal with it in evidence. 

71. Mr Kwok could have raised the issue when he led the plaintiff’s evidence in-chief, by asking him what he would have done if an alarm had been available.  While any positive answer from the plaintiff might be considered as self-serving with not much weight to be attached, still there would have been some evidence for the judge to consider.  The surrounding circumstances would have been explored more thoroughly by the parties’ respective counsel, so as to focus on the opportunity available to the plaintiff for the application of the alarm, if provided.  This would have enabled the judge to make a finding and for this Court to draw proper inferences from such finding.  But this avenue was not taken and both the judge and this Court are deprived of any proper basis for a reasonable inference to be drawn, one way or another.

72. In all the circumstances, I do not consider that this Court is justified to draw the inference as suggested by Mr Kwok that the plaintiff would or might have used the alarm if provided.  Thus, I am not satisfied that the plaintiff has established the necessary causal link between the lack of the alarm and the injuries suffered by him.  I would dismiss the appeal.

Conclusion

73. In the result, by a majority, the appeal is dismissed with an order nisi that the plaintiff pay the 1^st defendant the costs of the appeal and that the plaintiff’s own costs of the appeal be taxed in accordance with the Legal Aid Regulations.