WAI YIP HIN v. WONG PO KIT

CACV 336/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 336 of 2008

(On Appeal from HCPI No.56 of 2005)

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JUDGMENT

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Hon Tang V-P:

1.  The learned judge found that the defendant had breached the duty of care on two independent grounds:

(a)    He failed

          “to take reasonable precautions to ensure that students like the plaintiff are not injured in his Kendo classes.  He knew that being struck on the men (helmet) for the first time would result in dizziness, discomfort and vibration to the head and it could be very painful.  He failed to warn the plaintiff who put on the men (helmet) for the first time that there was a risk of injury when being struck by the shinai (wooden sword) on the men (helmet).  There would have been no difficulty in giving such a warning.” (paragraph 64 of the Judgment);

and

(b)     The plaintiff

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

2.  This is essentially an appeal against these findings of fact.  There is no basis upon which these findings can be overturned. 

3.  For the reasons given by Yuen JA, whose draft judgment I have had the benefit of reading, I agree the appeal must be dismissed.

Hon Yeung JA:

4.  I agree with the judgment of Yuen JA and would also dismiss the appeal with costs.

Hon Yuen JA:

5.  This is the Defendant’s appeal from a judgment of Sakhrani J given on 2 October 2008 after a 7-day trial in which the learned judge found the Defendant, the Plaintiff’s kendo instructor, liable to the Plaintiff for personal injuries suffered during a kendo lesson on 13 April 2004.

6.  In a demonstration during the lesson, the Defendant struck the Plaintiff on the head a number of times with a shinai (a sword made of hard bamboo lengths tightly bound together).  Although the Plaintiff was wearing a men (traditional headgear with leather/reinforced rubber above the forehead), the Plaintiff felt dizzy and disorientated, had difficulty raising his arm and suffered neck and shoulder pain.  It was found by the joint medical experts that the Plaintiff who had a pre-existing neck condition suffered significant injury to the cervical spine as a result of the strikes.

7.  The Plaintiff sued the Defendant in negligence for (a) failing to take reasonable precautions to ensure that he was not injured and (b) failing to warn him of the risk of injury.  The defence to this claim was that (a) reasonable precautions had been taken and (b) there was no need to warn the Plaintiff of the risk of injury as the risk was obvious.  No contributory negligence was pleaded by the Defendant. 

8.  The Plaintiff also pleaded an alternative cause of action of trespass to the person on the basis that the Defendant had been actuated by malice or spite.  The learned judge found that this was not established. 

9.  Damages, which included a reduction for the Plaintiff’s pre-existing neck condition, were agreed.    

Facts

10.  The Plaintiff (aged 41 at the time of the incident) had a pre-existing neck condition but wished to participate in a sport to keep himself fit.  Kendo has been promoted as a sport suitable for all ages, including elderly persons and youngsters.  The Plaintiff checked the website for the Hong Kong Kendo Association and attended a lesson to observe how lessons were conducted.  He then signed up as a beginner and attended lessons once a week for 6 months.  During part of those 6 months, he had practised striking instructors who were wearing the bogu (protective equipment which includes the men). 

11.  On the day of the incident, the Plaintiff put on the full bogu for the first time, including the men.  It is accepted on behalf of the Defendant that the men (unlike, say, a safety helmet) does not act as a shock absorber.  During that lesson, the Plaintiff’s fellow students practised striking him on the men, but this consisted only of light taps. 

12.  The Defendant who was in fact the President of the Hong Kong Kendo Association was one of the instructors.  He selected the Plaintiff for a demonstration and struck him rapidly and forcefully on the men a number of times, advancing each time as he did so.  The Defendant’s own evidence was that “the force he used when demonstrating on the Plaintiff was the same force he typically used in Kendo practice”.  The Defendant had practised kendo for 25 years, was a 6^thdan plus master (the highest being the 8^thdan), and he had participated in and had won kendo tournaments.

13.  The Plaintiff did not parry or avoid the strikes which were in quick succession.  As a result of the blows, the Plaintiff felt dizzy and disorientated.  Shortly afterwards, he had difficulty raising his arm.  The neck and shoulder pain he suffered was such that he had to consult a doctor the next day.  There is no dispute that he has suffered significant injury.  This led eventually to proceedings being commenced.

Issues

14.  There was no dispute that the Defendant owed the Plaintiff a duty of care.  Clearly they had a teacher-student relationship and what was being taught was a martial art involving physical force on the body.  The issues before the judge were (a) whether that duty of care included a duty to take reasonable precautions to ensure that students like the Plaintiff are not injured in the kendo lesson; and (b) in relation to lessons for beginners such as the Plaintiff, a duty to warn of the risk of injury that may be encountered by them during kendo lessons and in practising kendo generally, and if so, whether those duties had been breached.

15.  As far as (a) was concerned, there was no real dispute that there was a duty to take reasonable precautions, but the Defendant argued that it had not been breached.  As far as (b) was concerned, the Defendant’s case was that since the risk of injury was obvious, there was no duty to warn even beginners like the Plaintiff.  It was common ground that no warning had been given, so if there was a duty, it had clearly been breached.

16.  The judge found that the Defendant had both duties and that both had been breached.

Appeal

17.  The same issues were argued on appeal.  Although these are discrete issues, there may be some common features in the two duties.  If there was a duty to warn of the risk of injury, the failure to warn may in itself be a failure to take reasonable precautions to avoid injury.  In the present case the judge accepted the Plaintiff’s evidence that if he had been warned of the risk of injury to his neck or any other serious injury, he would have stopped participating in kendo lessons and would not have suffered the injury (para. 74).

Discussion

18.  Taking issue (b) first, the Defendant submitted that the risk of injury was so obvious that there was no duty to warn.  I do not agree.  The sport was said to be suitable for all ages including elderly persons and youngsters.  The judge found that the bogu gave a false sense of security (para. 49) and when the Plaintiff had practised striking his instructors in previous lessons, there were no complaints of pain from the instructors (except perhaps when the strikes missed the bogu).  As for the Plaintiff himself, that was the first occasion he had received strikes on the men and those made by fellow-students were merely light taps.  That was all that the Plaintiff knew.

19.  The Defendant on the other hand knew that when a person is struck on the men for the first time, he would suffer dizziness, vibration and discomfort.  However the Defendant did not warn the Plaintiff about this.  He said that other instructors would have told the Plaintiff in previous lessons but there was no evidence of this, nor was it put to the Plaintiff in cross-examination (para. 49).

20.  In my view the Defendant’s duty to warn the Plaintiff of the risk of injury was all the more important because of the force that he used.  The Plaintiff had only experienced light taps from fellow-students earlier on during that lesson.  In the absence of a warning, the Plaintiff was caught unprepared and did not brace himself when he was struck by the Defendant with the same amount of force the Defendant (a hardened 25-year 6^thdan veteran) used in practising. 

21.  In my view the judge was clearly entitled to find that the Defendant should have warned the Plaintiff of the risk of injury before striking him.  The Defendant’s failure to do so put him in breach of his duty of care.

22.  This brings me to issue (a).  In my view, the Defendant failed to take reasonable precautions not only when he failed to warn the Plaintiff of the risk of injury, but also by striking the Plaintiff with the amount of force that he used.  The Plaintiff was a beginner who had only started experiencing light taps on the men during that lesson.  The Defendant should not have treated him as being on a par with his usual practising partners.  He should have started his demonstration by using a reduced amount of force, which he could build up gradually if the demonstration required and as the student “toughened up”.  For a hardened kendo master to strike a beginner for the first time with the same amount of force he used for practice at the 6^thdan without warning him of the risk of injury is in my view clearly a failure to take reasonable precautions.       

23.  In my view the judge was also entitled to find that the Defendant’s duty of care included a duty to take reasonable precautions to ensure that the Plaintiff was not injured in the kendo lesson and that duty was also breached.

Order

24.  For these reasons the appeal must be dismissed with costs to be paid by the Defendant to the Plaintiff.

CACV 336/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 336 OF 2008

(ON APPEAL FROM HCPI 56 OF 2005)

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REASONS FOR DECISION

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Security for costs of appeal

1.  The plaintiff successfully obtained judgment from Sakhrani J against the defendant for the sum of $260,000.  The claim arose out of injuries sustained by the plaintiff when he was hit on the head by the defendant who was his instructor in a Kendo lesson.  Kendo is a Japanese martial art practised with a bamboo sword. 

2.  The defendant lodged an appeal against the judgment.  The appeal is scheduled to be heard on 27 March 2009.  The plaintiff applied for security for costs of the appeal in the sum of $570,000 against the defendant.

Special circumstances

3.  The Court may on special circumstances order an appellant to provide security for the costs of the appeal. 

Difficulties in enforcement

4.  It has been held by the English Court that the categories of special circumstances are not closed and if the conduct of the appellant demonstrates that the respondent may have difficulties in enforcing the costs order, then the Court may consider imposing security for costs against the appellant.  Such conducts may be demonstrated by the appellant trying to evade payment of the judgment or costs order that had been made against him in the court below.  In the unreported English decision of Don King Productions Inc. v. Warren and others, judgment of the English Court of Appeal (Civil Division) dated 19 November 1998 Robert Walker L. J., following the approach of Mr Registrar Adams of the English Court of Appeal in the case of Clansmen Sporting Club Ltd (t/a St. Andrews Sporting Club of Glasgow) and Another v. Robinson dated 1 April 1996, stated that

‘Security for costs is very much a practical matter and not a paper exercise.  The court is entitled to look not only at net wealth as shown by the balance sheet, but also at the practicalities of extracting costs from an unsuccessful appellant.’

5.  Para. 59/10/30 of The Hong Kong Civil Procedure 2009 Vol. 1 also stated that

‘The Court of Appeal will order security for costs upon proof (or in some cases upon a presumption) that the respondent will be likely to encounter undue delay or be put to undue expense in enforcing any order for costs in respect of the appeal (A Bank v. B, unreported, 1996).  Examples of security being ordered under this new head of special circumstances are: where the nature of the only asset(s) available to meet the costs of the appeal is such that enforcement may be expensive or protracted (e.g. shares in a private company or an appellant’s undivided share in a house where the person entitled to the other share is not a party to the appeal), or where the appellant’s conduct indicates that he is likely to resist enforcement of any costs order.’

My view

6.  The rationale for imposing security for costs of the appeal is to ensure that a successful respondent to an appeal would be able to recover his costs from the security in the event that the appeal is dismissed.  Proceeding on such a basis, then clearly the ambit of special circumstances should not be confined only to the traditional ones like that of impecuniosity of the appellant.  The likely problem of recovering the costs in the light of the existing difficulties of enforcing court orders due to the evasion by the appellant is a relevant factor to be taken into account in terms of special circumstances. 

Difficulties in enforcing judgment

7.  The plaintiff claimed that he has encountered difficulties in enforcing the judgment against the defendant : the defendant ignored his request for payment despite demands.  Further the plaintiff was required to commence enforcement proceedings against the defendant by obtaining an order for oral examination dated 26 November 2008.  A statutory demand dated 2 December 2008 was served on the defendant on 3 December 2008. 

8.  The plaintiff was further unable to locate the defendant at the addresses stated in the business registration particulars of his business.  The plaintiff had instructed a private investigator to locate the defendant.  When the private investigator telephoned the defendant, the defendant refused to disclose his business address.  After the defendant had mistakenly believed that he had hung up the telephone, the investigator overheard him saying that he intended to cut his business telephone and to continue to evade the plaintiff. 

Present situation

9.  As to the alleged difficulty in enforcing the judgment, as it turned out, there was a dispute between the parties after the judgment was given as to whether the judge had ordered interest against the defendant.  Although the clerk of the judge had informed the plaintiff that the matter should be dealt with by way of further application, the plaintiff did not make such an application before the judge to clarify the position. 

10.  Whatever might have happened in terms of enforcement and also what the defendant said after the telephone conversation, the fact remains that the defendant who is pursuing the appeal as of right had paid up the judgment sum on 31 December 2008.  This is inconsistent with the act of a person who is determined to evade enforcement proceedings against him.  The plaintiff was further able to serve the order for examination personally on the defendant at Queen Elizabeth Stadium where he taught Kendo lessons.  Although it is said that the plaintiff may not be able to locate the defendant once he ceases to teach there, the fact remains that the defendant is a Hong Kong resident, has carried on business for many years in Hong Kong and is the President and Chief Instructor of the Hong Kong Kendo Association. 

11.  On the facts of this case I am not convinced that special circumstances have been demonstrated.  This being the case, it is not necessary for me to consider the merits of the defendant’s appeal to see whether the discretion should be exercised or not.

Conclusion

12.   Accordingly the application was dismissed with costs to the defendant.