WONG GILES v. DONOWHO SIMON CHRISTOPHER AND ANOTHER

HCPI 1046/2014

[2020] HKCFI 1053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1046 OF 2014

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DECISION ON COSTS

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Dismissal of P’s claim and the costs order nisi

1.  On 16 April 2020 (the “Date of the Judgment”), I handed down my Judgment (the “Judgment”) dismissing P’s claim against both D1 and D2.  I make a costs order nisi (the “Order Nisi”) that D1 and D2 shall have the costs of the action (but excluding at this stage the costs of and relating to D1’s Counterclaim, which costs I reserve, as the Counterclaim has been stayed), including the costs I reserved on 11 July 2019.  The costs are to be taxed if not agreed.  I also gave certain directions on any application for variation which parties may make.

Offer to settle, and the Sanctioned Payment

2.  A number of matters have now been revealed to me:

(a)  Offer to settle on 28 March 2018:

(i)  on 28 March 2018, Ds through D1’s solicitors (Messrs Tanner De Witt, (“TDW”) issued a letter to P’s legal advisers (the “29-3-2018 WP Letter”).  The letter was issued on a without prejudice basis save as to costs;

(ii)  therein, Ds said inter alia that P had failed to establish that he fell on the night of 9/10 January 2014.  But to avoid the expense and waste of management time that protracted litigation would entail, Ds offered to pay the amount of HK$600,000 in full and final settlement of both the High Court Action and the LT Proceedings;

(b)  the Sanctioned Payment:

(i)  Ds on 19 September 2019 made a sanctioned payment in the sum of HK$1,500,000 (the “Sanctioned Payment”) in settlement of P’s Claim and D1’s Counterclaim;

(ii)  The Notice of Sanctioned Payment was accompanied by another without prejudice letter (save as to costs) issued by TDW.  Ds referred therein to the 29-3-2018 WP Letter and repeated inter alia that P had not produced any evidence other than self-serving statements showing that that he had indeed fallen on the night of the incident.  Ds said again that the Sanctioned Payment was made to save time and costs;

(iii)  The last date for acceptance without leave was 17 October 2019 (the “Cut-off Date”);

(iv)  P did not accept the Sanctioned Payment.

Parties’ applications

3.  All parties have applied to vary the Order Nisi.  I have directed that the applications be dealt with on paper, and have further given directions on the filing of submissions. 

4.  P’s application (“P’s Summons”) was for an order that:

(a)  the costs of and occasioned by the late discovery of Noise Log Set C[1], including all costs thrown away as a result of the adjournment of the trial on 30 October 2019, be paid by D1 to P (§1); and

(b)  the costs of and occasioned by the filing of D2’s witness statement (“D2/WS”) be paid by D2 to P (§2).

5.  D1 by summons (“D1’s Summons”) seeks an order:

(a)  either that:

(i)  P shall pay on an indemnity basis all of D1’s costs (except those of the Counterclaim, but including the costs reserved on 11 July 2019), with certificate for counsel (as a matter of caution), to be taxed if not agreed (§1.(A)i.);

(ii)  P shall pay interest on the following costs at the enhanced interest of 10% above the judgment rate:

(1)  all of D1’s costs incurred up to and including the Cut-off Date, from the Date of the Judgment until payment (§1.(A)ii.);

(2)  D1’s costs incurred post Cut-off Date, from 18 October 2019 until payment (§1.(A)iii.);

(b)  or that:

(i)  P shall pay on a party and party basis all of D1’s costs incurred up to and including the Cut-off Date (except those of the Counterclaim, but including the costs reserved on 11 July 2019), with certificate for counsel (as a matter of caution), to be taxed if not agreed (§1.(B)i.);

(ii)  P shall pay on an indemnity basis D1’s costs incurred post Cut-off Date, to be taxed if not agreed (§1.(B)ii.);

(iii)  P shall pay interest on those costs (ii above) from 18 October 2019 until payment at the enhanced interest of 10% above the judgment rate (§1.(B)iii.);

(c)  and payment out of the Sanctioned Payment (§2.).

6.  D2 first took out a summons for variation on 29 April 2020 for certain variations.  He on 4 May 2020 took out another summons to amend that first summons.  I grant the application to amend.  No prejudice to P arises therefrom.  I make no order as to costs in that regard, as I see no costs consequence from that application to amend.

7.  By the amended summons (“D2’s Amended Summons”), D2 seeks an order similar to that being sought by D1.

8.  In respect of the applications by D1 and D2:

(a)  Given his non-acceptance of the Sanctioned Payment and my dismissal of his claim, P agrees:

(i)  to pay Ds’ post Cut-off Date costs on an indemnity basis, to be taxed if not agreed;

(ii)  to pay interest at an enhanced rate on the costs incurred post Cut-off Date;

(b)  P resists the other aspects of Ds’ applications;

(c)  The issues between the parties are therefore:

(i)  whether P should pay Ds’ costs incurred up to and including the Cut-off Date on an indemnity basis (or just on the usual party and party basis);

(ii)  whether P should pay enhanced interest on Ds’ costs incurred up to and including the Cut-off Date, and if so, from when and at what rate;

(iii)  what is the enhanced interest rate on the costs incurred post Cut-off Date between the Cut-off Date and the Date of the Judgment;

(iv)  what is the enhanced interest rate from the Date of Judgment until payment; and

(v)  costs of these applications for variation.

P’s Summons

9.  In relation to Noise Log Set C:

(a)  Noise Log Set C is in my view clearly relevant.  D1 ought to have disclosed it at the discovery stage together with the other 2 sets;

(b)  D1 does not dispute the fact that as a result of the late disclosure of Noise Log Set C in the course of the trial, a short adjournment was occasioned. It is submitted on his behalf that the duration of the trial has not however been affected thereby, and P has not suffered any prejudice[2];

(c)  In my view, P’s legal advisers were justified in seeking time to consider the newly disclosed documents.  Whether there has been any costs consequence as a result of the adjournment of the hearing is not for me to speculate at this stage;

(d)  I have considered In re Elgindata Ltd (No.2) [1992] 1 WLR 1207 and Hung Fung Enterprises Holdings Ltd & Anor v Agricultural Bank of China [2012] 3 HKLRD 679 cited to me.  I am of the view that it was the failure on the part of D1 to disclose Noise Log Set C according to the Rules which led to the adjournment.  Despite his success in defending P’s claim, I grant §1 of P’s Summons.

10.  In relation to D2’s witness statement:

(a)  On the 9^th day of the trial when D2 was scheduled to give evidence, Mr Fong informed the Court and parties that D2 was not going to testify;

(b)  Ms Chao submits that “D2’s action in filing and serving D2’s W/S in 2015 and then suddenly abandoning it 4 years later in the middle of the trial wasted a considerable amount of time and effort”[3]. Details of certain suggested wasted time and efforts are provided;

(c)  I agree with Mr Fong’s submissions that D2 was entitled to put P to strict proof of his case.  I see no reason why a defendant in his position might not listen first to all the oral evidence called prior to the time scheduled for him to give evidence before making, in the light of the state of the evidence then against him, a final decision whether to testify.  No authority has been cited before me that D2 could not do that, or that if he does, he should not only be deprived of the related costs but also be ordered to bear those of P’s, despite his success in defending the claim;

(d)  I dismiss P’s application in this regard.

Ds’ applications

11.  I consider first of all whether indemnity costs should be awarded against P.

12.  Given the Sanctioned Payment and P’s non-acceptance thereof, and given further P’s agreement to pay the post Cut-off Date costs on an indemnity basis (which I would order in any event), the principal issue in this regard is whether P should pay Ds’ costs incurred up to and including the Cut-off Date also on an indemnity basis.

13.  I have considered the authorities cited to me on the principles relevant to the award of indemnity costs.  They include Order 62 rules 5 and 28(3), Libertarian Investments Ltd v Thomas Alexej Hall (unrep, FACV 14/2012, 11 March 2014, per Riberio PJ at §6) and KJ v KMLM (unrep, HCMC 4/2010, 21 May 2014, per To J at §21).  They are not in dispute, and I do not repeat them.

14.  In my view, there are some special and unusual features in the present case which justify this Court in ordering indemnity costs against P.

15.  I have in the Judgment set out in full my view on P’s unreliability and lack of credibility as a witness.  I have explained why I dismissed P’s claim. 

16.  I highlight specifically one aspect of the case.  I have found that P was untruthful about the reasons for his installation of what he described in P/WS#1 as “a stereo system”, which has turned out to be 14 speakers purposely installed to make life a misery for his neighbours.  Noises and vibrations were created for at least 16 hours per day every day for several years since April 2010 to punish and retaliate.  I have described P’s conduct in some details in the Judgment.  P clearly lied in P/WS#1 when he said that “my wife and I have been careful to ensure that the level of sound from the stereo system would be at a reasonable volume and that it would only be used within reasonable hours”.

17.  What he was untruthful about do not just go to matters of background or credibility.  Whilst economical on the face of pleadings and his witness statement with details of the 14 speakers he set up and the true reasons therefor, he portrayed himself as a victim of Ds’ violence and abuses.  He claimed to have been scared, agitated, stressed or shaken by the knocking and kicking of his door by D1 and D2 on the night in question.  He described further how he said he was stressed and disorientated by the Subject Outage, and how he, whilst in that state, fell.  He proceeded to adduce not just evidence on alleged physical harm, but also psychiatric evidence in an attempt to establish a case for substantial damages based on “psychiatric sequalae”.  In fact, until the stage when closing submissions were made, his case remained that his subjective state of mind and perceptions were sufficient to support a case of him having suffered PTSD against Ds, even if this Court was to find that he had not fallen.

18.  For reasons which I have explained in the Judgment, I rejected P’s evidence and account that he was in any way scared, agitated, stressed or shaken by the knocking and kicking of his door by D1 and D2.  With his set-up of the 14 speakers and the noises and disturbances they had been causing to P’s neighbours, P would have known full well why Ds were outside his door and what they were demanding.  I have found that despite the knocking and kicking, P remained belligerent and vindictive.  I also do not accept his account that he was stressed or disorientated by the Subject Outage. 

19.  The important point here is however not just that I have rejected P’s claim in those regards.  Of equal significance, and perhaps more so on the question of costs, is P’s conduct in running his case whilst economical with details of the 14 speakers he set up and the true reasons therefor.  Such conduct is in my view disgraceful.  The way he prosecuted his claim constitutes an affront to the court.

20.  Ps’ conduct in his prosecution of the case should be deterred.

21.  Added to P’s conduct in the prosecution of the case is his non-acceptance of Ds’ offer to settle made via the 29-3-2018 WP Letter.

22.  Having considered all the circumstances, I order him to pay Ds their costs of the action (save at this stage D1’s Counterclaim for reasons previously stated and including the reserved costs on 11 July 2019) incurred both pre and post Cut-off Date on an indemnity basis.

23.  I proceed to consider the question of enhanced interest rate.

24.  I have considered the authorities cited to me, which include OMV Petrom SA v Glencore International AG [2017] 1 WLR 3465. 

25.  As held in OMV, the court has a discretion to include a non-compensatory element to the award, but the level of interest awarded must be proportionate to the circumstances of the case.

26.  In respect of the costs incurred up to and including the Cut-off Date, they are not within the scope of Order 22 rule 23.  I have for the reasons set out above decided to order P to pay those costs on an indemnity basis.  In my view, it is not proportionate to further award enhanced interest rate.  I refuse Ds’ applications in this regard.  Interest is to be paid on the costs incurred up to and including the Cut-off Date on the usual basis.

27.  In respect of the costs incurred post-Cut-off Date:

(a)  They are within the scope of Order 22 rule 23;

(b)  I have considered Order 22 rule 23(5) and 23(6).  I note that the rule does not make 10% the starting point, but makes it the maximum;

(c)  P chose not to accept the Sanctioned Payment;

(d)  I take into account also P’s conduct in prosecuting the case as set out above;

(e)  In all the circumstances, I do not consider it unjust to order enhanced rate;

(f)  I repeat my observations above in respect of P’s conduct.  Deterrence is called for;

(g)  In all the circumstances, I order that P should pay interest on Ds’ costs incurred post Cut-off Date at the enhanced rate of 10% above judgment rate, from 18 October 2019 to actual payment.

Disposition

28.  In respect of P’s Summons:

(a)  I allow §1;

(b)  I dismiss §2.

29.  In respect of D1’s Summons:

(a)  I allow §1(A)i.;

(b)  I dismiss §1(A)ii.;

(c)  I allow §1(A)iii.;

(d)  I make no order in respect of §1(B);

(e)  I allow §2 in relation to payment out of the Sanctioned Payment.

30.  In respect of D2’s Amended Summons:

(a)  I allow §1(i).  Though not expressly mentioned in §1(i), I clarify that the costs reserved on 11 July 2019 are included;

(b)  I make no order in respect of §1(ii);

(c)  I dismiss §2(i);

(d)  I order that P do pay enhanced interest at 10% above the judgment rate on D2’s costs incurred on or after 18 October 2019, from 18 October 2019 until the actual date of payment.  I otherwise make no order in respect §2(ii);

(e)  I allow §3 in relation to payment out of the Sanctioned Payment.

Costs

31.  None of the parties gets all they ask for.  Nor any of them loses all.  In the circumstances, I simply order that there be no order as to costs in respect of all the costs-related applications.

Written Submissions by Ms Jolie Chao and Ms Stephanie Hung, instructed by Haldanes, for the Plaintiff

Written Submissions by Tanner De Witt for the 1^st Defendant

Written Submissions by Mr Frederick Fong, instructed by Joseph Leung & Associates, for the 2^nd Defendant

HCPI 1046/2014

[2020] HKCFI 603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1046 OF 2014

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JUDGMENT

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Introduction

1.  The parties and their respective families were occupants of three different apartments inside Block EF of Pearl Gardens at no 7 Conduit Road (“Pearl Gardens”).  The plaintiff (“P”) and his wife (“P’s Wife”) occupied Apartment F4 (“F4”) on the 4^th floor, the 1^st defendant (“D1”), his wife (“D1’s Wife”) and their children occupied Apartment F5 (“F5”) on the 5^th Floor, and the 2^nd defendant (“D2”), his wife (“D2’s Wife”) and their children occupied Apartment F6 (“F6”) on the 6^th. F6 is directly above F5, which in turn is directly above F4.  The parties were therefore neighbours in the vertical sense. 

2.  The parties had a history of disputes over noise disturbances.  Part of the complaints related to television and radio noises emanating from within F4.  P said that on the late evening of 9 January 2014, his door was banged on and kicked at hard.  He said that he was stressed and agitated thereby.  He said that the power supply of F4 then got switched off (the “Subject Outage”).  He said that either or both of the defendants did those.  P further claimed that in the resulting darkness, and whilst stressed and disorientated, he tripped and fell inside F4, and had sustained back injuries.  He also said that he suffered from certain psychiatric problems as a result (notably Post Traumatic Stress Disorder (“PTSD”)).

3.  This is P’s personal injury claim against the defendants for damages.

The background facts

4.  Some background facts are not in dispute.  I set them out as follows.

5.  P was born on 10 December 1940.  He suffered from a motorcycle accident in around 1969.

6.  P has, and P’s Wife had until March 2019 when she passed away, been occupying F4 since 1982.  They became the registered owners of F4 in 1984.

7.  As I have observed above, F4 is on the 4^th Floor of Pearl Gardens and is directly beneath F5 on the 5^th Floor.  F5 is in turn directly beneath F6 on the 6^th Floor.

8.  The internal layout of F4, F5 and F6 is the same.  Each has a connecting living room and dining room, 1 master bedroom and 3 additional bed or study rooms.  Each has a front door and a backdoor.  There is separately a maid’s room, which is close to the backdoor. 

9.  At time material to this case, P and his wife had two live‑in domestic helpers.  They were Ms Lina Bernardino Esplana (“Esplana”) and Ms Dorjee Choden Dupka (“Dupka”).

10.  In 2004, D2, D2’s Wife and their 2 sons moved into F6.  D2 and D2’s Wife have been the joint registered owners of the same since April 2004.

11.  In May 2005, New Modern Limited (“New Modern”) purchased F5.  D1 and D1’s Wife are directors of New Modern, with D1’s Wife being its sole shareholder.  D1, D1’s Wife and their 3 children moved into F5 in the end of August 2005.

12.  In 2009, D1’s Wife gave birth to their youngest child.  The family of 6 continued to live in F5.

13.  The management company of Pearl Gardens at the material time was called Synergis (“Synergis”).

14.  Whilst the parties do not agree on the time when they first started to do so, there is no dispute that some time since about 2010/2011, there had been complaints from D1’s Wife to both Synergis and the police about noises from F4, and from P about noises from F5.  At a later stage, D2 also started to complain about noises from F4.  Divers correspondence ensued which have been produced before me. 

15.  The disputes between the parties over noises went on for several years. Multiple complaints were made to the police about noises emanating from F4, resulting in the police calling upon F4 on many occasions.

16.  In the words of Ms Chao, counsel for P, “it is undisputed that the parties have grudges arising from noise complaints against one another prior to the Incident”[1].

17.  On 9 January 2014 at around 11:15pm, D2 went to the front door of F4. He knocked on the front door and kicked at it.  Shortly afterwards, D1 also appeared there and knocked on the door loudly.  D2 pressed the doorbell at 11:53pm.  Parties do not agree as to the reason of that visit.  It is the case of D1 and D2 that P was making loud noises inside F4 at that time and they were there demanding him to stop.  P’s case is that he was not making any noise then and that the defendants were there to harass him.  I will come back to this factual dispute.

18.  Whatever the purpose of the visit, it is common ground that P did not open the door at that stage.

19.  At around midnight of 9/10 January 2014, the Subject Outage took place.

20.  In his witness statement, D1 admitted that he and D2 turned off the master electricity switch of F4 so as to put a stop to the noise nuisance which he said P was causing at that time.  D2 in his Defence denied having switched off the mains of F4.  But whether or not D2 was involved, the Subject Outage did occur.

21.  It was during the Subject Outage when P allegedly tripped in darkness and sustained injury to his lower back.

22.  Thereafter, the police, D1, D2 and D2’s Wife arrived (or arrived again) outside F4.  P opened the front door of F4.  What exactly happened are in dispute, but it is common ground that the police talked to P, D1 and D2 separately.  P did not make any complaint to the police about the alleged trip and fall.  Both P and D1 made a statement and signed in the notebook of a police officer (“PC13453”), which contained also PC13453’s account of the night.  The police left around 2:00am/2:30am on 10 January 2014.

23.  At around noon of 10 January 2014, a workman from Chun Fai repaired the doors of P’s Apartment in the presence of P.  D1’s Wife observed P standing at the front door of F4 when the works were being carried out.

24.  In May 2014, D1 and D2, along with some other claimants, commenced Land Tribunal Proceedings against P and P’s Wife under Lands Tribunal Management Application No 136/2014 (the “LT Proceedings”).  The Incorporated Owners of Pearl Gardens and the owner or resident of F3 (the unit on the 3^rd Floor directly beneath F4) were amongst those other claimants.

25.  In about March 2014, because of the ongoing noises issues, the Donowhos moved out of F5 into a leased flat. 

P’s Wife

26.  P’s Wife passed away in March 2019.  I have previously[2] acceded to P’s application and granted him leave to file and serve his Wife’s affirmation dated 22 August 2018 (“P’s Wife/Aff”) and to rely on the same as evidence at the trial.

Application by P to rely on the affirmation of Dupka

27.  On the first morning of the trial, and supported by the affirmation of Ma Wan Hin dated 18 October 2019 (“Ma”, a solicitor with Haldanes), P sought leave under Order 38, rule 2 to rely on the affirmation dated 14 April 2016 of Dupka (“Dupka’s Affirmation”) without calling her. 

28.  The application was supported by D1, but opposed by D2.

29.  Dupka was from India.  At the time material to the events leading to the present claim, she was a domestic helper employed by P and his wife.  P originally intended to call her as one of his factual witnesses.  A witness statement (dated 9 October 2015) had been signed by her and filed for that purpose. 

30.  In about April 2016, Dupka left P’s employment and was about to go back to India.  In anticipation of the eventuality of she not coming back to Hong Kong for the trial, Dupka made an affirmation (ie Dupka’s Affirmation) in substantially the same terms as her witness statement.

31.  According to Ma, he in September 2019 contacted Dupka to try to confirm that she would be coming to Hong Kong for the trial.  He said that it was then when Dupka for the first time indicated to him that she would be busy and that it would be difficult for her to leave her family in India during October and November 2019.  Ma said further that “As an alternative, over the last week, I had tried to explore the possibility of [Dupka] giving evidence via video‑link in her hometown.  However, [Dupka] did not confirm if such arrangement would be feasible”.

32.  Dupka’s evidence would be relevant to, amongst others, one important issue, namely whether D2 was responsible for the Subject Outage.  The main power switch of F4 was somewhere near its back entrance.  Dupka claimed[3] that immediately before the Subject Outage, she saw both D1 and D2 there.  She said that she saw them through the door‑viewer of the back door of F4.  She described certain acts on the part of D1 and D2, immediately after which all the lights in F4 went off.

33.  According to his Defence[4], D2 “did not switch off the electricity supply as alleged ”.  According to D2’s witness statement[5], “I was not involved whatsoever in any of the power outages at [P’s] Apartment as alleged ”.

34.  On the other hand, according to D1’s witness statement[6], it was indeed he who together with D2 switched off the mains of F4 and caused the Subject Outage.

35.  Whether D2 was responsible for the Subject Outage is an important factual issue.  It is probably the most important issue in so far as D2’s defence is concerned.  Its resolution will be dependent upon my assessment of the respective credibility of D1 and Dupka.

36.  I refer to Ma’s affirmation in support.  No satisfactory explanation has been provided as to why video‑link could not be arranged.  It further appears that arrangements to secure Dupka’s attendance was not actively pursued until September this year.

37.  I refer to §38/2/1 of the Hong Kong Civil Procedure 2020, Vol 1,that:

“ It is not practicable to make such an order [under O.38, r.2] where the evidence will be strongly contested and its credibility depends on the court’s view of the witness…”

38.  In my view, and in the circumstances of this case, it would be grossly unfair to D2 if I were to admit Dupka’s Affirmation without affording D2 the chance to cross‑examine Dupka.  On the other hand, the effect of Dupka’s absence is much less stark when it comes to P’s case given D1’s case and his expected evidence.

39.  Having considered the matters as they were on the 1^st day of the trial, and on balance, I refuse P’s application.

P’s pleaded case on liability

40.  According to the Endorsement of Claim on the Writ:

“ [P’s] claim is for damages (including aggravated damages), together with interest thereon and costs, for personal injury, loss and damage for a serious back injury (with psychiatric sequalae) sustained by [P] as a result of deliberate, malicious, reckless or negligent act and/or breach of duty on the part of his neighbors, namely [D1] and/or [D2], in switching off the electricity mains serving [F4] around midnight between 9 and 10 January 2014 thereby causing a power outage as a result whereof [P] tripped and fell over a rug while moving or making his way in darkness inside the apartment and in a state of stress and/or disorientation during the power outage.”

41.  According to P’s Statement of Claim:

 (a)  §2 thereof, that:

“ [Ps’] action herein is for damages for a serious back injury (with psychiatric sequalae) sustained at about midnight between 9 and 10 January 2024 as a result of the deliberate and malicious act of [D1] and/or [D2] in switching off the electricity mains serving [F4] thereby causing [P] to trip and fall over a rug while moving or making his way in darkness (‘the Incident’).”

 (b)  P and P’s Wife at the material times occupied F4, whilst D1 and D2 with their respective families each occupied F5 and F6 (§§3‑5);

 (c)  Since 2005, P has been disturbed by noises resembling those of uncontrolled screaming of children and loud and sharp thuds against the ceiling of P’s Apartment (§6);

 (d)  The disturbances exacerbated upon the birth of D1’s youngest child in 2009 (§7);

 (e)  By early 2011, the disturbances had culminated in various complaints made by P to the manager of the building and cross‑complaints from D1 “for alleged excessive noises from the television and/or radio (which are denied) emanating from [F4]” (§8);

 (f)  “In about December 2013, [D2] joined [D1] in makingcomplaints to the manager of the Building and the police against[P], which complaints were vehemently denied by [P]” (§9);

 (g)  There had been between December 2013 and 9 January 2014 four power outages at F4 (the “4 Earlier Outages”) (§10);

 (h)  Those complaints and cross‑complaints have become the subject matter of a separate Lands Tribunal matter (§11);

 (i)  §§12 to 24, that:

“ 12. On 9 January 2014 at about 11:15 pm, [P] was watching television in the living room of [F4] …whereupon D2 appeared at the front door banging on and kicking at it very hard with associated utterance of verbal abuse by way of vituperative language directed at [P] demanding that the door be opened.

13. By reason of the stress and discomfort visited upon [P] as a result of the hostility of and/or associated with [D2’s] act as pleaded in Paragraph 12 above, [P] did not attend the front door in the hope that [D2] would come to his senses and desist from continuing.

14. Thereafter, at around midnight of 9 January 2014, when the banging and kicking and verbal abuses stopped after some 40 minutes, [P] rose from his seat in the living room with a view to making his way to the front door to check whether [D2] had left.

15. Unbeknown to [P] at the material time, [D1] and [D2] had at this juncture gathered at or near the back door of [F4], where the control of the electricity mains was [sic] located at a height of about 9 feet, to deliberately and maliciously switch off the electricity supply to [F4] thereby causing a power outage ([‘the Subject Outage’]) and rendering [F4] in a sudden state of total darkness.

16. It is averred that the [Subject Outage] occurred while [P] was still stressed and agitated by the earlier banging and kicking on the front door and verbal abuses as pleaded in Paragraph 12 hereinabove.

17. In the circumstances, [P] was stressed and disorientated by the [Subject Outage] and, while he was making his way to the front door in total darkness, his foot was caught by a Persian rug in the living room thereby causing him to stagger and fall and sustain injury to his lower back.

18. It is averred that the power outages on the four previous occasions (as pleaded in Paragraph 10 hereinabove) and the [Subject Outage] (causing the Incident) were a serial of premeditated and concerted acts perpetrated by [D1] and [D2] or, in the alternative with the consent or connivance of [D1] and/or [D2] …

19. It is eminently foreseeable to [D1] and [D2] that their deliberate act of switching off the electricity mains of [F4] at around midnight between 9 and 10 January 2014 as pleaded in Paragraphs 14 and 15 hereinabove (‘the Deliberate Act’) and/or the [Subject Outage] caused thereby would be likely to expose [P] (and the occupants at [F4]) to the risks of injury while moving or making their way in darkness and/or a state of stress and/or disorientation associated therewith.

20 In the premises, it is averred that the Deliberate Act and/or [Subject Outage] was calculated and/or intended by [D1] and/or [D2] to cause injury, stress, discomfort and inconvenience to [P].

21. Further and/or in the alternative, it is averred that [D1] and/or [D2] were being reckless as to whether injury would be caused to [P] by the Deliberate Act when they well knew (or ought to have known) of the real and substantial risks attendant upon the sudden [Subject Outage] rendering [P] in a state of stress and/or disorientation while moving or making his way in darkness.

22. It is the duty of each of [D1] and [D2] not to cause or inflict any injury upon [P] whether negligently, intentionally or recklessly.

23. Wrongfully and in breach of the duty (as pleaded to in Paragraph 22 hereinabove), [D1] and [D2] inflicted (or caused to be inflicted) upon [P] injury by their Deliberate Act when they well knew (or ought to have known) it was likely to result in injury being sustained by [P] …

24. By reason of the matters aforesaid, [P] has sustained injuries and suffered loss and damage.

PARTICULARS OF INJURIES

(1) Prior to the Incident, [P] had enjoyed good health and led an active life commensurate with his age;

(2) After the Incident, [P] had onset of back pain which became manifested in the following few days;

(3) On 17 January 2014, due to persistent back pain, [P] attended the Outpatient Department of the Hong Kong Adventist Hospital (‘the Hospital’) whereupon:

(i) Clinical examination revealed that the area of pain extended from the upper lumbar to the sacral regions;

(ii) X‑ray of the lumbar spine showed an anterior compression fracture of the L3 vertebral body with moderate reduction of anterior vertebral height[7];

(iii) [P] was diagnosed with fracture of the lumbar spine with lumbar support and medication prescribed; and

(iv)  As a result of the Incident, [P] has suffered Post‑Traumatic Stress Disorder.”

D1’s Defence and Counterclaim

42.  On 22 December 2014, D1 filed his Defence and Counterclaim.

43.  According to D1’s Defence and Counterclaim:

 (a)  He and his wife in May 2005 acquired F5 through New Modern.  They moved in with their 3 children in August 2005 [§6];

 (b)  D1’s Wife gave birth to their 4^th child in 2009 [§8];

 (c)  Between early 2010 and March 2014 when they moved into alternative accommodation, D1 and his family had been suffering from frequent and substantial disturbances of noise from F4 [§9].  Thirty‑four paragraphs of Particulars have been pleaded thereunder.  Such disturbances included Chinese style music with cymbals and drums, noises from TV and radio every day from 7:00 in the morning until 11:00 late in the evening (and sometimes before and beyond), vibrations felt inside F5 from noises emanated from F4, and sometimes even loud blasts.  I reproduce some of the particulars here:

“ i) In early 2010, Chinese style music with cymbals and drums (the ‘Cymbal Music’) emanating from [F4] woke [D1] and his wife close to 7:00am every morning including weekends. The Cymbal Music continued for approximately one hour every morning.

ii) After one month of such disturbance [D1’s Wife] requested the manager of the Building at the time to approach [P] and request that more soothing music be played, if any.

iii) The Cymbal Music nevertheless continued, commencing at exactly 7:00am every morning.

iv) Subsequently, the Cymbal Music was replaced by that of a TV or radio which would switch on and start emanating noise at exactly 7:00am every morning and would switch off 16 hours later at 11:00pm exactly (the ‘TV or Radio Noise Disturbance’). However, the TV or Radio Noise Disturbance ceased between noon on Tuesdays until late afternoon on Thursdays.

v) [D1’s Wife] was informed by the guards of [Pearl Gardens] that [P] and his wife visited China every week normally from Tuesday to Thursday.

vi) [D1’s Wife] again asked the manager of [Pearl Gardens] to liaise with [P] and ask him to turn down the volume of the TV or radio. [P] sent the manager of [Pearl Gardens] a letter (the ‘Letter’) stating that, according to his inquiry with the Hong Kong Police, he is entitled to play music in any manner as he wishes from 7:00am to 11:00pm...

vii) Following the Letter, the TV or Radio Noise Disturbance continued to emanate from [F4] from 7:00am to 11:00pm every day (but now also including each Tuesday and Thursday).

viii) Vibrations from the TV or Radio Noise could be felt coming through the floor from [F4] into [F5].

…

xxi) During June 2013, [D1] rearranged [F5] so that one of his daughters were able to sleep in the study room as the TV or Radio Noise Disturbance was affecting her severely. She had missed many days of school as a result of tiredness and stress.

…

xxvi) On 10 December 2013, [D1’s Wife] called the Hong Kong Police at 7:00am due to the TV or Radio Noise Disturbance. [D1’s Wife] again called the Hong Kong Police at 11:45pm on the same day because the Master Bedroom Noise continued after 11:00pm. That night, [D1] and his wife were only able to sleep by 1:20am.

xxvii) On 11 December 2013, [D1] and his wife were again woken by the TV or Radio Noise Disturbances at 6:00am and they called the Hong Kong Police at 6:30am.

xxviii) On 12 December 2013, [D1] and [D1’s Wife] were once again woken up by the TV or Radio Noise Disturbances and again called the Hong Kong Police. On the same day at 7:00pm, the TV or Radio Noise Disturbances were so loud that [D1’s] 4‑year‑old son was not able to sleep. The Hong Kong Police was again called at around 8:00pm.

xxix) During December 2013, in addition to the TV or Radio Noise Disturbances, [D1] and his family experienced many extremely loud but short blasts of noise lasting two minutes or less (the ‘Blast’). Each Blast could be clearly heard in every room of [F5] and were heard at all hours of the day including overnight. Each Blast would severely disrupt [D1] and his family’s sleep and ability to live normally.

   xxx)     On 27 December 2013, [D1] and his wife were woken up by a Blast at 12:02am. At around 6:45am, extremely loud radio music was played for 8 minutes and woke up [D1] and his family …”

 (d)  The disturbances had been reported to Synergis and the police on a lot of occasions, but did not subside;

 (e)  The Deliberate Act was not admitted.  Any allegation of malicious intent or recklessness was specifically denied;

 (f)  The alleged fall by P was not admitted (§14);

 (g)  As a result of the noise disturbances caused by P, D1 and his family could no longer live in F5.  Alternative accommodation was rented.  He counterclaimed for the costs involved.

44.  Pursuant to the Order of Master Leong of 3 February 2015, the Counterclaim has been stayed pending the outcome of the LT Proceedings. Details of the LT Proceedings are not before me, but it appears that at some stage, those proceedings were in turn stayed pending the result of P’s claim herein.  The net result is that D1’s Counterclaim remains stayed, and this Court is not called upon to adjudicate on it at this stage.

D2’s Defence

45.  D2’s Defence is dated 23 December 2014.  According to the same:

 (a)  Since around January 2013, P had played his television and music system at very loud volumes till late at night.  D2 had made numerous complaints to Synergis and the police against P for such noise disturbances (§§9(a) and (b));

 (b)  D2 admitted that he “appeared at the front door of [F4] and knocked on the front door with force and kicked at it a couple of times demanding [P] to cease noise nuisance shortly before midnight on 9 January 2014” (§12);

 (c)  D2 denied having switched off the mains of F4, or otherwise involved in any of the power outages as alleged (§3, §12, §15 and §18);

 (d)  The alleged fall was not admitted, and P was put to strict proof thereof (§17);

 (e)  D2 denied that P has suffered any injury (§20).

The Noise Logs

46.  At different stages, D1’s Wife kept written records of the noises that were emanated from F4 (collectively the “Noise Logs”).  3 sets have been produced:

 (a)  One set covers the period from 11 May to 14 June 2013 (“Noise Log Set A”);

 (b)  Another set, which is typewritten, covers the period between 9 December 2013 and 20 February 2014 (“Noise Log Set B”).  It bears the heading:

“ A record of extremely loud noise from Flat F4

   (Note: This excludes the daily radio noise heard from 7:00 am‑11:00 pm by F5 and F6)”

 (c)  The third set (“Noise Log Set C”) is handwritten.  It was only produced in the course of the trial.  According to D1’s Wife, Noise Log Set C were the records from which she prepared Noise Log Set B.

47.  The Noise Logs were not scientific records of the noises sought to be recorded in terms of their decibel levels.  But the intensity of the noises as they were heard inside F5, and the dates and times when they were heard were recorded and described in words. 

The issues on liability

48.  The parties could not agree upon a list of issues on liability.  The version before me at the commencement of the trial was revised on the 5^th day. Even that version was not fully agreed.  They are as follows:

(1)  Whether the Incident happened as claimed by P on 9 and 10 January 2014;

(2)  Whether D1 and D2 deliberately banged and kicked the doors of F4, and[8] switched off the electricity mains around midnight between 9 and 10 January 2014, causing the alleged Subject Outage;

(3)  If the answer to (2) is ‘Yes’, then did the Deliberate Act and/or the alleged Subject Outage cause:

(a)  P’s foot to get caught by a Persian rug in the living room, while moving or making his way in darkness and/or in a state of stress and/or disorientation, causing him to stagger and fall, as alleged; and/or

(b)  P to be in a state of stress and/or disorientation, as alleged;

thereby causing him to sustain injury (the “Incident”);

(4)  Did D1 and D2 owe P a duty not to cause or inflict any injury upon P whether negligently, intentionally, or recklessly?

(5)  Were D1 and D2 in breach of their duties by committing the Deliberate Act?

(6)  If the answer to (5) is ‘Yes’, whether D1 and D2 knew (or ought to have known) it was likely to result in injury being sustained by P?

(7)  Whether the alleged Incident was caused and contributed by the negligence on the part of P himself, and if so, by how much?

49.  Despite (more or less) agreed, those issues, in particular Issue (3), require some careful analysis.

50.  Issue (3) is split up into 2 limbs.  I call for the sake of convenience limb (3)(a) the “Stagger and Fall Limb”, and limb (3)(b) the “Stress & Disorientation Limb”.

51.  As drafted, Issue (3) suggests that the Stress & Disorientation Limb can be a free‑standing limb of P’s claim so that, even if the Court is to reject the Stagger and Fall Limb, P’s claim still has something to stand on.

52.  That however is not consistent with P’s pleaded case:

 (a)  I have reproduced the General Endorsement of the Writ above, that “[P’s] claim is for damages … for personal injury, loss and damage for a serious back injury (with psychiatric sequalae) sustained by [P]” (emphasis added);

 (b)  I have reproduced §2 of the Statement of Claim above.  Similarly, it was pleaded that “[P’s] action herein is for damages for a serious back injury (with psychiatric sequalae)…”;

 (c)  I have reproduced §17 of the Statement of Clam above.  That P was allegedly “stressed and disoriented ” was pleaded as the state P was allegedly in while he staggered and fell.  Those conditions were not pleaded to support by themselves any injury;

 (d)  I have reproduced §24 of the Statement of Claim above.  While PTSD has been raised, it was particularized in §24(3)(iv) under §24(3), which §24(3) related to P’s attendance of Hong Kong Adventist Hospital due to “persistent back pain”;

 (e)  There is in my view force in the submissions of Mr Hingorani[9], counsel for D1, that P’s case “relies only on serious back injury as the genesis” of the psychiatric sequalae.

53.  In the course of her opening submissions, and upon my invitation for clarification, Ms Chao informed the court that even if P had not fallen and had not suffered any back injury, his alleged psychiatric sufferings could still support his claim for damages.

54.  However, in the course of her closing submissions, and again upon the court’s invitation for clarification, Ms Chao fairly accepted that P’s pleaded case was linked to the alleged fall, and if there had been no fall, even if the medical evidence suggests any psychiatric issues like PTSD or adjustment disorder on P’s part, such medical evidence cannot independent of any fall and back injury support P’s claim.

55.  In my view, given the way P’s case has been pleaded, that is clearly correct.

The witnesses

56.  The factual witnesses were:

 (a)  For P’s claim:

 (i)  P gave evidence himself.  He adopted his 2 witness statements dated 9 October 2015 (“P/WS#1”) and 16 October 2017 (“P/WS#2”) as his evidence in chief, and was cross‑examined;

 (ii)  Mr Hingorani objected to the admissibility of certain parts of P/WS#2.  I have admitted them on a de bene esse basis.  I will come back to this matter;

 (iii)  Esplana was called.  She adopted her witness statement of 9 October 2015 (“Esplana/WS”) as her evidence in chief, and was cross‑examined;

 (iv)  As mentioned above, I have previously granted P leave to rely on P’s Wife/Aff without calling her;

 (v)  I have for reasons set out above refused P’s application to rely on Dupka’s witness statement;

 (vi)  Dr Wong Chee Wing was called (“Dr CW Wong”).  He was the psychologist whom P had consulted.  He was called as a factual witness to produce and explain certain reports, notes and records which he had prepared and kept.

 (b)  For D1’s defence:

 (i)  D1 gave evidence.  He adopted his 2 witness statements dated 8 October 2015 (“D1/WS#1”) and 27 December 2017 (“D1/WS#2”) as his evidence in chief, and was cross‑examined;

 (ii)  Ms Chao objected to certain parts of D1/WS#2.  I have again admitted them on a de bene esse basis.  I will similarly come back to this later;

 (iii)  D1’s Wife gave evidence.  She adopted as her evidence in chief her witness statement dated 8 October 2015 (“D1’s Wife/WS”) and her affirmation filed on 25 July 2014 for the purpose of the LT Proceedings.  She was cross‑examined;

 (iv)  D1 called Mr Richard Newburn.  He was the case manager of LGS Matrix Hong Kong Ltd responsible for the coordination and supervision of a surveillance operation conducted on P on 13, 14 and 15 January 2015.  The admissibility of certain parts of Mr Newburn’s evidence were challenged. I have again admitted them on a de bene esse basis.  I will similarly come back to them.

 (c)  For D2’s defence:

 (i)  Although he has filed a witness statement dated 25 August 2015, he in the end did not testify before me.  The court was only informed of his decision not to give evidence several days into the trial;

 (ii)  He called no other factual witness.

57.  In respect of expert witnesses:

 (a)  2 specialists in orthopaedic surgery were called: Dr Lam Chi Keung, Johnson (“Dr Lam”) was engaged by P, and Dr Baldwin Chan (“Dr Chan”) by the defence; and 

 (b)  2 specialists in psychiatry were called: Dr Wong Chung Kwong (“Dr CK Wong”) was engaged by P, and Dr Benjamin Lai (“Dr Lai”) by the defence.

Credibility of witnesses

58.  When considering the credibility of a witness, I remind myself of the importance of considering the inherent likelihood or unlikelihood of the witness’ evidence, the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence.  I need to consider the totality of the evidence.  I warn myself against attaching undue weight on demeanour, though demeanour is obviously relevant when considering credibility.

P’s credibility

59.  As I have analysed above, whether P had fallen as alleged and pleaded is the most important issue in so far is liability is concerned.

60.  D2 in his Defence admitted that shortly before midnight on 9 January 2014, he appeared at the front door of F4, knocked on the front door with force, and kicked at it a couple of times.

61.  The Subject Outage occurred.  D1 has admitted that in D1/WS#1.

62.  The fact that on that night, the door of F4 had been banged on and kicked at, and that the Subject Outage did occur however do not mean that P had indeed fallen as alleged.

63.  P was alone inside the living room of F4 when he allegedly fell.  P’s Wife did not witness that.  According to her, P did not tell her about the fall until 2 or 3 days later.  According to P’s Wife/Aff:

“ 5. During the night of 9 January 2014, I was in the master‑bedroom of [F4] watching television. I heard some banking noises around 11:15pm and thought it was one of the children in [F5] making another disturbance. However, the noises persisted so I decided to check what was happening after about five minutes. When I opened the hallway door to the living room, my husband was lying on the sofa watching television. He told me that ‘the guy from [F6]’, i.e. [D2] … was pounding on the front‑door. My husband then told me that [D2] would get tired eventually and leave so we should just ignore him. I went back to the master bedroom and resume watching television. After the lights suddenly went out at around midnight, I entered the living room with a small torch. My husband was about to call the management office and I shone the torch on the telephone to help him with his call. Almost immediately afterwards, the police arrived at the front‑door.

   6.     Two or three days later, I saw my husband taking Panadol tablets and I asked him what was wrong.  It was only then that he told me he had tripped over the Persian rug in the living room during the power outage … and was feeling back pain.  When the back pain did not improve a week later, my husband decided to seek medical help at the Hong Kong Adventist Hospital.”

64.  Nor did Esplana witness the alleged fall.

65.  Hence, in deciding whether P had fallen as alleged, it is important to consider and assess P’s evidence carefully, which I have done.  P’s credibility is crucial to the issue.

66.  In the discussions below, I will refer to some of the clinical notes and reports prepared by the doctors or experts.  Ms Chao submitted[10] that P should not be faulted for words used by the doctors.  The meaning of certain words might have been lost in translation (P using mostly Cantonese during consultations, whereas the notes and reports were written in English).  To some extent I accept that.  I will confine my consideration to clinical notes and reports on matters which could only have come from P and which are beyond niceties of languages which might have been affected by translation.

67.  I set out in the paragraphs below matters which are in my view material to P’s credibility.

68.  Absence of formal complaint until February 2011:

 (a)  In P/WS#1[11], P described how he and his wife had, since 2005 when the Donowhos moved in, regularly been disturbed by uncontrolled screaming of children and loud and sharp thuds against the ceiling of F4.  He said that he complained about the noise disturbance to the security guards on a number of occasions.  He even sought advice from the police.  He said he and his wife simply put up with it.  He described how the problem got worse in about 2009 when D1’s youngest child was born.  He said that noise of a crying baby, screams and loud thuds became increasing frequent.  He said that noises came in the middle of the night and there were many a night when he and his wife got woken up;

 (b)  Despite the alleged noise disturbances, there had however been no formal written complaint from P;

 (c)  P said[12] how he and his wife chanced upon D1 and his wife in about 2008 at the lift lobby, that his wife told them the noise issue, and that D1 and his wife “simply turned their face and moved away in such a way to suggest that it was not worthy of a response”.  But despite that, there was still no formal written complaint;

 (d)  He said that “the noises emanating from [F5] became so unbearable that I was forced to devise solutions to try to block them out myself ”.[13] He said in about April 2010, “out of desperation”, he had false ceiling installed.  He said[14] that additionally he and his wife “install a stereo system on the ceiling to try to help shield and/or muffle the noises emanating from [F5]”.  As I will explain later, P in fact did something much more drastic.  But relevantly on this issue of written formal complaint, there had still been none before he did what he did in April 2010;

 (e)  The first written complaint was filed on 7 February 2011[15]. But that was made apparently in response to a letter dated 1 February 2011 from Synergis relating to noise complaints made against P himself;

 (f)  In that letter, P wrote that “I am only complaining now because the noises are getting worse by the day and passed the tipping point of my tolerance”.  That is quite inconsistent with what P has said at §16 of P/WS#1 that by April 2010, the noises from F5 had already become “so unbearable”;

 (g)  In my view, the absence of any written formal complaint by P until February 2011 (and even that was in response to a complaint against himself) suggests that P has grossly exaggerated the so‑called noise nuisance from F5.

69.  P was untruthful about the reasons for his installation of “a stereo system”:

 (a)  In §16 of P/WS#1, P talked about the installation of an 8‑inch false ceiling inside F4 in about April 2010.  He said further at §§17 and 18 that:

“ 17. Additionally, we installed a stereo system on the ceiling to try to help shield and/or muffle the noises emanating from [F5]. The stereo system was automatically programmed to broadcast radio news from 7:00 am to 11:00 pm every day. However, my wife and I have been careful to ensure that the level of sound from the stereo system would be at a reasonable volume and that it would only be used within reasonable hours. As far as I am concerned, we are merely exercising and protecting our right to the enjoyment of [F4].

   18. Fortunately, those solutions worked quite effectively.  Whilst the Noise Disturbance were still clearly audible, the false ceiling and stereo system were able to block out some (though not all) of the noises from [F5] and made them less sharp during the daytime, and the false ceiling at least helped my wife and I to sleep without interruptions on most nights.”  

 (b)  During cross‑examination, when asked about the manner in which the speakers were mounted and why they were not set facing him if he liked the music, he said that he liked music muted;

 (c)  P was economical with the truth in relation to the details of the so‑called “stereo system”.  He is also untruthful when he said that the reason for its installation was to shield and/or muffle the noises from F5 (at least that was not the main reason).  I explain;

 (d)  What P described as “a stereo system” in P/WS#1 was in fact 7 sets of stereo systems, each with 2 speakers attached (making a total of 14) all facing upwards within inches from the ceiling of F4.  He gave the following details of the systems when testifying:

 (i)  In about April 2010, he installed in F4 a total of 7 stereo sound systems.  3 of them were set up at the living/dining areas, 1 in the master bedroom, and 1 in each of the 3 other bed or study rooms;

 (ii)  Each set comprised what P described in evidence as a “console”, which had the capabilities of playing both radio and compact discs.  Each could be remotely controlled so that the volume level could be tuned up or down with a remote control;

 (iii)  When purchased, each of the systems came with two speaker boxes that were meant to be connected with cables to the console for sound;

 (iv)  Each of the speaker boxes was open on one side from which sound was meant to travel through (the “Sounding Face”);

 (v)  Only pictures of two of the 7 systems have been produced.  I refer to the one at [C2/1122]:

(1)  It shows the system installed at the living area.  One sees from the photo a built‑in vertical cabinet that lined the wall.  Towards the top of that vertical cabinet at false ceiling height sits the console.  Next to the console is a rectangular housing or cabinet (the “Cabinet Housing”).  It was purposely‑built, and was affixed to both the built‑in wall cabinet and the false ceiling;

(2)  The Cabinet Housing was made of wood, and was not perforated;

(3)  According to P, the two speaker boxes which came with the console were both put inside the Cabinet Housing.  They faced up, and that the Sounding Face was only about 2 to 3 inches from the concrete ceiling.  There was no insulation between the Sounding Face and the concrete ceiling.  The gaps between the speaker boxes and the inner walls of the Cabinet Housing were however lined with the styrene foam (which came with the console) and acted as some sort of sound insulation;

(4)  The photographs at [C2/1123] and [C2/1124] show one of the two systems at the dining area.  One sees a similar set‑up with a purposely Cabinet Housing;

(5)  All the speakers at the living and dining areas, and most inside the bed or study rooms, similarly faced upwards towards the ceiling;

 (e)  The number and placement of the speakers are entirely inconsistent with the claimed purpose of shielding off or muffling noises from F5;

 (f)  The fact that the 7 consoles were set to turn on automatically every day for 16 hours from 7am to 11pm is also inconsistent with those claimed purposes.  Not even P himself was suggesting that the noises from F5 were continuous (as opposed to intermittent baby crying, screaming etc) which required to be muffled by 14 speakers which kept firing for 16 hours every day;

 (g)  P and his wife habitually went back to the Mainland every Tuesday and came back on Thursday.  The consoles were allowed to be on, and speakers kept firing, even during those days when P and his Wife were in the Mainland;

 (h)  The fact that the speakers were sealed into Cabinet Housings with their Sounding Faces within inches from the ceiling (and with no insulation between the Sounding Faces and ceiling) suggests that the false ceiling, Cabinet Housings and speakers were purposely designed, constructed and placed to maximize disturbances, not just by sound but also by vibration, to those inside F5;

 (i)  I have reproduced above the relevant paragraphs of D1’s Defence.  He pleaded that vibrations were felt inside F5 from noises emanated from F4.  On the evidence, given the placement of the 14 speakers, that was in my view perfectly plausible;

 (j)  On the other hand, the fact that the gaps between the speaker boxes and the inner walls of the Cabinet Housings were lined with styrene foam suggests that P wanted he and his wife inside F4 to be least disturbed by the noises from the speakers;

 (k)  In the course of cross‑examination, P revealed that at some stage when P said the occupants of F3 (the Apartment directly underneath F4) “ganged up” with the others against him in the LT Proceedings, 1 or 2 downward facing speakers had been added;

 (l)  In the course of cross‑examination, P changed his explanations for the installation of the sound systems.  He:

 (i) admitted that it was his premeditated plan to make life a misery for his neighbours;

 (ii) agreed that he made unbearable noises for his neigbhours to retaliate and to punish for the emanation of noises from F5;

 (iii) accepted that the noises from 7am to 11pm were meant to be offensive to his “enemies”;

 (iv) the systems were left on when he was away to the Mainland between Tuesdays to Thursdays because it was inconvenient to change the automatic settings, and that “it was meant to be offensive”;

 (v) Sometimes, the noises from his 14 speakers were extended beyond 7am to 11pm as retaliation if the occupants at F5 had done anything, in P’s words “silly”, and that the noises would be extended as extra punishment for them;

 (m)  His original explanations of installing the false ceiling and “a stereo system” to “help shield and/or muffle the noise” were clearly untruthful;

 (n)  What he has said in P/WS#1 that “my wife and I have been careful to ensure that the level of sound from the stereo system would be at a reasonable volume and that it would only be used within reasonable hours” was clearly a lie;

 (o)  His answer given during cross‑examination that he liked music muted from speakers enclosed in Cabinet Housings was misleading, if not also an outright lie;

 (p)  In answer to a letter from Synergis[16], P said that he left the systems on even when he was out “to deter intruders”. That answer was also untruthful.

70.  His evidence that he was not making loud noises on 9 January 2014 beyond 11:00pm inherently improbable:

 (a)  It is D1’s case, and D2’s pleaded case, that P was making noises beyond 11:00pm on 9 January 2014, and that they went to the front door of F4 to demand P to stop the noise;

 (b)  It is on the other hand P’s case that the stereo systems were off by 11:00pm, that he was only watching television, and that the volume was low.  Upon cross‑examination by Mr Fong, counsel for D2, as to why D2 would have continued to bang on P’s door for 40 minutes if he (P) had in fact stopped the noises, P said that the whole thing was fabricated, that a group of people including the new manager was trying to intimidate him.  He said specifically that:

“ This is a case of intimidation. These people got together, planned ahead to intimidate me, tried to cow me, bully me some time that evening, so that I would be so cowed so scared that I wouldn’t do anything. This is pre‑planned and doesn’t matter if there’s noise or not after 11:00. It is not related ok? The whole thing was like a scheme try to intimidate people.”

 (c)  But the defendants did not just go down to bang on P’s door to, in P’s words, intimidate him.  D1’s Wife said that their children could not go to bed as the noise did not go off.  She called the police.  D2 came down to F5 and said that they had called the police too, and that their children could not sleep either.  D1’s Wife, when asked by Ms Chao as to why D1 and D2 went down to F4, gave the further evidence that they had to take action, they could not go to bed, they were exhausted, they wanted to go to bed, they wanted the noise to be off, and had to do something.  They called the police, and had done everything they possibly could, and so thought in desperation: let’s go and knock on P’s door, if nothing else to vent their frustration of living with all those noises over that period.  They wanted to knock on the door and tell P to switch off the noise;

 (d)  Ms Chao relied on one inconsistency between Noise Log Set C and Set B.  In the former, there was an entry against 9 January 2014 which suggested that the daily 7:00am to 11:00pm ceased at “11:08”.  That entry was however not in Noise Log Set B, which instead recorded that “Radio didn’t go off as normal at 11pm”.  Ms Chao submitted further that that was inconsistent with D1 and D2 going to knock on the door of F4 at 11:15pm;

 (e)  But as the heading of Noise Log Set B says, it excluded the daily radio noises.  I note further that in Noise Log Set C, D1’s Wife recorded “Loud blasts at ~11:45, 11:55, 11:57”;

 (f)  I do not find the inconsistency relied upon by Ms Chao material;

 (g)  Much more material in my view is the inherent probability (or improbability) of the parties’ respective cases on this point. The defendants’ cases that D1 and D2 were there to demand P to stop the noise is believable, and is materially consistent with the Noise Logs.  Their actions of calling the police are also consistent with that.  I find on the other hand P’s allegation that D1 and D2 all of a sudden concocted a plan to “cow” him and intimidate in the middle of the night so inherently improbable as to be totally unrealistic.  This is particularly so bearing in mind that the noise disputes between the parties had by then gone on for several years.

71.  Inconsistent versions of events immediately prior to the alleged fall:

 (a)  I have reproduced §§12, 13 and 14 of the Statement of Claim above:

 (i) P pleaded that he was at the time of the knocking and kicking on the night of 9 January 2014 watching television in low volume;

 (ii) he did not plead that D2 was there complaining about the noise from his radio;

 (iii) In §13, P pleaded that he “did not attend the front door in the hope that [D2] would come to his senses and desist from continuing”, and it was when the banging and kicking and verbal abuses had stopped after some 40 minutes when he “rose from his seat in the living room with a view to making his way to the front door to check whether [D2] had left”;

 (b)  In Dr CW Wong’s clinical notes on the consultation session that took place on 11 April 2014 (“11/4/14 Clinical Notes”)[17], P was recorded to have told him that:

“ 6/F guy pounded on his front door to complain about the noise. He was sleeping & not making sound. Did not open the door”;

In Dr CW Wong’s Psychological Treatment Progress Report dated 28 July 2014, at §2.1 thereof[18], it was reported that:

“ The material incident took place around late evening on 9 January 2014. [P] was at home when he heard a loud pounding on his door by someone who complained about the noise of his radio. He did not open the door, but called the Building Management instead.”

Whilst in those parts of the clinical notes and report, P was recorded to have told Dr CW Wong that D2 was there complaining about the noises, P did not mention the complaint in his Statement of Claim, who claimed that he was then not making any noises;

 (c)  In P/WS#1, he said, not pleaded in his Statement of Claim, that he had in fact gone to the front door to check while the banging and kicking were happening, that:

“ 34. At around 11:15 pm on 9 January 2014, I was watching television in the living room of [F4]. My wife was in the master‑bedroom. Suddenly, someone started banging at the front‑door and kicking it very hard. The person also started yelling abusive language and demanded that the door be opened.

35. I got up and went to the front-door. I looked through the door‑viewer and saw that it was [D2] outside. I heard [D2] call me a ‘tortoise with retracted head’ … and other rude things. I also saw a security guard was outside but the security guard merely observed what was happening.

   36. The banging, kicking and yelling scared and agitated me and I did not know what to do.  I went back to the television, hoping that it would all stop soon, but the banging, kicking and yelling continued.  My wife, [Esplana] and [Dupka] also heard the noise.”

 (d)  There, in P/WS#1, he did not describe how D2 looked when he allegedly checked through the door‑viewer.  He still did not mention that D2 was complaining about the noises from his radio;

 (e)  In the Joint Psychiatric Report of 2 November 2015, Dr CK Wong and Dr Lai reported that in §22 that:

“ At around 11 pm on 9 January 2014 he heard door banging and door kicking sound. He went to the door to check and saw the tenant of the sixth floor of his building at the door. The man looked aggressive and was loud in his voice. He felt as if the man meant to kill him. He did not open the door to avoid any possibly physical contact. He returned to the sofa to watch television …”

 (f)  The glaring inconsistency as to whether P had amidst the banging and kicking gone to the door to check through the door‑viewer, and whether D2 was there complaining about the noise significantly undermine P’s credibility.

72.  Different versions as to how P allegedly fell:

 (a)  I have reproduced the Endorsement of Claim in the Writ, wherein it was pleaded that P “tripped and fell over a rug”;

 (b)  I have reproduced §17 of the Statement of Claim wherein it was pleaded that P’s “foot was caught by a Persian rug in the living room thereby causing him to stagger and fall and sustain injury to his lower back”;

 (c)  In §§39, 51 and 52 of P/WS#1, he claimed that;

“ 39. In the darkness, and whilst I was stressed and disorientated by the [Subject Outage], I tripped over the edge of a Persian rug in the living room, staggered and fell onto the floor (‘the Incident’). As a result of the Incident, I felt immediate lower back pain but did not pay much attention to it as I was soon pre‑occupied b subsequent events at the front‑door. I was able to get myself back up after falling.

…

51. Immediately after the Incident, I felt lower back pain. In the few days following the Incident, I took some Panadol tablets and the pain was bearable. Unfortunately, the pain later became increasingly serious.

52.    On 17 January 2014, owing to increasingly serious and persistent back pain during the preceding two days, I consulted Dr Ho Kai Chi Kenneth … at the Hong Kong Adventist Hospital …”

 (d)  In §24(3)(ii) of the Statement of Claim, the alleged injuries were particularized as being “an anterior compression fracture of the L3 vertebral body”;

 (e)  That alleged L3 Fracture was in fact an old injury.  As Dr Lam and Dr Chan explained in their Joint Medical Assessment & Report dated 24 September 2015:

“ 4. One issue that needs to be addressed is whether the L3 fracture was a recent fracture or an old fracture.

   5. Both doctors consider that the MRI scan performed soon after the injury DID NOT reveal bone edema, acute soft tissue swelling at L3 region, or haematoma — features present in cases with ACUTE spinal fracture.  After careful consideration of the medical evidences available, although [P] denied old injury to his low back area and denied any previous back pain, both doctors agree that the L3 fracture was an old fracture.”

 (f)  When the police attended F4 that night, P did not complain to them that he had tripped or staggered and fallen in the darkness caused by the defendants.  Nor was that any complaint that he had suffered back injury;

 (g)  P did not complain to his wife that he had tripped or staggered and fallen until she allegedly asked him “two or three days later”;

 (h)  The absence of any complaint is particularly surprising giving P’s evidence in P/WS#1 that he “felt immediate lower back pain”;

 (i)  But in Dr CW Wong’s 11/4/14 Clinical Notes, it was recorded, amongst others, that P felt no pain because he “fell in the carpet”:

“ - Fell down, got up immediately.

- Back pain.[19]

- He Fell down.

- Felt no pain. ∵ fell in the carpet”[20] (emphasis added)

 (j)  This should also be contrast with §39 of P/WS#1 where he claimed that he fell on the floor, which is quite different and potentially more serious;

 (k)  In their Joint Psychiatric Report of 2 November 2015[21], Dr CK Wong and Dr Lai reported that:

“ 29. After the police left he felt numbing pain at the area around the coccyx. He did not feel much discomfort before the police left. He took two tablets of panadol and hoped he would sleep better. He meant to sleep but could not. He felt angry.

…

32. The numbing pain at the area around the coccyx continued.  He took panadol one tablet in the morning, one tablet at noon and two tablets before sleep.  He carried on his daily life as usual.  He returned to Mainland China from Tuesday and Thursday as usual.  The incident occurred on a Thursday.  While in Mainland China, he felt severe pain at the coccyx.  When he returned to Hong Kong he went to see his family doctor in Adventist Hospital.”  

 (l)  But according to the Medical Report dated 25 March 2014 of Dr Kenneth Ho of the Hong Kong Adventist Hospital[22]:

“ [P] first presented to the Outpatient Department on the 17^th January 2014 with a history of having fell down on the 9^th January and injured his back. He complained of low back pain of 2 days duration.” (Emphasis added)

 (m)  That complaint of “pain of 2 days duration” is quite inconsistent with P’s allegations that the pain had been continuous since the alleged fall, even taking into account of what he said in §52 of P/WS#1 that the pain became “increasingly serious and persistent…during the preceding two days”;

 (n)  Most important of all, the descriptions of the fall in the Statement of Claim and P/WS#1 were different from P’s demonstration of the alleged fall which he was asked to perform in the course of cross‑examination.  Parties have not been able to agree fully upon a verbal description of the demonstration. Ms Chao’s description of that demonstration at §87 of her written closing submissions is in my view a fair one, that:

“ …after the [Subject Outage], as he was walking, his legs were already feeling weak, he stumbled slightly on the rug, and because his legs were weak, he slid down into a squat and fell onto his buttocks.”

 (o)  On that version, it was an alleged case of legs going weak, stumbled slightly and the body sliding down into a squat.  It was not a case of “tripped and fell over a rug” (as pleaded in the Endorsement of Claim), nor that P’s “foot was caught by a Persian rug in the living room thereby causing him to stagger and fall and sustain injury to his lower back” (as pleaded in the Statement of Claim), and definitely not a case of he having “tripped over the edge of a Persian rug in the living room” (as claimed in P/WS#1) (emphasis added).

 (p)  P is the only person who can tell the Court how he fell.  He did not complain to the police when they were at F4 on that night.  He did not contemporaneously complain to his wife.  He did not seek medical treatment until 17 January 2014.  He pleaded an injury which was an old one.  He has come up with different versions as to how he allegedly fell even on the face of pleadings and his witness statement.  All these inconsistencies in respect of this most important aspect of his case suggests that P is neither a credible nor reliable witness.

73.  P as a witness:

 (a)  I have observed P closely when he was giving evidence.  He was aggressive, belligerent, hostile, and highly argumentative.  He was vindictive.  He himself said that the installation of the 7 stereo systems were meant to retaliate and to punish, and the noises they created were meant to be offensive.  Those attributes are not conducive towards his reliability as a witness;

 (b) Ms Chao accepted[23] that “in the course of his testimony, P made a number of offensive remarks and was highly temperamental”.  She submitted that P’s behaviour should however be:

“ considered in light of P’s old age, the long standing grudges arising from the noise disputes between him and D1’s family (for which he was still angry about), his psychiatric history, and the high stress environment of giving evidence which spanned for 4 days. It is submitted that it is understandable and not uncommon for an elderly person of P’s age and history to display similar behaviours of hyperarousal, stubbornness, irritability and anger.”

 (c)  I have considered P’s evidence and his demeanour in the light of those matters.  I however do not accept that those considerations put P in any better light as a witness.  He has little right to be angry about the noise disputes when he was admittedly the one who installed inside purpose‑built Cabinet Housings 14 speakers firing[24] within inches of and towards the F4 ceiling / F5 floor for at least 16 hours per day every day for several years since April 2010 to punish and retaliate, and when he was the one who added “1 or 2” sets of downward facing speakers when the occupants of F3 joined in the LT Proceedings.  In my view, the anger described by Ms Chao in fact further undermines P’s credibility and reliability as a witness.

 (d)  I however state again that though demeanour is obviously relevant when considering credibility, I have not given it undue weight.  The matters of primary importance remain the inherent improbability and internal inconsistency of P’s case and evidence which I have set out and explained above. 

74.  For the reasons detailed above, I conclude that P is not an honest and credible witness.  Nor is he a reliable witness.

The credibility of D1 and D1’s Wife as witnesses

75.  I have considered their evidence.  Their versions of events are inherently probable. I point in particular to their evidence that P was still making noise beyond 11:00pm on 9 January 2014, and that that was the reason why D1 and D2 went to the front door of F4.  That version of events is inherently probable.  I have explained why above.  No material external or internal inconsistencies have been demonstrated by cross‑examination.  Their evidence is further in large part and materially supported by the Noise Logs and contemporaneous correspondence.  They showed restraint when giving evidence, and their reactions were natural and spontaneous.  When it was suggested to D1’s Wife during cross-examination that there was no mat or rug inside F5 which could have muffled the noises of objects dropping onto the floor, she denied the allegation and gave the spontaneous answer that she did not like sitting on hard parquet floor when playing with children.  She denied creating any noises when up taking care of her youngest child, replying again spontaneously that her younger child was an easy baby.  She further said that when she noticed their children doing anything which might create any noise nuisance to neighbours, she would have intervened.    

76.  All in all, I find D1 and D1’s Wife to be truthful, honest and reliable witnesses.  I reject P’s evidence in so far as it contradicts the evidence given by D1 and D1’s Wife.

My findings

77.  I confine myself to the agreed issues.  On the 1^st, 2^nd and 3^rd agreed issues, I make the following findings of facts:

 (a)  P and his wife habitually went back to the Mainland on Tuesday and came back on Thursday;

 (b)  9 January 2014 was a Thursday.  As recorded by D1’s Wife in Noise Log Set B, which I accept, on that day:

“ Radio noise distinctly heard by [D1’s Wife] from 3:30 to 5 am — trouble falling asleep again

   [P and P’s Wife] return home at 2:00 pm (Mr Mak observed). Two radios turned on extremely loudly into Master Bedroom on different channels — unbearable. [D1’s Wife] had to leave the flat — could be heard in all rooms. Early evening — volume made dinner time conversation difficult.”

 (c)  The noises were from the 7 sets of stereo systems with a total of 14 speakers purposely built inside F4 in manners and for purposes which I have stated above;

 (d)  At about 6:00pm that day, the noises from F4 was loud, to the extent that conversations between the Donowhos were drown thereby.  D1’s Wife called the police.  Police officers attended F4 at about 9:30pm.  P (or his wife and his helpers) did not open the door[25];

 (e)  The radios in F4 were not switched off at 11:00pm and continued very loudly[26]. As described by D1[27], the noise remained invasive.  I specifically reject P’s evidence that he was at that stage watching television at low volume;

 (f)  D1’s children could not go to sleep because of the noise;

 (g)  D1’s Wife called the police at about 11:15pm.  D2 and his wife came to F5.  He told the Donowhos that they had called the police too, and that their children could not go to sleep either.  D2 said that he was going to go and knock on the front door of F4 and demand the radio be switched off.  He had a magazine in his hand[28]. As described by D1’s Wife in the course of her oral evidence, they thought they had to take action, they could not get to bed, they were exhausted, they wanted to go to bed, they wanted the noise to be off, and had to do something.  They had called the police, and had done everything they possibly could, and so thought in desperation: let’s go and knock on P’s door, if nothing else to vent their frustration of living with all those noises over that period;

 (h)  D1 and D2 then went down to F4.  Both of them knocked loudly on the front door.  D2 also kicked at it a couple of times.  D2 was demanding P in Cantonese to cease the noise.  Though D1 did not speak Cantonese, I accept his evidence that he got the very clear impression that that was what D2 was demanding[29]. That would be the most obvious things for D2 to have demanded given the purpose of their visit;

 (i)  In §§36 and 38 of P/WS#1, P claimed that:

“ … The banging, kicking and yelling scared and agitated me and I did not know what to do …”

“ … I was feeling increasingly stressed and rather shaken by the events …”

 (j)  I specifically reject P’s evidence and account that he was in any way scared, agitated, stressed or shaken by the knocking and kicking of his door by D1 and D2.  I draw the inference and find that P knew why D1 and D2 were knocking on his door.  He knew that they were asking him to cease the noise. If he were in any way scared, agitated, stressed or shaken, he could have and should have ceased the noise.  He chose not to.  P explained in evidence that the stereo systems could be remotely controlled.  Had he wanted to turn them off or the volume down, he could easily have done so.  He remained belligerent and vindictive.  As recorded by D1’s Wife in Noise Log Set C, which I accept, P caused “Loud blasts at ~11:45, 11:55, 11:57”.  D1’s Wife explained in her evidence that the sign “~” means approximately;

 (k)  As described by D1 at §33 of D1/WS#1, which I accept:

“ The Noise Nuisance remained very loud. We were all upset that [P] would not turn off his radios as it was now past 11:30 pm. We all wanted to put a stop to the Noise Nuisance so our families could get some sleep. Since it was clear that [P] wasn’t going to stop the Noise Nuisance emanating from [F4], [D2] said that he wanted to turn off the electricity to [F4] but there was a cover to the master switch. [D2] and I decided to go down and take a look.”

 (l)  D1 and D2 did go down to where the mains switch of F4 was and together successfully switched it off;

 (m)  As to what happened to P inside F4 during the Subject Outage, only P could tell this Court.  I have explained why I have found that P is not an honest, credible or reliable witness.  I do not accept his evidence in that regard.  I do not even accept that he happened to be on his feet making his way to the door when the Subject Outage occurred;

 (n)  P claimed in §38 of P/WS#1 that “soon after he got up”, the Subject Outage occurred.  He said in §39 of P/WS#1 that “whilst I was stressed and disorientated by the [Subject Outage], I tripped over the edge of a Persian rug in the living room, staggered and fell onto the floor”.  I do not accept his evidence that he was stressed or disorientated as alleged.  I further do not accept his evidence that he had “tripped over the edge of a Persian rug in the living room, staggered and fell onto the floor” as alleged.  I have explained above the glaring inconsistencies surrounding his evidence on this material issue;  

 (o)  The police later arrived at F4.  As to what happened then, I accept D1’s evidence at §§35 and 36 of D1/WS#1, that

“ 35. [P] finally opened his front door and stood in his doorway with his wife and a maid swearing loudly at me in English saying such things as ‘You fucking criminal’ ‘I will sue you for this’ ‘There’s a black mark on the door’ and ‘I’ll get you’. The Police Officer said something to [P] and his wife in Cantonese. It seemed he was trying to get them to calm down.

36. Without warning, [P] seemed to snap suddenly. He leapt towards me, with his hand raised and holding a substantial 6”‑8” long torch. I stepped back and raised my right arm to protect myself. [P] brought the torch down and the blow struck my hand with a substantial thump. Had I not stepped back and protected myself with my arm, the blow would have hit my head or face …”

 (p)  In that regard, I specifically reject P’s evidence at §41 of P/WS#1 that “I was holding a small torch at that time and, at one point, I accidentally brushed it against [D1’s] hand ” (emphasis added).  No particulars have been provided as to how his torch would have somehow “accidentally” brushed against D1’s hand;

 (q)  P did not make any complaint to the attending police officers in respect of his alleged fall or injury;

 (r)  The L3 Fracture pleaded in the Statement of Claim is an old wound;

 (s)  In the light of the fact that the L3 Fracture was an old wound, Ms Chao relied on certain soft tissue injury that was found on P.  She submitted[30] that:

“ The Ortho Experts agree that, if the Incident did happen, P did suffer from a soft tissue injury to the lower back as a result of the Incident.” (emphasis added)

 (t)  I am not satisfied that P is able to prove that “the Incident did happen”.  I am not satisfied that any soft tissue injury that might have been found on P has been proved to be related to the events that took place on 9/10 January 2014;

 (u)  I am not satisfied that P has established the “serious back injury” pleaded in Endorsement of Claim or the Statement of Claim.  I am in fact not satisfied that he has established any “back injury” arising from the events that night, serious or otherwise.  Not being satisfied with the existence of its genesis, I am therefore also not satisfied that there has been any “psychiatric sequalae” as pleaded and claimed.

The psychiatric evidence

78.  As I have recorded above, Ms Chao has accepted that P’s pleaded case was linked to the alleged fall (the Stagger and Fall Limb), and that if there has been no fall, even if the medical evidence suggests any psychiatric issues like PTSD or adjustment disorder on P’s part (the Stress & Disorientation Limb), such medical evidence cannot independent of any fall and back injury support P’s claim.

79.  On that concession, and with my findings relating to the alleged fall, the psychiatric evidence has become quite irrelevant.

80.  In any event, I have now rejected P’s evidence and account that he was in any way scared, agitated, stressed or shaken by the knocking and kicking of his door by D1 and D2.  I have found that despite the knocking and kicking, he remained belligerent and vindictive.  I also do not accept his account that he was stressed or disorientated by the Subject Outage.  As stated by Ms Chao in her written closing submissions, “[the] Psych Experts are required to base their diagnosis and assessment of P by what he says”[31], and in reciting the evidence of Dr CK Wong, “fact finding is a matter for the Court”.  This Court has now made the findings, as set out above. The Stress & Disorientation Limb in any event has nothing to stand on.

81.  Given the way P’s case has been pleaded, and given my findings on facts above, there is no need for me to consider in any detail the psychiatric evidence of the specialist psychiatrists.  I in fact should not as their opinion was based upon P’s account which I have now rejected. Having heard the evidence, I simply express the following views on the issue of PTSD:

 (a)  Dr CK Wong, the specialist psychiatrist called by P, opined that P suffered from PTSD;

 (b)  Psychiatrists, in making diagnosis of PTSD, are recommended to apply the “Diagnostic Criteria for Posttraumatic Stress Disorder According to Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition” (“DSM-V”);

 (c)  Whilst DSM‑V contains a number of criteria, the satisfaction of Criterion A is essential.  Even other criteria may have been satisfied, it matters not if Criterion A is not satisfied.  Dr CK Wong agreed with this; 

 (d)  Criterion A of DSM‑V is, inter alia:

“ A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:

1. Directly experiencing the traumatic events(s).

…

4. Experiencing repeated or extreme exposure to aversive details of the traumatic events(s) (e.g. first responders collecting human remains; police officers repeatedly exposed to details of child abuse).”     

 (e)  As summarized by Ms Chao at §218 of her written closing submissions, Dr CK Wong opined that Criterion A(1) was satisfied, and that “it is important to note that from a psychiatric view, this criterion is satisfied upon the subjective perception of P, even if it may not be realistic”.

 (f)  I do not accept that the events that took place on the night of 9/10 January 2014, whether alone or considered in conjunction with the 4 Earlier Outages, any alleged earlier pounding of the door at F4, and other related matters, could objectively be regarded as any traumatic event in the DSM‑V sense.  I would also have rejected any allegations on the part of P that he subjectively thought them to be so.

 (g)  If necessary, I would have rejected Dr CK Wong’s opinion that P had been suffering from PTSD.

The other agreed issues on liability

82.  In the light of my findings in relation to the 1^st, 2^nd and 3^rd agreed issues, the other issues are not engaged.  They have become hypothetical, and it will not be appropriate for me to rule on them in a vacuum.

Conclusion on liability

83.  For the reasons set out above, I rule against P on the issue of liability.

Quantum

84.  The quantum of damages for pain, suffering and loss of amenities, medical expenses etc is factually dependent upon the nature and severity of any injury sustained.  Given my findings above, I do not find it possible to rule on the issue of quantum in a vacuum.

85.  In his Revised Statement of Damage, P further claimed that he was an inventor, designer and entrepreneur, that he had been working on a project on the design and development of compact stair‑lifts (the “Project”), but that “[as] a result of the Incident, [P] has suffered, inter alia, restriction to his ambulation in that he could not walk up and down the stairs freely, which was essential for his work under the Project.  Further, quite apart from physical impairment, the psychological sequalae arising from the Incident including but not limited to panic anxiety symptoms have affected his sleep and mental stamina”[32]. It was then alleged that the Project had to be suspended, leading to loss of profit by way of a loss of chance in the sum of HK$5,000,000.

86.  Again, this limb of the claim is factually dependent upon the alleged “restriction on [P’s] ambulation” and the alleged “psychological sequalae”, and the extent to which they might have impacted on the Project.  I do not deem it appropriate to rule on the matter in a vacuum.

The evidence admitted on a de bene esse basis

87.  The first area of dispute related to P/WS#2 and D1/WS#2.  P/WS#2 related principally to various aspects of the Project, and D1/WS#1 D1’s reply thereto. Having heard the evidence, I rule that the contents of P/WS#2 could have been relevant to the issue of quantum, and could be taken as evidence from P based upon his own knowledge of and experience on the matters concerned.  I rule them in.  Having ruled then in, I accept Mr Hingorani’s submission[33] that D1 should be afforded the opportunity to reply on D1/WS#2 as the matters covered are ones of common sense.  I also rule them in.  Ultimately, it is a matter of weight, which has become academic given my ruling on liability.

88.  The other area of dispute relates to certain parts of Newburn’s witness statement and the surveillance report he produced.  I have viewed the video clips and the contents of the surveillance.  Whilst I find them admissible as being potentially relevant, I find them to be of little assistance. I place little weight on them, and have not relied on them when reaching my decisions above.

Disposal

89.  For the reasons set out above, I dismiss P’s claim in its entirety.

Costs

90.  I make a costs order nisi that D1 and D2 shall have the costs of the action (but excluding at this stage the costs of and relating to D1’s Counterclaim, which costs I reserve, as the Counterclaim has been stayed), including the costs I reserved on 11 July 2019.  The costs are to be taxed if not agreed.  Any application for variation should be made within 14 days from the date hereof, submission in response within 7 days of receipt, and reply within another 7 days.

HCPI 1046/2014

[2019] HKCFI 1803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1046 OF 2014

______________

______________

______________

D E C I S I O N

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The applications

1.  This is the Pre-Trial Review of the trial of this action scheduled to commence on 22 October 2019.  Apart from the usual matters that need to be dealt with during PTRs, there are before me two applications by the plaintiff (“P”):

(a)  via summons of 4 July 2019, for leave to file and serve the affirmation of Shirley Mae Leimomi Wong (“Mrs Wong’s Aff” and “Mrs Wong”) dated 22 August 2018 and to rely on the same as evidence at the trial; and

(b)  via the PTR Form dated 4 July 2019 (but otherwise subject to no summons), for an order that certain specified parts of the following affirmation and witness statements (the “ImpugnedParagraphs”) “be expunged for the purpose of the trial of [P’s]claim”:

(i)  the witness statement dated 8 October 2015 of the 1^stdefendant (“D1”);

(ii)  the witness statement and affirmation dated 8 October 2015 and 25 July 2014 respectively of D1’s wife; and

(iii)  the witness statement dated 25 August 2015 of the 2^nddefendant (“D2”).

The facts and P’s claim

2.  The facts may be briefly stated as follows.  P and Ds are neighbours in the vertical sense.  According to P’s Statement of Claim (with emphasis added):

(a)  he and his wife at the material times occupied an apartment on the 4^th floor of Pearl Gardens (“P’s Apartment”), whilst D1 and D2 with their respective families each occupied an apartment on the 5^thfloor and 6^thfloor respectively (§§3 – 5);

(b)  Since 2005, P has been disturbed by noises resembling those of uncontrolled screaming of children and loud and sharp thuds against the ceiling of P’s Apartment (§6);

(c)  The disturbances exacerbated upon the birth of D1’s youngest child in 2009 (§7);

(d)  By early 2011, the disturbances had culminated in various complaints made by P to the manager of the building and cross-complaints from D1 “for alleged excessive noises from the television and/or radio (which are denied) emanating from [P’s] Apartment” (§8);

(e)  “In about December 2013, [D2] joined [D1] in makingcomplaints to the manager of the Building and the police against [P], which complaints were vehemently denied by [P]” (§9);

(f)  There had been between December 2013 and 9 January 2014 four power outages at P’s Apartment (§10);

(g)  Those complaints and cross-complaints have become the subject matter of a separate Lands Tribunal matter (§11);

(h)  On 9 January 2014, at about 11:15 pm, whilst P was watching television in the living room, D2 “appeared at the front doorbanging on and kicking at it very hard with associated utteranceof verbal abuse by way of vituperative language directed at [P] demanding that the door be opened” (§12);

(i)  “By reason of the stress and discomfort visited upon [P] as a result of the hostility … [P] did not attend the front door …”  (§13);

(j)  At about mid-night on 9 January 2014, there was another power outage at P’s Apartment.  P avers that it was caused by D1 and D2 “deliberately and maliciously” switching off the powersupply to his apartment (§15).  He further avers that “the PowerOutage occurred while [P] was still stressed and agitated by the earlier banging and kicking on the front door and verbal abuses as pleaded in Paragraph 12 hereinabove” (§16);

(k)  “In the circumstances, [P] was stressed and disorientated by the Power Outage and, while he was making his way to the front door in total darkness, his foot was caught by a Persian rug in the living room thereby causing him to stagger and fall and sustain injury to his lower back.” (§17);

(l)  The power outages were “a serial of premeditated and concertedacts perpetrated by [D1] and [D2] or, in the alternative with the consent or connivance of [D1] and/or D2” (§18);

(m)  It is “eminently foreseeable” that the acts perpetrated by D1 and D2 “would likely expose [P] … to the risks of injury while moving or making their way in darkness and/or in a state of stress and/or disorientation associated therewith” (§19);

(n)  “In the premises, it is averred that the Deliberate Act and/or Power Outage was calculated and/or intended by [D1] and/or [D2] to cause injury, stress, discomfort and inconvenience to [P]” (§20).  Recklessness is then pleaded as an alternative.

3.  In P’s witness statement dated 9 October 2015, P sets out the evidence he proposes to give during the trial in relation to those prior conflicts between him and the defendants—see §§9 – 24.  He has therefore put forward his version of the events.  I note in particular what he has stated at §23, that:

“ I maintain that any sound coming from the stereo system was at a reasonable volume and not excessive. The stereo system was intended purely to be defensive measures for the purpose of shielding and/or muffling the noises from [D1’s apartment].”

4.  In his Revised Statement of Damages, P seeks damages for the physical injuries he claims he has suffered as a result of the alleged fall.  In addition, he also seeks and pleads:

“ 2.8. Further, [P] has suffered psychological sequelae as a result of the Incident …

2.9. In due course, [P] consulted a Clinical Psychologist, Dr Wong …

(1) Beck Anxiety Inventory and Beck Depression Inventory were administered which confirmed that [P] is suffering from a severe anxiety disorder since the Incident.

(2) The diagnosis of Post-Traumatic Stress Disorder … was made by Dr Wong with correlation to the traumatic event of the Incident …”

5.  When coming up with that diagnosis, Dr Wong had only been provided primarily with P’s version of the events.  Counsel have confirmed to me that neither the Defences nor D1’s witness statement have been supplied to him.  I note in this regard further what Dr Wong has said at §7.2 of his Psychological Treatment Progress Report (undated, at pp 1705 – 1712 of PTR Bundle D) that:

“ A frim diagnosis of PTSD was based on the following clinical criteria: [P] was personally subjected to the experience of traumatic event in which actual physical injury had resulted. He experienced intense psychological stress when exposed to cues reminding him of the incident, and he constantly harbours the fear that his home will once again be invaded …”

The application to adduce Mrs Wong’s Aff

6.  Mrs Wong has signed a statement for the purpose of this proceedings.  It was dated 9 October 2015 and supported by a statement of truth. 

7.  At §3 of Mrs Wong’s Aff, Mrs Wong said that she had recently been suffering from some health issues, and made the affirmation in case she would not be well enough to give oral evidence in the trial of this action.

8.  She passed away recently on 31 March 2019. 

9.  The contents of Mrs Wong’s Aff are substantially the same as those of her witness statement.

10.  I have considered the authorities cited to me, which include Hung Hing Yue Patrick v Ho Yin Man [2017] 1 HKLRD 1193, sections 47 and 49 of the Evidence Ordinance, Cheung Wei Man Vivien v Centaline Property Agency Ltd HCA 286/2000 (unreported, 25 September 2003) and Chung Hon v Ng Sau Chun [2019] 2 HKLRD 430.  I have considered the objections made on behalf of D2 by Mr Fong, counsel appearing for him. I have considered the contents of Mrs Wong’s Aff.  I note that she did not actually claim to witness the alleged fall.  Whilst her evidence will be contested, it does not go to the core of the issues.  The main evidence will still have to come from P.  At this stage, I cannot say that irrespective of what shall happen at the trial, no weight could be attached to the contents of Mrs Wong’s Aff (cf §12 of Cheung Wei Man). 

11.  In all the circumstances, I grant the leave sought.  I expressly leave the issue of weight to be argued and considered during the trial.

The application to expunge

12.  The Impugned Paragraphs relate to the defendants’ versions of the previous conflicts and unhappiness between the parties.  Those events led to the incident on 9 January 2014.

13.  I note that in the PTR Form, P did not reveal the basis for his application to expunge.  The bases were only revealed for the first time in the submissions of Mr Leung SC (leading counsel for P) dated 10 July 2019.  It is said that the retention of the Impugned Paragraphs “will attract unnecessary arguments at trial and will waste time and costs” (§37), and that “Alternatively, in so far as [D1] and [D2] seek to put in all these irrelevant but contentious evidence to taint the credibility of [P], such evidence is scandalous and should not be allowed in any event” (§38).

14.  I am mindful of the fact that I will be the trial judge.  I should not pre-judge the matter.  Nor should I give the impression that I have.  Because I have not.  At this stage, I have only formed the view, which view I am prepared to express, that P has failed to demonstrate any basis for the expunging of the Impugned Paragraphs.  Those paragraphs do not simply relate to “old scores”, as Mr Leung appears to suggest that they do.  It is P who raised them first in his Statement of Claim.  He has pleaded his denial (§8) in relation to them.  He has further pleaded his “vehement denial” of the related complaints (§9).  He has given his side of the events in his witness statement.  He is now trying to stop Ds from giving theirs.  In addition, the Impugned Paragraphs could be relevant to the question of P’s alleged “stress”, “discomfort” and “disorientation”, which P has referred to a number of times in his Statement of Claim.  They may also be relevant to the plea that Ds’ acts were “calculated and/or intended … to cause” such stress and discomfort (§20), or were otherwise “malicious” (§15) or “premeditated” (§18).  They could also be relevant to the issue of damages, and in particular whether P has been suffering from Post-Traumatic Stress Disorder as he has claimed.

15.  I refuse the application to expunge. 

16.  I will hear parties on costs.

(Submissions on costs)

17.  Mr Hingorani, counsel for D1, seeks in relation to the application to expunge costs on an indemnity basis.  Mr Leung submits that the application is within the usual ambit of a PTR, and the related costs shall be in the cause.

18.  I have formed the view, bearing in mind that the trial is only three months away, that I will be in a better position to rule on the costs issue after the trial.  I therefore reserve costs.  I have indicated to parties that all bases of assessment remain open.

HCPI 1046/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1046 OF 2014

_________________________

_________________________

___________________

D E C I S I O N

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The Application

1.  This is an application by the plaintiff under Order 38 Rule 36 of the Rules of High Court to adduce expert evidence, seeking the following directions –

a.  The parties do have leave to adduce further evidence on the profitability and marketability of the patented stair-lift as described under paragraph 3.1 to 3.13 of the Revised Statement of Damages … by an expert in the field of business consultancy and/or marketing;

b.  Consequential directions on exchange of expert evidence.

Background

2.  According to the statement of claim, the plaintiff and his wife were residing at Apartment 4F of the Building (as defined in paragraph 3 of the statement of claim).  The 1^st defendant and his family resided at Apartment 5F of the Building. And the 2^nd defendant and his family resided at Apartment 6F of the Building.

3.  On 9 January 2014 at about 11:15 pm, the plaintiff was watching TV in the living room of 4F.  The plaintiff said the 2^nd defendant appeared at the front door of 4F, banging on and kicking at it very hard with associated utterance of verbal abuse directed at the plaintiff demanding that the door be opened.  The plaintiff stayed away from the front door.

4.  At around midnight, when the kicking and verbal abuses stopped, the plaintiff rose from his seat with a view to walk to the front door to check whether the 2^nd defendant had left.

5.  It is the case of the plaintiff that the 1^st and 2^nd defendants had at this juncture gathered at or near the back door of 4F where the control of the electricity mains was located, and turned off the electricity supply to 4F.  4F was then in a sudden state of total darkness.

6.  The plaintiff was stressed and disorientated by the power outage.  He walked to the front door in total darkness.  His foot was caught by a Persian rug in the living room and fell. He sustained injury to his lower back.

7.  For the purpose of this ruling, I did not have to go to other details in the statement of claim or the defence and counterclaim.

8.  According to the Revised Statement of Damages, the plaintiff claimed various items of loss including a future loss of $5M. 

9.  It was pleaded in paragraph 3.1 to 3.13 that, inter alia, the plaintiff had retired and then been inspired into inventing and designing a compact stair‑lift.  For a few years before the accident, the plaintiff had played a pivotal role in the Project (as defined in paragraph 3.4 of the Revised Statement of Damages) as the investor, researcher, designer and developer.  In 2010, a company owned by the plaintiff and his wife had been established for the purpose of the Project.

10.  The company had been granted two patents in the United Kingdom and Hong Kong respectively for a stair­-lift designed by the plaintiff.  (The second patent was indeed granted after the accident.)

11.  Before the accident, the plaintiff had been working on various prototypes of the stair‑lift at a workshop in Dongguan, China.  Two crude prototypes had been made and the plaintiff was in the course of working on the third prototype which was an improvement on the previous ones. 

12.  As a result of the accident, the plaintiff claimed that he was so injured that he could not walk up and down the stairs freely, which was essential to his Project.  His psychological sequelae arising from the accident also affected his sleep and mental stamina.  The testing of the third prototype was curtailed and the Project was suspended.  It is the case of the plaintiff that the injury of the plaintiff caused a setback in the Project of at least 2 years, and hence loss of profit for these 2 years.

13.  It was not disputed that the Project had not been completed as at today.  It was the case of the plaintiff that he would be able to manufacture a set of stair‑lift at average costs of about $25,000 and sell the same at a price of HK$100,000 with a net profit of HK$75,000.  He claimed that he would be able to sell about 3 to 4 sets of stair-lifts per month totally 36‑48 sets per year.  He therefore claimed a loss of HK$5M ($75,000 x 3 x 12 x 2 years = HK$5,400,000 rounded down to $5M).

14.  It was also claimed in the affirmation of the plaintiff filed herein on 5 April 2016 that due to his age and lack of the necessary knowledge or experience, it was not practical for him to be actively involved in conducting the marketing and sales of the stair‑lift.  He therefore planned to engage a marketing company to market the product through the internet once the third prototype was completed.  And according to his planning, the third prototype could be completed in mid‑2014 and he could start working on the polished and marketable prototypes by early 2015.  While there was no business plan prepared before he was injured, a business plan was prepared by the plaintiff and produced as “GW-5” in his affirmation to assist the proposed expert in understanding his plans for the Project.

15.  Pausing here, Mr Suen, counsel for the plaintiff submitted that there were 4 issues involved in establishing this item of loss, including –

a.  The Project would as a result of the plaintiff’s injuries suffer a setback of at least 2 years (“the Question of Time”);

b.  The plaintiff would be able to manufacture a set of the stair-lift at an average cost of HK$25,000 (“the Question of Cost”);

c.  The plaintiff would be able to sell a set of the stair‑lift at a price of HK$100,000 (“the Question of Price”); and

d.  The plaintiff would be able to sell about 3‑4 sets of the stair‑lift per month, totally 36‑48 sets per year (“the Question of Sales”).

16.  Mr Suen agreed that the Question of Time was a matter of finding of facts and no expert evidence would be required.  For the Question of Cost, the plaintiff would provide his own costs estimate and no expert evidence would be required.  The plaintiff only sought to introduce expert evidence to resolve the Questions of Price and Sales.  Mr Suen in his submission stated that the scope of expert evidence would be confined to the profitability and marketability of the patented stair‑lifts.

17.  At the hearing, I indicated to Mr Suen that it would assist this Court to consider the application if he could set out the issues that were to be addressed by the expert with detailed particulars.  And after a short break, Mr Suen handed me (with copies to other parties) a list of issues which were modified from paragraph 11 of the affirmation of Ma Wan Hin, solicitor for the plaintiff filed herein on 5 April 2016 –

a.  Assess the marketability of the stair‑lift, by conducting a survey of comparable products to ascertain the demand and probable market share, [estimated cost, estimated price and estimated sales volume] of the stair‑lift (“Issue 1”); and

b.  Assess the estimated loss of profit based on the above due to a setback of 2 years in the business of the stair‑lift (“Issue 2”).

18.  The words in straight bracket were added by Mr Suen.  There were strong objection from counsel for the defendants to include any expert evidence on estimated cost which would be matter for Question of Cost.  Since Mr Suen confirmed it was not the application of the plaintiff to have expert evidence on costs, I would delete the reference to “estimated costs” in the straight bracket in Issue 1 in my consideration of this application.

Legal Principles and Discussion

19.  Mr Suen submitted that the party seeking to call expert evidence had to satisfy the Court that such expert evidence is available, would have a bearing on the issues which the Court has to decide and would be helpful to the Court in coming to a conclusion on those issues.  He referred to the judgment of Evans‑Lombe J given in Barings Plc v Coopers & Lybrand (No.2) [2001] Lloyd’s Rep Bank 85 at 45 –

“Expert evidence is admissible under section 3 of the Civil Evidence Act 1972 in any case where the court accepts that there exists a recognized expertise governed by recognized standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide and the witness to be called satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the court if the court takes the view that calling it will not be helpful to the court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the court is able to come to a fully informed decision without hearing such evidence.”

20.  I agreed with this principle.  Indeed, similar principle had been recorded in other judgments given by this Court.  I referred to a judgment of HH Judge Marlene Ng (as she then was) given in Lau Lai Shan v Hospital Authority DCEC 784/2007 which summarized the principle on case management of expert evidence, which I agreed entirely –

“15. Several case management considerations conspire to put the calling of expert evidence under the court’s complete case management control.

16. First, the court must be satisfied that the expert evidence intended to be adduced will be of assistance to the court, ie reasonably required to resolve the issues before the court (see Wong Hoi Fung v American International Assurance Co (Bermuda) Limited & anor HCA4576/2001, Chu J (unreported, 8^th October 2002) para.12 citing Barings plc (in Liquidation) & Anor v Coopers and Lybrand & Ors, Lexis transcript, 9^th February 2001, Evans‑Lombe J at paras.44‑45). A corollary to such proposition is thatthere shall be no expert evidence unless the courtconsiders such evidencehelpfulin arriving at a determination of the issues before it. This means the court has to make a judgment on the usefulnessof the expert evidence to be adduced (see the English case of Baldev Singh Mann v Messrs Chetty & Patel [2000] EWCA Civ 267 (26^th October 2000) on the Civil Procedure Rules, which suggested that some of therelevant considerations included(a) how cogent the proposed expert evidence will be; (b) how helpful it will be in resolving any of the issues in the case; and (c) how much it will cost and the relationship of that cost to the sums at stake). [my emphasis]

17. Secondly, there is no entitlement to adduce opinion evidence from experts. A party may not adduce expert evidence at trial or put an expert report in evidence without permission by the court.

18. Thirdly, the true function of anexpert witness in civil litigation is to carry out objective fact-finding and provide impartial opinion. The expert should not be a partisan advocate who espouses the views of theparty who engages him. His opinion evidence shouldbe, and should be seen to be, unbiased and impartial, and his own independent product uninfluenced by the exigencies of litigation (see Ansar Mohammad v Global Legend Transportation Limited DCEC1090/2006 (unreported, 8^th May 2007) para.37 citing Cresswell J in Ikarian Reefer [1993] Lloyd’s Rep 68). After all, the purpose of such expert evidence is toeducate and inform the court on issues arising within the expert’sspecific area of expertise. [my emphasis]

21.  I was referred by Mr Fong, counsel for the 2^nd defendant to the following passages in a judgment of Madam Registrar Au Yeung (as she then was) given in Kam Hing Trading (HK) Ltd v The People’s Insurance Company of China (HK) Ltd & Anor, HCA1062/2008 -     

“5.  Accordingly, before taking out the Summons, the questions set out in section E of the timetabling questionnaire (and see paragraph 20 of Practice Direction 5.2) must be considered. The parties should then set out the proposed expert directions in the Summons covering 4 main aspects:

(i) The field of expertise required;

(ii) The name of the expert;

(iii) The subjects or issues which the expert should give his opinion on; and

(iv) Whether a single joint expert should be appointed.

8.  With regard to (iii), defining the issues which the expert should give his opinion on will prevent lengthy reports addressing different issues.  The Summons should not just state that the expert should give evidence on e.g. the loss suffered by the plaintiff as pleaded in the statement of claim.  Pleadings can be lengthy and the expert should not be left to define for himself the questions he needs to answer.  Rather, the parties should endeavour to agree on a list of issues for the expert.  Such issues should preferably be framed as “yes or no” or “multiple choice” questions. The issues should be included in the Summons (and ultimately the Order).  The expert can then provide his opinion around the framed issues.” [my emphasis]

22.  The learned Registrar set out the importance of framing the issues.  When the issues were properly framed with reference to pleadings and evidence, the experts would be concentrating on expressing an opinion to assist the trial judge to interpret the evidence before this Court.  He should not go into area not within the issue and not to advocate for the parties.

23.  I noted that the learned Registrar referred to PD 5.2 in the judgment.  While PD 5.2 would not automatically be applicable to the PI List, it could be adopted by the Court in appropriate cases (see paragraph 1 of PD 5.2).  I had indeed adopted such practice in my earlier decisions.  One classic example would be when parties were seeking to call expert evidence on liability in PI cases.  The PI questionnaire required the parties to set out the issues for comment by liability experts at question F4.

24.  For the present case, I considered it helpful to first identify the issues to be addressed by the experts before I rule on the admissibility of expert evidence.  I adopted PD 5.2 and hence had invited Mr Suen to set out the issues.  Mr Suen had referred to the pleading when he framed the 2 Issues.  There was however no reference to disclosed evidence.

25.  Mr Fong also submitted that the plaintiff had not identified with precision what evidence or information that was to be presented to the expert to give an opinion, other than the business plan.  Any opinion would not be helpful.  I would come to this argument in greater details later.

26.  Another point Mr Suen sought to emphasis was that expert evidence should be allowed if it was required for the purpose of determining the real question in controversy. His submission was not the complete picture of the legal principle and must be read with the principle I set out above.  Further, expert evidence could not be adduced without leave of Court and when exercising the discretion, I would also take into account the underlying principle of Order 1A.

27.  And in assessing when to exercise the discretion to admit expert evidence, Mr Suen invited me to follow the authority on amendment of pleadings. I did not see the need to refer to such authority when there were clear authorities on when expert evidence should be admitted.

28.  With these legal principles, I turned to consider the argument of the parties. 

Plaintiff’s argument

29.  Both defendants opposed the application. The burden rested on the plaintiff to satisfy this Court that introduction of the expert evidence was justified. 

30.  Mr Suen in his written submission identified the objection of the defendants:

(1)  Alleged lack of relevance and basis to adduce expert evidence;

(2)  Alleged lack of relevant expertise of Professor Kim, the expert nominated by the plaintiff; and

(3)  Alleged delay in taking out the application.

31.  I believe objection (1) was a matter that the plaintiff had to satisfy this Court that the suggested expert evidence would be necessary relevant and of probative value to this action.  I would come to the expertise of Professor Kim later.  But if expert evidence was found to be relevant, even if Professor Kim was not qualified, the parties could locate a new expert.  And I would deal with delay separately.

32.  On the issue of relevance, it was stated in paragraph 21 of the affirmation of the plaintiff dated 5 April 2016 that –

“I do not, however, have the relevant expertise in marketing and sales. I am advised that, in order to prove my claim and to assist this Honourable Court in assessing the quantum for loss of profits by reason of the setback in the Project, I should adduce evidence from an expert in the field of marketing, who ideally should at the same time be capable of understanding how the stair-lift works, to assess the estimated level of demand and profits.”

33.  In further support of the application, Mr Ma Wan Hin, solicitor for the plaintiff had filed an affirmation on 5 April 2016. Paragraphs 10 and 11 read –

“10.  In paragraph 3.10(2) of the Revised Statement of Damages and paragraph 74 of the witness statement of [the plaintiff], it was stated that the plaintiff intended to engage a marketing company to market the stair-lift through the internet. As the plaintiff is not an expert on sales and marketing, he will not be in a position to given expert evidence as to what the optimal price of a set of stair-lift would be and the expected demand in the market (both in Hong Kong and overseas). Expert evidence is therefore necessary on the Question of Price and the Question of Sale or, in other words, the profitability and marketability of the stair-lift. Such evidence will assist the trial judge in assessing the quantum of loss of profits and/or loss of chance.

11.  It is anticipated that the expert will :

(1)  Assess the marketability of the stair-lift, by conducting a survey of comparable products to ascertain the demand and probable market share of the stair‑lift; and

(2)  On the basis of information provided by the plaintiff on the stair‑lift, ascertain the profitability of the stair‑lift, in light of the market information of comparable products.

34.  Paragraph 11 of the affirmation of Mr Ma had been modified by Mr Suen as the Issues 1 and 2 for expert evidence.    

35.  It is not disputed that the stair‑lifts had not been put into production or sale.  There was no direct evidence on the sale and profit of the stair‑lift to be marketed by the plaintiff.  Mr Ma further submitted in his second affirmation filed herein on 25 August 2016 that “it is precisely for this reason that it is necessary for expert witnesses to assist this Honourable Court by projecting the profit which the plaintiff would and could have made had there been a setback to the project.” 

36.  With these backgrounds, Mr Suen submitted that the expert opinion would be relevant and I should allow the plaintiff to adduce the report to be prepared by Professor Kim. 

37.  Professor Kim had also filed an affirmation in support.  While he had answered some queries on his expertise, he had given only a brief outline of the methodology that he would engage to give an opinion on the marketability of the stair-lift.  He had not gone into any details as to the source of data, the comparables, and the costs of the survey.  These were material factors for considering if the expert evidence would be relevant and necessary.

1^st Defendant’s argument

38.  Mr Hingorani, counsel for the 1^st defendant referred me to the Court of Appeal decision given in Chan Tak Yim v Wong Tit Kin and Wong Shu Kin [2001] HKCU 1053.  He submitted that when the trial judge found that there was no evidence on loss of future profit, no damages other than nominal damages should be awarded.  This case was not directly on expert evidence and I was not here to determine if the plaintiff had adduced sufficient evidence to prove his loss. 

39.  Mr Hingorani submitted that “marketability” and “profitability” of the stair‑lift were matters that this Court could rule without expert evidence.

40.  Mr Hingorani also referred to the case Wong Yuk Kin v Yip Hing Keung & Oth, HCPI1053/1985, when the trial judge found credible evidence from similar businesses and the Court could assess the loss of the plaintiff.  This case was helpful to show a plaintiff could adduce factual evidence to prove his future loss without involving expert evidence. 

41.  The plaintiff in Wong Yuk Kin’s case had to prove his loss of profit.  He relied firstly on his own estimation.  He also tendered another witness who carried out the same business to project his earning after the injuries.  The one point I had to note was that these were all factual evidence.  No expert evidence was required.  If there could be factual evidence on comparable, we would not need the expert evidence. 

42.  I would not exclude some cases when expert would be involved to interpret the evidence adduced, such as a forensic accountant to project the profit of a business from the available accounting documents.  But if there was no factual evidence, very precise and detail instruction framed with reference to the pleading had to be agreed and given for the expert to identify the correct data or information to be used in giving his opinion.  

43.  Mr Hingorani submitted that there was no evidence on the business of the plaintiff that the expert could project the loss.  As to the business plan produced by the plaintiff, which should be a key document/information for the comment by the expert, or as his guideline to find the appropriate comparables, Mr Hingorani submitted that it was not a business plan.   There was no information on the distinctive features of the stair-lift that set it apart from named competitors, demographic data, the management team to be engaged and their expertise or experience.  A so-called business plan to engage a marketing company to handle sale and marketing in future was neither a business plan nor was it a mature business plan.

44.  He also submitted in Court that there was no provision on any after sale service.  These deficiencies would make it impossible for expert to know the business structure of the plaintiff to arrive at some opinion on the profit of the business.

45.  Mr Hingorani referred to the evidence of the plaintiff in his witness statement that “no product in the market was satisfactory in terms of size and costs.”  But the plaintiff had not identified the “market”, or any company/companies whose products were unsatisfactory, or explained how the products were unsatisfactory as to size and/or costs.  Such deficiency had not been rectified by the affirmation of the plaintiff.

46.  And on the affirmation of Mr Ma, Mr Hingorani submitted that a survey of comparable products would lead only to the identification of other manufacturers of stair-lifts and their sale prices for such stair‑lifts.  It would not lead to information about the manufacturing costs of such stair‑lift, as these were not likely to be a matter disseminated by the manufacturer to the public.  The demand for comparable products, meaning the sale of those comparable products would also be within the knowledge of the manufacturers which was not likely to be imparted.  It would not be possible to know the profit or sale volume of comparable manufacturers nor to project the profit of the plaintiff’s future business.

The 2^nd Defendant’s submission

47.  The main argument of Mr Fong was that the intended expert evidence was irrelevant and not necessary. 

48.  Mr Fong referred to Chan Pui Ki v Leung On and Anor [1996] 2 HKLRD 401 at 425 when Litton VP (as he then was) commented on actuarial and economists’ report -

“In this regard, we note that in a number of personal injuries cases recently, the judge in charge of the list has made interlocutory orders to the effect that the parties should “exchange actuarial and economists’ reports”. Plainly, such order should now be recalled. To adopt the words of an American judge (in Doca v Marina Mercante Nicaraguense S. A., 634 F2d, at 39): “The average accident trial should not be converted into a graduate seminar on economic forecasting”. The search for delusive exactness in awards for personal injuries of the kind practiced in the court below should now cease.”

49.  While we were not considering actuarial and economists’ report here, Mr Fong submitted that the stair-lift had never been in operation and the likely business loss would merely be a matter of general probability.  The expert’s techniques on data collection, various statistical models and interpretations, and research on consumer information search and choice to study demand and market structure and competition in the stair‑lift market might convert the present action into seminar on economic forecasting as warned by Litton VP.

50.  While I did not agree that the Chan Pui Ki’s case could be of direct application for this ruling, one principle should be helpful.  When assessment had to be made by projecting the loss, there had to be firstly discovery of the raw material to project the future loss.  When such evidence was not available, there ought to be sufficient particulars given in the issues to be addressed by the expert to ensure that he was working within the ambit of the pleaded cases of the parties.  If no detail instruction could be given, the expert might end up by selecting his data and using his techniques without proper reference to the pleadings.  This could turn an expert report into a seminar on economic forecasting, or guess work.  This was not the function of expert evidence. And such report would be of no probative value.

Discussion and Ruling on Issue 1

51.  Generally speaking, the main objection from the defendants could be understood to mean that, if the plaintiff had no business plan, or any relevant information about how the future business would be established, how were the experts in a position to project the sale price and the volume of sale?  If the experts did give an opinion, would it be guess work and of no probative value to this Court?

52.  On the 2 Questions of Price and Sale, the matter that the plaintiff had to prove would be the projected sale per month, and the projected sale price of each unit. 

53.  Issue 1 had not identified the scope of factual evidence upon which the expert was to express an opinion, or defined with clarity the area that such comparables were to be located.  It would then lead to more argument on the appropriate comparable to be used.  It was questionable if such opinion could be of assistance to this Court.

54.  I had raised with Mr Suen on what basis the experts were to make the survey.  He repeated that it would be by comparing with similar products in the market.  The survey would involve, firstly, identification of the market, the targeted customers and the demand within a certain period of time.  And the experts would have to identify similar products in terms of their respective function, their price, and other sales terms such as after-sale service, to assess the market share of the plaintiff’s product.  But these particulars had not been specified in the Issues, or stated in the supporting affirmations.

55.  The only available information for the expert to identify the market and customer would be the business plan of the plaintiff, and the drawings of the patents.  I agreed with Mr Hingorani that the business plan produced by the plaintiff only repeated that his initial target customers would include elderly and disabled person in Hong Kong, people with sole knees and those who were newly pregnant or planned to be pregnant, or people who would not want to walk up and down the stairs.  The plaintiff intended to engage a marketing company to market the product.  And apart from these, the plaintiff did not have concrete business plan upon which the expert could evaluate.

56.  The plaintiff had not explained the advantage claimed of his stair‑lift as compared to other similar products, except his claim that his stair‑lift would be better in terms of size and costs.  I agreed with Mr Hingorani that there was no information on the distinctive features of the stair-lift that set it apart from named competitors. There were no demographic data, or details of the management team to be engaged. Because the original business plan was at such a preliminary stage, asking the expert to give an opinion would risk asking the expert to create the business plan for the plaintiff.

57.  A so-called business plan to engage a marketing company was neither a business plan nor was it a mature business plan.  It could not begin to have details to identify the comparable products.  I found it impossible for the experts to identify the market, the customers with the limited information in the business plan produced without doing guess work. 

58.  While Professor Kim said in his affirmation that the plaintiff’s claim depended on a superior product rather than on better advertising or distribution as compared with other manufacturers, there had to be speciality of the stair-lift to identify the comparables.  It was specified in Issue 1 that the marketability was to be conducted by survey of demand of comparable stair‑lift in the market.  He had not explained how to identify any comparable.  There was no suggestion as to the available comparable in his affirmations.  

59.  In some cases, the expert could be given detail instruction to identify the comparable.  Unfortunately it was not the case here.  If we were to end up with an academic debate between 2 experts as to who was making the better speculation, this would not be of assistance to the trial judge. 

60.  Further, for the market, Mr Suen had identified China, Hong Kong and Taiwan.  One could see the scope of the investigation for the demand would be huge, given these 3 big markets.  And further, just in China, different cities and provinces would have difference houses.  The costing of such research would be huge and it was not proportionate to the claim.

61.  In conclusion, I refuse leave to adduce expert evidence on Issue 1.

Discussion and Ruling on Issue 2

62.  On Issue 2, the expert was required to assess the estimated loss of profit if there was a setback of 2 years.  Whether there would be a setback of 2 years or part thereof would be a finding of fact based on the evidence on the medical condition of the plaintiff.  The question for the expert would indeed be what could be the projected sale price of the stair‑lift to be manufactured by the plaintiff.  This would be the question of Price. 

63.  The plaintiff could ask for any price.  The projected sale price of a stair-lift would be the optimal price that a customer would be prepared to buy.  It would again depend on the details of the product, the competing products, and the consumer reaction.  As the plaintiff had not commenced any sale, the experts would face the same problem to identify the scope within with the experts were to locate the comparable of similar business as the pleaded case of the plaintiff. 

64.  I had also raised with Mr Suen the issue if the machine had to be approved by any Government Authority.  He had no instruction.  Further, as suggested by Mr Hingorani, the sale is not only depending on the design, matters like after-sale service, promotion have to be taken into account.  While Professor Kim said the sale was not depending on advertisement, I thought this would be a factor for identifying or distinguishing a comparable. 

65.  I believe Issue 2 had the same problem as Issue 1.  I was not convinced that the expert had been given sufficient instruction to identify the comparable as Issue 2 had not specified the same with clarity.  Any opinion would not be of probative value.  I would not allow expert evidence on Issue 2.

The expertise of Professor Kim

66.  Since I rule against the plaintiff on both Issues, I do not have to rule if Professor Kim is qualified to give expert opinion.

Delay

67.  Again, I do not have to rule on this issue as I would dismiss the application.

Ruling and Order

68.  In conclusion I would dismiss the plaintiff’s summons with an order nisi that the defendants do have costs of the application with certificate for counsel.  I am minded to summarily assess the costs.  The order nisi shall become absolute within 14 days.  If there is no application, the defendants shall lodge their respective costs statement within 7 days thereafter.  The plaintiff has 7 days to response and I would assess the costs in chambers.