Wai Yin Hin v Wong Po Kit
Update, 25 June 2009
On 25 June 2009, the court of appeal (Tang V-P, Yeung and Yuen JJA) confirmed the lower court decision and dismissed the defendant's appeal. Yuen J, who delivered the main judgment, rejected the defendant's submission that the risk of injury was so obvious that there was no duty to warn. The learned appeal judge said
"In my view the Defendant's duty to warn the Plaintiff of the risk of injury was all the more important because of the force that he used. The Plaintiff had only experienced light taps from fellow-students earlier on during that lesson. In the absence of a warning, the Plaintiff was caught unprepared and did not brace himself when he was struck by the Defendant with the same amount of force the Defendant (a hardened 25-year 6th 'dan' veteran) used in practising."
"In my view, the Defendant failed to take reasonable precautions not only when he failed to warn the Plaintiff of the risk of injury, but also by striking the Plaintiff with the amount of force that he used. The Plaintiff was a beginner who had only started experiencing light taps on the 'men' during that lesson. The Defendant should not have treated him as being on a par with his usual practising partners. He should have started his demonstration by using a reduced amount of force, which he could build up gradually if the demonstration required and as the student "toughened up". For a hardened kendo master to strike a beginner for the first time with the same amount of force he used for practice at the 6th 'dan' without warning him of the risk of injury is in my view clearly a failure to take reasonable precautions. "
2 October 2008, Hong Kong
The plaintiff, a 41 years old solicitor at the time, claimed damages for personal injuries suffered during a kendo (剣道, a Japanese martial art) class taught and supervised by the defendant on 13 April 2004. The defendant is the President of the Hong Kong Kendo Association. He is a skilled kendo practitioner and attained the 6th dan (段) level plus a level higher called the renshi (錬士)
The plaintiff was struck on the on the head a few times by the defendant using a shinai (竹刀, a bamboo sword) and suffered injury to the cervical spine. The set of protective equipment in kendo is called the bogu (防具) which consists of the helmet called the men (面), a set of gloves covering the wrist and hand called the kote (甲手), protective gear for the chest and upper abdomen called the doh （胴） and protective gear for the waist and lower abdomen called the tare (垂れ). According to the evidence:
"Although the bogu would appear to provide good protection from injury when the wearer is hit on the protected parts of the body, it is clear from the evidence of the defendant, which I accept, that if the student does not hit the bogu of his opponent properly with his shinai then it could be very painful depending on the person."
The judge, Sakhrani J, held that the defendant owed a duty of care to the plaintiff and there had been a breach of that duty. The judge further held that he injuries sustained by the plaintiff were caused by the defendant and the plaintiff was awarded the agreed damages of HK$260,000.
The judge held that the defendant had a duty to take reasonable precautions to ensure that students were not injured and a duty to warn of the risk of injury.
The case has apparently provoked reaction in the kendo circle:
