Chan Shek Ho v. Shiu Ho Chi and Others
Read the full judgment text of HCPI 613/2014 on BabelCite. This High Court CFI judgment was delivered on 6 April 2018.
1. This case concerned an assault incident. The plaintiff (“ P ”) carried on business as a self-employed driver of a self-owned truck (registration number JE5796, “ Truck ”) under the business name of Hing Shing Transportation Company (“ Hing Shing ”). [1] Other than his family members who helped out at Hing Shing, P did not have any employee to help with driving the Truck and/or loading/unloading cargo. However, P would subcontract transportation services/work to other drivers.
Cited by 3 cases · Cites 13 cases
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HCPI 613/2014 [2018] HKCFI 737 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 613 OF 2014 ________________________
________________________ Before: Deputy High Court Judge Marlene Ng in Court Date of Hearing: 21 March 2018 Date of Handing Down Judgment: 6 April 2018 ________________ J U D G M E N T ________________ I. INTRODUCTION 1.This case concerned an assault incident. The plaintiff (“P”) carried on business as a self-employed driver of a self-owned truck (registration number JE5796, “Truck”) under the business name of Hing Shing Transportation Company (“Hing Shing”).[1] Other than his family members who helped out at Hing Shing, P did not have any employee to help with driving the Truck and/or loading/unloading cargo. However, P would subcontract transportation services/work to other drivers. 2.The 2nd defendant (“D2”) was an independent contractor of A&S (HK) Logistics Limited (“A&S”) which in turn was an independent service provider that provided cargo handling service to the 3rd defendant (“D3”). There was no dispute D2 employed the 1st defendant (“D1”) as a warehouse worker, and D1 worked at D3’s rented warehouse (“Warehouse”) at Chek Lap Kok Airport Freight Forwarding Centre (“Centre”). Further, it was common ground D1 as D2’s employee was responsible for giving instructions to truck drivers arriving at the Warehouse for inter alia unloading their cargo at designated areas. 3.P claimed he was assaulted by D1 on 17 November 2012 (“Incident”):
4.On 20 December 2012 at Tsuen Wan Magistrates’ Court, D1 was convicted of the offence of inflicting grievous bodily harm in respect of the Incident (“Offence”) contrary to section 19 of the Offences Against the Person Ordinance Cap 212 (“Conviction”). D1 was sentenced to 4 months’ imprisonment, and ordered to pay $5,000 to P as compensation. P confirmed he received such sum via the Magistrates’ Court. 5.On 26 June 2014, P commenced the present action against D1, D2 and D3. D1 did not file any acknowledgment of service and did not appear in the present action. Initially D2 was legally represented, but on 31 July 2015 they filed Notice to Act in Person. Both D1 and D2 were absent at the pre-trial reviews on 24 January and 7 February 2018 and at the trial on 21 March 2018. On 4 December 2014, P filed Notice of Discontinuance against D3. Thus, the trial in the present action was only in respect of P’s claims against D1 and D2. 6.P’s case against D1 was essentially premised on intentional tort, ie (a) intentionally or knowingly threatening P with imminent bodily injury, (b) intentionally, knowingly or recklessly causing P bodily injury, and/or (c) intentionally or knowingly causing physical contact with P when D1 knew or should reasonably have known P would regard such contact as offensive or provocative. P relied on the Conviction to establish liability against D1 pursuant to section 62 of the Evidence Ordinance Cap 8. 7.P’s case against D2 was essentially for negligence and vicarious liability for D1’s conduct, ie (a) breach of common duty of care owed to P, (b) lack of supervision or failure to supervise its employee D1, (c) allowing/authorising D1 to act in an aggressive and/or intimidating manner towards P, (d) allowing/authorising D1 to use violence towards P, (e) failure to ensure all lawful visitors (including P) were safe at the Scene/Warehouse, (f) failure to discharge its duty to select, supervise, dismiss or otherwise exercise proper control over its employees (including D1) to prevent unwarranted assault to all lawful visitors (including P), and (g) failure to employ security personnel to maintain peace and order at the Scene/Warehouse. 8.D2 admitted D1 was their employed warehouse worker who worked at the Warehouse, but denied liability. D2 averred that at the material time, (a) P ignored the directions given by D1 and unloaded the Goods at the wrong place, (b) when D1 tried to find out from P what happened P swore at D1 such that dispute and physical contact ensued between them, (c) D1’s colleague urged D1 to leave the Scene, (d) as D1 walked away from the Scene P dashed in front to swear at him and P also raised his middle figure in a gesture of foul language, and (e) there were again physical contact between P and D1 which ended up in a fight. 9.D2 averred that if P were involved in the Incident (which D2 denied), D2 could not have reasonably foreseen the Incident that was caused or contributed to by P’s contributory negligence,[2] and P (by reason of his conduct as outlined in footnote 2 above and by engaging in a fight with D1) had voluntarily assumed the risks of his own actions for which D2 ought not be liable. Further or alternatively, D2 averred that if the Incident occurred in the circumstances and manner as P alleged, it was caused solely or contributed to or by D1’s negligence.[3] 10.P and his wife Wong Pui Luen (“Wife”) were the sole factual witnesses at the trial of the present action. They respectively adopted their witness statements dated 2 April 2015 and 7 February 2018 respectively. 11.P’s and D2’s dental, oral and maxillofacial experts were respectively Dr Chow Tak Kun and Professor Cheung Lim Kwong (collectively, “Experts”). The Experts had no disagreement in their examination, findings and medico-legal opinion. On 1 December 2015, Master Roy Yu granted an order that subject to the directions of the trial judge, the dental, oral and maxillofacial expert report dated 10 June 2015 jointly compiled by the Experts (“Joint Report”) shall be adduced at trial without oral evidence. II. LIABILITY 12.Before the Incident, P and D1 were not acquainted. P went to the Scene for the first time on 17 November 2012. By adopting the contents of his witness statement, P confirmed the facts and matters set out in paragraph 3 above. 13.PC34495 in his police statement dated 18 November 2012 stated that the ambulance was already there when he arrived at the Scene. He saw first aid being given to P whose mouth was bleeding and whose right face was swollen. P also had abrasion at left elbow. P gave an account of the Incident to PC34495 at the Scene. 14.PC34495 stated in his police statement that at the Scene he found D1 who told him (a) D1 had a verbal argument with P over P placing 2 pallets of the Goods behind other goods, (b) D1 told P to remove the other goods before putting his own Goods at the far end, (c) D1 also told P it would affect D1’s work if P failed to do as requested, (d) P ignored D1 so another verbal argument ensued, (e) D1 left and drove a forklift truck over to block the Truck, (f) P saw this after he unloaded the Goods and had another row with D1, and (g) afterwards P left without any assault incident. PC34495 also stated he located the supervisor who told him he had heard verbal dispute but had not seen any assault. 15.PC34495 stated in his police statement that SPC53916 viewed the CCTV footage at the security office of the Warehouse, and the footage showed D1 assaulting P with fists and kicks. PC34495 then arrested D1 at the Scene. Under caution, D1 told the police officer he did not assault P.[4] 16.P gave 2 statements to the police respectively on 18 November and 4 December 2012 which gave an account of the Incident as set out in paragraph 3 above. D1 gave a cautioned statement to the police on 18 November 2012 (“D1 Statement”). D1 stated in the D1 Statement that “[it] was only because of stress from work that [he] acted out of a moment of impulse and assaulted [P] with hands and feet. [D1] now regret, having made this mistake”. D1 explained that at the Scene he denied having committed such assault because he was scared of uniformed police officers, but when detective police officers took over the investigation and found the windbreaker uniform and shoes that he wore during the assault in his locker, he felt remorseful and made the confession. 17.Under caution, D1 further explained that (a) he did warehouse work at the Warehouse and was also responsible for directing drivers where to place the goods, (b) P did not follow D1’s instructions and randomly placed the Goods so D1 became angry, (c) P insulted D1 so D1 vented his anger by using a forklift to block the Truck, (d) when P returned to take photographs with a camera D1 told P that (if he wanted to) he could go to D3’s office at the Warehouse to file a complaint, and (e) P again insulted D1 who in a moment of impulse rushed towards P and assaulted him with fists and kicks, ie punched and kicked P a few times, but D1 could not remember exactly how many times he did so as he was agitated at that time. D1 also stated he was not acquainted with P, and “[it] was only because of problems at work that [they] argued in this incident, there was no grudge previously”. 18.Taking the evidence on the issue of liability as a whole, I am satisfied on the balance of probabilities that D1 did assault P during the Incident, and that the Incident happened as P described (and as set out in paragraph 3 above). Such conclusion was bolstered by the fact that P gave consistent accounts as to what happened in his telephone report and in his first statement to the police, and this was supported by PC34495’s record that SPC53916’s review of the relevant CCTV footage confirmed D1’s assault on P. Furthermore, P’s injuries to his face and elbow (noted upon receiving first aid at the Scene and when he was sent to PMH) corroborated P’s account that D1 punched and kicked him. 19.Despite D1’s denial made to PC34495 at the Scene, I note D1 withdrew such denial and confessed to the assault in the D1 Statement. He explained he was stressed from work and punched/kicked P in a moment of impulse (as explained in paragraph 17 above). Further, D1 was convicted of the Offence in respect of the Incident. Pursuant to section 62(2) of the Evidence Ordinance Cap 8, the Conviction was admissible as evidence in the present action. Its effect was to shift the burden of proof to D1 to show he was not negligent. But I remind myself that the weight to be given to a previous conviction is essentially for the judge at trial since it is for him to evaluate the probative force of such conviction, and at the end of the civil case the judge must ask himself whether the defendant has succeeded in overthrowing the conviction.[5] However, I agree with Mr Ng, counsel for P, that the Conviction strengthened P’s case on liability against D1. Since D1 had not appeared at all in the present action, he failed to “overthrow” the Conviction. I find D1 liable to P for damages to be assessed in respect of his assault on P during the Incident. 20.As for D2, I note D2 admitted D1 was its employee who worked as a warehouse worker at the Warehouse. Would D2 be vicariously liable for D1’s tort against P? 21.An employer is vicariously liable for an employee’s unauthorised tortious act if the employee’s tort was so closely connected with his employment that it would be fair and just to hold his employer vicariously liable. This is the basic criterion for all cases of tort committed by an employee while engaged in an unauthorised act for his employer, whether the tort involves intentional wrongdoing or mere inadvertence. But such “close connection” criterion must always be taken in context, and should not be treated as a statutory formula.[6] Further, in applying the “close connection” criterion, the concept of employment must be viewed broadly, and the nature of employment is not to be ascertained merely by attempting to tabulate the employee’s duties. It is necessary to stand back and see how the employer’s activities were actually carried out and how that exposed the public to the risk of tortious harm caused by the employee.[7] 22.In Yeung Mei Hoi v Tam Cheuk Shing,[8] the Court of Appeal explained that the focus of the “close connection” criterion was on the scope of employment of the employee who committed the unauthorised act. In that case, the 1st defendant (security guard) was on duty. He suddenly lost his temper when plaintiff (his supervisor) questioned him about his failure to report the location of a taxi and to wear his uniform properly, and he assaulted the plaintiff. It was held that the 2nd defendant’s (employer’s) system of supervision and discipline of the guards carried a risk that the subordinate might react in an unauthorised way towards the supervising officer, so it would be fair and just to hold the 2nd defendant vicariously liable because this risk could be insured against by the 2nd defendant. The Court of Appeal held that saying it was the 2nd defendant’s act of “insubordination” was too general for contextual consideration of whether there was close connection between the employment and the unauthorised act. 23.Cheung JA at p 489 reiterated the guidance by Litton NPJ in Ming An Insurance Co (HK) Ltd v Ritz-Carlton Ltd[9] on the relevance of risk under the “close connection” criterion (ie the underlying idea that the injury done by the employee must involve a risk sufficiently inherent in or characteristic of the employer’s business so that it is fair and just to make the employer bear the loss), and said the answer to this issue was not free-standing. The court had to consider matters such as “the servant’s duties at the time when the tort occurred, whether he was acting in the interests of the employer or solely for himself, et cetera”, and to have regard to the business activities of the employer broadly speaking and to ask if the risk which gave rise to damage was created by those activities (and if so, whether the employer could have insured against such risk). 24.Cheung JA at pp 490-491 reminded that in relation to assaults by employees, “the tendency has been toward more liberal protection of innocent third parties” and the matter should be looked at broadly without dissecting the employees’ task into component activities. 25.In Mohamud v Wm Morrison Supermarkets plc,[10] the Supreme Court held at pp 835-837 that the established test for an employer’s vicarious liability for tort committed by his employee is to inquire as to the nature of the employee’s job, and then to ask whether there is sufficient connection between the job and the employee’s wrongful conduct to make it right, as a matter of social justice, for the employer to be held liable, and such test, albeit imprecise and requiring the court to make an evaluative judgment in each case having regard to the circumstances, remains good without need for further refinement. 26.In that case, the claimant stopped at the petrol station at one of the defendant’s supermarkets and asked the defendant’s employee if it was possible to print off some documents which was stored in a USB stick. The employee refused the request in an offensive manner, and in the exchange that followed he used racist, abusive and violent language towards the claimant and ordered him to leave. He then followed the claimant as he walked back to his car, ordered the claimant never to return, and then assaulted the claimant. The Supreme Court held that as the job of the defendant’s employee was to attend to customers and respond to their inquiries, and there was an unbroken sequence of events between his response to the claimant’s initial inquiry and his following him towards the car and ordering him never to return which he reinforced by violence, such conduct was in connection with the job that the defendant entrusted to the employee, and accordingly there was sufficient connection between the employee’s job and his wrongful conduct to hold the defendant vicariously liable for the assault on claimant. 27.Lord Millett in Dubai Aluminium Co Ltd v Salaam & ors reminded as follows:[11]
28.In Patrick Fennelly v Connex South Eastern Ltd,[12] a ticket inspector at a railway station assaulted a passenger whom he suspected had passed the gate without producing a ticket. The inspector blocked the passenger and demanded the ticket. There were exchanges between them, but the passenger eventually produced the ticket and walked on. However, he was pulled back and assaulted by the inspector. Buxton LJ said as follows:
The English Court of Appeal held that the series of events comprised a single incident, and there was nothing to suggest the inspector carried out the assault for his own purpose. 29.In Mattis v Pollock (trading as Flamingos Nightclub),[13] the English Court of Appeal reiterated that the established test for vicarious liability, including where an employer/employee relationship is under consideration, requires a broad approach to the determination of the question whether the employee’s action is so closely connected with what the employer authorised or expected of him in the performance of his employment that it would be fair and just to conclude that the employer is vicariously liable for the damage sustained by the claimant as a result of the employer’s act. 30.In that case, the defendant was the owner of a nightclub and employer of a bouncer who was engaged to act aggressively towards customers. The plaintiff was one in a group of customers admitted into the nightclub. Then some of the plaintiff’s friends arrived, and the bouncer hit 2 of them with a weapon and was in turn hit with a bottle. The bouncer then escaped from the scene. When the plaintiff and his friends decided to go home, the bouncer reappeared and stabbed the plaintiff with a knife. On appeal, it was held that the defendant was vicariously liable for the bouncer’s assault on the plaintiff. Since the bouncer was employed by the defendant to keep order and discipline, and was encouraged to perform his duties in an aggressive and intimidatory manner, there was little doubt he would have been violent within the premises as he was outside them. The bouncer’s return to the immediate vicinity of the nightclub was motivated by a wish for revenge for the injuries and public humiliation he sustained there, so his actions were directly linked to the events that had taken place earlier in the club, and the defendant’s responsibility for the actions of his aggressive bouncer was not extinguished when the plaintiff was stabbed. 31.Li Hoi Shuen v Man Ming Engineering Trading Co Ltd[14] concerned the murder of a work supervisor from Hong Kong in Jieyang City, Mainland China by 2 “out of province” workers Y and Z in the residence provided (not chosen) by the employer. DHCJ To (as he then was) was of the view that a liberal approach was to be adopted in applying the test set out in Ming An Insurance Co (HK) Ltd. The question was one of fact to be considered in its proper context, and the relevant factors included the employee’s duties when the tort occurred, whether he was acting in the employer’s interest or solely for himself, the employer’s business activities, and whether the risk which gave rise to the damage was created by those activities. In the circumstances, “[deliberate] tortious acts committed totally contrary to the employer’s business or instructions may nevertheless attract vicarious liability for the employer under the above test” (see page 118). 32.Applying such test to the circumstances in Li Hoi Shuen, DHCJ To held that the attack was not so closely connected to Y’s and Z’s employment with the defendant that it would be fair and just to hold the defendant vicariously liable for the crime. Y and Z committed the crime when off-duty; they were employed as unskilled labour; it was not part of their duty to maintain discipline or apply violence;[15] and they were advancing their own interests, ie to rob the deceased and to take revenge. The only connections between the crime and their employment were that (a) one of the motives of the attack was that they were unhappy with the deceased’s criticism, and (b) it took place in the warehouse that was leased for the defendant’s business and with the knowledge that deceased, Y and Z were living there, but it was held that such matters did not give rise to the necessary “close connection”. 33.In Ling Man Kuen v Chow Chan Ming & anor,[16] the plaintiff (assistant engineer) was assaulted by the 1st defendant, and both were employed by the 2nd defendant. The 1st defendant talked to the plaintiff about some plans drawn by the latter, and was annoyed with the plaintiff for inaccurate measurements and specifications, especially when he had previous experience of being inconvenienced by the plaintiff’s plans that were not sufficiently defined. There were emotional exchanges between them, and the 1st defendant lost his cool and used foul language at the plaintiff, which escalated into the 1st defendant’s assault on the plaintiff. HHDJ C B Chan at paragraph 70 held that the dispute related to the plans drawn by the plaintiff, and it was partly due to the plaintiff’s inexperience that the plans might not have been drawn with specific measurements. Although the assault was not premeditated, it arose out of the 1st defendant’s interaction with the plaintiff with the former acting within his scope of employment when he went to discuss the plans with the latter, so the assault took place when they were engaged in duties at the very time and place demanded by their employment. The learned judge found the assault was closely connected with their employment with the 2nd defendant such that it would be fair and just to hold the 2nd defendant vicariously liable. 34.In Cheung Chak Fui v Sun Hing Organization Plastic Management Limited & anor,[17] the plaintiff (factory supervisor) was assaulted by a co-worker (plaintiff’s assistant), and sued the employer. The plaintiff had previously reprimanded the co-worker about his job performance and his relationship as a married man with a female colleague, and the co-worker quarrelled with the plaintiff and made violent threats against the plaintiff who reported such matters to the employer. Au J held that the employer having been made aware of such threats was negligent in failing to take reasonable measures to prevent the assault from happening, and that the plaintiff had established causation between the assault and the employer’s negligence and/or breach of duties. Thus, the employer was liable for its own non-delegable duties. As for vicarious liability, the learned judge found the employer was not vicariously liable because the close connection had not been established. Au J was not satisfied that the risk of the assault could be said to be sufficiently inherent in or characteristic of the employer’s business that it would be just to make the employer bear the loss. 35.Turning the circumstances of the present case, I agree with Mr Ng that D1’s assault on P during the Incident was closely connected with D1’s employment with D2, so it would be fair and just to hold D2 vicariously liable for D1’s wrongful acts:
36.D2 in their pleadings raised the issue of contributory negligence. The burden was on D2 to establish contributory negligence. Given D2’s absence at the trial, no or no sufficient/credible evidence had been adduced to support D2’s allegations in paragraphs 8(a)-(e) and footnotes 2-3 above in relation to the defence of contributory negligence. On the balance of probabilities, I reject such defence. 37.I therefore find both D1 and D2 liable to P in respect of personal injuries caused by the Incident. III. QUANTUM 38.P was born in Mainland China on 2 September 1956. He was 56 years old at the time of the Incident and 61 years old at the time of the trial of this action. P received education up to primary school level, and came in Hong Kong in 1975. He was married to Wong with 2 sons (one of whom was Chan Kwan Tai (“Son”)) and 2 daughters (one of whom was Chan Mo Yen (“Daughter”)). (a) Pre-existing condition 39.P had history of 2 carcinomas at the left side of the tongue[18] of less than 2cm in diameter (T1) with no metastatic spread to the cervical node. P received hemi-glossectomy, manibulotomy and left supraomohyoid neck dissection. Reconstruction by antero-lateral thigh micro-vascularised flap was done on 24 November 2003. Radiation therapy was completed on 27 February 2004. P claimed (a) his condition was in remission and he regularly attended follow-up at Prince of Wales Hospital (“PWH”), and (b) there was no evidence of any recurrence when he attended follow-up on 14 October 2014. But, as seen in paragraphs 41, 51-59, 62-63 and 66-70 below, the sequelae from the cancer disease and consequent treatment had brought about deterioration in P’s oral-facial condition even though fortunately the cancer had not made any return. 40.The urgent computed tomographic scan taken at PMH after the Incident (see paragraph 43 below) revealed surgical clips in the left submandibular region, oral cavity and mandible, which could be due to previous operation. Computed tomogram taken by PMH’s department of surgery (see paragraph 44 below) revealed diffuse lytic changes in the mandible which were related to previous radiotherapy changes, metallic implants (consistent with mini-plates and screws fixation) at the central anterior mandible body, and metallic clips at the left side of the oral cavity (likely to be vascular clips used to control bleeding from previous surgery). 41.At the joint examination on 14 April 2015, the Experts carried out oral-facial and radiographic examinations:
42.Apart from the aforesaid pre-existing condition, P had no mandible injury prior to the Incident. (b) Injuries and treatment 43.After the Incident, P was admitted to PMH by ambulance. Physical examination showed P was fully conscious with mild tenderness over both cheek regions. There was some bleeding from his oral gingivae, and there was also a 4cm superficial abrasion over the left elbow. Urgent computed tomographic scan revealed right mandibular fracture and deformed left mandible condyle. No fracture of skull bone, left elbow, hip or pelvis were seen. 44.P was admitted to PMH’s department of surgery. It was noted P had bilateral swelling and pain over the parotid region and gum bleeding. Computed tomogram of brain and face revealed a fracture of the right posterior mandibular body (angle fracture) and a fracture at left mandibular condyle with respectively minimal and mild displacement. A few air pockets suggesting signs of recent trauma were seen at the right parapharyngeal space and around the fracture site at the right mandible. Radiography of the left elbow and pelvis revealed no fracture. The dental team was consulted. 45.On 19 November 2012, Dr Tam of the dental team saw P at the ward. Facial examination showed mild orbital swelling, decrease in mouth opening, and left temporomandibular joint and right angle of mandible were tender to palpation. Oral examination revealed full mouth bridgework. Soft tissue was normal and occlusal derangement was minimal. The clinical diagnosis was bilateral fractured mandible. Postero-anterior mandible radiography and external oblique mandibular radiographic views (left and right) were ordered. P was prescribed with antibiotics to prevent infection. 46.On 21 November 2012, P was discharged from PMH, and he was given outpatient follow-up with PMH’s dental and surgical units. 47.On 26 November 2012, P was reassessed, and he complained of decreased mouth opening. Oral examination showed severe limitation in mouth opening with maximal inter-incisal distance of only 3mm. Conservative treatment of the mandibular fractures was advised with further prescription of antibiotics and analgesics. 48.On 3, 11 and 18 December 2012, P was reviewed. Pain and swelling had subsided, and occlusion was satisfactory. He was advised to take soft diet for 2 more weeks. 49.On 3 January 2013, P complained of poor chewing. Oral examination showed slight occlusal derangement, and inter-incisal distance had improved to 10mm. Radiography was taken. 50.On 24 January 2013, P was reassessed, and the radiographs showed a decreased in radiolucency of the fracture line. 51.On 13 February 2013, P was referred to PMH’s dental clinic due to buccal mucosal pain for 4 days. Physical examination showed the left lower molar teeth were impinged against the buccal mucosa with indentation marks. 52.On 15 February 2013, P attended Wong Siu Ching Family Medicine Centre. He complained of being assaulted 3 months ago with left jaw injury. The denture impinged on the gum which caused pain and bleeding. On examination, there was minimal bleeding over the left side of the gum. Symptomatic treatment was given. 53.On 7 March 2013, P still complained of limited mouth opening and difficulty in chewing food. Oral examination showed gingival recession at the lower incisor tooth (ie teeth 31 and 32) region. P was advised to see a private dentist for sectioning of the bridgework. 54.On 12 March 2013, P was seen at PWH’s department of ear nose and throat. Clinical examination showed malocclusion of teeth, severe limitation of mouth opening, and tenderness of left mandible. 55.On 10 September 2013, P was reviewed. Clinical examination showed multiple pus discharging fistulae from the lower mandible. The right mandible was found being exposed with dead bone showing through the mouth. 56.Computed tomographic scan on 25 September 2013 showed features of osteoradionecrosis and fractures traversing the right angle and body of mandible. Due to the extensive osteoradionecrosis, P was considered not a suitable candidate for reconstructive surgery with fibular flap. 57.In December 2013, P underwent dental extractions of 6 lower teeth. He was prescribed with oral Augmentin for 4 weeks. 58.Regular follow-up on 28 January, 11 February and 4 March 2014 showed progressive improvement. Examination showed no more active discharge. Wound swab culture grew Staphylococcus aureus and Alpha-haemolytic streptococci. 59.The above treatment history from the relevant medical reports and the Joint Report was consistent P’s statement evidence that (a) his mandible was fractured on both side, and he suffered from teeth bone inflammation and decay, curved dental bridge, pain over face and lower incisors, and gum bleeding, (b) all his lower teeth were extracted due to the curved dental bridge which would otherwise have cut and injure his tongue, and (c) in the period between the Incident and 2014 “the curved dental bridge and decayed teeth bone caused gaps within the gums which were often purulent and bleeding often occurred. The gaps needed cleansing. Sometimes bleeding occurred in the middle of the night”. I will turn to the issue of what injuries/disabilities were attributable to the Incident in paragraphs 76-82 below. (c) Sick leave 60.P claimed he was given sick leave for 43 days in the period from 18 November 2012 to 15 February 2013.[19] However, the sick leave for 13 and 15 February 2012 was for “buccal mucosa pain” and “gingivitis” respectively. Save that I will discuss in paragraphs 81 and 83 below whether the 2 days’ sick leave in February 2012 were attributable to the Incident, the Experts considered the sick leave previously given to P was reasonable. (d) P’s complaints 61.P claimed that at his follow-up at PWH on 25 February 2015 “the diagnosis was the wound on the right side of his face had not healed leaving a one-inch long wound”, and the wound area still felt numb and it would hurt in winter. I assume P referred to the right mandibular angle fracture with minimal displacement when he mentioned “the wound on the right side of his face”. However, the treatment medical reports and the Joint Report did not suggest such “wound” still had not healed in 2015. In fact, the Experts opined that “[for] mandibular fractures that had been properly managed by conservative treatment, there is hardly any permanent disability”. Further, the Experts’ oral-facial examination on 14 April 2015 did not mention any unhealed one-inch long wound (see paragraph 64(a) below). 62.P complained that after the Incident he could no longer wear his denture and/or eat Chinese roast pork, chicken and noodles which were his favourite foods. With extraction of all his lower teeth, P said he was unable to chew or eat solid food. If he did, the solid food would cause stomach pain. So P could only have soft diet that the Wife cooked for him, and P claimed this caused the Wife’s hands to hurt such that a caregiver might be required in future. P also complained of limitation in mouth opening and difficulty in swallowing. P also claimed that because all his lower teeth were extracted, his speech was unclear which caused difficulty in his daily work. 63.P considered his soft diet led to lack of energy, poor physical strength and need for frequent sleep. P said that before the Incident he used to help his friends fix and repair electrical appliances, but after the Incident he no longer had the physical strength to pursue his hobby. P also claimed a doctor told him poor physical strength might lead to complications. However, there was no factual or expert medical evidence of poor physical strength even though the Experts noted P had to have soft diet “as he has severe limited mouth opening, and only a single mobile tooth in the mandible”. But even if P’s physical strength was somewhat comprised due to his soft diet, there was no factual or expert medical evidence that this would lead to future complications. Indeed, the Experts opined that P could resume work as a professional driver “since his physical strength and concentration do not normally affected by the jaw osteroradionecrosis”. I will deal with the issue as to whether “jaw osteoradionecrosis” was attributable to the Incident in paragraphs 76-82 below. (e) Joint Report 64.Joint examination At the joint examination on 14 April 2015, the Experts carried out oral-facial and radiographic examinations:
65.Incident As to the “diagnosis and extent of injuries suffered by [P] as a result of [the Incident]”, the Experts opined that P suffered right mandibular fracture with minimal displacement and left mandibular condyle fracture with mild displacement, and that conservative approach with antibiotics and soft diet for the management of right mandibular posterior body (angle) and left condyle fractures was appropriate given “the extensive osteoradionecrosis affecting the mandible and the poor healing ability” (see paragraph 67 below). “With improvement of mouth opening to 10mm and radiographic evidence of fracture healing, [P] was advised to have further treatment by private dentists to section his dental bridges. He was referred back to the dental clinic of PWH for management of impingement of cheek mucosa by the denture.”[20] The Experts were of the view that “[the] mandible fractures with minimal displacement and no occlusal derangement in a healthy patient would heal with conservative treatment by around six weeks with little complication”, and in any event “[for] mandibular fractures that had been properly managed by conservative treatment, there is hardly any permanent disability”. 66.Pre-existing condition The Experts noted P was diagnosed with carcinomas of the tongue in 2003 for which he received surgery (including hemi-glossectomy, mandibulotomy and left supraomohyoid neck dissection) followed by radiotherapy. The Experts opined P’s condition after the Incident was not all caused by D1’s assault on him, and they clarified the osteoradionecrosis of the mandible referred to in paragraph 65 above and paragraph 67 below was attributable to the radiation therapy P received as part of the treatment for his tongue cancer. 67.The Experts explained that since P had radiotherapy treatment for his tongue cancer, the irradiation induced osteolytic changes of the mandible and compromised his bone-healing resulting in defective bone regeneration and even bony necrosis. Indeed, the Experts considered that “[at] the time of factures [caused by the assault during the Incident], the CT scan showed extensive osteolytic changes in the mandible suggesting subclinical osteoradionecrosis” (my emphasis). The Experts went on to say P’s mandible later developed suppurative infection with pus over the necrotic bone. P was considered not suitable for reconstructive surgery with fibular flap in view of the extensive osteoradionecrosis. “Part of the treatment of the infection from mandibular osteoradionecrosis was extraction of the involved mandibular teeth that further compromise his chewing function”. The dental extractions took place in December 2013, and P was maintained on antibiotics for an extended period. At the joint examination on 14 April 2015, the osteoradionecrosis had reached all around the mandibular alveoli and had extended into the basal bone. There was also subclinical osteolytic changes in the maxilla around the molar tooth roots. 68.The Experts confirmed P’s “inability to chew food and limitation in mouth opening as well as other complaints”, ie inability to speak clearly, difficulty in swallowing and not being able to wear denture, would affect P’s living activities, but “these complaints are derived from the post-radiotherapy effect rather than the mandibular fractures”. The extraction of mandibular teeth being part of the treatment of infection from mandibular osteoradionecrosis further compromised P’s chewing function. The Experts opined the midline scar (which was quite disfiguring) amounted to 3% impairment, and the dietary restriction amounted to 28% impairment, thus P’s overall whole person impairment was 30%. 69.As regards P’s disability in relation to his pre-existing condition, the Experts noted P had a visible depressed scar (related to the surgical access for the tongue carcinoma excision) with loss of subcutaneous tissue at the midline of lower lip/chin as well as limited mouth opening (related to the radiotherapy scarring of the muscles of mastication) and only 1 remaining mobile tooth in the mandible that restricted his diet to liquid food. 70.The Experts also opined that without interceptive treatment, the medical prognosis of the osteoradionecrosis was very poor. The mandible, particularly at the right mandibular body and midline region, would soon develop pathological fracture and P would never be able to wear any denture in rehabilitating his dental occlusion. So the Experts recommended surgical management of “the jaw osteoradionecrosis” and supplemental hyperbaric oxygen. (f) Causation 71.P had to show on balance of probabilities that the Incident caused or materially contributed to the loss/damage claimed.[21] 72.The law’s approach to causation is pragmatic where there are several concurrent factors operating to cause injury.[22] A material contribution to the outcome is sufficient to impose liability for that outcome. A contribution which does not fall within the exception of de minimus non curat lex must be material; and a cause is sufficient, it does not have to be the sole cause.[23] 73.Causation is essentially a matter for the judge and not for the doctors, and it is necessary to bear in mind that law and medicine apply different standards.[24] The judge will be assisted by the medical evidence but is not bound by it; he is not confined to those matters which the doctors may individually have picked out in their consulting rooms. 74.Mr Ng placed emphasis on the “thin skull” principle, which I have explained in paragraph 71 of Yu Wai Kan v Law Cho Tai as follows:[25]
75.But as to the effect a relevant pre-existing condition on the issue of causation, it is necessary to consider the “crumbling skull” principle.[26] I reiterate the following principles stated in paragraph 71 of Yu Wai Kan which Mr Ng also relied:
76.Mr Ng submitted that although P’s inability to chew food and limitation of mouth opening as well as the other complaints were derived from the post-radiotherapy effect rather than the mandibular fractures, “in view of the sequence of events, on balance, [P’s] present conditions are activated or re-activated by physical injury caused by the wrongdoer’s negligence. [P] will submit that the “thin skull” rule is applicable”. 77.I am unable to accept such argument in light of the factual and expert medical evidence. I remind that the findings/opinion in the Joint Report were agreed between both Experts, and they had no disagreement at all. There was simply no or no sufficient evidence that the mandibular fractures P suffered as a result of the Incident triggered and aggravated his pre-existing condition. Rather, there was clear objective evidence that the pre-existing condition was in a deteriorating state by the time of the Incident. The computed tomogram taken by PMH’s department of surgery on the very day of the Incident already revealed diffuse lytic changes in the mandible which were related to previous radiotherapy changes (see paragraph 40 above). Whilst the fractures caused by the Incident gradually healed with conservative treatment,[27] P’s oral/dental condition associated with osteoradionecrosis that was attributable to the radiation therapy P received for his tongue cancer suffered deterioration. Indeed, the Experts stated that “[at] the time of fractures, the CT scan showed extensive osteolytic changes in the mandible suggesting subclinical osteoradionecrosis” (my emphasis) (see paragraph 67 above), and conservative treatment of the mandibular fractures was adopted due to “the extensive osteoradionecrosis affecting the mandible and the poor bone healing ability” (see paragraph 65 above). This was later confirmed by the oral-facial and radiographic examinations by the Experts which revealed extensive exposed necrotic bone in the mandibular area (see paragraph 64 above). 78.The Experts made clear it was irradiation that induced osteolytic changes of the mandible and compromised P’s bone-healing resulting in defective bone regeneration and even bony necrosis, and these changes were not caused by the mandibular fractures as a result of the Incident (see paragraph 67 above). They also made clear that the infection (and eventual dental extraction in December 2013) and P’s other complaints outlined in paragraph 68 above were all “derived from the post-radiotherapy effect rather than the mandibular fractures”. Indeed, P’s residual disability and whole person impairment were in relation to conditions associated with his pre-existing condition (ie midline scar, loss of subcutaneous tissue of lower lip and chin, limited mouth opening, loss of all except 1 tooth, and dietary restriction) rather than caused by the mandibular fractures (see paragraphs 68-69 above). 79.Given the clear demarcation between (a) P’s pre-existing condition which already presented with deteriorating changes at the time of the Incident and which deteriorated further thereafter, and (b) the mandibular fractures caused by the Incident which eventually healed and which did not cause the deterioration in (a) above, I am unable to see the relevance of the “thin skull” principle for the purpose of assessing the quantum of damages. 80.Mr Ng submitted I am not bound by the Experts’ opinion, and can come to my own findings on causation. However, in paragraph 63 of his written submissions, Mr Ng stated P “shall rely on the [Joint Report] at trial”. Given that P carried the burden of proof on the issue of causation, it was rather perplexing for P on the one hand to urge the court to rest its findings on the facts/opinion expressed in the Joint Report, and on the other hand to urge the court to forsake the expert medical evidence and come to an independent view on causation. I find no reason to reject the Experts’ agreed findings/opinion. In fact, I find their opinion cogent and reliable, and having carefully considered such findings/opinion in light of all the evidence before me, I accept the expert medical evidence in its entirety. But even I were to ignore the expert medical evidence, P failed to adduce cogent evidence to sufficiently persuade this court that P’s residual condition was “activated or re-activated” by the mandibular fractures. Indeed, as explained above, there were already osteolytic changes by the time of the Incident, and conservative treatment of the mandibular fractures were dictated by the “extensive osteoradionecrosis affecting the mandible ……” 81.Further, there was also nothing to show the buccal mucosal[28] pain that P had for just 4 days before 13 February 2013 (see paragraph 51 above) was caused by the Incident. According to the factual medical reports and Joint Report, there was limited mouth opening which complaint was “derived from the post-radiotherapy effect rather than the mandibular fractures” (see paragraph 68 above). According to the factual medical reports, the buccal mucosal pain was due to impingement of left lower molar teeth against the buccal mucosa with indentation marks, which in my view necessarily referred to entrapment of the buccal mucosa by the teeth or “impingement of cheek mucosa by the denture” (see paragraph 65 above). On balance, I find such impingement/entrapment were more likely to be associated with limited mouth opening (inter-incisal distance of 10mm) “derived from the post-radiotherapy effect rather than the mandibular fractures” that were located at the right mandibular angle[29] and left condyle,[30] which were at the posterior part of the jaws rather than at the cheek area. 82.As for denture impingement on the gum causing pain and bleeding noted in mid-February 2013 (see paragraph 52 above), I note that by March 2013 PWH made clinical findings of malocclusion of teeth (ie misalignment of teeth or “bad bite”) and severe limitation of mouth opening. But in fact the mandibular fractures had minimal/mild displacement, and by December 2012 and January 2013 there was respectively satisfactory occlusion and slight occlusal derangement (see paragraphs 48-49 above). Further, mouth opening improved by early January 2013 (see paragraph 49 above). On balance, I find the subsequent malocclusion of teeth and severe limitation of mouth opening were caused by P’s pre-existing condition and post-radiotherapy effect rather than the mandibular fractures. Indeed, the Experts opined that the complaint of “not able to wear denture” was “derived from the post- radiotherapy effect rather than the mandibular fractures (see paragraph 68 above). 83.Further, the need for sectioning P’s bridgework was due to gingival recession at the lower incisor tooth (ie teeth 31 and 32) region. In my view, this had no relation to the mandibular fractures at all. The incisor tooth region was at the front of the mouth whilst the mandibular fractures were in the posterior part of the mandible. Further, I am unable to see how gingival recession, ie receding gums that expose the roots of the teeth, had anything to do with the mandibular fractures. 84.I bear in mind the Experts were well aware of P’s post-Incident clinical history and complaints, but they clearly opined that only the mandibular fractures and not the other complaints (which must include those in paragraphs 81-83 above) were caused by the Incident. 85.Mr Ng next suggested P must have endured more pain and suffering by reason of the mandibular fractures than a person without any pre-existing condition.[31] I disagree. For the reasons explained above, I find on balance the Incident only caused mild tenderness over both cheek regions, some bleeding from oral gingivae, right mandibular angle fracture with minimal displacement, left mandibular condyle fracture with mild displacement, and 4cm superficial abrasion over the left elbow from which P recovered by January 2013, and the other complaints that presented since February/March 2013 were all caused by P’s pre-existing condition and treatment in which the Incident played no part. I am satisfied P had recovered from his injuries caused by the Incident with little if any permanent disability. (g) Pain, suffering and loss of amenities (“PSLA”) 86.In P’s Re-Revised Statement of Damages filed on 25 September 2017 (“RRSOD”), P claimed $450,000 for this head of damages. Mr Ng referred to a number of authorities which I have carefully considered,[32] but the plaintiffs in those cases suffered more severe dental injuries (and some plaintiffs suffered other conditions eg depressive disorder, mental/psychological problems, adverse impact on ability to breath requiring emergency operation to clear airway and/or bruises over eyes/nose with concussion) than P’s injuries/disabilities caused by Incident as I have found. Nevertheless, I bear in mind this was an assault, and I also accept P had gone through a few months of pain and discomfort after the Incident by reason of the such injuries and disabilities (although the sick leave in February 2013 were not caused by such injuries and disabilities). I consider that an appropriate award for PSLA would be $130,000. (h) Pre-Incident work 87.When P came to Hong Kong, he worked in the metal hardware industry for 1 odd year. Then he worked in the decoration industry and as a driver for 2-3 years before he became a self-employed driver and transportation worker with his self-owned 24-tonne Truck under the business name of Hing Shing. P carried on transportation business on casual basis by offering quotations for cargo transportation services. At first he provided local transportation services in Hong Kong, but after 2000 he provided cross-border (mainly between Huizhou and Hong Kong) transportation services. He transported many types of cargo, but they were mostly electronic goods. 88.In relation to Hing Shing’s operation, P explained he, Wife and Daughter provided comprehensive transportation service: (a) P was responsible for transporting cargo (including loading/unloading of cargo), (b) the Wife handled out-of-office work, eg collection of bills of lading to give to P and/or subcontracted drivers, and (c) the Daughter handled clerical work, eg completing and dealing with customs manifests. The Son also helped in moving cargo for about half an hour each day. P worked from Monday to Saturday, but his work hours were not fixed as sometimes there was overnight work. 89.The Wife admitted that prior to the Incident P was the main operator of Hing Shing, but she had some understanding of P’s transportation business, including its daily operation and relevant expenses. When P and the Wife gave evidence, they clarified the Wife was the one who paid the expenses in cash whilst the Daughter would handle customs manifests and relevant payment by internet. 90.The Wife said Hing Shing’s main customer was Huizhou Hager Electric Company Limited (“Hager”), and Hing Shing’s income from customers was deposited into its account with Bank of China (Hong Kong) Limited and recorded in bank customer credit advices (“Advices”). The disclosed Advices showed Hing Shing’s gross monthly income from January to October 2012 was as follows:
91.According to the Wife, Hing Shing’s monthly expenses for the period from January to October 2012 were as set out in the schedule annexed to this Judgment (“Table”). P and the Wife confirmed in evidence it was the Daughter who prepared the Table just before or shortly after the commencement of the present action, and P gave the same to his solicitors to show Hing Shing’s expenses. The Wife explained the Table was compiled from (a) data drawn from the documents P disclosed in the course of the present action and referred to in paragraphs 92-93 below, (b) computerised data maintained by the Daughter (eg payments made via internet), (c) withdrawal transactions shown in bank records, and (d) invoices, receipts and written records the Wife kept for some expenses she paid in cash. P did not provide the documents in (b)-(d) above to P’s solicitors even though (i) the Table was prepared with the present litigation in mind and (ii) such documents contained the primary data that were consolidated into the Table. Indeed, P and the Wife said the documents in (d) above were thrown away after a year or so as they did not have enough storage space. 92.The Wife explained the items of expenses in the Table as follows:
93.P/Wife claimed that, other than those documents identified in the above paragraph, Hing Shing had not kept documentary records for most of the various expenses for the period from January to October 2012 set out in the Table. Mr Ng submitted that nevertheless P’s case on his pre-Incident expenses was credible, “particularly because the proofs only concern expenditures, instead of incomes”. I am unable to understand the logic of such proposition when both income and expenditure must be relevant and important components of the equation for working out Hing Shing’s net monthly income. 94.However, having considered the totality of the evidence and having seen and heard P and the Wife gave evidence, I am satisfied the Wife gave truthful evidence about Hing Shing’s expenses for the period from January to October 2012 as set out in the 3rd column in the table in paragraph 95 below. The Wife obviously had personal knowledge about such expenses as she handled the miscellaneous payments in cash herself, and she confirmed the information in the Table was compiled from records/documents that were to hand. I accept she/Daughter made conscientious effort to prepare the Table, and the expenses stated therein did not appear unreasonable in light of the scale of Hing Shing’s business. I have carefully debated whether adverse inference ought to be drawn for non-disclosure of other primary documents, but on the totality of the evidence I am convinced those documents were disposed of in the ordinary course of business and not because of any intention to hide information. 95.The Wife said Hing Shing’s pre-Incident net monthly income was arrived at by deducting the monthly expenses from the gross monthly income set out in the table below, and on such basis Hing Shing’s pre-Incident average monthly net income was $68,085.10 :
96.P in his witness statement stated his and the Wife’s monthly salary was about $65,000, which approximate sum based on P’s impression was consistent with the sum of $68,085.10 based on the breakdown in the table in the above paragraph. P and the Wife both clarified that such average monthly income was in fact Hing Shing’s (and hence P’s) net income. Although the Wife would draw about $10,000-$20,000/month from Hing Shing’s income, such monies were treated as household income provided by P and used for the benefit of family. But Hing Shing’s income was exclusive of the Daughter’s earnings (see paragraph 92(e) above) as she maintained a separate household. On balance, I am satisfied that P’s average net monthly income for the period from January to October 2012 was $68,085.10. 97.P also disclosed copies of his savings account passbook (which account was different from that of Hing Shing’s account) for the period from 22 September 2004 to 21 July 2013, and the Wife’s savings account passbook for the period from 3 May 2012 to 21 July 2013. The passbook records revealed only minor transactions, and nothing turned on them. (i) Pre-trial loss of earnings 98.In the RRSOD, P claimed for pre-trial loss of earnings in the sum of $204,255.30 for the period from 17 November 2012 (date of Incident) to 15 February 2013 (last day of sick leave), ie $68,085.10 x 3 months. 99.The Experts opined that P could resume his job as a professional driver since his physical strength and concentration would not normally by affected “by the jaw osteoradionecrosis, which normally produce minimal symptoms unless infected or the mandible undergoes pathological fracture. The limitation is his diet as he has severe limited mouth opening, and only a single mobile tooth in the mandible. He has to bring food to cope with this limitation”. 100.P said that after the Incident he / Hing Shing continued to provide transportation services to Hager, and P, Wife and Daughter performed the same duties as before. But P claimed his restriction to soft diet led to diminished physical stamina such that he was no longer able to handle his work as before, and his physical exhaustion and wanting to sleep at work adversely affected his work performance (especially in loading/unloading cargo such that he had work longer hours) and concentration (that was necessary for driving). 101.But apart from December 2012 when P was on sick leave and recuperating from his injuries caused by the Incident and therefore had no income at all, P’s aforesaid complaints did not result in reduced earnings in the relevant post-Incident period. Actually, Hing Shing’s post-Incident average gross monthly income of $222,204.04 (from November 2012 to June 2013 but excluding December 2012 when P was on sick leave and had nil income) (see paragraph below) exceeded Hing Shing’s pre-Incident average gross monthly income of $206,095.90 (see paragraph 95 above). 102.In the post-Incident period, Hing Shing’s gross monthly income as evidenced by the Advices were as follows:
103.As explained in paragraph 101 above, I am unsurprised there was nil income for December 2012 as P was on sick leave for injuries caused by the Incident (see footnote 19 above), and he was unable to work or even solicit/receive orders for transportation services during his convalescence after the Incident. I am persuaded P was entitled to pre-trial loss of earnings for December 2012 in the sum of $68,085.10. 104.As regards the claim for pre-trial loss of earnings for 17-30 November 2012, the whole of January 2013 and 1-15 February 2013, there was no evidence before this court as to Hing Shing’s actual monthly expenses for such periods similar to that set out in the Table for the pre-Incident period. By adopting the average monthly expenses of $138,008.80 in the pre-Incident period (see paragraph 95 above),
105.In my view, P did not suffer any loss of earnings in November 2012 and January to February 2013, which again was not surprising:
In the circumstances, P was not entitled to pre-trial loss of earnings for 17-30 November 2012, the whole of January 2013 and 1-15 February 2013. 106.In any event, even on P’s own case, P’s claim for total loss of earnings for the post-Incident period from 17 November 2012 to 15 February 2013 could not be right because (a) P could subcontract transportation services/work to other drivers, and in any event Hing Shing’s gross and net income for November 2012 and January 2013 exceeded $206,095.90 and $68,085.10 respectively (see paragraphs 95 and 104(a)-(b) above), (b) P in his witness statement claimed the post-Incident net monthly salary of P, Wife and Daughter were $30,000 - $40,000 (which on balance I reject as being inconsistent with P’s actual gross monthly income less average monthly expenses – see paragraph 105(a)-(b) above), so even on P’s own case the post-Incident net monthly income for P/Wife would have been $30,000/$40,000 - $13,000 (Daughter’s salary) = $17,000/$27,000, ie P would at best be entitled to partial and not total loss of earnings, and (c) D1/D2 was not liable for P’s reduction in monthly income for February 2013 (see paragraph 105(c) above). (j) Loss of earning capacity 107.An award for loss of earning capacity is intended to cover risks that at some future date during P’s working life P would lose his employment and suffer financial loss because of disadvantage in the labour market.[33] P claimed a sum of $817,021.20 ($68,085.10 x 12 months) = $817,021.20 under such head of claim. 108.In the present case, I have no doubt that the 3rd scenario in Chan Kam Hoi v Dragages et Travaux Publics,[34] ie the pre-existing condition will certainly have occurred at some stage in any event so that clearly an allowance has to be made but the extent of which depends on the evidence as to when the precipitating event will have occurred, was applicable. In the present case, there was no doubt as to when the pre-existing condition reared its head because osteolytic changes due to underlying osteoradionecrosis were evident even as at the time of the Incident, and by February/March 2013 there were clear manifestation of deterioration of his pre-existing condition due to radiotherapy treatment for tongue cancer (see paragraphs 79-82 above). 109.The Experts were of the view that P was not compromised in his physical health by the mandibular fractures. The Experts noted P had resumed his pre-Incident work as self-employed cross-border truck driver, and opined there would be no loss of earning capacity unless he decided to proceed with major jaw resection and reconstruction for his osteoradionecrosis. 110.Mr Ng submitted the Experts’ views were “strictly subject to the maxillofacial injuries suffered by [P] which is independent from the actual cause of reduced working capacity, namely, [P] is limited to liquid diet as a result of his inability to chew”. But such submission would not take P’s case any further because the limited mouth opening and inability to chew with only 1 remaining mobile tooth in the mandible that restricted P’s diet to liquid food were related to the radiotherapy scarring of the muscles of mastication and the result of dental extraction being treatment of infection from mandibular osteoradionecrosis (see paragraph 68 above). In short, these complaints were caused by the pre-existing condition and not by the Incident. The mandibular fractures had healed, and there was little or no permanent disability and, in my view, had no effect on P’s diet and physical stamina. There was no basis to grant any award for loss of earning capacity. 111.In any event, given that P was self-employed (such that there was reduced risk of being thrown in the labour market), that P was able to subcontract transportation services/work to other drivers even if he had any physical impairment, and that Hing Shing’s average gross monthly income in the half year after the Incident showed an improving trend, so even if I were to consider any award for loss of earning capacity (which I disagree), the amount claimed by P was grossly excessive. (k) Pre-trial medical expenses 112.P claimed that as a result of injuries from the Incident, he paid $70,000 for medical expenses out of which $50,000 was for extraction of teeth in Mainland China. P did not keep all receipts, but was able to produce the following receipts: (a) receipt issued by PMH dated 21 November 2012 for ward maintenance fees in the sum of $300 in respect of P’s hospitalisation at PMH from 18-20 November 2012, and (b) receipt dated 24 May 2013 issued by the dentist in Mainland China in the sum of RMB500 for extraction of 7 teeth.[35] There was simply no evidence that teeth extraction in Mainland China cost $50,000 (see (b) above and footnote 35(b) below), which in any event was for treatment of mandibular infection due to osteoradionecrosis and not because of the Incident for which D1/D2 could have been made liable. Bearing in mind that P had to attend some follow up for his injuries due to the Incident, and that P’s medical expenses for attending to his pre-existing condition should not be allowed, I allow a sum of $2,000 under this head. (l) Future medical expenses 113.The Experts in the Joint Report proposed treatment for the jaw osteoradionecrosis, ie 20 sessions of hyperbaric oxygen treatment followed by extensive resection of the necrotic bone in the mandible followed by immediate fibular microvascular bone flap reconstruction of the mandible, and 10 post-surgical sessions of hyperbaric oxygen treatment. It was said that if the treatment went smoothly and the reconstructive mandible healed without complication, P could have dental rehabilitation by an implant supported over-denture with the retention provided by a dolder bar clip system connected by 2 dental implants located in the anterior mandible. It would be preferable to remove the maxillary long-span porcelain fused metal bridge for evaluation of the prognosis of the remaining teeth and treatment of the subclinical posterior maxillary osteoradionecrosis. The Experts proposed that such treatment be done as soon as possible and preferably before the mandible suddenly develops pathological fracture. It was expected that P would have to be hospitalised for about 1 month, and the recovery period for the mandibular resection and reconstruction would take about 3-6 months. Sick leave would be required for the hospitalisation and for attending outpatient clinic for review of the mandibular reconstruction, and additional sick leave would be required 1 year later for the dental implant surgery and denture construction. The Experts believed the chance of success was fair because of the extensiveness of the osteoradionecrosis and the poor healing ability from previous radiotherapy would compromise the graft ossification with the normal bone. The limitation in mouth opening would limit the ability to construct the denture and P’s “ability to place it in”. The dry mouth and increased risk of peri-implantitis may also compromise success. But if the treatment were successful, P would be pain free and there would be absence of necrotic bone, which would provide a foundation for mandibular rehabilitation, and he would be able to speak clearer and chew food. But his mouth opening might remain limited and swallowing difficulty would remain from the radiotherapy complications. 114.The Experts said the proposed surgical treatment could be administered in both the public sector (at PWH and at United Christian Hospital at $100/day for hospitalisation) and the private sector ($600,000), but hyperbaric oxygen therapy ($50,700) could only be provided by the private sector. P claimed $650,700 for future medical expenses. 115.The proposed treatment was for osteoradionecrosis that was related to P’s pre-existing condition and previous radiotherapy treatment. I am unable to see how the proposed medical expenses could be laid at the door of D1/D2. Mr Ng suggested P was able to wear denture prior to the Incident, but after the Incident the denture impinged on the gum which caused pain and bleeding. But there was no evidence to show “the Incident was a material contribution to the outcome that [P’s] difficulties in wearing denture”. In any event, the Experts made clear that P’s complaint of “not able to wear denture” was “derived from the post-radiotherapy effect rather than the mandibular fractures” (see paragraph 68 above), and that the proposed treatment was to deal with complications arising from the osteoradionecrosis rather than, as Mr Ng suggested, to deal with any inability to wear denture. Indeed, the treatment plan was to first deal with the osteoradionecrosis to remove the necrotic bone and carry out reconstruction, so that P could have dental rehabilitation by an implant supported over-denture. This suggested P’s problems with denture wearing was due to osteoradionecrosis rather than the mandibular fractures due to the Incident. In the circumstances, no award is made under this head of claim. (m) Tonic food 116.P claimed he spent $20,000 on fish maw and gingseng which he believed would help in recovery from injuries to his lower jaw on both sides of the face. However, I note it did not take long for P to recover from the mandibular fractures. Only a reasonable sum will be awarded where there is no evidence as to the advisability or suitability of tonic food from any doctor or herbalist or person with medical knowledge. Following Yu Ki v Chin Kit Lam[36] and judging from the nature of P’s injuries and disabilities caused by the Incident, I allow a global sum of $5,000 for his claim under this head. (n) Travelling expenses 117.P claimed he incurred travelling expenses of about $3,500 for visits to and from hospitals for medical treatment, but he did not keep all the receipts. P produced 5 taxi receipts all dated 18 November 2012. 118.P was hospitalised in the latter half of November 2012 and attended 6 follow ups from November 2012 to January 2013. Since February/March 2013 his medical attendances were due to his pre‑existing condition and previous treatment, and not due to injuries as a result of the Incident from which P had recovered. I allow $2,500 under this head of claim. (o) Aggravated damages 119.P claimed $100,000 under this head of claim. 120.Mr Ng referred to Ambarini-Bt-Sahari-Kasto v Fok Ka Ching as follows:[37]
121.It was said that an award for aggravated damages shall reflect what the court considers to be fair and reasonable compensation for the injury to the plaintiff’s feelings as a result of the defendant’s egregious behaviour.[38] 122.In Achacoso Warly Cabaneros, a foreign domestic helper was sexually abused and raped by the employer’s brother-in-law, and the employer terminated her employment. She fled her employer’s home to stay at a shelter for migrant workers, and gave evidence at trial which resulted in conviction of the employer’s brother-in-law. She suffered from post-traumatic stress disorder and was afraid of letting her new employer know about the incidents and of requesting sick leave. Given the breach of trust by the culprit being a person in authority, the obscene modus operendi, the sexual assaults over a month which prolonged the helper’s humiliation, her loss of dignity, her husband blaming her for the incidents, and their marriage was over, the helper was awarded aggravated damages of $80,000 as claimed. 123.In Chan Kwok Wai v Secretary for Justice,[39] the plaintiff who was suspected of having taken part in a conspiracy to rob was assaulted by police officers inside a police station. He was punched most probably to his chest area, clapped on both ears from behind causing injury to left ear drum, and handcuffed to back/legs of a chair on which he was sitting in respect of both hands causing injuries to both wrists because he was struggling whilst so handcuffed. The plaintiff did not suffer any permanent incapacity. The court took into account the fact that the plaintiff had been awarded $80,000 for PSLA, and in compensation for his injured feelings and loss of dignity P was awarded $100,000 in aggravated damages. 124.In Chan Hau Yu v Li Wing Kwai,[40] Li was leaving a shopping plaza when Chan was standing outside about more than 4 feet from the door on the right side of him. His back was facing Li. To avoid hitting Chan, Li opened the door on her left hand side. Chan suddenly turned around and moved towards the left. Chan’s right shoulder then hit the door, and Chan immediately scolded and assaulted Li. Chan then hit Li’s head 3 times with his right fist, once on her left forehead, once on her left cheekbone, and once on her left lip. Li’s glasses fell onto the ground during the assault. Physical examination showed redness over Li’s left wrist and face. Chan was sentenced to 18 days’ imprisonment. It was held that even though the shopping plaza was not crowded at the material time and the assault lasted only for a short while, Chan’s deliberate assault on Li in the public caused injury to Li’s pride and dignity, and an award of $40,000 was made. 125.In Chung Lai Ha v Ching Mei Yee,[41] the plaintiff was assaulted by the defendant subordinate at the corridor and at the plaintiff’s office in a post office. The plaintiff stated the defendant intended to and did humiliate her in the presence of her colleagues and others in the post office, and subject her to ridicule and contempt in public. The assault was the defendant’s revenge for the plaintiff’s prohibition against the defendant’s wrongful conduct in abusing the overtime system of the HongKong Post. The magistrates’ court made a binding-over order against the defendant for 12 months. $30,000 was awarded for aggravated damages. 126.In my view, it is appropriate to grant aggravated damages in the sum of $60,000. I accept P was publicly humiliated, and his pride and dignity suffered as a result. But I bear in mind the award that had been made for PSLA, and the present circumstances were not as bad as those in Achacoso Warly Cabaneros and Chan Kwok Wai when the plaintiffs were severely assaulted and abused by persons in authority. In all the circumstances, I consider $60,000 fair compensation for injury to P’s feelings. (p) Summary 127.I summarise the above awards as follows:
IV. CONCLUSION 128.I therefore grant judgment in favour of P against D1 and D2 in the sum of $262,585.10. Interest is payable on the award for PSLA at 2%pa from the date of the Writ of Summons to the date of judgment herein, and on special damages from the date of the Incident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment. 129.I also grant a costs order nisi that D1 and D2 shall pay P’s costs of the action (including all costs reserved if any) on District Court scale to be taxed if not agreed.
Mr Ernest Ng, instructed by M C A Lai Solicitors LLP, for the plaintiff The 1st and 2nd defendants acting in person and absent Schedule
[1] the business registration records of Hing Shing showed it commenced business on 2 May 2015 and the proprietor was P’s wife Wong Pui Luen, but the evidence showed P carried on business in the name of Hing Shing in 2012 if not earlier (possibly without any business registration) [2] ie (a) engaging in a fight with D1, (b) failing to control his own emotions, (c) provoking D1 in the circumstances, (d) deliberately obstructing D1 from leaving the Scene, (e) acting in an aggressive/intimidating manner, (f) failing to avoid physical contact with D1, (g) failing to leave the Scene and/or to avoid D1, (h) failing to seek assistance from others, (i) electing to resort to violence over a trivial matter, (j) failing to take any or any adequate precautions to avoid the Incident or to safeguard his own safety, (k) exposing himself to a risk of injury which he knew or ought to have known, and (l) failing to take reasonable care for his own safety [3] ie D1 (a) failing to control his own emotions, (b) engaging in a fight with P, (c) attacking P with fists and kicks, and (d) causing bodily injury to P [4] see notebook record made by PC34495 and signed by D1 [5] see Lau Ka Po (a minor) by his mother and next friend Wong Siu Mui & anor v Man Cheuk Ming & anor HCPI584/1996, Cheung J (as he then was) (unreported, 10 March 1997) paras 9-10 [6] see Ming An Insurance Co (HK) Ltd v Ritz-Carlton Ltd (2002) 5 HKCFAR 569, 578 [7] see Ming An Insurance Co (HK) Ltd at p 582 [8] [2015] 2 HKLRD 483 [9] (2002) 5 HKCFAR 569 [10] [2016] 2 WLR 821 [11] [2002] 3 WLR 1913, 1941-1942 [12] unreported judgment of the English Court of Appeal (Civil Division) (2000 WL 1918634, 11 December 2000) [13] [2003] 1 WLR 2158 [14] [2006] 1 HKLRD 84 [15] on the contrary, it was Y’s and Z’s duty to conform to the discipline and instructions of the deceased [16] DCPI1445/2005, HHDJ C B Chan (unreported, 21 August 2006) [17] HCPI91/2008, Au J (unreported, 30 September 2011) [18] one carcinoma was located at the lateral tongue and the other was located at the postero-lateral tongue [19] from 18-28 November 2012 (11 days), 3 December 2012 to 1 January 2013 (30 days), 13 February 2012 (1 day) for “buccal mucosa pain” and 15 February 2013 (1 day) for “gingivitis” [20] the issue of whether such complaints/developments were attributable to the Incident will be discussed in paragraphs 76-82 below [21] see CMY v Tam Siu Wing [2008] 4 HKLRD 604, 613 and Yu Wai Kan v Law Cho Tai HCPI62/2010, Master Marlene Ng (unreported, 11 May 2011) para 71(a) [22] see Lee Kin-kai, a patient by his father and next friend Li Wah v Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232, 236, Hung Sau Fung v Lai Ping Wai [2016] 1 HKLRD 106, 125, and Yu Wai Kan at para 71(b) [23] see CMY at p 612, McGhee v National Coal Board [1973] 1 WLR 1, 6, 8 and 11, Heung Wing Yan v Hangway Housing Management Limited & ors HCPI347/ 2012, DHCJ Marlene Ng (unreported, 14 October 2016) para 65, and Yu Wai Kan at para 71(b) [24] there is a causal connection in law if it is shown on the balance of probabilities that the incident is a substantially contributing cause of the injury, but doctors practice the science of aetiology and look for “clinical cause” or “irrefragable chain of causation” which is to be proved beyond reasonable doubt or beyond any doubt (see Lee Kin-kai, a patient by his father and next friend Li Wah at pp 235-236, Li Sau Keung v Maxcredit Engineering Ltd & anor [2004] 1 HKC 434, 450, Ansar Mohammad v Global Legend Transportation Limited CACV162/2010 (unreported, 24 March 2011) para 22(2), Heung Wing Yan at para 66, and Yu Wai Kan at para 71(c)) [25] HCPI62/2010, Master Marlene Ng (unreported, 11 May 2011) para 71 [26] ie the tortfeasor is only responsible for the extent to which he has worsened the victim’s condition [27] (a) by December 2012 the pain and swelling had subsided and there was satisfactory occlusion (see paragraph 48 above), (b) by early January 2013 there was only slight occlusal derangement and there was improvement in mouth opening with increase in inter-incisal distance to 10mm (see paragraph 49 above), and (c) by late January 2013 there was decreased radiolucency in respect of the fracture line (see paragraph 50 above) [28] ie lining of the cheeks and floor of the mouth being part of the lining mucosa [29] ie the angle of the mandible located at the posterior border at the junction of the lower border of the ramus of the mandible [30] ie round prominence at the end of the mandible that articulates with the articular disk of the temporomandibular joint [31] see Chum Hok Ching & anor v Chung Lai Ching DCPI887/2011, HHDJ M Wong (unreported, 10 January 2014) paras 19-24 [32] see Kwok Chi Kuen v Lee Chung Lick HCPI1058/2005, Suffiad J (unreported, 16 December 2009) ($500,000), Leung Chau v The Incorporated Owners of Kwai Wan Industrial Building & ors HCPI1074/1998, Master J Wong (unreported, 7 December 2004) ($500,000), Orla Gilroy v Easy Up Investments Limited (trading as Caledonia Restaurant & Bar) DCPI1252/2004, DDJ K Lo (as she then was) (unreported, 1 February 2006) ($170,000), Wong Bik Chuen v Hua Min Tourism Automobile Transport Company Limited DCPI2164/2009, DJ H C Wong (unreported, 13 January 2011) ($130,000), and Hau Kwok Fong v The Kowloon Motor Bus Co (1933) Ltd & ors HCPI101/1997, Pang J (unreported, 4 March 1999) ($180,000) [33] see Thapa Surendra v E W Cox Hong Kong Limited & anor HCPI451/2009, Seagroatt J (unreported, 11 July 2011) paras 46-48 [34] [1998] 2 HKLRD 958 [35] P said he went to Mainland China on several occasions for dental extraction for which he paid in cash withdrawn from his bank account, but (a) he did not disclose the relevant bank statement for such withdrawals or identify which transaction entries in the disclosed bank passbook represented such withdrawals, and (b) the receipt dated 24 May 2013 specifically stated it was for “折牙7個” with quantity being “7” at “豐山社區牙科” [36] [1981] HKLR 419 (see also King Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 54 and Mak Yiu Keung v Ho Cheung Kat [1995] 3 HKC 575) [37] [2017] 1 HKLRD 880, 886-887 (see also Mir v Mir [2012] 1 HKLRD 671, 687) [38] see Chung Lai Ha v Ching Mei Yee DCPI2755/2012, Master R Lai (as he then was) (unreported, 20 January 2014) para 92 [39] HCPI134/1999, Suffiad J (unreported, 30 June 2000) [40] DCPI673/2013 and DCPI1883/2012, DDJ Jackson Poon (unreported, 5 September 2014) [41] DCPI2755/2012, Master R Lai (unreported, 20 January 2014) |
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