Tse Chi Wai v. Chan Kwan Ho and Others
Read the full judgment text of DCPI 3774/2023 on BabelCite. This District Court judgment was delivered on 10 July 2025.
1. The Plaintiff’s claim arises out of an accident which happened on 23 February 2017. At the material time, the Plaintiff was employed as a warehouse supervisor and the 1 st Defendant was employed as a senior supervisor. There is an issue as to whether the 2 nd or 3 rd Defendant was the employer of the Plaintiff and/or the 1 st Defendant.
Cited by 1 case · Cites 14 cases
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DCPI 3774/2023 [2025] HKDC 1105 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 3774 OF 2023 ----------------------------------------- BETWEEN
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---------------------- JUDGMENT ---------------------- A. INTRODUCTION 1.The Plaintiff’s claim arises out of an accident which happened on 23 February 2017. At the material time, the Plaintiff was employed as a warehouse supervisor and the 1st Defendant was employed as a senior supervisor. There is an issue as to whether the 2nd or 3rd Defendant was the employer of the Plaintiff and/or the 1st Defendant. 2.The 4th Defendant is the insurer of the 3rd Defendant. 3.In the morning of 23 February 2017, the Plaintiff and the 1st Defendant had a quarrel about work at the loading platform of the warehouse in which they worked at. The quarrel soon turned into a fight. During the fight, the 1st Defendant assaulted the Plaintiff, who fell off the loading platform and was injured (the “Accident”). 4.On 28 July 2017, the Plaintiff commenced DCEC 1828/2017 and claimed employee’s compensation against the 2nd Defendant under the Employees’ Compensation Ordinance (Cap 282) (“ECO”) (the “DCEC Proceedings”) on the basis that his personal injuries caused by the Accident arose out of and in the course of his employment with the 2nd Defendant. 5.On 17 May 2018, in respect of the Accident, the 1st Defendant pleaded guilty to the charge of common assault and inflicting grievous bodily harm in TMCC 672/2018 (the “Criminal Proceedings”). 6.On 2 August 2018, in respect of the Accident, the Plaintiff was acquitted of assault occasioning actual bodily harm but was convicted of common assault in the Criminal Proceedings. 7.On 13 January 2020, the Plaintiff commenced this action in the High Court, which was transferred to the District Court pursuant to the order of Master Kot dated 2 November 2023. 8.By this action, the Plaintiff claims against the 1st, 2nd and 3rd Defendants for damages for the personal injuries he has suffered as a result of the Accident. The claims against the 2nd and 3rd Defendant are based on (a) negligence, (b) breach of implied terms of contract of employment, and (c) their vicarious liability for the damages caused by the 1st Defendant’s assault. 9.On 24 March 2021, interlocutory judgment was entered against the 1st Defendant, who had given no notice of intention to defend. 10.On 23 June 2022, the 4th Defendant applied to intervene into these proceedings, which application was consented to by the Plaintiff. 11.By the order of Master Kot dated 7 July 2022, leave was granted to the 4th Defendant to join in these proceedings. However, in the prayer for relief of the Plaintiff’s Amended Statement of Claim, no relief is sought against the 4th Defendant. 12.On 2 August 2022, the 4th Defendant filed its defence, disputing any employment relationship between the Plaintiff/1st Defendant and 3rd Defendant, the 3rd Defendant’s alleged liability to the Plaintiff, as well as the quantum claimed by the Plaintiff. The 4th Defendant also claims that the Plaintiff is contributorily negligent for the damages resulted from the Accident. 13.On 8 August 2022, interlocutory judgment was entered against the 2nd and 3rd Defendant, which interlocutory judgment against the respective defendants was set aside by Master Kot on 27 October 2022 and by this court on the first day of trial on 24 June 2025. 14.The 1st, 2nd and 3rd Defendant did not participate in these proceedings. B. THE CRIMINAL PROCEEDINGS 15.According to the Amended Brief Facts for the 1st Defendant in the Criminal Proceedings, the 1st Defendant was the supervisor of the Plaintiff and a Mr Tam Wai Hing (“Mr Tam”). On the day of the Accident, the 1st Defendant had a dispute with the Plaintiff and Mr Tam over their working attitude at the loading platform of the warehouse of the 2nd Defendant. The 1st Defendant and Mr Tam pushed each other. Mr Tam struck the 1st Defendant’s neck, who punched Mr Tam’s right wrist. The Plaintiff and the 1st Defendant struggled. The Plaintiff struck the 1st Defendant’s lip, and the 1st Defendant punched the Plaintiff’s abdomen at the edge of the loading platform, which was about 1.5 metres tall. 16.Under caution, the 1st Defendant alleged that he disputed with the Plaintiff and Mr Tam over their working attitude. The latter two came to argue with him. Mr Tam pushed the 1st Defendant first, who felt offended and punched Mr Tam’s right hand. The three of them struck each other, and the 1st Defendant punched the Plaintiff, hence the Plaintiff fell from the loading platform. 17.As mentioned above, the 1st Defendant was convicted upon a plea of guilty. He was sentenced to 140 hours of community service. 18.As for the Plaintiff, according to the transcript of the Criminal Proceedings, as the learned magistrate could not be certain whether there was any body contact when the Plaintiff kicked the 1st Defendant, the learned magistrate acquitted the Plaintiff of assault occasioning actual bodily harm. However, the learned magistrate was certain that the Plaintiff did assault the 1st Defendant and therefore convicted him of common assault and imposed a fine of $4,000 on him. 19.Pursuant to section 62(1) of the Evidence Ordinance (Cap 8), the aforesaid convictions are admissible in evidence in these proceedings for the purpose of proving that the Plaintiff and the 1st Defendant have committed the respective offences. C. DCEC PROCEEDINGS 20.As mentioned above, the Plaintiff commenced the DCEC Proceedings against the 2nd Defendant on the basis that his personal injuries caused by the Accident arose out of and in the course of his employment with the 2nd Defendant. 21.On 5 February 2018, the 2nd Defendant, through Messrs Au-Yeung, Chan & Ho (the “2nd Defendant’s former solicitors”), filed its Answer in the DCEC Proceedings, admitting that the Plaintiff was an employee employed by it on the date of the Accident. In the Answer, the 2nd Defendant also pleaded that the 1st Defendant was its senior warehouse supervisor. 22.In the Plaintiff’s affirmation dated 17 February 2022 filed in these proceedings in support of its application to join the 3rd Defendant, the Plaintiff explained that by a letter from the 2nd Defendant’s former solicitors dated 11 August 2020, the 2nd Defendant suddenly changed its stance and alleged that the Plaintiff was employed by the 3rd Defendant but worked under the direction of the 2nd Defendant, relying on a MPF statement of the 3rd Defendant dated 2 March 2017. 23.According to the Plaintiff, prior to receiving the aforesaid letter, he was not aware of the existence of the 3rd Defendant or the fact that it was contributing to his MPF immediately before the Accident. 24.In the Plaintiff’s solicitor’s letter to the 2nd Defendant’s former solicitors dated 17 September 2020, the Plaintiff’s solicitors stated inter alia that on 12 August 2011, the Plaintiff and the 2nd Defendant entered into a written employment contract, expressly stating that the 2nd Defendant was the employer. The notice for adjusting his salary, warning letters and letter of termination of his employment were all issued in the 2nd Defendant’s name. The 3rd Defendant was only incorporated six months after the said employment contract. 25.By a letter dated 28 May 2021, the solicitors of the Employees Compensation Assistance Fund Board (the “Board”) informed the Plaintiff’s solicitors that the 3rd Defendant was contributing to the Plaintiff’s MPF at the time of the Accident and “was, at least, one of” his employers. The Board also noted that according to a MPF statement of the 3rd Defendant dated 4 February 2017, the 3rd Defendant was also the employer of three other employees who had given police statement in relation to the Accident, being Mr Tam and prosecution witnesses numbers 1 and 2 in the Criminal Proceedings. 26.On 5 July 2021, the 2nd Defendant’s former solicitors ceased acting for the 2nd Defendant in the DCEC Proceedings. 27.The DCEC Proceedings have been stayed pursuant to HHJ Levy (as she then was)’s order dated 20 May 2022 pending the resolution of the present action. To date, the 2nd Defendant’s Answer in the DCEC Proceedings remain unamended, and neither the 3rd nor 4th Defendant has been joined as a party thereto. D. THE ISSUES 28.The issues in dispute between the parties are:
29.The first issue is only relevant to the extent that it is the Plaintiff’s case that the 1st Defendant was employed by the same employer as him at the time of the Accident because the 1st Defendant was his supervisor. In the premises, if the court finds that the Plaintiff was the employee of the 2nd Defendant, then the 1st Defendant must also be the 2nd Defendant’s employee. On the other hand, if the court finds that the Plaintiff was the employee of the 3rd Defendant, then the 1st Defendant must also be the 3rd Defendant’s employee. The 4th Defendant’s counsel, Ms Lui, disagrees that the Plaintiff and the 1st Defendant must be employed by the same employer simply because the latter was the Plaintiff’s supervisor. 30.During his opening submissions, the Plaintiff’s counsel, Mr Yip, informed the court that the Plaintiff no longer relied on negligence or breach of implied terms of contract of employment. He also confirmed that (a) the issue of contributory negligence would only arise if the 3rd Defendant is found liable to the Plaintiff, and (b) it was not his case that both the 2nd and 3rd Defendants were employers of the Plaintiff. His primary case, as stated in his opening submissions, is that both the Plaintiff and the 1st Defendant were employed by the 3rd Defendant at the time of the Accident, who was vicariously liable for the 1st Defendant’s acts. His secondary case is that they were both employed by the 2nd Defendant at the time of the Accident, who was vicariously liable for the 1st Defendant’s acts. 31.In relation to quantum, the 4th Defendant disputes the extent of the injuries that the Plaintiff is said to have been suffering, and thus the quantum of damages claimed. The issues are therefore whether the Plaintiff has proved the various heads of quantum as claimed. E. WITNESSES E1. The Plaintiff 32.The Plaintiff gave evidence himself. Whilst I find him truthful most of the time, there are two areas in his evidence which I find unbelievable. 33.First, in his Amended Statement of Claim, he pleaded that:
34.In his Answers to the 4th Defendant’s Requests for Further and Better Particulars of the Amended Statement of Claim in relation to the above pleas, he answered that he was told by other colleagues/co-workers that the 1st Defendant was:
but he could not recall the occasion(s), the date of the occasion(s) and the identity/identities of the person(s) who told him such matters. 35.During cross-examination, he said he did not know that the 1st Defendant (a) was employed by the 3rd Defendant, (b) had requested not to add his name to the payroll of the 2nd/3rd Defendant or (c) was bankrupt. He was not told by other colleagues/co-workers of the aforesaid matters, or that the 1st Defendant was aggressive. He also said that he had never given instructions to his lawyers on the matters stated in his Answers to the 4th Defendant’s Requests for Further and Better Particulars of the Amended Statement of Claim. 36.During re-examination, when being asked whether his contention in the Amended Statement of Claim that the 1st Defendant was bankrupt and had requested not to put his name on the employer’s payroll was correct, he firmly answered that it was incorrect. 37.This begs the question as to why he signed the statements of truth on the Amended Statement of Claim and the three Answers to Requests for Further and Better Particulars of the Amended Statement of Claim, which were all certified to have been translated to him by his solicitors. 38.The Plaintiff tried to explain this away by saying that perhaps there were some miscommunications and misunderstanding between him and his lawyers. I find this unbelievable because there were altogether three rounds of Requests and Answers for Further and Better Particulars of the Amended Statement of Claim in relation to the aforesaid pleas in the Amended Statement of Claim. Notwithstanding the above, the Plaintiff never tried to correct his lawyers or the incorrect allegations made in his various Answers to Further and Better Particulars. 39.Secondly, in relation to the injuries the Plaintiff is said to have been suffering, the Plaintiff claims that he suffered fractures over right distal radius and distal ulna, with displacement and intra-articular involvement, thumb numbness and weakness and sciatica, with back pain which radiated to his left lower limb as a result of the Accident. 40.However:
41.The Plaintiff’s contention that he suffered back pain and left lower limb pain as a result of the Accident is contradicted by the aforesaid contemporaneous medical records. 42.Further, in the Certificate of Assessment issued by the Employees’ Compensation (Ordinary Assessment) Board (Form 7) (“Assessment Board”) dated 31 July 2019, the Plaintiff’s injury was stated to be “multiple injuries resulting in right wrist pain and stiffness, right hand numbness”. There was no mentioning of back or lower limb pain. His loss of earning capacity permanently caused by the injury was certified at 3%. 43.During cross-examination, when being asked why Form 7 did not mention anything about his back and leg pain, the Plaintiff explained that he had told the officer of the Assessment Board about his back pain and leg pain. I find it inexplicable why such alleged injuries were not mentioned in Form 7 if he had told the officer about them. 44.It is even more inexplicable why the Plaintiff did not mention about his back and leg pain in his objection form to the assessment in Form 7 when he sought to review such assessment on 6 August 2019. If he was unsatisfied the Assessment Board’s failure to take into account his back and leg pain in their assessment, it is inconceivable for him to not point this out expressly in his objection form so that the Assessment Board could review the same. 45.In the Certificate of Review of Assessment (Form 9) issued by the Assessment Board on 4 December 2019, the injury stated therein as well as the percentage loss of earning capacity permanently caused by the injury are exactly the same as those certified in the previous Form 7. Only the sick leave period was extended. 46.By reason of the above, I find his evidence that he suffered back pain and left lower limb pain as a result of the Accident unbelievable and incredible, and that he has exaggerated the extent of his injuries resulted from the Accident in this regard. E2. The 4th Defendant’s witness 47.There is no dispute that the 4th Defendant’s witness, Ms Chow Ching Han, has no personal knowledge of the employment relationship between the parties as well as the Accident. As such, I give no weight to her factual evidence. F. ANALYSIS F1. Issue 1: Was the Plaintiff the employee of the 2nd or 3rd Defendant? 48.Although the guidance set out in Poon Chau Nam v Yim Siu Cheung t/a Yat Cheung Airconditioning & Electric Co (2007) 10 HKCFAR 156 was given in the context of deciding whether someone is an employee as opposed to an independent contractor, it is still useful for deciding who the Plaintiff’s employer was. 49.In that case, Ribeiro PJ held at §18:
50.It is not disputed that the Plaintiff was an employee of either the 2nd or 3rd Defendant. Whilst the Plaintiff subjectively believed all along until he received the 2nd Defendant’s former solicitors’ letter dated 11 August 2020 that he was employed by the 2nd Defendant, such subjective belief, whilst a relevant consideration[1], has to be considered in light of other indicia of employment and, more importantly, the contemporaneous documents. 51.For the following reasons, I find that the Plaintiff was an employee of the 2nd Defendant at the time of the Accident:
52.In the premises, I find that the Plaintiff was the employee of the 2nd Defendant, and not the 3rd Defendant, at the time of the Accident. F2. Issue 2: Was the 1st Defendant the employee of any of the 2nd or 3rd Defendant? 53.As mentioned above, it is the Plaintiff’s case that the 1st Defendant and the Plaintiff were employed by the same employer at the time of the Accident by virtue of the fact that the 1st Defendant was the Plaintiff’s supervisor. 54.I agree with Ms Lui that there is a quantum leap between the 2nd Defendant being found to be the Plaintiff’s employer and the 2nd Defendant must therefore also be the Plaintiff’s supervisor (ie the 1st Defendant)’s employer. 55.That said, I am satisfied on the evidence that the 2nd Defendant was also the 1st Defendant’s employer at the time of the Accident for the following reasons:
56.I am therefore satisfied on the balance of probabilities that the 1st Defendant was the employee of the 2nd Defendant at the time of the Accident. F3. Issue 3: Should the 2nd or 3rd Defendant be held vicariously liable for the 1st Defendant’s acts in assaulting the Plaintiff in the Accident? 57.Given my finding above that it was the 2nd Defendant, and not the 3rd Defendant, who was the 1st Defendant’s employer at the time of the Accident, the third issue is whether the 2nd Defendant as the employer should be held vicariously liable for the 1st Defendant’s acts in the Accident. The 3rd Defendant, who was not the 1st Defendant’s employer, would not be so liable. Applicable legal principles 58.The applicable legal principles are trite. As held in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15:
59.The Court of Final Appeal has provided guidance on the “close connection test” in Ming An Insurance Co (HK) Ltd v Ritz-Carlton Ltd (2002) 5 HKCFAR 569. In that case, Bokhary PJ held at 581J:
60.In the same case, Litton NPJ held at 584B that “the underlying idea is that the injury done by the servant must involve a risk sufficiently inherent in or characteristic of the employer's business that it is just to make the employer bear the loss.” 61.Litton NPJ continued at 586D:
62.In Yeung Mei Hoi v Tam Cheuk Shing [2015] 2 HKLRD 483, the Court of Appeal discussed in detail the close connection test, the relevance of risk under such test, and examples of assault by employees in §§3.1- 5.6 of the judgment. In §3.5, Cheung JA (as he then was) cited Lord Phillips in Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 at §35, where his Lordship “identified policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when five criteria are met:
63.See also Ling Man Kuen v Chow Chan Ming & anor (unrep, DCPI 1445/2005, 21 August 2006), where the plaintiff who was an assistant engineer employed by the 2nd defendant for the maintenance and inspection of the safety of lifts and escalators was assaulted by another employee of the 2nd defendant. The assault occurred when the 1st defendant took the plans drawn by the plaintiff to the control room to talk to the plaintiff to inform him that the measurements stated therein were not specific enough. The 1st defendant lost control and punched the plaintiff and then they pushed each other. The court held that the assault arose out of or was closely connected with the 1st defendant’s employment with the 2nd defendant and therefore the latter was held vicariously liable for the plaintiff’s injuries caused by the 1st defendant’s act. Discussion 64.In the present case, there is no dispute that the assault was not premeditated or motivated by any personal malice or grudges between the parties. At the material time, the 1st Defendant’s employment required him, as the Plaintiff’s supervisor, to prepare for and discuss with the Plaintiff about the upcoming tour by their supervisor. The two of them had a heated argument or dispute over the Plaintiff’s and his subordinates’ working attitude at the loading platform of the warehouse where they worked.[3] 65.Their colleague Mr Tam ran over. Mr Tam and the 1st Defendant started pushing each other. Then the Plaintiff joined in the fight, and the Plaintiff suddenly fell off the edge of the loading platform which is about 1.5 metres high and landed on the right side of his body and was injured. 66.The focus of the close connection test is on the scope of employment of the employee who carried out the unauthorised act, ie the 1st Defendant. As mentioned above, when the 1st Defendant assaulted the Plaintiff, he was the Plaintiff’s supervisor and was tasked with supervising the Plaintiff and his work performance. At the material time, he had a heated dispute with the Plaintiff over his working attitude. The 1st Defendant was acting within the scope of his employment and his duties when he was giving instructions to the Plaintiff about work and passing comments on the Plaintiff’s working attitude with which he was not satisfied. 67.In the premises, the 1st Defendant’s activity in supervising the Plaintiff and his subordinates was part of the 2nd Defendant’s business activity. The 1st Defendant was acting in the interests of the 2nd Defendant at the material time, who by employing the 1st Defendant to carry on the activity had created the risk of the tort committed by him. 68.For the reasons above, I find that the 1st Defendant’s tortious act in assaulting the Plaintiff was so closely connected with his employment that it is fair to make the 2nd Defendant as his employer vicariously liable. F4. Issue 4: If the 3rd Defendant is liable, was the Plaintiff contributorily negligent? 69.As the 3rd Defendant was not the 1st Defendant’s employer, it should not be liable for the Plaintiff’s injuries, and this issue does not arise.[4] In case I am wrong on the issue of the 3rd Defendant’s liability, I set out below my views on contributory negligence. 70.The 4th Defendant’s case is that the Plaintiff contributed to the Accident by inter alia failing to keep himself away at a safe distance from the fight between the 1st Defendant and Mr Tam, aggravating the fight by joining it, failing to keep away from the edge of the loading platform and failing to take any or sufficient care for his own safety. 71.First, the Plaintiff submits that, as a matter of law, the defence of contributory negligence is not available to a claim against a defendant for damages for intentional torts, such as assault and battery. He relies on Co-Operative Group (CWS) Ltd v Pritchard [2011] EWCA Civ 329, §§61-63. 72.In that case, the claimant was employed by the defendant company. She was involved in an argument with her manager, who assaulted and bit her. She brought an action against the defendant in which she alleged that the defendant was inter alia vicariously liable for the tort of assault and battery. The trial judge found for the claimant and held inter alia that it was not open to him to make a finding of contributory negligence against the claimant. The defendant appealed on inter alia the ground that the learned judge had erred in not allowing contributory negligence as a defence to a claim for the tort of assault and battery. 73.The English Court of Appeal dismissed the appeal on the contributory negligence issue (but allowed the appeal on the causation issue) and held that the learned judge was correct in concluding that, as a matter of law, the defendant could not rely on contributory negligence to defeat the claimant’s claim or to reduce the damages otherwise to be awarded to the claimant. 74.Aikens LJ held, at §§28-63, that at common law contributory negligence was, in general, not a defence in the case of an intentional tort. The Law Reform (Contributory Negligence) Act 1945 would not, in principle, be used to reduce damages in cases where claims were based on assault and battery. Such a conclusion was in keeping with the purpose of the 1945 Act, which was to relieve claimants whose actions would previously have failed, and not to reduce the damages which would previously have been awarded to the claimants. The defendant was only entitled to assert that the claimant had been contributorily negligent so that any damages to which she was entitled had to be reduced if, at common law, there was a defence of contributory negligence to a claim against a defendant for damages for the torts of assault or battery. 75.Aikens LJ held that there was no case before the 1945 Act which held that there was such a defence in the case of an intentional tort such as assault and battery. Insofar as there were cases since the 1945 Act that suggested that the Act could be used to reduce damages awarded for the torts of assault or battery in a case where it was found that the claimant was contributorily negligent, they were unsatisfactory and could not stand with statements of principle made in two subsequent House of Lords decisions in Reeves v Comr of Police of the Metropolis [2000] 1 AC 360 and Standard Chartered Bank v Pakistan National Shipping Corp (No 2) [2003] 1 AC 959. 76.Section 21(1) and (2) of the Law Amendment and Reform (Consolidation) Ordinance (Cap 23) is equivalent to section 1(1) and (2) of the 1945 Act. Mr Yip submits that there is no authority in Hong Kong discussing about whether, as a matter of law, contributory negligence can be a defence to a claim for the tort of assault and battery. He invites the court to follow the English Court of Appeal’s holding in Pritchard and hold that, as a matter of law, contributory negligence is not a defence to a claim for the tort of assault. 77.Having considered the detailed ruling in Pritchard, I am of the view that the intention to injure someone in a case of assault negatives all excuses, and thus the defence of contributory negligence is not available to such a claim, as opposed to such a defence to a claim based on, for example, negligence. I agree with the analogy drawn by Aikens LJ, at §§33 and 35, with the case of tort of deceit or fraudulent misrepresentation, where there is no common law defence of contributory negligence. 78.Where a person intentionally causes a claimant to apprehend immediate unlawful violence (ie assault) or sustain unlawful personal violence (ie battery), it would seem unfair to say that a claimant whose failure to take care of his own safety was a cause of his injury and that his damages which would otherwise be awarded for the torts of assault or battery should be reduced. 79.In the event that both parties who are engaged in a fight against each other are both injured, they can claim against each other for damages for their respective personal injuries. But that is different from saying that they are contributorily negligent in respect of their respective injuries. 80.Mr Yip further submits that Muhammad Riza Khan v Commissioner of Correctional Services [2017] 5 HKLRD 379 relied on by the 4th Defendant is distinguishable, and the finding of contributory negligence in that case is in any event obiter. I agree. That case concerns the alleged negligence of the prison authority in failing to prevent a fight between two inmates. It is not a claim based on intentional tort. In any event, the court found that the prison authority was not negligent. The finding that the plaintiff was 50% contributory negligent as he was engaged in a fight with the other inmate thereby causing injuries to himself was therefore obiter. 81.In any event, the question of whether there is contributory negligence is highly fact-sensitive. On the facts of the present case, even if I have to consider such a defence, I would have found that the Plaintiff was not contributorily negligent for the following reasons. 82.First, it is the Plaintiff’s unchallenged evidence that:
83.In the premises, it cannot be said that the Plaintiff was at fault or had failed to escape or take care of his own safety when the 1st Defendant had the intention to harm him and push him down the loading platform. As mentioned above, the 1st Defendant was convicted of common assault and inflicting grievous bodily harm in the Criminal Proceedings. 84.Ms Lui argued that the Plaintiff could have walked away or keep a safe distance from the 1st Defendant. However, it was clearly very chaotic at the scene and the Plaintiff was standing close to the 1st Defendant and Mr Tam. I am not satisfied that the Plaintiff could simply walk away and hide from the 1st Defendant safely. 85.Secondly, although the Plaintiff was convicted of common assault in the Criminal Proceedings, the offence for which he was charged was in relation to his kicking the 1st Defendant. This happened after he was pushed down from the loading platform by the 1st Defendant and sustained the injuries which are the subject of these proceedings. 86.In the premises, I agree with Mr Yip that the Plaintiff’s conviction of common assault is irrelevant to the question of whether he was contributorily negligent in respect of his injuries. 87.I therefore find that the Plaintiff’s damages should not be reduced even if the 3rd Defendant was found to be vicariously liable for the 1st Defendant’s acts. F5. Issue 5: Quantum of damages (1) Pain, suffering and loss of amenities (“PSLA”) 88.There is no dispute that as a result of the Accident, the Plaintiff suffered fracture of his right distal radius and distal ulna, ie his right wrist. 89.Dr Chan Yu Sing (“Dr Chan”) (who was instructed by the Plaintiff) and Dr Ngai Wai Kee (“Dr Ngai”) (who was instructed by the 4th Defendant) opined in their joint orthopaedic expert report dated 7 August 2023 (“Joint Medical Report”) that the Plaintiff has satisfactory capacity in performing his activities of daily living. He is independent and can travel in public transport with some persisting symptoms. Dr Ng further opined that the Plaintiff’s functional recovery is satisfactory and his prognosis is good. 90.At the time of the examination by the two doctors on 9 March 2023, the Plaintiff complained of constant right wrist pain, right hand numbness and weakness, clicking noises with right forearm pronation and supination, intermittent lower back pain and left lower leg numbness, left lower limb weakness and walking with a limp. 91.Dr Chan opined that the Plaintiff suffered displaced comminated right distal radius fracture with right median and ulnar nerve axonotmesis at the wrist level and exacerbation of lumbar spondylosis. 92.Dr Ngai opined that the Plaintiff suffered fracture right distal radius with right median and ulna nerve injury at wrist level, minor uncomplicated soft tissue right chest wall contusion. But he was of the view that the lumbar spondylosis was pre-existing and not related to the Accident. 93.Dr Chan assessed both the total impairment of whole person and the loss of earning capacity at 6%, whereas Dr Ngai assessed both at 3%. 94.For reasons explained in section E1 above, I find the Plaintiff’s evidence that he suffered back pain and left lower limb pain as a result of the Accident unbelievable and unreliable, and that he has exaggerated the extent of his injuries resulted from the Accident in this regard. 95.Further, Dr Chan failed to explain in the Joint Report and his supplemental expert report dated 19 October 2023 his opinion that the Accident has led to exacerbation of the Plaintiff’s pre-existing lumbar spondylosis. 96.In the premises, I prefer Dr Ngai’s opinion that the Plaintiff’s lower back pain was pre-existing and not related to the Accident over Dr Chan’s opinion that the Accident aggravated the Plaintiff’s pre-existing lumbar spondylosis. 97.The Plaintiff claims $250,000 for PSLA and the 4th Defendant answered with $350,000. Having considered the cases cited by the parties[5], the injuries sustained by the Plaintiff and his recovery, I accept that a PSLA award in the sum of $250,000 is appropriate. (2) Pre-trial loss of earnings and MPF (i) Sick leave period 98.The Plaintiff was granted intermittent sick leave between 23 February 2017 and 27 December 2022, totaling 2,134 days. 99.In Form 9 dated 4 December 2019 mentioned above, the Assessment Board assessed the periods of absence from duty necessary as a result of the injury as being 23 February 2017 to 20 November 2019, totaling 1,001 days. Dr Chan agreed with it. 100.However, Dr Ngai opined that the reasonable sick leave period should not be more than 12 months, ie until 23 February 2018. 101.I prefer Dr Chan’s opinion on the reasonable sick leave period for the following reasons:
102.By reason of the above, I find that the sick leave period from 23 February 2017 to 20 November 2019, totaling 1,001 days, as certified by the Assessment Board and agreed to by Dr Chan, is reasonable. (ii) Whether the Plaintiff can resume his pre-Accident job after the reasonable sick leave period? 103.Dr Chan opined that the Plaintiff would unlikely be able to return to his pre-Accident job as warehouse supervisor, but should be fit for more sedentary jobs such as security guard, watchman, office cleaner and office assistant. 104.Dr Ngai opined that the Plaintiff is able to resume to his pre-Accident job, but accepted that his working efficiency would be mildly reduced after the Accident. 105.I accept the Plaintiff’s unchallenged evidence on his persisting symptoms of weakness and numbness in his right wrist and hand, which is supported by the occupational therapy progress note of North Lantau Hospital dated 4 November 2019. According to him, his previous job as warehouse supervisor requires him to move and lift heavy objects. 106.I also accept the Plaintiff’s evidence that he had tried looking for jobs in warehouses thrice in July to August 2019. However, he was unable to secure a warehouse job. 107.In the premises, I prefer Dr Chan’s opinion over Dr Ngai’s and find that the Plaintiff would unlikely be able to return to his pre-Accident job as a warehouse supervisor, but remains fit for more sedentary jobs such as security guard etc.. (iii) The Plaintiff’s pre-trial average monthly income 108.Ms Lui does not challenge the Plaintiff’s evidence based on his bank account statements that his pre-Accident average monthly salary, before deduction of employee MPF contribution, was $16,888.90. 109.Following Rai Siva Raj v Norman Liang & ors [2020] HKCFI 237, §§214-217, I take judicial notice of the following:
110.In the premises, I accept the Plaintiff’s calculations of his theoretical salaries at the end of the reasonable sick leave and as of December 2024, and the difference in salary between his pre-Accident job and as a security guard after the sick leave period as follows:
111.The Plaintiff’s pre-trial loss of earning is therefore:
(3) Post-trial loss of earnings and MPF 112.The Plaintiff is 58 years old at the time of the trial. Mr Yip proposes to adopt the retirement age of 65, whilst Ms Lui proposes a retirement age of 60. I find a retirement age of 65 more reasonable given the nature of the Plaintiff’s job and his physical condition as stated in the Joint Medical Report. Ms Lui agrees with a multiplier of 6.61 in the event that I adopt a retirement age of 65. 113.I therefore allow the Plaintiff’s claim under this head, ie ($21,031 - $14,700) x 12 x 6.61 x 1.05 = $527,283.67. (4) Loss of earning capacity 114.As the Plaintiff only suffers from some residual symptoms which do not constitute any significant impairment to his working capacity, I do not accept that there is any real and/or substantial risk that at some future date during the Plaintiff’s working life that he will lose his employment and will then suffer financial loss because of any disadvantage in the labour market: see Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306 at 311. 115.In the premises, I do not allow the Plaintiff’s claim under this head. (5) Pre-trial expenses 116.The Plaintiff claims a sum of $26,818 for medical expenses, $1,000 for travelling expenses and $4,000 for tonic food, ie a total of $31,818. I find such expenses reasonable and so award. (6) Summary on quantum 117.The total award is $1,865,740, being the sum of the following:
G. CONCLUSION 118.For the above reasons, I make the following orders:
119.I make a costs order nisi that:
Mr Richard Yip, instructed by Or & Partners, assigned by the Director of Legal Aid, for the plaintiff The 1st to 3rd defendants were not represented and did not appear Ms Ann Lui and Ms Angela Mui, instructed by W H Chik & Co, for the 4th defendant [1] See Tang Chau Yuet v Fu Kin Po [2011] 1 HKLRD 519, §12, which held that the parties’ own view of their relationship is a relevant factor to be taken into account. [2] The reliance by Mr Yip on the fact of the two companies’ addresses being right next to each other does not mean that they are related. [3] See, eg the 1st Defendant’s cautioned statement with the police dated 23 February 2017. [4] The 1st and 2nd Defendants did not give any notice of intention to defend or file any defence, and hence no issue of contributory negligence arises as between them and the Plaintiff. [5] Of particular relevance, Shrestha Denika v Pizzaexpress (Hong Kong) Limited [2023] HKDC 1542, Mehmood Khalid v Million Harvest Wharve & Logistics Limited (unrep., HCPI 401/2006, 20 June 2007), Chan Nga Yin v MTR Corp Ltd (unrep, DCPI 1675/2012, 25 June 2014), Rai Chandra Kala v La Creperie 8 Ltd [2023] 2 HKLRD 1477 and Yeung Cheung Chun v Wing Shing Caisson & Foundation Ltd & ors (unrep, HCPI 808/2012, 30 January 2015). | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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