Li Hoi Shuen v. Man Ming Engineering Trading Co Ltd
Read the full judgment text of HCPI 8/2004 on BabelCite. This High Court CFI judgment was delivered on 13 January 2006.
1. This is an action for damages in personal injuries commenced by the Plaintiff who sues in both his capacity as the administrator of the estate of his son (the “Deceased”) and in his personal capacity for himself and other dependents of the Deceased. The action was brought against the Defendant who was the employer of the Deceased. This was a sad and tragic case. The Deceased was sent to work in Jieyang City in the Mainland where he was murdered at the early hours of 22 April 2001 by his tw
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HCPI 8/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 8 OF 2004 ____________ BETWEEN
____________ Before: Deputy High Court Judge To in Court Dates of Hearing: 29 November 2005 and 1 - 2 December 2005 Date of Judgment: 13 January 2006 _______________ J U D G M E N T _______________ Introduction 1.This is an action for damages in personal injuries commenced by the Plaintiff who sues in both his capacity as the administrator of the estate of his son (the “Deceased”) and in his personal capacity for himself and other dependents of the Deceased. The action was brought against the Defendant who was the employer of the Deceased. This was a sad and tragic case. The Deceased was sent to work in Jieyang City in the Mainland where he was murdered at the early hours of 22 April 2001 by his two Mainland colleagues for some minor grievance arising out of work. The two murderers were promptly brought to justice and executed in accordance with the laws in the Mainland. 2.The Plaintiff raised four causes of action against the Defendant:
The Defendant denied liability and pleaded contributory negligence. 3.As the murder of the Deceased took place in the Mainland, there is prima facie a foreign element to the Plaintiff’s claim in contract and in tort. Neither the Plaintiff nor the Defendant has pleaded that foreign law is applicable. Accordingly, I shall apply Hong Kong law: see Dicey and Morris: The Conflict of Laws, 12th ed, vol 2, p 1514. In any event, insofar as the contractual claim is concerned, the applicable law is Hong Kong law as it is based on a contract of employment entered into in Hong Kong. Furthermore, pursuant to the direction of Master B Kwan, the parties have engaged their own PRC legal experts who confirmed that it is their common opinion that the wrongful acts which took place in China giving rise to the Plaintiff’s claim are actionable according to the PRC law. There is, therefore, no need for this Court to conduct any enquiry as to the PRC law. The applicable law governing the relations between the parties is Hong Kong law. 4.Counsel agreed that the Defendant’s duty of care in contract is the same as its duty of care in negligence. I shall deal with the two causes of action together. The issues raised in this case are:
The facts The background 5.The following factual background is not in dispute. 6.The Defendant is a company incorporated in Hong Kong owned and operated by Mr Leung Kwok Ming (“Mr Leung”) and his wife Ms Leung Mi Chun Lisa (“Mrs Leung”). The Deceased had been a resident of the Mainland who migrated to Hong Kong to join his parents. In January 1996, he took up employment with the Defendant as an apprentice in air-condition engineering. He completed his apprenticeship and was promoted to the rank of an air-conditioning technician in January 1999. During his course of employment with the Defendant, he was required to work in Jieyang City most of the time and very often all by himself. He usually worked from Monday to Saturday, but was often assigned to work overtime on Sundays and public holidays. He worked in Jieyang City for seven to eight months in a year and returned to Hong Kong every two to three months. While he was working in Jieyang City, the Deceased used to telephone his parents during weekends. Initially, he was provided with hotel accommodation but later he rented his own residence and received rental reimbursement from the Defendant. 7.It was the Defendant’s usual practice to send technicians from Hong Kong to supervise short-term workers recruited locally in Jieyang City to work on air-conditioning projects. Those short-term local workers were inexperienced labourers coming from out of the province (外省民工). 8.On 20 August 2000, pursuant to the instruction of Mr Leung, the Deceased rented a three-storey building near De An Carpark in Jieyang City as a warehouse (the “Warehouse”) for the purpose of storing air-conditioners and equipments. He entered into a tenancy agreement as tenant for a term of one year at a monthly rental of RMB 1,000. There were no partitions or doors inside the warehouse on each floor. The only security installation was a metal gate and a padlock at the entrance to the Warehouse. While there was no dispute that the tenancy was entered into on the Defendant’s behalf, Mr Leung and Mrs Leung claimed to have no knowledge of the location of the Warehouse. 9.On or about 12 April 2001, the Defendant instructed the Deceased to work on an air-conditioning maintenance project for the Jieyang City Government Office (“the Project”). He was given HK$30,000 as petty cash to spend for the Project. 10.Upon arrival at Jieyang City on 13 April 2001, at the instruction of Mr Leung, he recruited two out of province workers, Wu Changbing (“Wu”) and Zhou Zhongxiong (“Zhou”) through an employment agency to assist him in the Project. The Deceased maintained telephone contact with Mr Leung in relation to technical matters and with Mrs Leung on progress and general matters and for reporting off duty for the purpose of recording his overtime work. 11.Since the first day of his duty trip, the Deceased resided on the second floor of the Warehouse with Wu and Zhou residing on the first floor. Mr Leung and Mrs Leung claimed to have no knowledge of this fact. 12.The Deceased had a girlfriend, Miss Lam (“Miss Lam”) in Sha Tau Kok in Shenzhen whom he used to meet during weekends. They also maintained daily telephone contacts. Two or three days prior to 22 April 2001, Miss Lam had suggested visiting the Deceased in Jieyang City. The Deceased turned down her suggestion saying that it was inconvenient due to the lack of partitioning in the Warehouse and suggested to delay the visit until he had finished constructing the partitions of his room. 13.The Deceased considered Wu and Zhou lazy and was not satisfied with their performance. On the other hand, Wu and Zhou were unhappy with the attitude of the Deceased for scolding them and pressing them to work hard. They planned to murder the Deceased and rob him of his money. At about 2 a.m. on 22 April 2001, they pinned down the Deceased while the Deceased was asleep and beat him to death with water pipes. Then they took away his money of about RMB 2,000 and fled. 14.Miss Lam had last spoken to the Deceased on the telephone at about 11 p.m. on 21 April 2001. Miss Lam and Mr Leung lost contact with the Deceased on 22 April 2001. On 23 April 2001, Mr Leung telephoned Miss Lam and suggested to go to the Warehouse to look for the Deceased. Then Mr Leung and another employee from Hong Kong, Mr Wong Shing Hon (“Mr Wong”) met Miss Lam in Shenzhen and went to the Warehouse together. They broke open the gate at the entrance of the Warehouse and found the Deceased lying dead on his mattress on the second floor. 15.The above factual background is not in dispute. The only major factual dispute between the parties is whether the Defendant had knowledge that the Deceased was residing in the Warehouse with Wu and Zhou. I shall deal with this issue of fact under a separate heading in the following paragraphs. The parties are also in dispute as to the extent of the Deceased’s contribution to his family prior to his death and in some minor issues which I shall deal with in the course of this judgment as and when it is appropriate. The Defendant’s knowledge of the Deceased’s residence in the Warehouse 16.There is no dispute that the Deceased rented the Warehouse on the instruction of the Defendant on 20 August 2000 for the purpose of storing air-conditioners and materials. The Defendant must be aware of the tenancy, though Mr Leung claimed to have no knowledge of the location of the Warehouse. According to Miss Lam when the Deceased turned down her suggestion to visit him in Jieyang City because of the condition of the Warehouse where he was residing, she asked the Deceased if he had complained to his employer about the poor living condition and the Deceased told her that he had. The Deceased told her that he had told Mrs Leung that there were no doors or partitions inside the Warehouse and that he was not satisfied with the performance of the two out of province workers. The Deceased also told her that Mrs Leung had suggested him to live in a hotel but he decided to reside in the Warehouse so as to minimise the expenses for the Defendant as the Defendant’s business was not in good shape in 2001. Miss Lam also recalled that in the summer after the fatal incident, through the arrangement of Mr Wong, she met Mrs Leung in a café in Yuen Long. During the course of that meeting, Mrs Leung said that the Deceased had told her that he would stay in the Warehouse in order to minimise the expenses for the Defendant. Mrs Leung remarked that it was silly for the Deceased to have done so. 17.Mrs Leung denied to have ever been told by the Deceased about his residing in the Warehouse. She admitted meeting Miss Lam in the café, but denied to have said what Miss Lam said she did. That was the only occasion Miss Lam and Mrs Leung ever met and talked with one another. Mr Lam, counsel for the Defendant, argued that it was unnatural for the Deceased to have complained about living in the Warehouse with the two out of province workers when he was content to live there. I think there was nothing unnatural in the Deceased making the complaint to Mrs Leung and being willing to put up with the condition in the Warehouse. The Deceased had always been a good and faithful employee. There was nothing unnatural in the Deceased being willing to put up with the condition in the Warehouse in order to minimise the Defendant’s costs in the Project as he thought the Defendant was not doing well. Mr Lam also challenged the credibility of Miss Lam’s evidence in saying that the Deceased had told her that the Defendant was not doing well financially as the Deceased was given an increase in salary in late 2000. I think these two facts are not necessarily mutually exclusive. It is all a matter of degree and subjective assessment for the Deceased. 18.There was nothing by way of background for counsel to test the veracity of the witnesses. It is not easy to adjudge their credibility by their demeanour and say who was telling the truth and who was not. Miss Lam’s allegation about what the Deceased told her could be easily made, but could be denied just as easily. The burden of proof remains on the Plaintiff. Miss Lam and Mrs Leung were total strangers until they met. Miss Lam was resident in Shenzhen while Mrs Leung was resident in Hong Kong. They could have nothing to talk about in common during that one hour meeting. They could not have talked about anything other than the Deceased, the circumstances of his death and why he should have resided in the Warehouse with the two out of province workers. I consider Miss Lam a truthful witness. Her evidence is not particularly damaging to the defence case. Had she had in mind making up a case against the Defendant, she could have put up a more positive case that the Deceased protested for being instructed to reside in the Warehouse or could have easily concealed Mrs Leung’s offer of hotel accommodation to the Deceased. Her evidence about what the Deceased told her is consistent with her evidence about what Mrs Leung said and commented about the Deceased. I do not think Miss Lam was exaggerating. I am satisfied that she was telling the truth. 19.Another piece of evidence relied on by the Plaintiff is Mr Leung’s statement to the PRC police on the day he reported the murder to the security bureau. The following questions and answers he gave to the police are relevant:
The above answers contain a clear admission that although he had never been to the Warehouse before the incident, Mr Leung knew the Deceased was living there and with the two out of province workers. 20.In his evidence, Mr Leung said that he did not know the address of the Warehouse and had never been there. He also said that the Deceased did not wish to tell him where he lived and hence he had no knowledge that the Deceased lived with the two out of province workers while working in Jieyang City. He maintained contact with the Deceased through his mobile phone. Whenever he went to Jieyang City he just met the Deceased at the place of work. He said that he only learned about the Deceased’s residence arrangement from Mr Wong while he was on the bus on his way to Jieyang City on 23 April 2001. Mr Lam sought to add credibility to Mr Leung’s evidence on the basis of youth psychology in that the young Deceased wished to maintain some privacy from his boss. I think Mr Leung’s account is inherently incredible. The Deceased had informed his parents, his girlfriend and at least one of his colleagues, Mr Wong about his residence arrangement. He had no privacy to keep from anyone at all. If he had wished to keep the residence arrangement a secret, it would be against his parents and girlfriend that he would be most concerned and less so against his employer. The Deceased lived in the Warehouse to reduce the Defendant’s costs on the Project. There was no reason why he should hide this fact from the Defendant. On the other hand, Mr Leung even took the trouble of obtaining Miss Lam’s telephone number, presumably for the purpose of contacting the Deceased in case he lost telephone contact with the Deceased. It is incredible that he would not have insisted on the Deceased to give him his residential address so that he could get in touch with him in case of emergencies and in case he lost telephone contact with the Deceased. What Mr Leung said does not make business sense. I reject his evidence. 21.Furthermore, Mr Leung’s evidence in Court is inconsistent with his statement to the PRC police. Mr Leung said that the statement was not a true record of what he said during the interview with the PRC police and the statement taking officer had rephrased and paraphrased his answers. He explained that he was treated like a suspect by the police officer questioning him and he was afraid. If he felt he was being treated like a suspect, there was all the more reason for him to dissociate himself from the knowledge of the Deceased’s residence in the Warehouse and he would not have said that in the past he knew the Deceased was residing in the Warehouse or should have corrected that answer if it had been incorrectly paraphrased or rephrased by the officer. He admitted that he had the opportunity to read the statement before confirming it. At the end of the interview, the statement taking officer asked Mr Leung if what he said in the statement was true and it was recorded that Mr Leung replied in the affirmative. Yet he could not explain why he did not seek to amend the above answers. I do not consider his explanation credible. 22.The statement was a three-page statement about a very serious crime by the person who first discovered the crime. Each page is only about two-third the size of a regular A-4 page. Given the brevity of the statement about such a serious crime, the statement was obviously not a verbatim record or anything close to the standard of the statement taken by our local police officers. I accept Mr Leung’s evidence that the statement was only a summary of the interview and that Mr Leung’s answers had been simplified, rephrased and paraphrased by the statement taking officer. By our standard, this statement is nothing comparable to a statement taken by our police officer. However, I believe both Mr Leung and the statement taking officer had treated the statement taking process seriously. I am satisfied that the statement is a true summary of what was said during the interview. At the time, Mr Leung had nothing to hide from the police in the PRC. The possibility of his civil liability would not have occurred to him there and then. He must be very concerned about the death of this very faithful employee of his and to bring the murderers to justice. I have no doubt he gave true and accurate answers to the police to the best of his ability. I give full weight to what he said in that statement, in particular the answers which I have quoted above. 23.Having considered the totality of the evidence, I find Miss Lam an honest witness and was telling the truth. I accept Miss Lam’s evidence and reject the evidence of Mr Leung and Mrs Leung. Accordingly, I find that the Defendant, through Mr Leung and Mrs Leung, had knowledge that the Deceased resided in the Warehouse with the two out of province workers and consented to that arrangement, that there were no partitions inside the Warehouse and that the Deceased was not satisfied with the performance of the two out of province workers. However, the Deceased was not instructed or forced to reside in the Warehouse as Mrs Leung had suggested the Deceased to rent a room in a hotel. But, being a very conscientious and faithful employee, the Deceased declined her suggestion in order to reduce the Defendant’s costs in the Project. The Defendant connived. claim in contract and in negligence Whether the Deceased met his death in the course of employment 24.The Deceased was murdered at the early hours of Sunday 22 April 2001. According to Miss Lam, the Deceased had told her that he had to buy some materials for the Project on 22 April 2001. Mr Shum, counsel for the Plaintiff, relied on this as evidence that the Deceased’s stay in the Warehouse was incidental to his employment and therefore was in the course of employment when he was murdered. The Defendant challenged the veracity of that evidence on the basis that the shops supplying air-conditioning parts were closed on Sundays. Some invoices were found near the mattress on which the Deceased died showing that he had purchased materials on other Sundays. There is no credible evidence to prove that all metal shops were closed on Sundays. I find it was more likely than not that some shops supplying ordinary mechanical parts were open on Sundays. I accept Miss Lam’s evidence. However, in view of the way the case was argued by the parties, this finding is eventually of no significance. 25.It is the Defendant’s case that as the murder took place while the Deceased was off duty, the incident did not occur in the course of employment, whether it was the Deceased’s intention to stay in Jieyang City for the purpose of buying materials on the following day. Mr Lam, counsel for the Defendant referred me to the Court of Appeal decision in Ma Kit Ching Veronica and the Attorney General,CACV 64/1983. On the other hand, it is Mr Shum’s submission on behalf of the Plaintiff that once out of Hong Kong, the Deceased was in the course of employment except for limited circumstances. He relied on the later Court of Appeal decision in Hsu Shu Chiao v Lung Cheong Toys Ltd, [2002] 1 HKC 479. 26.An employee is in the course of employment if he is in the course of doing something which is his ordinary duty to perform or something which is reasonably incidental to that duty: Staton v National Coal Board [1957] 2 All ER 667. The present case is concerned with the later. What is reasonably incidental is a mixed question of law and fact. The courts often indulge in giving a liberal meaning to that expression. It is extended to acts which are habitually done by an employee to the knowledge of the employer without question: Milner v The Great Northern Railway Co (1884) 50 LT 367 and Aitchison v Page Motors, Ltd (1935) All ER Rep 594. The Plaintiff’s case is that while sleeping in the Warehouse the Deceased was in the course of employment and is not based on any extended acts done with the express or implied authorization of his employer. 27.Mr Lam referred me to the case of Ma Kit Ching Veronica and The Attorney General, CACV 64/1983 and [1983] 1 HKC 470. In that case, an ICAC officer died in a guesthouse in Edinburgh between 11 p.m. on 11 February 1982 and 10:30 a.m. on the following day while he was on overseas attachment and training duty. The cause of death was carbon monoxide poisoning due to a blocked flue behind the gas fire in his bedroom. At the time of his death he had just completed one duty attachment in Manchester and was due to commence another attachment on the following day in Edinburgh, which was the reason why he stayed in that guesthouse. The widow’s application for workmen’s compensation failed in the District Court which held that the officer’s death did not occur in the course of his employment. The widow’s appeal to the Court of Appeal was dismissed. The approach of Mr Neoh who appeared for the widow in the District Court as well as in the Court of Appeal was similar to that of Mr Shum’s. The facts of that case were indistinguishable from the present one. I shall refer to the judgment both in the District Court and the Court of Appeal. 28.In the District Court, Mr Neoh argued that the ICAC officer’s resting or sleeping was a natural incident of his work and that a rest period between two specific periods of duty could amount to preparation for the next day. That argument was rejected by Deputy Judge Grindey who said at 489:
29.In the Court of Appeal, Cons JA upheld Deputy Judge Grindey’s decision in the District Court. He relied on two authoritative decisions in the House of Lords. He said at pp 4-5:
The test whether an employee is in the course of employment while he is taking a break for the day which Cons JA distilled from the two decisions of the House of Lords is simply whether at the material time the employment continues to run its course. Applying that test, the Court of Appeal found that the officer’s employment did not continue to run its course and dismissed the appeal. 30.Mr Shum did not argue that the principle to be applied to the present case is any different, but submitted that it should be applied in the present days with more common sense and pragmatism bearing in mind the change in circumstances. He said the two House of Lords’ decisions relied on by Cons JA were decided in the 1930s, while Ma Kit Ching Veronica v Attorney General was decided in 1983. He referred me to the later Court of Appeal decision in Hsu Shu Chiao and Lung Cheong Toys Ltd. In that case, a Hong Kong resident was employed by his employer to stay and work in Dongguan from Monday to Saturday. His employer provided him with quarters in Dongguan and transportation to take him and other employees from Shenzhen to Dongguan on Monday mornings and from Dongguan to Shenzhen on Saturday afternoons for the purpose of returning to Hong Kong. If he had to work late on Saturdays and missed the employer’s bus, he could arrange his own transport to Shenzhen and be reimbursed by the employer. On one Saturday, the employee had to work late and missed the employer’s bus. He took a taxi from Dongguan to Shenzhen, not for the purpose of returning to Hong Kong immediately but to meet his girlfriend. The employee was killed in a fatal traffic accident on the journey. His father’s claim for employees’ compensation was dismissed by the District Court on the basis that the accident did not arise in the course of employment. On the father’s appeal, the Court of Appeal allowed the appeal and reversed the decision of the District Court. 31.Mr Shum submitted that the decision in Hsu Shu Chiao and Lung Cheong Toys Ltd which is a decision in 2002 is to be preferred. He argued that the Court should adopt a modern approach bearing in mind the new social dimension in the present days. He quoted paragraph 26 of the judgment of Cheung JA at 481 in support of his new approach:
32.Mr Shum then referred to the following passage in paragraph 27 of Cheung JA’s judgment at 482:
Based on this passage he advanced his proposition that in the light of the new social dimension an employee engaged in cross-border employment is in the course of employment from the moment he crosses the border until the moment he returns to jurisdiction. 33.I agree entirely with the approach adopted by Cheung JA. The ability to keep pace with the changing environment and social circumstances is the life-blood of the common law, which keeps the common law ever growing and developing. However, though the new social dimension Cheung JA referred to was cross-border employment, his dicta were made in the context of travelling to and from work in such a case. I do not think what Cheung JA said has the effect of changing the law as to what falls within the course of employment and what falls outside. In fact, I do not think by the above passage Cheung JA was re-casting the law in the very wide term as Mr Shum would have me to accept. I come to this view because in a later passage Cheung JA restricted the scope of what he said in paragraph 27. He said in paragraph 31 at 487 as follows:
It is implicit from this passage that a cross-border employee does not remain continuously in the course of employment from the moment he crosses the border to the Mainland until the moment he returns to Hong Kong. This passage indeed overturns Mr Shum’s proposition. If a short visit to the cinema at night, i.e. outside normal duty hours, constitutes a break in the course of employment, there is no reason why breaks involving longer periods of absence from duty cannot constitute breaks in the course of employment. There can be other breaks in the course of employment of a cross-border employee, for example, when he visits other places of entertainment at night, or when he pays visits to his Mainland relatives or takes a pleasure trips within the Mainland during holidays. If these can constitute breaks in the course of employment, there is no justification for the view that when an employee clocks off work he is still in the course of employment merely because he is in the Mainland. I think the scenario Cheung JA had in mind in paragraph 27 of his judgment was that a cross-border employee ceases to be in the course of employment when he engages in his own affairs after clocking off work but resumes to be in the course of employment when he embarks on his homeward journey in the Mainland. 34.I think what was decided in Hsu Shu Chiao And Lung Cheong Toys Ltd was that when considering cases of a cross-border employee travelling for the purposes of and in connection with employment between a place outside Hong Kong and any other such places, the court must bear in mind the new social dimension which takes account of cross-border employment situation. Whether such travelling is in the course of employment is a question of fact depending on all the circumstances of the particular case. The case has not laid down any new test to be applied in answering that question. The test remains whether at the material time the employment continues to run its course. The very wide proposition advanced by Mr Shum is based on his misunderstanding of the decision in Hsu Shu Chiao And Lung Cheong Toys Ltd with which he made the impossible leap from the case of a cross-border employee on transit to the case of a cross-border employee taking his rest between the time he clocks off duty and the time he clocks on duty. He has gone far beyond what Sir John Donaldson MR said in Nancollas v Insurance Officer:he was not applying established legal concept in a changed social matrix, he was trying to enlarge the concept. With respect to counsel, his proposition is an unjustified extension of the principle in Hsu Shu Chiao And Lung Cheong Toys Ltd. 35.In my view, whether an employee is in the course of employment is a question of fact. The test is simply whether at the material time the employment continues to run its course. Prima facie, an employee is in the course of employment during his duty hours and ceases to be in the course of employment when his duty hours are over or when he clocks off work until he resumes duty on the following day. The situation may be more complicated in the case of an employee on overseas duty or a cross-border employee. But, the test whether such an employee is in the course of employment after his duty hours is the same. This question may be answered by considering whether the employee has the freedom to go where he pleases and do what he pleases, whether the employer is concerned with how the employee disported himself during the off duty hours or whether he was required to go and stay at a particular place in the interim period for the employer’s purpose such as on standby duty or on call. Resting and sleeping is a necessary and natural physiological activity of the body in a 24-hour cycle. Thus, prima facie, resting and sleeping at the end of the day creates a natural break in the continuity of employment unless the employee is required by his employer to sleep and rest at a particular place so as to make himself available for the employer’s purpose as and when required. 36.Having set out the law, I now turn to explore the factual circumstances of the Plaintiff’s case. The Deceased reported off-duty to Mrs Leung at about 5 p.m. on 21 April 2001. The following day, i.e. 22 April 2001, was a Sunday. The Deceased told Miss Lam that he had to buy materials for the Defendant on 22 April 2001. Apart from that, there was no evidence that the Deceased was required to work on 22 April 2001. Putting the Plaintiff’s case at its highest, even if the Deceased was required to purchase materials for the Defendant and had to work on 22 April 2001, the very material fact remains that he was murdered outside his duty hours. 37.There is no evidence that the Deceased was required to stay in the Warehouse in the evening of 21 April 2001 or in any other evening during this duty trip. The journey between Jieyang City and Shenzhen takes four hours. Mr Shum suggested that if the Deceased had to work on 22 April 2001 it would be very inconvenient and time consuming for the Deceased to leave Jieyang City for the weekend. Be that as it may, that does not mean the Deceased must stay in the Warehouse. According to Miss Lam, the Deceased had told her that Mrs Leung had suggested to him to stay in a hotel or other rented accommodation but the Deceased declined. In other words, the Defendant had not required the Deceased to stay in the Warehouse for the Defendant’s purpose; the Deceased had a choice where he lived and the Defendant would pay for his accommodation. Thus even putting the Plaintiff’s case at the highest, it was inconvenient for him not to stay in Jieyang City but the Defendant had never required him to stay in the Warehouse or in Jieyang City for any particular purpose, such as to be on standby duty or to guard the air-conditioners and materials stored in the Warehouse. Sadly for both the Plaintiff and the Deceased, it was the Deceased’s own choice to stay in the Warehouse. He had reported off-duty to Mrs Leung at about 5 p.m. on 21 April 2001. He was on his own time since. He was not required by the Defendant to stay in the Warehouse. His staying there was unconnected with the Defendant’s purpose. The Defendant was unconcerned whether he stayed there or not. At the fateful moment, the Deceased was off-duty and resting or sleeping which was a natural and necessary physiological activity of the body. He ceased to be in the course of employment when the attack took place. 38.It is Mr Lam’s submission that as the Deceased was not in the course of employment when the attack took place, the question of breach of duty whether in contract or in negligence does not arise and that is the end of the Plaintiff’s claim based on breach of employer’s duty, whether under the contract of employment or in negligence. I do not agree with that over sweeping submission. Whether the Deceased was in the course of employment only determines the nature, extent and standard of the employer’s duty of care. Very broadly speaking, if the Deceased met his death in the course of employment, the duty owed by the employer was more extensive and included the duty to provide safe system of work as well as safe accommodation and the standard of care is much higher. Otherwise, the duty of care is less extensive and the standard of care is lower. Furthermore, breaches of duty, whether in contract or in negligence, are not necessarily tied to the course of employment. Breaches can occur outside the course of employment. Duty to provide safe accommodation 39.I have referred to the new social dimension in cross-border employment which has become very common these days with the relocation of industries and export of skills and services to the Mainland. Depending on the locality of the place of work, a cross-border employee engaged to work beyond Shenzhen and Macau may have to be accommodated in the Mainland because of the time and costs of travelling. Provision of accommodation in the Mainland is a matter of agreement between the employee and his employers. Usually, local employees are employed to work during weekdays in the Mainland and they return to Hong Kong during the weekends. Some work for longer spells of a month or more before they return to Hong Kong for a break. Some employers provide quarters and transportation for the employees to and from Shenzhen to the place of work in the Mainland as in the case of Hsu Shu Chiao And Lung Cheong Toys Ltd. As the employee has to stay and work in the Mainland, it is usually a term of his employment that the employer shall provide accommodation or cash allowance in lieu. 40.If the employer provides accommodation or quarters for his employee, the law imposes on him a duty of care to see to it that the accommodation he provides is a proper accommodation for the employee to live in. This duty of care is created under the neighbourhood principle by an employer who causes his employee to work out of jurisdiction and to be accommodated in a place over which the employer has control. Similarly, a term containing such duty can also be readily implied into the contract of employment. The basic requirement of an accommodation is to provide shelter from the weather and security for the person’s safety. The employer’s duty of care in providing safe accommodation covers a scope which overlaps with but is different from that of the general duty of care owed by an occupier to his lawful visitor under the Occupiers’ Liability Ordinance. This duty is usually not very onerous, particularly in a society which enjoys a high standard of living and good public security. This duty is hardly breached in a city like Hong Kong which enjoys a high standard of living and is a safe place to live in. But the duty does exist despite its inconspicuous presence under the local circumstances. 41.However, the position is different where an employee is caused to work and reside out of Hong Kong. This is particularly so in a place like China which is renown for its level of criminal activities especially in small cities. The employee is unfamiliar with the local circumstances and has no knowledge of the level of public security there. A foreigner makes a good and vulnerable target for criminal activity. On the other hand, the employer is in China to do business. He is more familiar with the local circumstances and has the resources to ensure his employee’s safety. The employer must see to it that his employee is reasonably safe in using the accommodation which he provides for the employee whom he causes to work in a place which the employee is not familiar with and where his personal safety is at risk. The duty of care which an employer has to discharge for his employee working in the Mainland is more onerous than that owed to his employee working in Hong Kong. The extent of the duty and the standard of care depend on the facts of the individual case. It is impossible to lay down general rules. 42.An employer usually provides accommodation in the form of hotel accommodation for short periods of stay or rented quarters for longer durations of stay. Where cash allowance is given to the employee to find his own accommodation, the employer could be said to have contracted out of his duty of care to provide safe accommodation. Where the employer provides hotel or rented accommodation, he could be said to have delegated his duty of care to the hotelier or landlord of the rented premises, provided he has not been negligent in his choice of accommodation. 43.In the instant case, the Defendant had provided hotel or rented accommodation to the Deceased in the past when he was required to work in Jieyang City. It was Mrs Leung’s evidence that the Deceased was free to choose his accommodation and the Defendant’s obligation was to reimburse the Deceased the rent he paid. The Plaintiff could offer no evidence to contradict Mrs Leung’s evidence. Hence, it was argued on behalf of the Defendant that its obligation was to pay the Deceased a cash allowance and the Defendant did not owe the Deceased any duty of care in respect of the accommodation of the Deceased’s choice. In my view, whether the Defendant’s contractual duty was to provide accommodation or cash allowance is besides the point because on my finding of fact the Defendant connived at the Deceased residing in the Warehouse in lieu of hotel accommodation or cash allowance. In the circumstances, the Defendant is in the same position as if he had provided accommodation or quarters to the Deceased. The Defendant was under a duty of care in contract as well as in tort to see to it that the Warehouse was reasonably safe for the Deceased to live in. 44.Before the Defendant came under any duty to discharge its duty of care in providing safe accommodation, the Plaintiff must prove that the Defendant either knew or ought to have known that there was a risk that the Deceased may be attacked by the two out of province workers. In W v Commissioner of Police for the Metropolis [2001] PIQR 81, a policewoman was raped by her colleague during off duty hours and she sued the Commissioner of Police as employer of her colleague. Lord Slyn of Hadley held at paragraph 108 at p105:
45.As for the degree of such risk that needs to be foreseeable and the standard of care required to discharge that duty of care, Keith JA said in Wong Wai Ming and Hospital Authority [2001] 3 HKLRD 209 at 212I to 213H:
Thus, to consider whether the Defendant was in breach of its duty to provide safe accommodation, the real issue is whether the Defendant knew or ought to have known that there was a real risk as against a mere possibility of exposing the Deceased to physical violence in allowing him to share accommodation with the two out of province workers and if there was a real risk what should the Defendant have reasonably done to avoid that risk. 46.The safety issue that is involved in this case is not as to the physical condition of the Warehouse, but whether it was safe for the Deceased to share accommodation with the two out of province workers and whether the Defendant was in breach of its duty by permitting the sharing. Usually sharing accommodation with co-employee is not unsafe, but all depends on the circumstances. For example, it may be unsafe to permit a young female employee to be sharing accommodation with male employees, especially if they are strangers. 47.On the facts, the Defendant, through Mr Leung and Mrs Leung, was fully aware of the conditions of the Warehouse, its lack of partitioning and security protection for the Deceased and that the Deceased was residing there with the two out of province workers who were total strangers. Sharing accommodation with a colleague whom one knows and is familiar with is very much different from sharing accommodation with total strangers and particularly strangers from a foreign place. 48.Under cross-examination, Mrs Leung admitted that she knew some of these out of province workers were of bad character and had caused troubles including robberies and murders. Mr Lam submitted that the two out of province workers had a clear record with no history of violence and did not belong to any special class of persons who have the propensity of violence as in the case of mental patients attending a psychiatric centre. He argued that most of them are decent people who left their homes to take up employment in order to better their families and it would be discriminatory and disrespectful to suggest that such workers belong to a special class of people with propensity to violence. While it is wrong to generalise and label the two out of province workers without more as being criminals, there is no reason why one should not be prudent with strangers. Out of province workers are known to have been involved in serious criminal activities. The two out of province workers were total strangers to the Deceased and the Defendant. They came from outside the province with no root or family tie in Jieyang City. Once out of their place of work, their whereabouts would be unknown. They came from poor and remote areas in the Mainland where people may have different ideas as to moral and social values. Their behaviour might be unpredictable. They might resort to criminal activities such as theft and violence while residing in the Warehouse with the Deceased. Murder might not have been foreseen, but the risk of violence was a very real one especially if when the two workers were discovered by the Deceased in the course of their dishonest enterprise. They shared the same accommodation with the Deceased who was on his own. There were no other employees from Hong Kong in the Warehouse, whose presence could have provided some deterrence against the two out of province workers. The Warehouse was un-partitioned and offered no security to the Deceased against the two workers. Applying the reasonable man test, I think there was a real risk that the two out of province workers would resort to criminal activities in order to make quick monetary gain especially if when such circumstance presents itself. It was unsafe for the Deceased to share accommodation with the two workers alone, especially in the un-partitioned Warehouse which offered no security to the Deceased. I do not think this is a risk which a reasonably man would lightly take in all the circumstances. 49.Mr Lam argued that the Deceased was not a young person and had been brought up in the Mainland and was no stranger to Jieyang City as he had worked there for substantial period of time before. Be that as it may, the Deceased had hitherto been accommodated in hotels and rented premises in which he was reasonably safe. He may not be truly aware of the danger he exposed himself by sharing accommodation with the two out of province workers in the Warehouse. 50.Though these two workers had no criminal record and the Defendant had no knowledge of their criminal propensity, these are matters which only go to the magnitude of the risk which a reasonable employer would have to balance against the costs of the measures to be taken to avoid that risk. The risk of violence may be small, but the consequence in the particular circumstances may be serious and could result in death which it did. That risk could be avoided by instructing the Deceased not to reside in the Warehouse or to prohibit the two workers from residing there with him, or by installing lock and partitions to the floor occupied by the Deceased. The costs of these measures were minimal. But what had the Defendant done? The Defendant had not taken any of these steps or given the Deceased any guideline or warning as to his personal safety in sharing accommodation with the two out of province workers. Mrs Leung only gave the Deceased a casual reminder “to take care.” Though she had offered hotel accommodation to the Deceased, she was happy that her offer was declined and she connived at the Deceased residing in the Warehouse, presumably because of the saving that could be made. The Defendant was under a contractual duty to provide accommodation for the Deceased. Instead of providing him with proper accommodation, it connived at the Deceased’s residing in the Warehouse. The connivance had the effect of authorizing the Deceased’s stay in the Warehouse as if it was the quarters provided by the Defendant. The Defendant rented the Warehouse, suffered it to be turned into a den and allowed the Deceased to walk into it like an innocent lamb to the slaughter house. The Defendant was in clear breach of its duty of care as employer under the contract of employment and in negligence. 51.Mr Lam has referred me to a number of decisions in which a contrary result was reached in different factual situations. I think the result in each case depended on its own facts. It is not necessary to refer to all of them, except Smith v Ocean Steam Ship Company, Ltd [1954] 2 Lloyd’s Rep 482. In that case, native coolies in Indonesia called “badjoes” were taken on board the defendant’s ship for loading goods. These badjoes were known to be of dangerous character and carried knives. They stabbed the ship’s officer to death without any provocation. It was held that the plaintiff had failed to establish that the defendant should have foreseen that the presence of badjoes on board the ship would render the crew’s employment dangerous. That decision was clearly one based on its facts or the inadequacies of the plaintiff’s evidence and has no bearing on the present case, as the risk of exposing oneself to violence in the work place in the presence of other colleagues during working hours is very much lower than the risk of exposing oneself to violence while sharing accommodation alone with total strangers at night. 52.Next, Mr Lam submitted that even if there was a breach of duty, the Plaintiff has failed to prove causation as whatever steps the Defendant had taken would have made no difference in any event. He referred to Wong Wai Ming v Hospital Authority [2001] 3 HKLRD 209 at 217-8, in which Keith JA held that the question to be asked by the Court is simply whether if the defendants had taken the measures they should have done, it could be said that the plaintiff would undoubtedly still have received injuries. He submitted that according to Wu’s and Zhou’s confessions to the police the attack on the Deceased was a premeditated and not an impulsive act. Hence, he argued even if the Deceased had lived in separate accommodation, the attack would still have been carried out though not as conveniently as it had been done. He argued that the Plaintiff had failed to prove that it was more likely than not that Wu and Zhou would have been deterred by such inconvenience. 53.Mr Lam quoted the Australian decision in Modbury Triangle Shopping Centre Pty Limited And Anzil And Another (2000) 205 CLR 254 in support of his argument. In that case, an employee of a tenant of a shopping centre was attacked in the car park when the lighting was turned out. Callinan J held at p 303, paragraph 152:
He also quoted another similar case of Proprietors of Strata Plan 17226 v Drakulic, 2002 NSW Lexis 623 in which the issue was whether a robbery would have been avoided if the door lock were not defective. Heydon JA said that at page 37:
At p 39, Hodgson JA also held:
54.I think these are also decisions on their facts and have no bearing on this case. In Modbury Triangle Shopping Centre Pty Limited And Anzil And Another, the assailants were armed with clubs waiting for the victim to come out of the shop and walk into an unlit car park. Certainly, whether the car park was lit or not at that particular point in time would make no difference when the assailants have gone that far into their unlawful enterprise. But it would have made a difference if the victim did not have to work that late when there were more pedestrians in the well-lit car park which would have provided sufficient deterrence. It would also have made a difference in Proprietors of Strata Plan 17226 v Drakulic, if the victim had moved out of that property. The same is true in the present case. On the facts of the present case, it is plainly obvious that if the Deceased had moved into hotel or other proper accommodation, Wu and Zhou would not have the occasion to enter the premises in the early hours of the night and attacked him when he was defenceless. An attack in the work place or at other hours, even if it were successful, would probably not have been fatal as the Deceased would have been able to put up some resistance and there might be other people around whose presence would have deterred Wu and Zhou from the attack. I am satisfied that the Plaintiff has proved causation. 55.Lastly, Mr Lam argued in the alternative that the criminal act of Wu and Zhou constituted a novus actus interveniens which broke the chain of causation. Whether the act of a third party constitutes a novus actus interveniens depends on, inter alia, the foreseeability of such act. It has been held that robberies in domestic premises were not uncommon and burglaries were within the reasonable contemplation of the parties as a not unlikely result of the disrepair of the front door: see Marshall v Rubypoint Ltd (1997) 25 EG 142 and Hui Kay Cheong Hermann and Chi Wo Properties Ltd, DCCJ 1 1682/1990 (20/12/1991). Mr Lam sought to argue that the present case is distinguishable on the basis that the act of the third party in issue was an attack by co-workers who were permitted by the Deceased to stay with him in the Warehouse instead of intruders from outside. I think the same test of foreseeability applies here as in determining the question of risk. For similar reasons, I find that the act of Wu and Zhou was foreseeable and their attack did not constitute a novus actus interveniens. 56.Accordingly, I find that the Plaintiff succeeds in both his claim in contract and in negligence. Claim in OCCUPIER’S LIABILITY 57.The Defendant’s defences to this cause of action is firstly that the Deceased and not the Defendant is the occupier of the Warehouse where the attack took place and secondly that occupier’s liability is not applicable to the facts of the present case. 58.Mr Lam submitted that the Deceased was the occupier of the Warehouse at the material time as he was in actual occupation and had possession or physical control over the premises. He relied on the following passage from paragraphs 7-14 of Charlesworth & Percy on Negligence 10th Edn which was adopted by Sakhrani J in Suen Yung Cheung and Sun Pong Yung And Sui Kong Wharf Company Limited, HCPI 531/2003 at paragraph 57 and 58:
He argued that the Warehouse was rented by the Deceased as tenant, though the Deceased received reimbursement from the Defendant. He submitted that on a proper analysis of the facts in this case, as between the Deceased and the Defendant, the former was the occupier and; as between the Deceased and Wu and Zhou, the latter were the Deceased’s visitors. 59.I have no doubt about the correctness of the proposition of the law as stated by the learned authors of Charlesworth & Percy on Negligence. The proposition originated from the dicta of Lord Denning in Wheat And E Lacon & Co Ltd [1966] AC 552. But I do not think the proposition has been properly applied by Mr Lam in his argument. Though the tenancy was entered into by the Deceased as tenant, it is obvious that he did so as the agent of his employer, i.e. the Defendant. Hence the Deceased had occupation and control of the Warehouse on behalf of the Defendant. Through the Deceased, the Defendant had exclusive possession of the Warehouse and had the ability to determine who may reside in the Warehouse. It is well established that an occupier needs not be in actual occupation of the premises and two or more persons can be occupiers of the premises at the same time: see Wong Tung Ming and Kwok Chiu Hung, HCPI 928/1995 (29/9/1999). With full knowledge, the Defendant connived at the Deceased residing in the Warehouse as if it was his quarters. Putting the Deceased’s occupation of the Warehouse in its proper perspective, the Deceased’s occupation was that of the Defendant’s who was therefore the occupier and when using the Warehouse as his residence or quarters in his personal capacity, the Deceased did so with the consent of the Defendant as a visitor. Thus, as between the Defendant and the Deceased, the Defendant was the occupier of the Warehouse while the Deceased, Wu and Zhou were the Defendant’s lawful visitors. 60.In its second defence, Mr Lam submitted that an occupier’s liability is in confined to the dangerous conditions of the premises of which he is the occupier and does not cover dangerous activities which are carried on in the premises but which are unrelated to the premises. He quoted the following passage from Halsbury’s Laws of England (4th edn), vol 33, paragraph 62, footnote 4, which was adopted by Deputy Judge Gill in Ma Kam Yeung and Fu Hay Kin & Others [1998] 2 HKLRD 615 at 630:
Mr Lam could not find any local or English authorities in support of the above proposition but was able to refer me to two Australian decisions. 61.The first case is Modbury Triangle Shopping Centre Pty Ltd And Anzil And Another (2000) 205 CLR 254, which I have referred to earlier. That was the case of an employee of a shop in a shopping centre who was attacked in the car park when there was no light. Glesson CJ observed at paragraph 2, p 259 :
The Chief Justice considered the issue of duty of care at paragraphs 15 to 19, at p 263 as follows:
The Chief Justice concluded at paragraph 36 at p 268-9 that:
62.In the same case, Hayes J held there is no general duty on the occupier to control or prevent the criminal activities of third parties on his premises and that in the limited circumstances where the occupier was held to be under such a duty, the duty arose from some other capacities such as an employer’s duty to provide safe system of work. He said at paragraph 110, p 292:
63.Modbury was explained and applied by the Court of Appeal of New South Wales in Proprietors of Strata Plan 17226 v Drakulic, 2002 NSW Lexis 623. In that case, the plaintiff was injured when she returned home from work and was attacked by an intruder lurking in an entrance foyer used by her to access her apartment. The entrance door lock was defective. Heydon JA said at p 32:
64.These dicta contain a comprehensive analysis of the basis of an occupier’s duty of care to his visitor. The duty arises out of the control and knowledge which an occupier has in relation to the physical state or condition of land. I think the law is that an occupier may only be liable to his visitor in respect of danger caused by the physical state or condition of the land or by activities carried out on the land for which the land is being used. In the Modbury case and the Drakulic case, the Australian Courts have made it clear that this liability did not extend to criminal behaviour of strangers on the land. As an occupier’s liability is based on the physical state or condition of the land or activities carried out on land for which the land is used, the liability cannot be extended to criminal activities of any persons on the land whether they are strangers or co-visitors. If the law were otherwise, an occupier would have to assume a policing duty on his land not only to see to it that no strangers are admitted into his land, but also his visitors abide by the law. I do not think it could be our law that the hostess of a social dinner should be liable if one of her guests gets drunk and assaults another of her guests or deliberately steals the property of another guest. 65.There are circumstances where the relationship between two parties creates a duty on one to take reasonable care to protect the other from the criminal behaviour of third parties, e.g. an employer to prevent random and unpredictable behaviour by one employee against another as in W v Commissioner of Police for the Metropolis [2001] PIQR 81, or by a student against a teacher as in Lee Tin Yeung And Chiu Chow Association Secondary School & Others HCPI 201 of 1999 (27/8/2002). But there is no general rule that an occupier is liable for the criminal behaviour of the visitors on his land. The usual circumstances when an employer is found to be liable for the criminal behaviour of his employee or a third party is based on the control he has over the employee or the third party. In the present case, the Defendant has no control over the criminal behaviour of Wu and Zhou. In any event, these cases do not assist the Plaintiff either as I have found that the attack did not arise in the course of employment. 66.Accordingly, I find that though the Defendant was the occupier of the Warehouse, it was not liable as occupier for the attack on the Deceased by Wu and Zhou. Had I been able to find there was breach of duty as occupier on the part of the Defendant, I would have found the risk of the attack foreseeable and the death caused by the breach of duty for the same reasons as I have given when considering the Plaintiff’s claim in contract and negligence and I would have found the Defendant liable. vicarious liability The close connection test 67.I have no difficulty to find that Wu and Zhou were recruited by the Deceased for and on behalf of the Defendant pursuant to the instruction of Mr Leung of the Defendant. Thus, Wu and Zhou were employees of the Defendant. Counsel have no disagreement that an employer is liable for the tort committed by its employee if such tortuous act is so closely connected with the employment that it would be fair and just to hold the employer vicariously liable: per Lord Steyn in Lister and othrs v Hesley Hall Ltd [2001] 2 WLR 1311. This ‘close connection test’ was approved by the Court of Final Appeal in Ming An Insurance Co (HK) Ltd and Ritz- Carlton Ltd [2002] 3 HKLRD 844. In that case, Bokhary PJ said at p 854F-H:
68.In the same case, Litton NPJ also held at p 856G:
He continued at p 858J-859C:
69.Thus, whether an employee’s tortuous act is so closely connected with his employment is a question of fact which has to be considered in its proper context. Factors which have to be considered include: the employee’s duties at the time when the tort occurred, whether he was acting in the interests of the employer or solely for himself, the business activities of the employer and whether the risk which gave rise to the damage was created by those activities. Deliberate tortuous acts committed totally contrary to the employer’s business or instructions may nevertheless attract vicarious liability for the employer under the above test. Application of the close connection test to the facts of the case 70.Mr Shum submitted that the test should be applied with a liberal mind emphasising on fairness and justice. He referred to Mattis v Pollock [2003] ICR 1335 as an example of this liberal application of the test. In that case, a nighclub’s doorman attacked a customer with a knife as a revenge directly linked to an earlier event which had taken place in the club during which the doorman was assaulted by the customer and his group for being refused entry into the nightclub. The finding at first instance that the employer was not vicariously liable for the assault by the doorman was reversed on appeal by the Court of Appeal. The Court of Appeal held:
71.Mr Shum submitted that the following facts are very relevant. Wu and Zhou came into contact with the Deceased because of their employment by the Defendant. The attack took place in the Warehouse leased by the Defendant for the Defendant’s business and with the Defendant’s knowledge that it was being used as a residence by Wu and Zhou and the Deceased. Wu and Zhou attacked the Deceased because they were scolded and pressed to work hard by the Deceased in advancing the interest of the Defendant. The Defendant had knowledge that Wu and Zhou were lazy and did nothing to assist the Deceased. He submitted that this close connection is established. 72.In applying the test, one must bear in mind what Bokhary PJ said in Ming An Insurance Co (HK) Ltd and Ritz-Carlton Ltd [2002] 3 HKLRD 844. The application is always to be undertaken in context and the disposal of each case will always turn ultimately on its own facts and the particular considerations which they raise. The decision in Mattis v Pollock [2003] ICR 1335 and other decisions cited therein are decisions on their facts and should not be taken as binding precedents. 73.In Mattis v Pollock [2003] ICR 1335, the English Court of Appeal considered the employee’s duty against the employer’s business as follows at paragraph 30, p 1345B:
After referring to Lister and Others v Lesley Hall Ltd [2001] 2 WLR 1311, the English Court of Appeal said at p 1328E:
Then it went on at p 1328F-G and held as follows:
74.At p 1342B-H, Lord Millet said:
75.These dicta suggest that the first and third propositions held by the Court of Appeal in Mattis v Pollock relied on by Mr Shum are no more than conclusions which may be reached on the facts of a particular case. Whether an employee’s tortuous act is an independent act or was done for his own benefit or has an element of personal revenge is inconclusive as to the employer’s liability. Whether an employer is vicariously liable for the acts of his employee depends on the particular facts of the case. I have no difficulty in accepting that the Court should adopt a liberal approach in applying the close connection test. 76.In this case, the crime was committed by Wu and Zhou when they were off-duty. They were advancing their own interests (i.e. to rob the Deceased’s properties) and were taking revenge. The only connections between the crime with their employment are that (a) one of the motives of the attack was that they were unhappy with the Deceased’s criticism of their work performance and that (b) the crime took place in the Warehouse leased and used by the Defendant for storing materials. 77.The business activity of the employer in this case was to provide air conditioning maintenance or installation services. Wu and Zhou were employed to provide unskilled labour for the maintenance or installation services. It was not their duty to maintain discipline or to apply violence in their course of employment as in the case of the doorman in Mattis v Pollock. On the contrary, it was their duty to conform with the discipline and the instruction of the Deceased. Nor were they advancing the interest of the Defendant in robbing the Deceased of his possession as in the case of Dyer v Munday. I am quite unable to find any close connection from the mere fact that their employment had put them into contact with the Deceased or from the fact that the attack took place in the Warehouse leased by the Defendant for the Defendant’s business and with the knowledge that it was used as a residence by Wu and Zhou and the Deceased. 78.Mr Shum submitted that Wu and Zhou attacked the Deceased because they were scolded and pressed to work hard for the Defendant’s business and that constituted a close connection as the Deceased did that in advancing the interest of the Defendant. Though what the Deceased did was in the interest of the Defendant and in the course of his employment, the issue here is not whether the Defendant should be held vicariously liable for the act of the Deceased but whether it should be held vicariously liable for the act of Wu and Zhou. What Wu and Zhou did was for their own gain. It was just an act of passion and resentment done neither in furtherance of the employer’s interests nor under his express or implied authority nor as an act which is incidental to or in consequence of anything an unskilled labourer was engaged to do as in the case of Deaton Pty Ltd v. Flew. It was just an act of retribution done for personal gain. There is much to be said that the Deceased’s death was related to his employment, but it was not enough to make the employer liable for Wu’s and Zhou’s attack. 79.It is an undisputed fact that the attack was provoked by a dispute connected with the Deceased’s performance of his duty. Warren v Henlys Ltd [1948] 2 All ER 935 cited by Lord Millet in Mattis v Pollock provides a good example. In that case, erroneously believing that the plaintiff had tried to drive away from the garage without payment or surrendering coupons for petrol which had been put into the tank of his car, a petrol pump attendant used violent language at the plaintiff. After the plaintiff called the police and told the pump attendant that he would make a complaint to the attendant’s employers, the pump attendant assaulted and injured him. That was a clear case of an assault arising out of a dispute in relation to the employee’s duty. It was held that the employer was not vicariously liable for the act of the attendant. While Lord Millet doubted the rationale in that decision, he considered that the case was nevertheless rightly decided on the basis that the employee’s duties did not include maintaining order. Likewise, it was not Wu’s and Zhou’s duty to maintain discipline on the Deceased or to supervise the Deceased. It was the other way round. The attack was motivated for their benefit and not for advancing any interest of the Defendant. 80.Even adopting a liberal approach in applying the close connection test to the facts in the present case, I am unable to find that the attack by Wu and Zhou was so closely connected to their employment with the Defendant that it would be fair and just to hold the Defendant vicariously liable for their attack. Accordingly, the Plaintiff’s claim under this cause of action must fail. CONTRIBUTORY NEGLIGENCE 81.The Defendant pleaded that the Deceased was contributory negligent. Mr Lam rightly submitted that any finding that the Defendant is liable must be based on a finding that there existed a real risk of attack which the Defendant ought to have foreseen. Hence, he submitted that if such risk ought to have been known to the Defendant, this risk must have been even more apparent to the Deceased who engaged and had direct contact with Wu and Zhou. He also referred to the undisputed fact that the Deceased declined Mrs Leung’s offer to move to hotel accommodation. Thus, he submitted that in declining Mrs Leung’s offer and in allowing Wu and Zhou to share accommodation with him in the Warehouse with the knowledge that there was no partition which could have provided him with any security from Wu and Zhou whom he had disciplined or scolded, the Deceased was contributory negligent to the extent of 100%. 82.The Deceased had been brought up in the Mainland and had worked in Jieyang City for substantial periods before. In the circumstances, a finding that he had been contributory negligent in looking after his own safety is inevitable. However, it is primarily the duty of the employer to look after the personal safety of its employee residing in the quarters provided by the employer. It is only in the most exceptional circumstances that a finding of substantial contributory negligent could be justified. The employer with its knowledge and resources was in a better position to appreciate the nature and magnitude of the risk than the Deceased in view of his young age, inexperience and lack of prudence. The Deceased made the fatal error due to his devotion to the Defendant and undue concern about minimising the expenses of the Defendant. He has fallen into an error which the Defendant was in a better and more detached position to correct. It must be the duty of the employer to protect the employee from his own stupidity rather than to exploit it. What the Defendant did was to exploit the unquestioned loyalty and devotion of this young and inexperienced employee. In my view, the substantial negligence which the Deceased contributed could not exceed 20%. QUANTUM Bereavement 83.The Plaintiff claims $150,000. This amount is agreed by the Defendant. Loss of dependency 84.The Deceased was born on 15 January 1980. He died at the age of 21. The Plaintiff claims that the Deceased left three dependents. Their particulars and relationship with the Deceased are as follows:
85.It is agreed between the parties that the Deceased earned HK$12,000 at the time of the accident. This is consistent with the wage record produced by the Defendant which showed from 1 April 2000 to 31 March 2001 the Deceased earned a total sum of HK$142,666, i.e. $11,889 each month. This is also consistent with the bank book of the Deceased. What is in issue whether he made any contribution to his family, and if so, how much. The Plaintiff claimed that the Deceased contributed HK$7,000 to his family: HK$6,000 as family expenses and HK$1,000 for entertainment. 86.The Plaintiff said that the Deceased returned to Hong Kong once every two to three months and each time the Deceased returned, he would give the Plaintiff two to three months’ contributions, which would be in the region of $12,000 to $18,000. This evidence is contradicted by the bank account records of the Deceased which does not show any such withdrawal. 87.The Plaintiff, his wife and the Deceased’s elder brother were all working. They did not need the Deceased’s support. On the fact, the Deceased spent a substantial period of time in mainland China. His bank account shows substantial amounts withdrawn in the Mainland, while the withdrawals in Hong Kong seldom exceed $10,000 and usually in sums of a few thousand only. 88.In the circumstances, I am not satisfied that the Plaintiff has discharged the burden of proving a monthly contribution of $7,000, though I have no doubt that the Deceased contributed. I consider the amount of $5,500 as admitted by the Defendant in its Answer extremely fair and reasonable. The parties agreed that the percentage of dependency of the Plaintiff, the mother and the sister are 14%, 23% and 45% respectively. Pre-trial Loss of Dependency 89.Four years seven months and seven days lapsed between the date of death (22 April 2001) and the date of trial (29 November 2005), i.e. 55.23 months. On this basis and the monthly contribution by the Deceased of $5,500, the loss of pre-trial dependency for the Plaintiff, the mother and the sister is $249,087 ($5,500 x (14% + 23% + 45%) x 55.23). Post-trial Loss of Dependency 90.As for post-trial loss of dependency, the parties also agreed to adopt a multiplier of 12 from the time of the Deceased’s death for the Plaintiff and his wife, but could not reach agreement as to the multiplier to be adopted for the sister. As it is not in dispute that the sister would complete her full time study in two years, i.e. in 2007, the appropriate multiplier for the sister is 2. 91.Hence, the post-trial loss of dependency is :
Funeral and other expenses 92.The Plaintiff claims special damages in the amount of $69,499 being funeral expenses, $10,000 being travelling expenses for arranging for the funeral and $5,000 being damages for loss of the Deceased’s personal property. The funeral expenses was agreed by the Defendant, but the Plaintiff failed to provide proof of the other two claims. The cost of travel between Hong Kong and Jieyang City was about $400 per person per return journey. I consider a total amount of $10,000 for the two claims adequate. That would allow three return journeys for the entire family of four with meal allowance for attending to the police investigation and making funeral arrangements and damages for loss of the Deceased’s personal property. The total award under this head of sum is $79,499. Loss of accumulation of wealth 93.The Deceased was born in the Mainland and received only primary school education. He completed his apprenticeship with the Defendant and was qualified as an air-conditioning technician in 1999. It was agreed by the parties that the Plaintiff would have earned $12,000 at the time of trial. By the time of his death, the Deceased had worked for more than four years, at least two years of which as a technician. He was not yet married although he had a steady girlfriend. Notwithstanding that, he did not manage to save any significant sum of money. At the time of his death, he only had HK$8,272 in his Hong Kong Bank account and he had no other property. The Plaintiff said the Deceased spent a lot of money in mainland China. Mr Lam argued, somewhat unkindly in my view, that given his background the Deceased had little prospect of advancement and it will be wholly speculative to suggest that the Deceased would have accumulated some money at the time of his natural death. He submitted no award should be made. He quoted the case of Wai Kang Kwan v Wong Wing Hong [1989] 2 HKC 585, in which Master Jones refused to make an award in respect of a deceased who died at the age of 17 and who had just finished Form 5 and been employed for one and half months. Master Jones said at p 590B:
Alternatively, he submitted that an award of not more than $100,000 in line with Wang Chin Ying and Lam Ping Fung [1999] 3 HKLRD 190 should be made. 94.I respectfully disagree with that submission. I think Wai Kang Kwan v Wong Wing Hong is inconsistent with most later decisions, including Wang Chin Ying and Lam Ping Fung [1999] 3 HKLRD 190, Tsang Choi Yung v United Christian Hospital [1993] HKLY 471 and Kwan Yau Tai & Another v Eng Kong Container Services Ltd & Another [1998] HKLRD 329. In Wang Chin Ying and Lam Ping Fung, the Court made an award of $100,000 in the case of a deceased who was a 17 years old student who had just completed Form 4. In Tsang Choi Yung v United Christian Hospital, the deceased was earning $13,500 a month when he died at the age of 25. Though the Court found his saving was exhausted from time to time, it was satisfied that the deceased would be able to save up some money in the future when his salary eventually goes up. The Court awarded $202,500 for loss of accumulation of wealth. In Kwan Yau Tai v Eng Kong Container Services Ltd, the deceased was earning $9,192 a month when he died at the age of 27. The Court found he had no pattern of saving but nevertheless made a global award of $200,000 under this head. I prefer the later decisions to Master Jones’ unduly rigid approach. That approach was impliedly disapproved by the Court of Appeal in Lam Pak Chiu and Tsang Mei Ying & Another [2001] HKLRD 193. In that case, Bokhary JA (as he then was) held at 202B and 203G:
95.I think Master Jones’ rigid approach is particularly inapplicable to people who unfortunately died young. During the initial stage of their career, people do not usually earn much and cannot save much. It is wrong and unjust to jump to the conclusion that they have no saving pattern. While the court should not indulge in speculation and in making wild assumptions, the court must also be realistic. In the usual course of things, it is more likely than not that a person would develop a saving pattern than becoming a spendthrift. Where there is no evidence which suggests that a person would not make any saving, the court should draw the appropriate inference of what would have happened in the normal course of event than to adopt an unduly rigid approach which is contrary to common sense and common experience. I for one would not readily come to the conclusion that a young person has no saving pattern unless there is some evidence which permits me to come to that view. 96.In my view, the Deceased made impressive achievement from his humble background. He was hardworking and devoted to his work. I have no doubt that he had potential for further advancement but for this tragedy. His career did not actually begin until he completed his apprenticeship in 1999. He did not make much saving during those two initial years. He spent a lot of money in China. But that does not mean in course of time when he would have grown older and acquired a more mature sense of responsibility he would not start to develop a saving pattern. I think it is inappropriate to gauge the Deceased purely on the basis of his lack of saving at the early stage of his career. The evidence suggests he had potential to earn more and to develop some saving pattern. 97.Both parties agree that if I should make an award, I should adopt the global award approach in Lam Pak Chiu and Tsang Mei Ying [2001] 1 HKLRD 193. Mr Shum asked for a global award of $200,000 as in the case of Kwan Yau Tai & Another v Eng Kong Container Services Ltd & Another. Having regard to the Deceased’s income, I consider such an award appropriate. Summary on quantum 98.I make the following award in favour of the Plaintiff after allowing for 20% contributory negligence:
99.In accordance with the principle in Kwan Lai Kuen v National Insurance Co Ltd [1998] 1 HKC 98, the award on special damages and pre-trial loss of dependency shall be with interest at half judgment rate from the date of death until the date of trial and the award on bereavement shall be with interest at the prevailing rate of suitors’ fund from the date of death until the date of trial. No interest shall be awarded for post-trial loss dependency or loss of accumulation of wealth. Conclusion 100.Accordingly, I enter judgment in favour of the Plaintiff in the amount of $734,907 together with interest. I also make a costs order nisi that the Defendant shall pay the Plaintiff’s costs, to be taxed if not agreed and the Plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.
Mr Erik Shum, instructed by Messrs Lau & Chan assigned by the Director of Legal Aid, for the Plaintiff Mr Lam Ting Kwok Paul, instructed by Messrs Clyde & Co, for the Defendant |
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