CHEUNG CHAK FUI AND ANOTHER v. SUN HING ORGANIZATION PLASTIC MANAGEMENT LTD

HCPI 91/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 91 OF 2008

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J U D G M E N T

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A. Introduction

1.  In 2005, Mr Cheung (the Plaintiff) was employed by Sun Hing Organization Plastic Management Ltd (“Sun Hing”), the 1^st Defendant, as the support services supervisor of its Mainland factory [廠房後勤主管]. 

2.  On 18 March 2005, Mr Cheung was kicked and punched by his colleague, one Mr Zhou (“Mr Zhou”) at his office in the factory.  Mr Cheung suffered certain physical injuries as a result of the assault.

3.  By this action, Mr Cheung claims against Sun Hing for damages for the personal injuries he has so suffered.  The claims are premised on the bases of (a) Sun Hing’s negligence and/or (b) its vicarious liability for Mr Zhou’s assault. The damages claimed (after deducting the payment received under employees’ compensation) is HK$1,881,050.44.

4.  Sun Hing disputes both liability and quantum.

B. The background

5.  Unless otherwise stated, the uncontroversial background facts leading to this claim are as follows.

6.  Sun Hing is a Hong Kong company carrying on the businesses of trading and manufacturing of Christmas decorations.  It maintains an office in Hong Kong and two factories in Shenzhen, the Mainland. The Hong Kong office is mainly responsible for trading business and the  productions lines are situated at the Shenzhen factories.  For convenience, the two factories are respectively called “the old factory” and “the new factory”.

7.  In March 2004, Mr Cheung was initially employed by Sun Hing under the title of Administrative Manager of the old factory for a probation period of 3 months.  The salary was HK$16,000.00.

8.  At the end of the probation period, Mr Cheung signed a contract (“the Contract”) with Sun Hing dated 15 June 2004. The Contract provided that Mr Cheung had formally become a staff of Sun Hing with a monthly salary of HK$8,000.00.  The duration of the Contract was one year.  He was then repositioned to the Hong Kong office.   No job title was provided under the Contract.

9.  It is Mr Cheung’s case that notwithstanding the stated monthly salary of HK$8,000.00, when he signed the Contract, he was promised by Mr Ip Fung Chun (“Mr Ip”), a director of Sun Hing, that he would also be paid an annual bonus in the region of HK$200,000.00 to HK$300,000.00. 

10.  Mr Ip denies that there was any such promise. 

11.  In August 2004, Mr Cheung was transferred to the old factory again as the support services supervisor.  The areas under his supervision included the operations of the staff canteen, the factory’s security, the staff dormitory, factory scrap materials refuse collection and recycling.

12.  In September 2004, Sun Hing’s management approved Mr Cheung’s suggestion to recruit an assistant to assist him in his duties.  Mr Cheung himself carried out the recruitment exercise in Shenzhen. At the end, he decided to recruit Mr Zhou as his assistant.

13.  However, apparently since late 2004, the work relationship between Mr Cheung and Mr Zhou had turned difficult and not harmonious.

14.  In light of this, Mr Cheung in his regular weekly meetings with Sun Hing’s management had repeatedly suggested to dismiss Mr Zhou for what Mr Cheung described as his poor performances.  These suggestions were rejected by the management on the basis that there was insufficient evidence to support the allegations of poor performances. 

15.  One of the causes of the rift between them Mr Cheung’s disapproval of Mr Zhou was the fact that Mr Zhou had developed a relationship with a female worker at the old factory known as Ms Li.   Ms Li lived at the factory’s dormitory.  In Mr Cheung’s view, it was inappropriate and incorrect for Mr Zhou to develop a relationship with Ms Li as, according to Mr Cheung’s own understanding, Mr Zhou was already married.  Mr Cheung was also unhappy that Mr Zhou had “cheated” him by stating in the job application form that he was “unmarried”.  

16.  At the same time, Mr Zhou suspected that it was Mr Cheung who had been making various anonymous calls to Ms Li and Ms Li’s family members telling them that Ms Li should not be “cheated” by Mr Zhou, as Mr Zhou was already married. 

17.  Mr Zhou had quarrelled with Mr Cheung on this.  Mr Cheung denied having made those calls.

18.  Because of these conflicts between them, Mr Zhou had on various occasions threatened Mr Cheung that he would hit Mr Cheung. 

19.  It is common ground that Mr Cheung had reported to Sun Hing’s management about Mr Zhou’s said threats of violence.

20.  On 11 March 2005, an incident occurred at the refuse collection station of the old factory.  Apparently, Mr Cheung and Mr Zhou were involved in an argument as to whether certain scrap materials there should be collected for recycling purpose instead of being thrown away as refuse.  Mr Cheung said they should be while Mr Zhou disagreed.  They therefore engaged in intense arguments.  Mr Cheung then called for the attendance of one Mr Ngai Suk Ping (魏叔平) (“Mr Ngai”) and one Mr Lin Chong Ip (連創業) (“Mr Lin”) to determine the dispute.  Mr Ngai was then in charge of the statistics division of the factory, while Mr Lin was in charge of the production division.  At the end, both of them decided to ask another staff to collect those scrap materials back to the factory for recycling.  It is their evidence that although they both believed that those materials were no longer suitable for recycling, they still did so because they wanted to give face to Mr Cheung. 

21.  I will refer to this incident in this Judgment the “Refuse Station Incident”.

22.  On the next day on 12 March 2005, at the weekly management staff meeting, Mr Cheung again reported Mr Zhou’s inappropriate relationship with Ms Li and that Mr Zhou was already married.  It is Mr Cheung’s case that at that time, Mr Zhou suddenly came to the meeting and threatened Mr Cheung with words to the effect that he could summon someone he knew in a police station to dump Mr Cheung into a refuse station.

23.  On 14 March 2005, Mr Cheung caused a notice (“the Notice”) to be issued in the name of Sun Hing and posted in the factory. The Notice referred to the Refuse Station Incident, and announced the discharge of Mr Zhou’s duties as an assistant to the support services supervisor.

24.  On 15 March 2005, a general staff meeting was held at the factory.  This was attended by some 48 persons. They included, inter alia, Mr Ip, Mr Lau Pak Shan (劉伯珊) (“Mr Lau”) who is another director of Sun Hing, Mr Ngai, Mr Lin, Mr Cheung and Mr Zhou.  For convenience, I would call this “the 15 March Meeting”.

25.  It was recorded in the minutes (“the Minutes”) of the 15 March Meeting that, inter alia, Mr Cheung reported on matters under his responsibilities.  He also reported other matters of which he was dissatisfied with Mr Zhou’s performance.  These included (a) the Refuse Station Incident, and (b) the allegation that Mr Zhou was married but still inappropriately developing a relationship with a female colleague.  Mr Ip was recorded in the Minutes to have made various responses to these complaints.  I will discuss these responses in detail later in this judgment when I deal with the issues. 

26.  In the morning of 18 March 2005, Mr Cheung was then working in the office situated in the old factory.  Suddenly, Mr Zhou went into the office and assaulted him.  There is no dispute that Mr Cheung was assaulted by Mr Zhou, but the parties disputed on the manner of the assault, which I would also deal with below. 

27.  Seeing this, Mr Lin immediately held Mr Zhou with his arms around Mr Zhou’s body and pulled Mr Zhou out of the office.

28.  After getting Mr Zhou out of the office, Mr Lin also called for the police.

29.  The police later came and investigated the incident.  Mr Cheung was also sent by ambulance to the emergency department of a hospital in Shenzhen for treatment of his injuries. 

30.  Mr Zhou was however not prosecuted for the assault.  It is Sun Hing’s case that this is because Mr Cheung had settled this incident with Mr Zhou by accepting a RMB3,000.00 compensation offered by Mr Zhou.

31.  On 31 January 2008, Mr Cheung brought the present claim against Sun Hing as the 1^st Defendant and Mr Ip as the 2^nd Defendant.  By way of a consent order dated 29 October 2008, the claim against Mr Ip was discontinued. 

32.  The present claim therefore now only concerns Sun Hing.

C. Issues

33.  As shown by the pleadings^[1], in gist Mr Cheung’s case is that despite his repeated complaints about the threats of violence by Mr Zhou, Sun Hing ignored his complaints and did not take any remedial measures.  It is further Mr Cheung’s case that because of the assault (“the assault”) by Mr Zhou on 18 March 2005, he has sustained head injury, contusion on the chest well, post-concussion syndrome, adjustment disorder and post-traumatic stress disorder.

34.  Mr Cheung’s claims are premised on three causes of action, namely (a) breach of employer’s duty, (b) breach of implied terms of the contract of employment, and (c) vicarious liability.

35.  The particulars of breach of the employer’s duty and breach of implied terms as pleaded are essentially the same and as follows:

(1) Failing to heed towards Mr Cheung's complaints about Mr Zhou's violent threats towards Mr Cheung and to take all reasonable and necessary steps to discipline or warn Mr Zhou;

(2) Failing to take any or any reasonable step and measure to protect Mr Cheung from violent attacks of Mr Zhou;

(3) Failing to take precautions for the safety of Mr Cheung;

(4) Exposing Mr Cheung to an unnecessary risk of injuries which it knew or ought to have known;

(5) Causing or permitting Mr Zhou to assault Mr Cheung;

(6) Condoning Mr Zhou's violent threats and mis-behaviour towards Mr Cheung at all material times;

(7) Failing to assess the risk of injuries by Mr Zhou towards Mr Cheung even though Mr Cheung had repeatedly requested Sun Hing and Mr Ip to sack Mr Zhou; and

(8) Being in breach of the implied term of the contract of employment that Sun Hing would take all reasonable care and precautions for the safety of Mr Cheung in the course of his employment and not to expose Mr Cheung to any risk of injury.

36.  As the pleaded breaches of duties and the implied terms are essentially the same, for convenience, I would hereafter simply refer these parts of Mr Cheung’s case as breach of duties.

37.  In light of Sun Hing’s acceptance at trial that Mr Cheung had before the assault informed its management about Mr Zhou’s threats of violence, the issue regarding the case on breach of duties therefore turns essentially on whether factually, Sun Hing had imposed reasonable measures to prevent the assault from happening. 

38.  With regards to the question of vicarious liability, it is Mr Cheung’s case that the attack by Mr Zhou was closely connected with the employment.  Thus, as a matter of law, it is fair and just to hold Sun Hing vicariously liable for the wrongful acts of Mr Zhou.

39.  In relation to liability, Sun Hing’s defences are:

(1) In light of Mr Zhou’s threats of violence as reported by Mr Cheung, on 9 March 2005, its management imposed measures to separate their job responsibilities to reduce any further chance of work conflicts arising between them.  

(2) Further, and in any event, the assault was caused purely by Mr Cheung’s acts in making telephone calls to Ms Li and her family members.  These calls had nothing to do with Mr Cheung’s work responsibilities.   There was therefore no causation even if Sun Hing was in breach of its duties.

(3) For the same reasons, the assault was not closely connected with the employment.  Sun Hing should not be held vicariously liable for Mr Zhou’s acts.

40.  Insofar as quantum is concerned, Sun Hing further disputes (a) the extent and degree of injuries that Mr Cheung is said to have been suffering, and (b) thus the quantum of damages claimed. 

41.  Given the above, the principal issues under liability at trial are:

(1) Whether Sun Hing had imposed measures to prevent the assault from happening.

(2) If no:

(a) whether Sun Hing was in breach of the duties.

(b) if Sun Hing was in breach of the duties, whether there was causation between the breach and the assault.

(3) If yes, whether those measures amounted to reasonable measures to discharge Sun Hing’s duties.

(4) In any event, whether the assault was so closely connected to the employment and thus Sun Hing should be held vicariously liable for Mr Zhou’s tortious acts.

42.  In relation to quantum, the issues are whether Mr Cheung has proved the various heads of quantum as claimed.

D. Witnesses

43.  Mr Cheung himself gives evidence in support of his case.  He has also called on Mr Zhang Hon Tin (“Mr Zhang”) (張漢田) to give evidence for him.  Mr Zhang was at the material times employed by Sun Hing as the manager of the factories and responsible to manage the day-to-day operation of the factories.  However, he was usually stationed in the  new factory.

44.  Sun Hing has called Mr Ip, Mr Lau, Mr Lin and Mr Ngai to give evidence in support of its case.

45.  I would now proceed to deal with each of the issues as follows.

E. Liability

E1. Whether Sun Hing had imposed measures to prevent the assault from happening

E1.1  The evidence

46.  Under this issue, the evidence of Mr Ip, Mr Lau, Mr Lin and Mr Ngai are in summary as follows:

(1) A senior management meeting was held in Hong Kong on 7 March 2005 (“the 7 March Meeting”).  The meeting was attended by Mr Ip, Mr Lau, Mr Chan Wai Ming (the secretary of Mr Ip), Mr Cheung and Mr Zhang.  

(2) In light of the continuous complaints made by Mr Cheung on Mr Zhou’s poor performance and the threats of violence, Mr Ip decided to separate their work duties to avoid any further conflicts between them. 

(3) The separation of duties to be implemented was that:

(a) Mr Cheung would be responsible for overlooking (i) the canteen operations, (ii) the factory security, (iii) the provision of electrical works, and (iv) the management of the dormitory  [1.食堂 (購菜、衛生、用膳) 2.保安工作3.電工工作4.宿舍管理工作]; while

(b) Mr Zhou’s duties were (i) to overlook the refuse collection station, to prevent useful materials to be put there, (ii) to be responsible for the sale of the factory’s crap materials, (iii) to be responsible for the safety (including fire safety) of the factory’s manufacturing lines, and (iv) to assist Mr Ngai in dealing with part of the personnel management [1.監管工廠垃圾房，防止有用物品放入垃圾房內2.負責廠內廢品的銷售(如紙皮、廢鐵、布碎等) 3.負責車間生產安全管理，消防事務  4.協助魏叔平處理部份人事工作].

(4) It was also decided at the 7 March Meeting that Mr Lau was to carry out the detail implementation of the said separation of duties on 9 March 2005.

(5) Pursuant to this decision, on 9 March 2005, Mr Lau went to the old factory to implement it.  He first discussed with Mr Lin and Mr Ngai as to the detailed implementation of the said separation of duties.  After discussing with Mr Lin and Mr Ngai, Mr Lau then summoned Mr Cheung and Mr Zhou to personally tell them clearly the separation of duties. Mr Lau also warned them that after this separation of duties, they should no longer make allegations against each other in relation to work, and if there were anything unclear, they should report to him directly.  Mr Cheung and Mr Zhou agreed and accepted the new arrangement.  

(6) It is Mr Ip’s evidence[2] that after this separation of duties, Mr Cheung and Mr Zhou no longer had any direct work relationship and Mr Zhou was no longer a subordinate to Mr Cheung. 

47.  On the other hand, it is Mr Cheung’s evidence that there was never any such decision or implementation of separation of duties between him and Mr Zhou.  Mr Zhang also gave evidence at trial that he had not heard of this separation of duties. 

E1.2  Discussion

48.  I find the evidence of Sun Hing’s witnesses that there was the implementation of separation of duties incredible and unreliable.   My reasons are as follows.

49.  First, Sun Hing’s said evidence is contradictory and inconsistent with the objective and unchallenged evidence of the Refuse Station Incident and what were recorded in the Minutes of the 15 March Meeting:

(1) Under the separation of duties, matters concerning the collection of refuse and recycling of materials were supposed to be under the responsibilities of Mr Zhou not Mr Cheung.  Moreover, as Mr Ip’s evidence said, since the implementation of the separation of duties, Mr Cheung and Mr Zhou no longer had any direct work relationship and Mr Zhou was no longer subordinate to Mr Cheung[3].

(2) If there was indeed the implementation of this separation of duties, it is incredible that the Refuse Station Incident could have happened.  This is so because Mr Cheung should no longer be involved in or concerned with matters relating to refuse collection and the recycling of scrap materials.  

(3) Further, if Mr Cheung had sought to interfere with Mr Zhou’s exercise of his authority over this matter, Mr Ngai and Mr Lin (when called upon to resolve the incident) should have pointed out to Mr Cheung that the matter was no longer under his supervision and he should not interfere with Mr Zhou’s work.   But the unchallenged evidence is that they both instead asked the other staff to purportedly collect the materials for recycling simply to give Mr Cheung face. 

(4) Moreover, the implementation of separation of duties is also clearly inconsistent with what were recorded in the Minutes of the 15 March Meeting in the following material aspects.

(5) As mentioned above, the minutes recorded that Mr Cheung again made complaints at the meeting about Mr Zhou about his work performance and the Refuse Station Incident.  He also criticised Mr Zhou for developing a relationship with a female colleague when Mr Zhou was still married.  In so criticising, he still referred to Mr Zhou as his assistant.   These were all inconsistent with there being the separation of duties, but neither Mr Ip, Mr Lau nor even Mr Zhou challenged Mr Cheung in making these criticisms.

(6) Further, in response to these, Mr Ip was recorded to have said, in summary, that (a) it was not permissible for Mr Cheung to make personal attack on other people in the meeting as it was held to discuss matters relating to work, and (b) he would also not approve Mr Cheung’s suggestion of firing Mr Zhou.  Mr Ip also said that if Mr Cheung could not properly “control” Mr Zhou, Mr Cheung could report the same to the senior management, and the senior management could make rearrangement of work duties.  There was singularly no reference whatsoever to the separation of duties alleged to have already been implemented about a week ago. 

(7) These responses are entirely inconsistent with there being an implementation of the separation of duties.  It is incredible that if there were in fact the separation duties: (a) Mr Ip would not have referred to it in response to Mr Cheung’s various complaints about Mr Zhou’s performance and the Refuse Station Incident, (b) Mr Ip would not have commented that Mr Cheung could not “control” Mr Zhou, as under the separation of duties, Mr Zhou was no longer Mr Cheung’s subordinate, and (c) Mr Ip also should not have said that the senior management could make rearrangement of work duties upon any further reports, as this had already been done under the alleged arrangement for separation of duties.

50.  Secondly, the alleged implementation of the separation of duties is also inconsistent with the following documentary evidence:

(1) In the Notice of discharging duties of Mr Zhou, Mr Zhou was still referred to as “後勤助理”.

(2) In the notice of reducing the salary of Mr Zhou issued by Sun Hing dated 17th March 2005 and bearing the company chop, Mr Zhou is referred to as “經理助理”.

(3) Sun Hing contends that these notices were issued by Mr Cheung without its prior knowledge or consent. But the evidence shows that Sun Hing had not challenged or criticised Mr Cheung after the issue of these notices.  Thus, even if Sun Hing’s allegation about the lack of Sun Hing’s prior consent or notice to issue these notices was true, it was subsequently condoning them.  This is similarly inconsistent with the existence of a separation of duties. 

(4) In the report dated 14^th March 2004 made by Mr Cheung reporting the Refuse Station Incident to the management, Mr Cheung still referred to Mr Zhou as his assistant.

(5) In the Form 2 dated 16^th May 2005, Sun Hing described how the accident happened at part D of the Form as follows: “ 3月份18日在工作過程中受到下屬員工襲擊致傷”.  This indicates that Mr Zhou was still regarded by Sun Hing as Mr Cheung’s subordinate even on the day of the assault.

51.  Thirdly, Sun Hing’s evidence in support of the implementation of the separation of duties also defies common sense, is illogical and self-contradictory:

(1) As to the way in which Mr Lau conveyed the decision to Mr Cheung and Mr Zhou, Mr Lau was unable to give any logical explanations under cross-examination as to why it was necessary for him to (a) first tell Mr Lin and Mr Ngai about the decision of separation of duties, then (b) ask Mr Cheung and Mr Zhou to come to see Mr Lau so that he could tell them again, all on the same day. 

(2) Mr Lau explained that he had to do it this way because he did not want to cause any embarrassment (which could only mean causing embarrassment to Mr Cheung, as this new arrangement was in fact elevating Mr Zhou’s work status).  In my view, this explanation is incredible since (according to Sun Hing’s own case) Mr Cheung was already aware of the decision at the 7 March Meeting.  Further, if any embarrassment was to be avoided, Mr Lau logically should not have asked Mr Cheung and Mr Zhou to be present at the same time to tell them the decision.

(3) Further, Mr Lau’s evidence on this is also inconsistent with the evidence of Mr Ngai and Mr Lin.   In their respective witness statement, Mr Ngai and Mr Lin both said that after they were told by Mr Lau about the separation of duties decision, they together immediately went to tell Mr Cheung and Mr Zhou clearly about the decision.  It does not make any logical sense as to why, if they had already told Mr Cheung and Mr Zhou about the decision, Mr Lau had do it all over again.

(4) Moreover, it is Mr Lin’s evidence that there were about 70 workers involved in the areas under Mr Cheung’s original supervision as supervisor of support services.  The evidence however suggests that no measures had been taken to inform these workers about the separation of duties. However, these workers should know who their supervisor was.  It therefore defies common sense that if there were indeed the separation of duties between Mr Cheung and Mr Zhou as alleged, Sun Hing would not have not taken any measures to also inform the workers about the new arrangement.

52.  Mr Szeto for Sun Hing submitted that Mr Cheung made an admission of the new arrangement of duties in the 15 March Meeting as recorded in the Minutes.  The part of the Minutes counsel relied on reads: “負責監管垃圾站的周本光助理面對這些浪費現象無動於衷，我當場就說周本光 ‘叫你管個垃圾站都管不好’，周本光很不高興。”.  (underline provided)

53.  As far as I can see, the above quotation does not show that Mr Cheung had admitted the new arrangement.  Objectively read, what it meant was that Mr Cheung had asked Mr Zhou as his assistant to help looking after matters relating to the refuse station.  This is, to the contrary, inconsistent with there being the separation of duties as Mr Cheung still referred to Mr Zhou as his assistant. 

54.  For the above reasons, I reject the evidence of Mr Ip, Mr Lau, Mr Lin and Mr Ngai that there was the decision and implementation of the separation of duties by Sun Hing.  I accept the evidence of Mr Cheung and Mr Zhang that there was never such decision. 

55.  I therefore find that Sun Hing did not make any arrangements to separate the work duties between Mr Cheung and Mr Zhou.

E2.  Had Sun Hing taken any reasonable measures to prevent the assault from happening

56.  Given my finding above, and the common ground that Mr Cheung had informed Sun Hing’s management about Mr Zhou’s repeated threats of violence, I further conclude and hold that Sun Hing had not taken any reasonable measures to prevent the assault from happening.

E3.  Was Sun Hing negligent and in breach of its duties as an employer

57.  It follows from above that Sun Hing was negligent and in breach of its duties as employer (as pleaded[4]) in failing to take any reasonable measures to prevent the assault from happening.

E4.  Was there causation between the assault and the breach/negligence

58.  Sun Hing contends that the assault was solely caused by Mr Cheung in making various calls to Mr Zhou’s family members, Ms Li and Ms Li’s family members.  These calls were in turn caused by Mr Cheung prying into Mr Zhou’s private life, which was not part of or related to Mr Cheung’s job duties.  In the circumstances, the separation of duties, even if imposed, could not have prevented the assault.  There was therefore no causation between the assault and Sun Hing’s breach of duty or negligence.

59.  I am not persuaded by this argument.

60.  The undisputed evidence clearly shows that before the assault, there had been much work conflict between Mr Cheung and Mr Zhou, which included the Refuse Station Incident and Mr Cheung’s repeated open attempts to cause (unsuccessfully) the dismissal of Mr Zhou.   Although I accept that making those calls could not said to be part of Mr Cheung’s job responsibilities or duties, there is no evidence to show and prove (as suggested by Sun Hing) that the assault was solely caused by Mr Cheung in making those calls[5]. In my view, taking all the evidence as a whole, the making of those calls was only be part of the reasons (the other being the work conflicts) which have triggered Mr Zhou in assaulting Mr Cheung. 

61.  I therefore hold that there was causation between the assault and Sun Hing’s negligence and/or breach of duties.

E5.  Is Sun Hing vicariously liable for Mr Zhou’s wrongful acts

62.  Given my above conclusion that Sun Hing is liable to Mr Cheung for negligence, I would only deal with this ground briefly.

63.  The relevant legal principles applicable in determining an employer’s vicarious liability for the present purposes are as follows.

64.  Whether an employer should be held vicariously liable for an employee’s tortious act is determined by the application of what is called the “close connection test”.  The test involves the following:

(1) “Close connection” refers to a connection between the employee’s unauthorised tortious act and his employment which is so close to make it fair and just to hold his employer vicariously liable.  It imposes vicarious liability when, but only when, it would be fair and just to do so:  Ming An Insurance Co (HK) Ltd v Ritz-Carlton Ltd (2002) 5 HKCFAR 569 at para 19 per Bohkary PJ, adopting Lister v Hesley Hall Ltd [2002] 1 AC 215.

(2) The underlying idea of the test is that the injury done by the employee must involve a risk sufficiently inherent in or characteristic of the employer’s business that it is just to make the employer to bear the loss: Ming An, supra, para 35 per Litton NPJ, citing Winfield & Jolowicz on Tort (16^th ed) at para 20-9.

(3) The test however is not depended on whether the employee’s tort involved mere inadvertence or intentional acts: Ming An, supra, at paras 20-25.

(4) However, the test must be applied in the context, turning on its own facts and the particular considerations which they arise. The criterion should not be treated as a statutory formula.   The application of the test to the facts of a particular case is a matter of degree.   It is necessary to stand back to see how the employer’s activities were actually carried out and how that exposed the victim to the risk of tortious harm caused by the employee:  Ming An, supra, paras 25 and 27 per Bokhary PJ and para 34 per Litton NPJ.

65.  Applying the close connection test to the present facts as set out in the background and found above, I am not satisfied that the risk of the assault can be said to be sufficiently inherent in or characteristic of Sun Hing’s business that it is just to make Sun Hing to bear the loss.  In other words, I do not find that Mr Zhou’s tortuous act in assaulting Mr Cheung  and Mr Zhou’s employment was so closely connected that it is fair to make Sun Hing as an employer vicariously liable.

66.  I therefore would dismiss the claim on the basis of vicarious liability.

F.  Quantum

F1.  The manner of the assault

67.  Before dealing with the specific heads of quantum, it is necessary for me to first determine the manner and extent of the assault.  As to this, Mr Cheung and Sun Hing’s witnesses give different accounts. They are as follows.

F1.1  The  evidence

68.  It is Mr Cheung’s evidence that:

(1) He was alone in the office when the assault was mounted on him by Mr Zhou.  Mr Lin and Mr Ngai were then outside the office in the general area.  

(2) Mr Zhou first heavily punched him twice at his head. He then fell down on the floor.  Mr Zhou further hit him randomly with kicks and punches at his chest, back and head.  At this time, Mr Lin and Mr Ngai came in to rescue him.

(3) When Mr Zhou was pulled away by Mr Ngai, Mr Zhou further kicked him three times at his chest.

(4) Mr Zhou was well trained in martial art and thus Mr Zhou’s hits were very powerful.

69.  It is however Mr Lin’s evidence that:

(1) He was sitting in the same office opposite Mr Cheung when Mr Zhou rushed in to attack Mr Cheung.  He therefore witnessed what happened. 

(2) Mr Zhou suddenly came into the office and grabbed Mr Cheung’s hair.  Mr Zhou then slapped Mr Cheung’s face, asking Mr Cheung not to disturb his family members by calling them anymore.  

(3) Seeing this, Mr Lin immediately went across to hold Mr Zhou from behind and tried to pull him out of the office.  Mr Ngai then also came in to try to separate Mr Cheung and Mr Zhou.  While being pulled out of the office, Mr Zhou managed to further kick Mr Cheung’s chest, although the kick was not a powerful one as Mr Zhou was already losing his balance.

70.  Mr Ngai’s evidence is that he did not actually witness the assault at close range, as he was sitting outside the office when it happened.  But to that extent, his evidence supports that of Mr Lin.

71.  The followings are also what I regard as relevant the common facts on the medical treatments Mr Cheung received in the first week or so after the assault:

(1) Right after the assault, Mr Cheung was sent by ambulance to the nearby Shenzhen Hospital for treatment.  He was discharged 2 days later (i.e., on 20 March 2005). 

(2) Mr Cheung later came back to Hong Kong and was admitted to the A&E Department of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) on 30 March 2005 for examinations and treatment.  He was discharged on 31 March 2005.

(3) According to the Admission slip of the Shenzhen Hospital, the preliminary diagnoses included cerebral concussion and multiple soft tissue contusion.  His condition was stated to be serious (重).  In the discharge slip, his condition at the time of admission was stated to be urgent, and his condition upon discharge was “not yet healed” (未癒).

(4) The diagnosis stated in the report of the CT scan of the brain by the radiology department of PYNEH was post-concussion syndrome.

F1.2  Discussion

72.  Although I accept that Mr Lin was in the office[6] together with Mr Cheung when the assault was mounted, I prefer the evidence of Mr Cheung to that of Mr Lin (and Mr Ngai) as to the details of the assault.  This is so because Mr Cheung’s account of the manner of the attack is more consistent with the object medical evidence of his injuries at the time of admission at the Shenzhen Hospital.  If Mr Lin’s account were correct, which tends to show that the assault was minor and light, it would be unlikely that Mr Cheung’s injuries at that time would be recorded as multiple and serious.   Further, I also accept that Mr Zhou was trained in martial art, as this is not challenged at trial.

73.  I therefore find that the extent and manner of the assault were as those described by Mr Cheung.

F2.    General observation of Mr Cheung’s evidence on quantum

74.  It is Mr Cheung’s case that he is still suffering from the following symptoms and disabilities after the assault:

(1) Headache and dizziness;

(2) Continuous pain over his chest wall and coughing;

(3) The pain over his chest wall increases when the weather changes;

(4) He can no longer enjoy outdoor activities including playing basketball, ping pong and jogging;

(5) Suffering from palpitations, sensation of shortness of breath, poor appetite, weight loss, tinnitus, intolerance to noise, tiredness, displays of temper outbursts easily, decreased concentration and memory impairment;

(6) His personality has changed and he has become easily irritable;

(7) Depressed mood, sense of worthlessness and repeated suicidal thoughts;

(8) He has to consume analgesic, sleeping pills and psychiatric medicine every day to relieve his headache and chest pain;

(9) Fitful sleep with frequent nightmares; and

(10) His sex life with his wife is affected.

75.  After observing Mr Cheung giving evidence at trial, coupled with other aspects of the evidence, I find him to be a witness who is prepared to over exaggerate the evidence to embellish and bolster his case on the alleged disabilities that he is said to still be suffering. 

76.  I will explain why.

77.  First, at the re-opening of the Defendant’s case in June 2011, it has been demonstrated to my satisfaction that Mr Cheung was prepared to use tempered evidence to support his claim on quantum:

(1) The evidence concerned are (a) receipts dated 25, 27 December 2009 and 1 and 3 January 2010 issued by a Chinese bonesetter named 胡北慶, and (b) receipts dated 22 and 28 December 2009 issued by an acupuncturist named 盧茂.   

(2) Mr Cheung has submitted copies of these receipts to support part of his claims in the present proceedings.  In those receipts issued by the bonesetter, they referred to and described Mr Cheung’s complaint as “舊患” (old injury).  In the receipts issued by the acupuncturist, they referred to the area of Mr Cheung’s complaint as ‘左上胸” (left upper chest).   These receipts are relied upon by Mr Cheung to show that by December 2009 and January 2010, he was still consulting a bonesetter and an acupuncturist to treat his pain over his left chest.  It is thus also Mr Cheung’s case that he was still suffering from left chest pain in January 2010 as a result of the assault in March 2005.  He of course also seeks to recover the fees incurred in seeking these consultations and treatments.

(3) However, after the close of the parties’ case in the present proceedings in December 2010, Sun Hing’s solicitors discovered in early 2011 that copies of these receipts were also similarly used by Mr Cheung in another proceedings (“the 2010 PI Proceedings”) issued in 2010 to claim against another party for damages regarding an alleged separate injury to his left leg and chest in another alleged accident (“the Other Accident”)[7].    However, when used in the 2010 PI Proceedings, the same bonesetter’s receipts referred to Mr Cheung’s complaint as “意外撞傷腳骨”, while the same acupuncturist’s receipts referred to his complaint as “左腳胸”.

(4) After looking at the copies[8] of these receipts used in the 2010 PI Proceedings and in the present proceedings, on balance I am satisfied that the original ones were those used in the 2010 PI proceedings referring to the injuries alleged to have been suffered by Mr Cheung in the Other Accident.

(5) These copies were then tipex-ed to cover the references to these injuries and changed to refer to an “old injury “(in relation to the bonesetter’ receipts) and “left upper chest” (in relation to the acupuncturist’s receipts) and used in the present proceedings.

(6) When presented with these challenges on the evidence of the receipts, Mr Cheung has however decided not to come forward to lead evidence to explain why these same receipts (subject to the above changes made) would be used differently in two different proceedings mounted by him. In the circumstances, the court is entitled to, and does, draw adverse inference against Mr Cheung.  

78.  Secondly, one of Mr Cheung’s pleaded complaints is that he is still suffering from continuous and disturbing coughing problems caused by his chest injury.  However, he did not cough at all during the whole period of the lengthy cross-examination.  When this was pointed out to him by Sun Hing’s Counsel towards the end of cross-examination, he explained that it was because he had taken medicine to suppress the coughs.  The explanation is not credible since he had however started to cough a lot after leaving the witness box and sitting in the public gallery throughout the rest of the trial.  If he were in fact suffering from coughing which could be suppressed by medicine, it is beyond me as to why he did not continue to take the medicine for the rest of the trial while he was sitting in the public gallery.  In my view, the above shows that Mr Cheung was prepared to concoct these pretended coughs to “patch up” the fact that he did not cough at all during cross-examination.

79.  Thirdly, Mr Cheung even emotionally pulled up his polo shirt while giving evidence in the witness box in order to show the court that the area of his left chest-wall where he was kicked was still reddened and inflamed.   This is clearly an exaggeration.  Not only is this contrary to common sense that there was still redness of a contusion some 6 years after the attack, this is also inconsistent with the medical records: (a) the report of the Chinese Medicine department of the Tung Wah Group of Hospitals dated 15 August 2008 stated that there was no obvious signs of injury over Mr Cheung’s left chest-wall; (b) none of the two joint expert reports record any findings of remaining signs of the assault over Mr Cheung’s left chest wall. In my view, it is more likely than not that Mr Cheung has recently caused the redness over his left chest wall by means only known to himself to seek to show to this Court that his injury was a serious and continuing one. 

80.  Finally, both psychiatrists have expressed certain degree of reservations[9] on Mr Cheung’s own accounts of the problems he was still suffering from the assault.  Dr Woo (Sun Hing’s expert) commented that Mr Cheung had exaggerated his complaints, while Dr Chao (Mr Cheung’s own expert) accepted that it was likely that Mr Cheung perceived his injuries as more severe than they actually.   After seeing Mr Cheung giving evidence in Court coupled with the observations I have set out above, if necessary, I would accept Dr Woo’s observations that Mr Cheung had intentionally exaggerated his complaints.

F3.    The extent of the injuries and conditions that Mr Cheung is still suffering from

81.  In relation to the assault, Mr Cheung’s pleaded case in the Revised Statement of Damages on the treatments he had attended is as follows.

(1) After the accident, Mr Cheung was immediately admitted to a hospital in Mainland China, namely, 深圳龍崗區橫崗鎮人民醫院 for emergency treatment and was discharged after 2 days.

(2) Mr Cheung was admitted to the Accident and Emergency Department ("the A & E Dept") of PYNEH on 30^th March 2005 and was discharged on 31^st March 2005.  During the period from 30^th March 2005 to 5^th November 2008, he received treatments at the A & E Dept for about 28 times.

(3) During the period from 22^nd April 2005 to 2^nd March 2009, he received about 49 sessions of treatments at the Department of Neurosurgery of PYNEH.

(4) During the period from 7^th October 2005 to 18^th March 2008, Mr Cheung received about 5 sessions of treatments at the Department of Medicine of PYNEH.

(5) He was also referred to the Occupational Therapy Department of PYNEH and received 2 sessions of treatments on 19^th October 2005 and 15^th December 2008 respectively.

(6) Mr Cheung was referred by Department of Medicine of PYNEH for psychiatric assessment on 29^th October 2005.  During the period from 31^st October 2005 to 18^th May 2009, the Plaintiff received about 30 sessions of treatments at the Department of Psychiatry of PYHEH.  He was diagnosed to have suffered from Post-Concussion Syndrome with secondary depressive symptoms.

(7) In view of the adjustment difficulties and emotional problem, Mr Cheung was further referred to Department of Clinical Psychology of PYNEH for psychological intervention. During the period from 10^th December 2005 to 19^th March 2009, he received about 10 sessions of clinical psychological treatments.

(8) He also received about 7 sessions of treatments at the Department of Ear, Nose and Throat of PYNEH during the period from 24^th January 2006 to 10^th March 2009.

(9) Mr Cheung was first seen by the Department of Surgery of PYNEH on 19^th April 2006.  CT scan of thorax with contrast was performed on 26^th February 2007 showing a nonspecific bony sclerosis in lateral segment of left 7^th rib.  He received about 2 sessions of treatments at the Department of Surgery of PYNEH on 19^th April 2006 and 21^st March 2007 respectively.  He was then referred to the Department of Respiratory Medicine of Ruttonjee & Tang Siu Kin Hospitals ("RTSKH").

(10) Mr Cheung was also referred to Department of Anaesthesia by Department of Surgery of PYNEH.  He received about 7 sessions during the period from 16^th April 2006 to 6^th April 2009.

(11) He received 5 sessions of physiotherapy treatments at the Physiotherapy Department of PYNEH during the period from 23^rd October 2008 to 24^th April 2009.

(12) Mr Cheung was hospitalized at RTSKH during the period from 21^st July 2005 to 26^th July 2005.  He also received about 19 treatments at Department of Respiratory Medicine of RTSKH during the period from 30^th August 2005 to 26^th June 2009.

(13) Besides, he attended the Department of Radiology of RTSKH for about 12 times during the period from 25^th July 2005 to 19^th May 2009.

(14) Mr Cheung consulted a private practitioner, namely, Dr. Ho Chu Sek of Paterson Medical Centre, during the period from 9^th April 2005 to 15^th October 2007 for about 7 times.

(15) He received 16 sessions of bonesetting treatments at 胡北慶跌打醫館 during the period from 28^th April 2005 to 13^th September 2008 and 3 sessions at 健民坊盧茂中醫針灸骨傷科 during the period from 17^th February 2006 to 21^st February 2006 respectively[10].

(16) Mr Cheung also received about 82 sessions of Chinese medical treatments at Tung Wah Group of Hospitals during the period from 27^th May 2008 to 25^th June 2009.

(17) Mr Cheung also attended various hospitals in Mainland China, namely,  汕頭市中心醫院，汕頭市龍湖區珠池醫院，汕頭市金平區人民醫院 and  汕頭市金園區人民醫院 respectively.

82.  Although I accept Mr Cheung’s account of the manner of the assault as summarised above, I do not accept that he is still suffering from any physical disabilities or conditions from the assault such as the continuing chest pain and coughs.  I come to this view because:

(1) Other than Mr Cheung’s own assertions, there is no medical evidence which suggests that he is or should reasonably still be suffering from any physical symptoms or disabilities, including the alleged coughs, arising from the assault[11].

(2) Of my conclusion above that Mr Cheung has exaggerated the extent and degree of the injuries that he has suffered from the assault. 

83.  Insofar as this is concerned, it is fair to say that in his submissions on quantum, Mr Shum for Mr Cheung has predominantly focused on the psychiatric conditions that Mr Cheung says to be suffering instead of the physical injuries.

84.  In relation to the psychiatric conditions, all the experts[12] on both sides agreed in essence that Mr Cheung is suffering from a mild form of post-concussion syndrome which resulted in some mood changes.

85.  In the premises, on the basis of the medical evidence that I have read and bearing in mind Mr Cheung’s tendency to exaggerate his problems,  I conclude and find that:

(1) Mr Cheung’s physical injuries from the assault should have healed and recovered at the latest about 1 year after the assault (see paragraph 104 below). 

(2) The assault has resulted in his suffering from a mild form of post-concussion syndrome with some degree of mood changes.

(3) As a result of the post-concussion syndrome, he is suffering from the psychiatric conditions as set out in paragraph 74(1), (4) to (10) above. But they are of a much lesser degree and severity than what Mr Cheung portraits them to be.

(4) He is not suffering from the physical conditions set out in paragraphs 74(2) and (3) above as a result of the assault.

86.  Based on these conclusions, I now turn to consider Mr Cheung’s claim for damages under each specific head.

F4. PSLA

87.  Mr Cheung claims $400,000.00 under this head.

88.  In light of my above findings of his extent and degree of injuries and conditions that he has suffered and is still suffering, I am of the view that a proper award of PSLA should be $150,000.00.   In my view, his conditions are slightly more serious than those in the authorities cited by Mr Szeto for Sun Hing[13], but are less serious than the ones supported by the cases relied on by Mr Shum for Mr Cheung[14].

F5. Pre-trial loss of earning

89.  Mr Cheung claims a total sum of HK$864,000.00 for his pre-trial loss of earning.  This is calculated on the basis that:

(1) He was earning HK$16,000.00 a month at the time of injury and he should be allowed the full period of sick-leave of 35 months granted by the government treating doctors intermittently from the date of the assault to 19 February 2008 (thus:  $16,000.00 x 35 = $560,000.00); and

(2) He was only able to return to a light duty job (such as a security guard) earning a salary of about HK$6,500.00 from 20 February 2008 to the date of trial (19 October 2010) (thus:  HK$16,000.00 - 6,500.00 x 32 months = HK$304,000.00).

90.  Mr Cheung’s above claim under paragraph 89(2) is premised on the following medical evidence:

(1) Dr. Choa’s opinion is that Mr Cheung’s symptoms and his impaired concentration may lead to reduced efficiency at work that may result in some loss of earning capacity. 

(2) Dr. Lai opined that Mr Cheung is mentally capable of returning to his pre-accident employment but he may be impaired in his work tolerance and work efficiency as a result of his psychiatric conditions.

(3) Dr. Ho’s view is that from the psychiatric perspective, Mr Cheung is capable of returning to his previous work but there would be a significant impairment of his work efficiency, tolerance and adaptation ability.

(4) Medical Report prepared by Dr. Liu Kwong-sun of Department of Psychology of PYNEH dated 21 September 2009 stated that Mr Cheung had fluctuation of symptom severity at times.  He had poor temper control, poor confidence and self esteem in general.  He still needs psychiatric follow up treatment in the future and the prognosis of his psychiatric condition was unfavourable.

91.  I am not satisfied that Mr Cheung was earning HK$16,000.00 at the time of the assault.  According to the Contract he signed for the post, his salary was HK$8,000.00. 

92.  In support of the claim of a salary of HK$16,000.00, it is Mr Cheung’s case that when he signed the Contract, he was also promised by Mr Ip for Sun Hing that he would get a year-end bonus of about HK$200,000.00 to HK$300,000.00.

93.  Mr Ip denies that he had so promised Mr Cheung.

94.  At paragraph 12 of Mr Cheung’s supplemental witness statement, he sets out his evidence in support of the “promise” of the said bonus as follows:

“葉逢春聘請的經理通常工作三個月後便調回香港公司，借故學習業務，削減人工後又調回大陸工廠，這是葉逢春的慣性手法，我不例外，公司亦有人議論，葉逢春業所有經理都是玩弄欺騙。葉逢春說：「調你來香港公司工作，主要是你有些業務不熟悉，阿昌、李仲強，他們的業務做得好，你可跟他們學習。」我問他工資待遇，葉逢春說：「你可提出來參考。」我說：「在香港有碩士學歷的年薪最少都有3萬美元。」葉逢春說：「公司有年終花紅、有獎勵制度，如阿昌、李仲強、葉楚欽等，年終有些都拿到二、三十萬元花紅，如你為公司做出貢獻，公司亦不會虧待你。」葉逢春又說：「公司的其他職員月薪也只有港幣8,000元左右，如果我給你的人工高了，會影響其他職員，造成抵觸情緒。」由於葉逢春告訴我年終花紅可達二、三十萬元，我才願意留下來工作。”(emphasis added)

95.  In my view, even taking this part of Mr Cheung’s witness statement, especially the highlight part, to the highest, all he was told by Mr Ip was that there was a possibility of getting a bonus of HK$200,000.00 and HK$300,000.00.  This does not in law entitle him a bonus. There is simply no “promise” (in any sense that he was legally entitled to it) made to him by Sun Hing through Mr Ip that he would be paid the bonus. 

96.  This cannot be included in the calculation of his salary for the present purposes.

97.  Mr Cheung also says he had been paid by Mr Lau approximately HK$2,000.00 a month as allowance.  He submits that this should also be included in the calculation of his pre-injury salary.

98.  Mr Lau has denied this, and said that he had only occasionally lent Mr Cheung some money. 

99.  I prefer Mr Lau’s evidence and do not accept Mr Cheung’s evidence: 

(1) The payment of HK$2,000.00 per month is not supported by any documentary evidence.  There is no reason if this HK$2,000.00 was paid to him by Sun Hing regularly as part of the salary or allowances, it was not recorded. 

(2) If this was paid by Mr Lau personally, there was simply no reason for him to do so. 

100.  I further reject Mr Cheung’s claim for any additional sums as his earning on the basis that he had been provided with quarter and meals for his work.  First, I do not think these formed part of the monetary earning he is entitled to rely on for the purpose of calculating pre-trial loss of earning.  In any event, the estimates as to the monetary worth of these benefits are provided by Mr Cheung himself. No objective bases have been provided to support these estimates. I do not find them to be reliable and would not use them for the purpose of calculating the pre-trial loss of earning.

101.  I therefore find that Mr Cheung’s basic monthly salary was HK$8,000.00 at the time of the assault. 

102.  However, for the average monthly earnings in the 12-month period prior to the assault, I accept that this should be HK$10,700.00 which is supported by Sun Hing’s own salary record and the Form 2.  This is so because it included a double pay.

103.  Therefore, I will adopt and use HK$10,700.00 per month as Mr Cheung’s earning to calculate the pre-trial loss of earning.

104.  Insofar as the sick-leave period is concerned, I would accept the evidence of the joint expert report by Dr Woo and Dr Choa that Mr Cheung should be able to return to work a year after the assault.  I would therefore only allow 12 months as the sick-leave period he was entitled to.

105.  At the same time, I also accept the summary of the evidence set out in paragraph 90 above, and find that Mr Cheung should only be able to return to a lighter duty job as a result of the assault.  As there is no challenge to the suggested job of a security guard with a monthly salary of HK$6,500.00, I would further adopt this as the basis to calculate the pre-trial loss of earning for the period between the expiry of entitled sick-leaves and the date of trial (which is 55 months).

106.  In the premises, the pre-trial loss of earning of Mr Cheung should be:  HK$10,700.00 x 12 months + (HK$10,700.00 – HK$6,500.00) x 55 months) = HK$128,400.00 + HK$231,000.00 = HK$359,400.00.

F6.    Pre-trial loss of MPF

107.  This would be HK$359,400.00 x 0.5% = HK$17,970.00.

F7.    Medical expenses

108.  Mr Cheung claims a total sum of HK$9,740.00.

109.  Sun Hing does not contend the computation of this amount, but submits that the medical expenses recoverable should be limited to at most a period of 12 months from March 2005, when Mr Cheung was fit to return work.

110.  Given that I accept that Mr Cheung is suffering from a mild form of post-concussion syndrome as a result of the assault, I reject Sun Hing’s submission and allow the medical expenses in full. 

F8.    Traditional treatment expenses

111.  Mr Cheung claims a total sum of HK$40,418.84. 

112.  However, these are related to treatments for his alleged physical symptoms and conditions.  They are also mostly related to the treatments received more than 1 year.

113.  Given my conclusion that he is no longer suffering from any physical disabilities and should be able to return to lighter duty work 1 year after the assault, I am not satisfied that most of these expenses were reasonably and necessarily incurred as a result of the assault.

114.  I only allow a nominal sum of HK$10,000.00 under this head.

F9.    Travelling expenses

115.  The amount claim under this head is HK$5,331.40.

116.  For the same reasons set out in the above section, I would disallow the travelling expenses relating to the visits to the Chinese medicine practitioners as set out in paragraphs 28(d) to (f) of the Revised Statement of Damages amounting to a total sum of HK$2,920.4.

117.  I would therefore only allow HK$2,411.00 (HK$5,331.40 – HK$2,920.40) under this head.

F10.  Tonic food expenses

118.  Mr Cheung claims HK$20,000.00. 

119.  I would allow it in full.

F11.  Post-trial loss of earnings

120.  Mr Cheung was 52 at the time of injury.  It is agree that the multiplier is 8.

121.  Thus, the loss of future earnings would be: (HK$10,700 – HK$6,500) x 12 months x 8 = HK$403,200.00.

F12.  Post-trial loss of MPF

122.  This would be HK$403,200.00 x 0.5% = HK$20,160.00.

F13.  Loss of earning capacity

123.  Mr Cheung claims HK$39,000.00 under this head.

124.  I am not satisfied that he would suffer any further handicap in the job market other than the loss of earnings which has already been taken into account in the above.

125.  I would disallow this item.

F14.  Future medical expenses

126.  Mr Cheung claims HK$3,600.00 as his future medical expenses to receive psychiatric treatments at government hospital in the next 3 years.  The said treatments are recommended in the joint psychiatric report dated 3 June 2009.

127.  I would allow it in full.

F15.  Conclusion on quantum

128.  The total damages I would award to Mr Cheung are therefore: HK$150,000 (PSLA) + HK$359,400.00 (pre-trial loss of earnings) + HK$17,970.00 (pre-trial loss of MPF) + HK$9,740.00 (medical expenses) + HK$10,000.00 (traditional treatments expenses) + HK$2,411.00 (travelling expenses) + HK$20,000.00 (tonic food expense) + HK$403,200.00 (post-trial loss of earnings) + HK$20,160.00 (post-trial loss of MPF) + HK$3,600.00 (future medical expenses) = HK$996,481.00.

129.  Deducting the HK$401,092.30 as the employee compensation he has already received, Mr Cheung is entitled to recover from Sun Hing damages in the total sum of HK$595,388.70.

G.      Conclusion

130.  I allow Mr Cheung’s claim against Sun Hing and award him damages in the sum of HK$595,388.70.  He is also entitled to interest on  (a) general damages at 2% above prime rate from the date of the service of the writ to the date of judgment and (b) special damages at half the judgment rate from the date of accident to the date of payment.

131.  I further make an order nisi that costs of this action be to Mr Cheung to be taxed if not agreed.  Mr Cheung’s own costs be taxed in accordance with legal aid regulations.  Unless any of the parties applies to vary it by Summons, the costs order nisi shall be made absolute 14 days from today.

Mr. Erik Sze Man SHUM, instructed by Messrs Ip, Tse & Tang, assigned by the Director of Legal Aid, for the Plaintiff.

Mr. Patrick P. SZETO, instructed by Messrs Cheng, Yeung & Co., for the 1^st Defendant.