LEE CHUN FAT v. CHAN KIN WO AND ANOTHER

CACV 334/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 334 OF 2002

(ON APPEAL FROM HCPI NO. 1306 OF 2000)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This is an appeal from a judgment of Mrs Justice Bokhary given on 29 May 2002. The action before the judge was an unusual claim for personal injuries. The judge found in favour of the plaintiff against both defendants and ordered payment of the total sum of $601,828.00 together with interest. On this appeal the defendants have raised issues concerning their liability both as to whether they are liable at all and as to whether they are jointly liable. Issues have also been raised as to whether the plaintiff is entitled to claim in respect of the loss of earnings which had been agreed in the Court below and as to the award in respect of loss of earning capacity. At the conclusion of the hearing this court dismissed the appeal and we now give our reasons in writing.

Background

2. The claim made by the plaintiff arises out of injuries which he had received as a result of a scuffle which took place between him and the defendants. The incident occurred in the afternoon of 1 October 1998. The plaintiff had gone to the car park of an industrial building in Aberdeen to visit a friend, who was a watchman at that building. When he arrived he saw that there was a card game in progress. There seems to have been little dispute between the parties that the plaintiff watched the card game and at some stage a question arose as to how the cards should be dealt. The plaintiff offered some suggestion and it would seem that whatever suggestion was made did not find favour with the 2nd defendant. There was a difference between the evidence of the plaintiff, on the one hand, and that of the 2nd defendant and another witness, on the other. The plaintiff said that the 2nd defendant attacked him. It was the plaintiff's case that after the initial scuffle when he was hit by the 2nd defendant, he was pushed from the back and fell to his knees. The plaintiff said that when he turned round, whilst he was on the ground, he saw the 1st defendant and that it must have been the 1st defendant who had pushed him down. The plaintiff suffered a fracture of the right patella. He was in hospital for a total of about 51/2 months. He underwent 4 operations. He received physiotherapy as an out-patient for about 16 months. The 2nd defendant and the other defence witness said that the plaintiff attacked the 2nd defendant and that he fell when he lost his balance. It might be observed at this stage that the 1st defendant did not give evidence.

3. The first matter raised on appeal by the defendants is that it was said that the judge's approach was wrong in law. Complaint is made that the judge approached the matter by considering the probabilities and in doing so held that the plaintiff's version of events was not probable. In this context reliance is placed on what is said in paragraphs 16 and 17 of the judgment:

"16. As to the inherent probabilities of this matter, I see them like this. There is nothing inherently probable in the notion that the 2nd Defendant attacked the Plaintiff by punching him and that the 1st Defendant then joined in by pushing the Plaintiff from behind. Nor, on the other hand, however, is there anything inherently probable in the notion that the Plaintiff attacked the 2nd Defendant by trying to punch him. That too is not the way one expects people to behave.

17. So I ask myself whether one account, and if so which, is even more improbable than the other. In my view, the 2nd Defendant's account is even more improbable than the Plaintiff's account. ..."

4. This unconventional approach to the question of assessment of evidence could lead to difficulties. As in this case, it may give an impression that would lead to the argument being made that the judge had found the plaintiff's case improbable. However, in my view, that was to take the matter out of context and to ignore the fact that the judge referred to whether the "notion" was "inherently" probable. Moreover, the judge went on to consider the evidence of the witnesses and, finally, on the question of probability said at paragraph 26:

"... Upon a careful consideration of all the circumstances, I have come to the conclusion that it is more probable than not that the Plaintiff fell as a result of a push and that it was the 1st Defendant who pushed him."

5. In dealing with the evidence, the judge said, at paragraph 18 of the judgment, that she had been favourably impressed by the plaintiff but unfavourably impressed by the 2nd defendant and Mr Lau, who had been the only other witness and had been called by the defendants. In the next paragraph the judge specifically said that she had regard to the whole of each witness's evidence. Finally, on this aspect, the judge said at paragraph 23:

"... Simply proceeding on the whole of the evidence which I have received, I find that the account given by the Plaintiff to be reliable. I accept his account and reject the accounts given by the 2nd Defendant and Mr Lau."

6. The point sought to be made on behalf of the defendants that the judge somehow simply weighed the matter of probabilities is therefore wrong. Indeed, there were other aspects which the judge also mentioned. One of those, which is particularly significant, is that the 1st defendant, who the plaintiff said he had seen when he turned round after being pushed to the ground, was in Court for two days but failed to give evidence. Although the judge very correctly stated that this would have been a matter which could have been taken into account, she did not do so because she had already come to the clear conclusion that the plaintiff's case was correct.

7. Other matters included the fact that although the 2nd defendant admitted in cross-examination that he had lent money in the past to Mr Lau, Mr Lau denied that when he gave evidence. In this respect the judge formed the impression that this was not a matter that he had forgotten. This was, therefore, one matter which the judge, again, felt could legitimately be taken into consideration when arriving at the conclusions as to the facts.

Joint enterprise

8. The other aspect that was challenged by the defendants in respect of the judge's finding as to liability was as to whether the 1st defendant's act of pushing the plaintiff, causing the plaintiff to fall and suffer injury to his knee, was part of a joint enterprise of both defendants. In my view the judge was amply justified in coming to that conclusion on the facts which she found. She did so on the balance of probabilities. The incident was a brief one. Nevertheless, it would be difficult to envisage the incident as described by the judge as not being part of a joint enterprise to the extent that both defendants should be liable for the injuries caused to the plaintiff. Clearly, the 1st defendant was assisting the 2nd defendant in attacking the plaintiff. By pushing the plaintiff to the ground, the 1st defendant was, if nothing else, preventing the plaintiff from retaliating against the 2nd defendant.

9. In this respect it may be noted that the defendants were jointly represented. The plaintiff had pleaded, in the statement of claim, that he had been assaulted by both defendants. In their defence, the defendants pleaded, in the first place, that the 1st defendant had not pushed the plaintiff and that the plaintiff had simply lost his balance. There then followed a plea which commenced with the words "Further or in the alternative, if the fall or accident occurred in the circumstances as pleaded by the plaintiff ...". As the judge pointed out, the plea is somewhat odd because it went on to aver, contrary to the plaintiff's pleading, that the plaintiff ran towards the 2nd defendant to assault him. The important point in this regard, however, is that there was no plea that the defendants were not acting together, nor, apparently, was such a point made at the trial by the 2nd defendant when giving evidence. As already pointed out, the 1st defendant chose not to give evidence.

10. Miss To, on behalf of the defendants, sought to put her argument on the basis that there was nothing to show that the 2nd defendant had approved of or consented to the 1st defendant joining in the fight or pushing the plaintiff. In my view, the circumstances of the case are quite clear. There was, of course, no premeditation in the fight; no one suggests that the defendants had decided to have a fight when they sat down to play cards. The fight was spontaneous. Nevertheless, it was a joint fight and the 2nd defendant never suggested that it was against his wish that the 1st defendant joined in that fight. In my view this ground clearly fails.

The award of pre-trial loss of earnings

11. At the trial, the parties agreed that the plaintiff's loss of earnings up to the date of the trial was $226,264.00. Interest was agreed at $35,317.00. The judge therefore, used this sum in arriving at the calculation of the damages which were awarded. On this appeal, the defendants complained that the award was wrong in law. Their complaint is that a substantial part of the sum represented earnings from the plaintiff's employment as a night watchman. It was said that the plaintiff's employment as a night watchman was illegal and had been carried out illegally. In this respect, initially two points were taken. It was said that the plaintiff was working longer than he was permitted to work according to the security personnel permit issued under the Security and Guarding Services Ordinance (Cap. 460) ("the Ordinance"). In the second place, it was said that it would be inevitable that the plaintiff would have slept on duty because he had a day-time job as well as a night-time job. In the day-time job he worked as a general worker from 8 a.m. to 5 p.m. His work as a security guard commenced at 6.30 p.m. and continued until 6.30 a.m. After seeing the plaintiff's response, Miss To abandoned the second point.

12. Amongst the difficulties faced by the defendants is that not only had the amount of damages been agreed, but, more importantly, the matter of illegality of the plaintiff's conduct in his employment as a security guard was neither pleaded nor taken as a point at trial. It would, therefore, be a very serious matter for this court, on appeal, to hold that there was illegality. The facts relating to illegality had not even been raised, still less explored, at trial.

13. The argument on behalf of the defendants is based upon condition (e) in the conditions of the security personnel permit. That specified that the plaintiff should "not work over 372 hours per month and not normally work over 12 hours per day." It was said that section 10 of the Ordinance made it an offence to contravene the conditions in the permit.

14. As Mr Wright, who appeared on behalf of the plaintiff, pointed out, it is not known if the 372 hours of work meant hours working as a watchman or overall hours of employment, in the sense that the plaintiff was not permitted to take any other employment which would, together with his work as a watchman, amount cumulatively to more than 372 working hours per month. The same point, of course, applies in relation to the 12 hours per day. On the face of it, I consider that the restriction in the permit applied to hours worked as a security guard. Since this is a matter of illegality where a criminal offence would be involved, I would not in these circumstances be prepared to hold that there had been a breach. It is unnecessary to decide the matter in this appeal, but the question also arises as to whether the condition in the permit issued under the Ordinance could validly restrict what a person did outside his employment as a security guard. Thus, in my view, it is very far from being made out that there has been any illegality in the plaintiff's performance of his duties as a night watchman.

15. However, even if the plaintiff's performance of his duties as a night watchman were illegal, the question then arises as to whether that illegality would prevent his recovery of damages for the injuries sustained. In this respect Miss To relied on the case of Chung Man Yau & Another v Sihon Co Ltd [1997] 3 HKC 197. The Court of Appeal in that case considered that the court had to examine the nature of the illegality complained of and the moral and criminal culpability as well as the facts of the case. Needless to say, these matters did not fall to be considered by the judge at first instance. It would be very important that considerations such as these should be considered by the judge trying the case. Miss To's argument was that a night watchman was required to safeguard property and those whose property was being safeguarded by the night watchman would be shocked to hear that he was undertaking a day time job as well as a night-time job.

16. I do not consider that any moral turpitude has been made out in this case. If anything, it would appear that the plaintiff's night-time employer was quite content that the plaintiff should be able to sleep during part of the time he was employed. It appears that there were three night watchmen on duty and that they were permitted to take turns to sleep. The plaintiff gave evidence that his job as a night watchman was not too onerous. He said:

"... When I was doing the watchman job, well there were three persons doing it. Every night, I had to take a lift to go upstairs, once every night. In this way, the three of us could take turns to have our sleep, that is, we only had to go upstairs once. That is, we could take turns to have our rest. We could take turns to have our rest.

...

At night, we are required to patrol along the staircase once every night. (Transcript page 134)"

17. In the circumstances, it would be wholly inappropriate to allow this point to be taken at this stage.

Loss of earning capacity

18. The final ground of complaint made on behalf of the defendants is in respect of the award of $75,000 relating to loss of earning capacity. The point taken on behalf of the defendant is that although there is evidence of continuing disability, the plaintiff has resumed his pre-injury employment. It is said there was no evidence that he was under any handicap in the labour market. Indeed, Miss To, on behalf of the defendants, went further. She said that there was no evidence to establish a "real" or "substantial" risk and that in fact there was evidence pointing to the contrary, namely, his current employment.

19. In my view the complaint made in this regard is not valid. The judge clearly took into account the medical evidence and in particular the increased risk to the plaintiff that he would in the future develop osteoarthritis. It should be noted that the judge based the award on the prospect of the plaintiff losing only one job and finding it difficult to secure further additional employment. At paragraph 46 the judge said:

"The risk of a man's injuries preventing him from holding down or doing two jobs like that is in my judgment very much greater than the risk of his injuries preventing him from holding down or doing one job. Working two jobs the way the Plaintiff does is no easy thing even for a man in the best of health, and I am satisfied that there is a real and substantial risk that his disabilities will prevent him from keeping up that sort of exceptionally strenuous working life."

20. Whilst the judge therefore approached the case on the basis that the plaintiff might lose his job by reason of not being able to perform a second job, I do not see that that departs from the basis of a claim for loss of future earning capacity. In the case of Chan Wai-Tong and Another v Li Ping-sum [1985] HKLR 176, the Privy Council considered the basis of a claim for loss of future earning capacity. At page 183A Lord Fraser of Tullybelton said:

"... A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The court has to evaluate the present value of that future risk"

21. I do not see that the judge's approach is therefore wrong in principle. Hence, I see no ground for disturbing the judge's conclusion in this respect.

Conclusion

22. For these reasons the appeal was dismissed.

Hon Le Pichon JA:

23. I agree.

Hon Yuen JA:

24. I agree.