GHALE SANTOSH v. GREGORY JOHN McLAUGHLIN AND ANOTHER

DCPI 2401/2019

[2023] HKDC 1442

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2401 OF 2019

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JUDGMENT

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I.  INTRODUCTION

1.  The Plaintiff was employed by the 2^nd Defendant as a bouncer of a bar named Escape on Fenwick in Wanchai (“the Bar”) on 11 June 2015 when he was assaulted by a customer of the Bar, who was the 1^st Defendant in this case (“the Incident”). This is the Plaintiff’s claim for damages for his injuries as a result of the assault.

2.  A Writ of Summons was filed on 16 May 2018 against the 1^st and 2^nd Defendants. The Plaintiff was legally represented until early 2022. On 14 December 2018, the Plaintiff obtained leave to issue a concurrent writ for service on the 1^st Defendant outside the jurisdiction per the Order by Master M Lam of the High Court, and later on 8 March 2019, another Order was granted by Master Grace Chan to file an affirmation of service on the 1^st Defendant.

3.  I was therefore satisfied that the 1^st Defendant was duly informed and was aware of this litigation against him, and to have this trial conducted in his absence.

4.  The Plaintiff’s solicitors prepared and filed a Statement of Damages in October 2018 seeking for $2,197,399.00 of damages, but this figure was increased to $2,347,212 in a Revised Statement of Damages (“RSOD”) prepared and filed by the Plaintiff himself dated 11 May 2022.

II.  HEARSAY EVIDENCE

5.  The 2^nd Defendant filed two Hearsay Notices on documentary evidence they intended to rely on in this action. No counter notices were served by the Plaintiff. Most of these documents were in relation to the employment between the Plaintiff and the 2^nd Defendant ranging from the employment contract to the Plaintiff’s salary and sick leave payments record, which are not disputed by the Plaintiff. The only two documents that can be seen as controversial would be a copy of the CCTV recording of the Incident and the witness statement of Mr Purna Bahadur Rana (“Mr. Rana”), who was the Operations Manager of the Bar. The said witness statement was filed on 15 January 2020 but since the Bar was closed down in late 2020, an affirmation was filed by the 2^nd Defendant to prove that Mr Rana could no longer be located.

6.  According to section 47(1) of the Evidence Ordinance (“the EO”), evidence shall not be excluded on the ground that it is hearsay unless the other party objects and the Court is satisfied that the exclusion is not prejudicial to the interests of justice. Although no counter notices were served by the Plaintiff, the Plaintiff raised the following two allegations during the trial:

(a)  The CCTV recording relied on by the Defendant was edited; and

(b)  No written guidelines nor trainings were given to the Plaintiff or security staff of the Bar, as opposed to what Mr Rana said in his witness statement.

7.  After considering all factors under section 29(2)(b) of the EO and the nature of all the evidence under the two Hearsay Notices, the Court formed the view that such exclusion, if allowed, would be prejudicial to the overall interests of justice. Before reaching this decision, the Court considered that the CCTV footage was shown to the Plaintiff before he prepared his witness statement, and the Plaintiff only averred in his witness statement that the scene in the footage (1) did not capture the main entrance of the Bar and (2) was cut short, and thus not capable of showing the earlier part of the attack. He did not raise any accusation that the footage was edited to an extent that the image of what actually happened was altered. As such, the Court considered the footage was made contemporaneously with the occurrence of the matters and it would not deprive the Plaintiff’s opportunity to explain to the Court how this piece of evidence could not tell the whole truth. On the same token, even the Court could not exclude the possibility that Mr Rana, who was still an employee of the Bar at the time when his witness statement was taken, might have a motive to conceal or misrepresent matters in favour of the 2^nd Defendant, the Court borne in mind that the Plaintiff would have the opportunity to comment on Mr Rana’s evidence at the trial and the Court was perfectly capable in deciding on the proper weight to be given to Mr Rana’s witness statement.

III.  LIABILITY

The Plaintiff’s background

8.  The Plaintiff’s claim stemmed from an assault occasioned by the 1^st Defendant on 11 June 2015 during his employment as a bouncer at the Bar.

9.  The Plaintiff was born in 1968 and moved to Hong Kong in late 1997. He passed the Security and Guarding Services Industry Authority test and obtained a security personnel permit (“the SPP”) in category A & B. He had at the time of the Incident, 12 years of experience working as a security guard in different bars in the Wanchai area. He started working for the 2^nd Defendant in 2013.

The Incident

10.  It was not disputed that the Plaintiff commenced work at the Bar at around 10:00 pm on 11 June 2015 and was assaulted by an intoxicated 1^st Defendant at around 11:15 pm outside the main entrance of the Bar. It was not disputed that the Bar had a rule of refusing heavily drunken customer and it would be the Plaintiff’s duty to invite the guests to leave or not to enter the premises.

11.  It was the Plaintiff’s case that he was alone manning the entrance prior to and during the time of the assault since his colleague went to the washroom. He said the 1^st Defendant appeared to be drunk at the time he left the Bar and decided to gain access back to the Bar. The Plaintiff tried to stop him but was suddenly attacked by the 1^st Defendant. The Plaintiff suggested in his witness statement that it was the customers of the Bar who called for help and no other staff from the Bar came to assist him during the attack.

12.  After the attack, the Plaintiff followed the 1^st Defendant down the road and saw him entering into a building located at 60 Johnston Road. He went up to the security guard of the building to make enquiry and found out the apartment number where the 1^st Defendant stayed. He called the police and was later taken to the hospital. The 1^st Defendant was arrested and charged with one count of assault occasioning actual bodily harm.

13.  The Plaintiff pleaded that it was the duty of the 2^nd Defendant to take all reasonable precautions for the safety of the Plaintiff while he was engaged as a door security operative and not to expose the Plaintiff to risks of damage or injury of which they knew or ought to have known. The Plaintiff contended that the Incident was caused by the 1^st Defendant’s assault and the 2^nd Defendant’s failures in, inter alia, taking any adequate precautions to the safety of the Plaintiff while he was at work and/or providing or maintaining a safe and proper system of working or to instruct the workers including the Plaintiff to follow that system.

14.  The Defendant’s case, which was supported by the CCTV and Mr Rana’s witness statement, was quite different from how the Plaintiff described. In gist, the 2^nd Defendant disagreed that the Plaintiff was the only staff manning the entrance at the material times but his colleague, who was identified by Mr Rana as Mr Bharat Lal Pradhan (“Mr Pradhan”) was working with the Plaintiff all along. While it was not disputed that the Plaintiff was attacked by the 1^st Defendant, the 2^nd Defendant argued that the Plaintiff did not fall on the floor from the attack but aggressively pursued the 1^st Defendant down the street.

15.  Mr Rana gave evidence in his witness statement that trainings and written guidelines as to the code of conducts (“the Guidelines”) were given to all security personnel of the Bar. He believed the Plaintiff’s aggression towards the 1^st Defendant incited violence, which was in breach of the Guidelines.

16.  The 2^nd Defendant averred that while an employer was under a duty to its workforce to take reasonable care for their safety, the standard of care owing to his staff is to take reasonable precautions to reduce the risk as far as possible rather than removing every risk which might confront its workforce. The 2^nd Defendant submitted that all reasonable precautions had already been taken, for instance additional staff being hired at the entrance of the Bar, equipment such as a personal radio was given and extra trainings were offered to all staff ensuring a safe and proper system of work. It was contended that the Plaintiff’s injuries were the result of such risks that were inherent to the job of a security officer and the Incident had not exposed him to risks outside of what was contractually obligated, liability was therefore not admitted. Further or alternatively, the 2^nd Defendant argued that should it be found liable, the aggression exhibited from the Plaintiff was the direct cause of the attack and the 2^nd Defendant considered a contributory negligence at 40% would be appropriate.

The factual findings

17.  As submitted by the 2^nd Defendant’s solicitor Mr Reeves, a large part of Mr Rana’s witness statement was his commentary on the CCTV recordings of the Incident, which I decided to put very little weight on. It would be the Court’s function to assess and form its own view of the Incident without Mr Rana’s narration.

18.  The CCTV footage from ‘Camera 1’ was grainy yet images were apparent. It was clearly a busy night with customers crowding at the door of the Bar. The Plaintiff was able to identify himself from the footage and it could be seen that he was standing behind a high table at the door at around 23:32:55 when the alleged 1^st Defendant was loitering around the entrance of the Bar. The footage showed that the Plaintiff contacted another person few seconds later and he said “he could not recall” if that person was Mr Pradhan under cross-examination. It could be seen that the Plaintiff stepped away from the table and approached the 1^st Defendant at around 23:33:02, and at 23:33:06 the Plaintiff seemed to be holding the 1^st Defendant’s shoulders and shoved him away from the entrance. Immediately after that the Court was only able to see the Plaintiff’s head was jolted backwards and appeared to have some body movements. I accepted this was the moment that the Plaintiff was assaulted by the 1^st Defendant as the movement of the head indicated that he was attacked on his face, just as how he explained in both his witness statement for this action and the record of interview with the police. The Court did not see the Plaintiff fell on the floor but his body movement indicated the assault was likely continuing after the first blow, and the Plaintiff was therefore lurching to avoid being beaten. The whole attack lasted for a few seconds and the last scene captured the alleged colleague Mr Pradhan interjected the situation.

19.  The CCTV footage from ‘Camera 2’ depicted the view of Jaffe Road where the Bar located. I do not think the time of these two cameras were calibrated so I could not rely on the time indicated on Camera 2. In any event, it could be seen that the Plaintiff, who was wearing a white shirt and black pants was lunging towards the 1^st Defendant but was shoved away. The Plaintiff and another man who was also wearing a white shirt and black pants then started following the 1^st Defendant from a distance on Jaffe Road.

20.  After examining all the available footages, I accepted they were not edited and Camera 1 showed all the events leading to the attack. Although I accepted the Plaintiff’s aversion that there could be further footage from other surveillance cameras installed outside the Bar that was not submitted as evidence, I disagreed that the footage shown could only capture the assaults subsequent to the first and most serious assaults as suggested by the Plaintiff. It is plain and clear that there was no other ‘earlier’ assaults as the Plaintiff was standing behind the table until around 23:33:00.

21.  Although the Court did not have the benefit of having Mr Rana or the alleged colleague Mr Pradhan coming forward to testify, it was clear to me that another staff, whether he was Mr Pradhan or not, was present in the vicinity of the entrance of the Bar before the attack. I did not accept the Plaintiff’s allegation that he was the only one manning the front door at the material times.

22.  The footage showed that the attack was sudden, unanticipated and lasted for just few seconds. Due to the quality of the footage and the partially blocked view I could not see the alleged kicking when the Plaintiff fell on the ground. Nonetheless the movement of the Plaintiff’s body would not allow me to exclude the possibilities that (1) he did fell on the ground but got up immediately or (2) he never fell on the ground but stumbled and curled up to avoid the attack. In any events, the Court viewed that whether he did fell on the ground is not the most important consideration here (despite this could be relevant to the discussion of his injuries and overall credibility), the importance of these footages were to allow the Court to consider the issue of liability.

23.  Mr Reeves also cross-examined the Plaintiff if he did attack the 1^st Defendant when he was following him on Jaffe Road. The Plaintiff denied and explained that he “was merely trying to hold on to the 1^st Defendant to the police”. I am more inclined to believe the Plaintiff’s explanation, which also explained why he started following the 1^st Defendant after what appeared to be him being shoved off. I am satisfied that the Plaintiff was not being further attacked after the Incident captured by Camera 1 and he was not further injured when he was following the 1^st Defendant.

Legal Analysis

24.  The Bar was situated in Wanchai district which is known for its bars and exotic nightlife, and drunken violence is an apparent risk that faced by all customers and staff. According to the principle under The Wagon Mound (No 2), the Court is of the view that drunken violence is a real risk rather than a mere possibility, and thus the employer must take steps to eliminate such apparent risk. Mr Reeves cited a useful passage from Munkman on Employer’s Liability, 17^th Edition, where paragraph 21.15 reads: “Some jobs are inherently risky. The duty on the employer, however, is that he should not place his employees unnecessarily in a position where there is a foreseeable risk of injury to them and to take reasonable care to minimise the known risks of injury to those employees. The decided cases in general terms concentrate on staffing levels, training and instruction, the passing on to employees of relevant information as to risk and on protection”.

25.  The 2^nd Defendant recognized there was a risk of assault by customers but argued that reasonable care and precautions were taken to minimise such known risks. The Court viewed that the appropriate standard of care that ought to impose on the employers vary from case to case, and it is important to take a close examination of the factual matrix of each case.

26.  I already found that there were two security personnel at the door of the Bar at all material times prior to the Incident and I accepted the staffing level was adequate in that given situation, i.e. weekday and no queueing outside the Bar. I also accepted that the Plaintiff was an experienced security guard at the time of the Incident but the employers’ liability would not be absolved simply because the Court should set a higher expectation on the Plaintiff’s skill and competence. The trade test for obtaining the SPP Grade A and B are the most common test that most security guards hold, the test aimed to ensure that people entering into the security industry acquired the basic knowledge for discharging their security duties but far from the level that would require the Plaintiff to deal with the potential chaos from a nightclub. Again, such SPP would not cause me to set a higher standard of competence for the Plaintiff.

27.  Besides the experience and credential the Plaintiff acquired, the 2^nd Defendant relied on the training courses and Guidelines they provided to their security personnel as proof of extra safeguarding precautions taken to protect their workers against dangerous environment. It can be seen from Mr Rana’s witness statement that only one security training course was arranged by the 2^nd Defendant during the Plaintiff’s 18 months of employment with the Bar. The Plaintiff was on sick leave and did not attend the course, which meant no extra training was ever provided to him during his employment. The Plaintiff was therefore left to use his common sense and experience to deal with all potential hazards in a dangerous working environment, and to have his conducts bound by the Guidelines.

28.  The 2^nd Defendant provided the Guidelines for the Court to consider. It was said by Mr Rana that all security personnel were provided with a copy upon recruitment and the Plaintiff was expected to follow the rules. Part of the guidelines were extracted by the 2^nd Defendant as follows:

“It may happen that when trying to defuse a conflict within the premises, that a customer may attack you, either verbally or physically. Do not get involved, it is not personal, look them in the eye, talk to them calmly and tell them they will have to leave. Keep calm and call for assistance, when assistance arrives, you should then swiftly remove the person from the premises. Remember, people that have been drinking can be, especially volatile so, it is extremely important for you to keep calm and behave in a professional manner if you are to keep control of the situation.”

29.  Mr Rana also elaborated on training at paragraph 14 of his witness statement: -

“All security staff at Sai Mata are provided training in dealing with difficult customers. Rudeness or over aggressiveness from the staff is not tolerated and will lead to disciplinary action. Security staff are trained to politely refuse them entry to the bar. Bouncers are allowed to push the customers away with their arms or to keep them at a safe distance in order to protect themselves, but not to fight.”

30.  I was prompted to ask how much of these guidelines could be seen as pragmatic other than idealistic and impractical. It appeared to me that the Guidelines set out an objective to the staff that they should stay calm and ‘behave in a professional manner if you are to keep control of the situation’, but I saw no adequate guidelines or systems provided to the staff besides stay calm and wait for help even when they were being attacked by a drunken or aggressive customer. As agreed by the 2^nd Defendant, this Incident happened in an unexpected sudden manner, and the only ‘action’ taken by the Plaintiff before the attack was him forcing the intoxicated 1^st Defendant to leave the premises by ‘pushing him away with his arms’, which was allowed by a bouncer. The Plaintiff did not exhibit any sign of ‘rudeness or over aggressiveness’ over the course of that few seconds.

31.  The 2^nd Defendant placed much emphasis on how the Plaintiff behaved after the attack, which I considered to be irrelevant in determining the liability issue because the injuries suffered by the Plaintiff was caused by the attack rather than any subsequent events.

Conclusion on Liability

32.  All in all, I am of the view that there was no safe system of work implemented for the security personnel to execute their duties. It could be seen that although another security guard was at the scene all along, no extra staff was summoned to provide assistance at any point of time, even after the Plaintiff was attacked and chasing down the 1^st Defendant. The 1^st Defendant though being a customer of the 2^nd Defendant, was not a privileged individual and ought to be subdued after attacking the Plaintiff for police investigation, and it was inherently risky to let an injured Plaintiff to follow a drunken violent man.

33.  No information was provided as to what training was given to the security personnel in the alleged ‘training course’ but I gained an impression that no self-defence techniques were taught to their staff. When drunken violence is a known risk, trainings such as restraining and arrest techniques are critical skills staff should acquire to protect themselves.

34.  I had much doubts if the Plaintiff could fully understand the Guidelines that was written in English. In any event, the Court considered the Guidelines provided inadequate guidelines to the staff in terms of self-protection in a potential violent working environment. The suggestion of being polite and asking an intoxicated person to leave the Bar was simply idealistic when commotions usually happen in a sudden and unexpected manners. Further, no guidelines were provided to inform the staff what steps or actions should be taken after they were being attacked, and this explained why no further assistance came to the scene during and after the Plaintiff was being attacked.

35.  In relation to the 1^st Defendant’s liability, the Court was satisfied with the evidence that the Plaintiff was attacked by him on the night of Incident. I found him liable for the injuries suffered by the Plaintiff.

36.  To summarize, the Court was of the view that the 2^nd Defendant has failed to provide adequate guidelines to its staff, there was insufficient trainings to enhance the staff’s self-protection skills and to strengthen their law enforcement mindset. I was not satisfied with the overall precautions taken by the 2^nd Defendant and based on my above analysis, I did not consider contributory negligence was established.

IV.  QUANTUM

37.  The Plaintiff was 47 at the time when he was attacked and is now aged 55. According to the RSOD, the Plaintiff claimed the following injuries sustained by him in the Incident: -

(1)  Right shoulder;

(2)  Right elbow;

(3)  Little finger;

(4)  Forehead;

(5)  Lower incisor;

(6)  Tooth;

(7)  Mental illness.

38.  The Plaintiff was brought to the Accident and Emergency Department (“the A&E”) of the Ruttonjee Hospital (“Ruttonjee”) after the attack and the Report from the treating doctor was as follows:

“hit by a drunk person tonight over two hour ago; injured forehead, teeth, right little finger; no loss of consciousness; 2 cm laceration over left eye; right little finger mallet 45° extension lag, no wound, non-tender; incisor lost 41, mild tender over 23 but not lax, no bleeding”

39.  The forehead wound was sutured and his mallet finger was treated with a splint. He was given oral painkillers and was discharged the same night. The Plaintiff had another 6 follow-up appointments between 18 June 2015 and 8 September 2015 and the last attendance recorded that his forehead wound was healed with residual deformity of 10° extension lag in the right little finger. The treating doctor assessed his condition had stabilized and was ready to be assessed by the medical assessment board. His case was closed and he was transferred to general outpatient clinic for further care.

40.  The Plaintiff was also referred by the A&E to have occupational therapy at the Ruttonjee. The Occupational Therapy Report dated 3 February 2016 showed that he started receiving treatment from 12 June 2015, i.e. the night he was sent to hospital and a splint was applied on him. His condition was commented as ‘static in improvement’ after receiving another five follow-up appointments. He was discharged from the Occupational Therapy on 2 September 2015.

41.  It was clear that no complaints about his pain in the shoulder and elbow were ever made to any A&E doctors or occupational therapists in all these consultations. Medical reports revealed that such complaint was first made on 11 September 2015 to the Sai Wan Ho Health Centre (“SWHHC”) and then to the Central Kowloon Health Centre (“CKHC”) 3 days later on 14 September 2015, when his sick leave given by SWHHC expired. He then received another 10 follow-ups at the CKHC with 3 days sick leave granted on each occasion.

42.  The Plaintiff was referred by the SWHHC to the Orthopaedics and Trauma Department (the “O&T”) and Physiotherapy Department in Tang Shiu Kin Hospital (“TSKH”). He started the physiotherapy treatment on 22 October 2015 and I borne in mind the following few points raised by his physiotherapist Susan Chow in her report dated 29 January 2016: -

(i)  Patient reported that he was hit by a customer… and he fell, resulting in right shoulder, right elbow and right little finger pain;

(ii)  His subjective pain level on his shoulder, elbow and little finger was reported to be 7-8, 9 and 9 of 10 respectively;

(iii)  Examination on 19 October 2015 showed no inflammation nor swelling in the shoulder and elbow areas;

(iv)  There was swelling over right little finger and the extension lag at proximal interphalangeal joint and distal interphalangeal joint were 15°/25° respectively;

(v)  He received 23 treatments in total between 22 October 2015 to 29 January 2016 but progress was made ‘very slowly’;

(vi)  His subjective pain level on his shoulder, elbow and little finger on 10 December 2015 was reported to be 8, 8 and 9 of 10 respectively.

43.  The Plaintiff was also seen by the O&T Out-Patient Clinic of the Pamela Youde Nethersole Eastern Hospital (“PYNEH”) on 26 October 2015. He once again described to his treating doctor that he was assaulted which caused him pain in his right shoulder, right elbow and right little finger. He was diagnosed with right frozen shoulder and a 45° extension lag in the right little finger. Pausing here, the Court observed that the extension lag was reported to be 15°/25° at the examination held a week prior by the physiotherapist from TSKH.

44.  The Plaintiff continued his treatments at the PYNEH and X‑ray on 1 February 2016 showed possible shoulder impingement and also degeneration of the radial head and trochanteric groove in the elbow region. MRI record reported on 21 June 2016 showed suspicious labrum tear, and right shoulder and right elbow joint degeneration.

Joint Medical Report

45.  The Plaintiff was jointly examined by Dr Wong Kwong Shing, Patrick (“Dr Wong”) and Dr Lam Kong Chin (“Dr Lam”) in the presence of an interpreter on 21 January 2017. A Joint Medical Report (“JMR”) dated 16 March 2017 was compiled by the experts. The Plaintiff was reported to make the following complaints at the examination:

(i)  Left face pain;

(ii)  Dental problem that he could only take soft food;

(iii)  Persistent right shoulder pain;

(iv)  Persistent right elbow pain;

(v)  Right little finger stiffness and failure to flex.

46.  A Joint Supplementary Report was furnished because further medical documents, in particular to results as to the manipulation of the Plaintiff’s shoulder under general anaesthetic (“the Manipulation Test”) by his treating doctors in October 2016 were made available after the Joint Medical Report was compiled. Dr Wong and Dr Lam both studied these results and made further comments to the Plaintiff’s conditions. The objective of the Manipulation Test is that if the shoulder of a patient could not be manipulated under anaesthesia then it indicated a genuine frozen shoulder due to restriction within the joint. If however, the shoulder could be manipulated, then this would indicate there was no genuine frozen shoulder.

47.  The Manipulation Test on the Plaintiff’s shoulder indicated the following the results: -

“Before anaesthesia… Right shoulder stiffness. Forward flexion action 40°, passive 90°

Examination under anaesthesia finding: shoulder ROM (range of movement) full, including forward flexion 170°, abduction 170°, external rotation 80° and 90°, internal rotation at 80°”

48.  The Experts were able to agree on the Plaintiff’s laceration to the forehead and the dental injuries. The conflicting opinions would be the Plaintiff’s right little finger, right shoulder and right elbow’s disabilities.

Right Little Finger

49.  The Plaintiff was said to show almost no active movement at all in his right little finger and very limited passive movement without complaint of pain. Dr Wong who was instructed by the Plaintiff concluded that the rehabilitation could have been hampered by the concomitant right shoulder and elbow problems and got more stiff in the absence of further physiotherapy. He said there was no physical joint pathology that could explain the pain and inhibition but likely to be caused by prolonged disuse. Dr Lam looked into the Plaintiff’s treatment history and found no objective reasons to explain the exacerbation of the Plaintiff’s little finger when his condition was greatly improved and described as static on 2 September 2015. He gave weight to the fact that there was no muscle wasting which indicated no underuse. His conclusion was that the Plaintiff exaggerated his condition of his little finger.

50.  The Experts’ findings must also be compared to the following records from treating orthopaedists:

•  11 April 2016: “not much pain from right little finger now some limitation on flexion, occasional numbness of the right little finger”

•  27 June 2016: “no pain right little finger”

•  2 March 2017: “stiffness of right little finger in extension”

51.  The Court found no explanation offered by Dr Wong as to the worsening condition of the Plaintiff’s little finger at the time of the Joint Medical Examination.

Right Shoulder

52.  As to the Plaintiff’s right shoulder pain, Dr Wong appeared to confirm in the Joint Medical Report that the Plaintiff did suffer from frozen shoulder and inclined to think that was caused by the assault though he would not exclude the possibility that could be triggered by some other events. Dr Lam on the other hand found minimal objective signs to support the claim of frozen shoulder based on the following facts:

(i)  There was only mild muscle wasting in the arm and forearm;

(ii)  The impingement signs were negative;

(iii)  The Plaintiff’s shoulder complaints were vague and subjective, and the limited motion and power were entirely based on voluntary effort.

And even if frozen shoulder was genuine, it was probably inflammatory in origin but not caused by the attack.

53.  After the results of the Manipulation Test became available (see paragraph 45 above), Dr. Lam in the Supplementary Report confirmed his earlier view that the Plaintiff never suffered from frozen shoulder as the result showed that the Plaintiff’s shoulder could be manipulated. Dr Wong on the other hand offered an explanation to his earlier finding by saying first, he agreed the Plaintiff did not suffer from frozen shoulder on the date of the Manipulation Test (i.e. October 2016), secondly the Plaintiff’s physical limitations exhibited at the joint examination (i.e. January 2017) could be due to (a) psychological reasons, (b) unconfirmed labrum tear, (c) shoulder impingement, (d) a combination of (a)-(c). I found this explanation arbitrary and unable to reconcile with his earlier finding in the Joint Medical Report as shoulder impingement was excluded as a cause from his earlier examination and he should not base a conclusion on an unconfirmed supposition namely a possible labrum tear.

54.  In assessing both the Experts’ findings, the Court also took notes of the following records from treating orthopaedists:

•  11 April 2016: “tensing of muscle whilst performing shoulder examination, but not appear very painful”

•  29 September 2016: “no muscle wasting of the shoulder”

•  12 October 2016: “EUA (examination under anaesthesia) finding suggest normal shoulder with full ROM (rotation of movement). Moreover, no muscle wasting. Shoulder stiffness unlikely to be contributed by shoulder pathology”

55.  The Court borne in mind that muscle wasting would be an objective evidence indicating underuse of the shoulder possibly in response to pain and limitation in movement.

Right Elbow

56.  It could not be disputed that the Plaintiff’s first complaint about pain in the right elbow was made 3 months after the Incident. It was agreed between the experts that both the X-ray and MRI imaging showed some pre-existing degenerative signs. While Dr Lam felt that the Incident borne no direct relevance to the Plaintiff’s complaint of the right elbow, Dr Wong felt that the Plaintiff could have sustained some contusion or sprain injuries during the assault, but unlikely to be severe, and “such injuries probably aggravated his pre-existing degeneration so that he had increased pain later on after the accident”.

57.  I found difficulties in justifying Dr Wong’s finding because there was simply no objective evidence to support his belief that the Plaintiff “could have sustained some contusion or sprain injuries during the assault”. The Court borne in mind that the Plaintiff gave evidence that he fell on the ground when he was being kicked by the 1^st Defendant, and the CCTV footage allowed me to form an opinion that the Plaintiff did curl up after he got beaten on his face. However, there was no objective medical finding to show that his shoulder and/or elbow were injured in the Incident. The Plaintiff was brought to the A&E shortly after the attack and was examined by the treating doctor; medical records showed that he was being examined but not only did he not make any complaints about his attack on his shoulder/‌elbow, no signs of injuries such as marks/​bruises/​tenderness etc. were observed by the treating doctor. Hence, Dr Wong’s suspicions as to contusion and sprain were entirely speculative, and Mr Reeves rightly pointed out that medical experts are expected to adopt a forensic approach when making their findings, see Yeung Lai Ping v Secretary for Justice [2019] HKCFI 881. I would therefore reject Dr Wong’s comment in this regard.

Surveillance Evidence

58.  The Plaintiff was placed under observation and surveillance on various dates in November 2016, October-November 2017 and November 2018. All videos of which were played during the trial. Despite the fact that the Plaintiff did not work or perform duties in any of these videos, the Court borne in mind the following instances were displayed when he claimed he was suffering from pain in his right shoulder, elbow and little finger:

(i)  There were multiple occasions that he could swing his right arm uninhibitedly while body mobility appeared to be perfectly normal and natural;

(ii)  He was seen bending his right elbow when talking on his phone for more than 5 minutes;

(iii)  He was seen carrying bags of goods with both his hand and all his fingers, including the little right finger were in bent position to grab hold of whatever he was holding;

(iv)  He was seen standing with arms crossed, and thus his right elbow was bent;

(v)  He was seen shopping on more than one occasion with both his arms raised above his shoulder level browsing clothing on the upper rack.

59.  Surveillance evidence can be used in a dual role; impeaching credibility and showing true functionality. In assessing the overall probative value of the surveillance evidence, the Court borne in mind the tendency of private investigators to edit video footage to aid their clients in advancing their cases. A few hours of observation could be edited and reduced to a shorter video synopsis. In examining the edited footage, the Court must bear in mind that context might be lost, as the video footage would be reduced to showing what that party would want the Court to see. I would be particularly cautious and approach this evidence with scepticism as, without the context of the entire length of observation, it is not possible to rely on such evidence to determine a person’s endurance and strengths in walking, sitting or carrying things etc., because the footage might have been edited only to show one’s tolerance in isolation, so as to portray a higher tolerance level. On the other hand, some surveillance evidence might have high probative value when they could capture events or instances that are contradictory to a witness’ evidence in terms of his disability.

60.  The surveillance evidence submitted by the 2^nd Defendant were considered to exhibit the true physical ability of the Plaintiff, which was clearly contrary to his evidence. In the video footage shown at trial, the Plaintiff could physically raise his arms and bend his elbows and little finger.

61.  The Court believed that a person with genuine pain and disability in one arm/hand would naturally avoid using the ‘injured limb’ and instead use the other limb with perfect functionality. I nonetheless saw no signs that the Plaintiff tried to avoid using his right arm or hand when performing some basic everyday tasks, such as holding up the phone or crossing his arms. These small signs ran counter to the overall veracity and reliability of the Plaintiff and casted grave doubts on the extent of his disability.

Conclusion on the Plaintiff’s disability

62.  After analysing the Joint Medical Report and the Joint Supplemental Report with reference to the treating doctor medical notes, and coupled with the surveillance evidence, the Court inclined to accept Dr Lam’s view than those of Dr Wong’s. I agreed with Mr Reeves that Dr Wong would only adopt a forensic approach where the evidence assisted his views, but offered no explanations whatsoever where the objective evidence contradict to his view, such as muscle wasting of the shoulder and finger.

63.  As to causation, even if the Court was to believe that the Plaintiff started suffering from some shoulder and elbow pain 3 months after the Incident, no plausible correlation was provided between the pain and the Incident. The Court found it difficult to believe that such intense pain (as recorded by the physiotherapist as 8-9 out of 10) would only surface suddenly after such a long delay.

64.  Furthermore, the Court found that the Plaintiff had most likely than not exaggerated his disability and condition before both the treating doctors and Experts. The lack of muscle wasting, the full range of movement of his shoulder under anaesthesia were the most direct and objective scientific evidence to support his actual physical ability. I therefore found that most of his symptoms suffered as a result of the Incident were significantly improved and largely recovered by September 2015.

Psychiatric Expert Evidence

65.  The Plaintiff was first referred to the West Kowloon Psychiatric Clinic (“WKPC”) on 7 November 2016. The records showed that he complained about the following symptoms: -

(1)  Low mood;

(2)  Irritable;

(3)  Flashback;

(4)  Nightmare;

(5)  Fleeting suicidal idea;

(6)  Headache;

(7)  Fear;

(8)  Chest discomfort;

(9)  Decreased interests;

(10)  Palpitation;

(11)  Poor memory;

(12)  Decreased concentration.

66.  He was first examined by a psychiatric doctor at the WKPC on 18 January 2017 and was observed to be not overtly depressed. He was diagnosed to be suffering from mild depressive reaction and was subscribed with anti-depressant and anti-anxiety medicines. He made another 8 visits to WKPC between 22 March 2017 and 5 February 2020 and his mental condition were described to be similar in those subsequent consultations. His anti-anxiety medicine was increased in September 2018.

67.  The Plaintiff was examined in October 2020 by a single joint psychiatric expert Dr Benjamin Lai (“Dr Lai”). His complaints about his mental condition were largely the same as those he complained in November 2016. Dr Lai diagnosed the Plaintiff with an adjustment disorder with depressed mood based on an assumption that the Plaintiff had persisting physical symptoms after the Incident. Dr Lai explained that the development of emotional or behavioural symptoms in response to an identifiable stressor(s) usually occur within 3 months of the onset of the stressor. Since the Plaintiff’s first psychiatric symptoms were first noted in the available medical documents in November 2016, Dr Lai inferred that the symptoms were significantly affecting him around August 2016.

68.  The 2^nd Defendant therefore argued that since the injuries suffered by the Plaintiff due to the Incident was largely recovered by August 2015, the stressor of his adjustment disorder must therefore be the pain and discomfort in his shoulder and elbow, which the Court found to be unconnected with the Incident.

69.  The Court however viewed that although the Plaintiff’s first recorded psychiatric symptoms were made in November 2016, the presence of symptoms could potentially be much earlier by reference to the Consultation Summary of WKPC dated 18 January 2017 where it read: -

“After IOD (injury on duty) dated June 2015, patient worried much about his progress of recovery, future career prospect and finance. He was noted to have the followings: subjective low mood at times, with no weeping episodes reported; appetite was largely maintained, with no obvious weight loss; sleep was fair…” (the list went on)

“Patient’s mood disturbance lingered on but he maintained basic daily & social functioning. It was revealed to PYNEH Ortho upon his FU (follow-up) on 13-10-2016, he was referred to WKPC x further Mx (management).”

70.  The Plaintiff suffered no psychiatric disorder before the Incident and I gained an impression from various documentary evidence that his English proficiency was limited. I considered it was wholly possible that the Plaintiff started to develop his psychiatric symptoms some time before the referral from PYNEH but without understanding the significance of those mood disturbance and lacking the ability to communicate to the medical officers his mental problems. This was evident by the PYNEH discharge summary where the doctor commented “Impression: Hidden agenda?; psychiatric problem?” I would not speculate what the ‘hidden agenda’ meant by the doctor but he considered the Plaintiff might be suffering from psychiatric problem so much that he would refer him to WKPC. In light of the above, I incline to find that the Plaintiff started manifesting psychiatric symptoms shortly after the Incident.

71.  However, the Plaintiff expressed to the doctor at his first WKPC Consultation that he “was mildly depressed at times, especially when his right shoulder/‌elbow pain exacerbated.” This showed that the physical symptoms on his right shower/elbow were the major contributions to his psychiatric condition, but since such physical complaints were not caused by the Incident itself, I agree with the 2^nd Defendant that there should be an apportionment with respect to causation of the psychiatric condition.

72.  Dr. Lai assessed the Plaintiff suffered from psychiatric impairment at 3-5%. The 2^nd Defendant suggested that the proportion of causation of the adjustment disorder would be similar to the proportion of causation of the physical symptoms due to the Incident as opined by the Medical Experts, and asked the Court to adopt 1% of such psychiatric impairment being related to this Incident.

73.  I viewed it would be a little too strict to quantify the psychiatric impairment vis-à-vis his physical impairment, and I incline to adopt a board brush approach and adopt a 2% psychiatric impairment.

Conclusion on the Plaintiff’s injuries

74.  In light of the above analysis, I formed the view that the Plaintiff tended to exaggerated his overall physical and psychiatric symptoms. The pains and injuries in his right elbow and shoulder were unrelated to the Incident. The only injuries that were proved to be caused by the Incident would be (1) the laceration on his forehead, which was healed shortly after the attack; (2) dental problem; (3) residual pain and minor limited stiffness on his right little finger; and (4) mild adjustment disorder (partial causation). I made the following assessments based on these injuries.

PSLA

75.  The Plaintiff claimed $720,000 under this head. The 2^nd Defendant submitted 11 cases for the Court’s reference. I already ruled that the Plaintiff’s right elbow and shoulders suffering were not related to the Incident. The forehead scar was clearly minor and taking the mild limitation on his finger’s flexion, the pain he suffered during the attack, treatments and recovery, I regarded Lee Kai Yu v. Hong Kong Kwong Tai Builders Ltd. [2020] HKCFI 157 would be most compatible to this case, but I would also take into the account of the dental problem and treatment the Plaintiff went through together with his mild psychiatric disorder, a sum at HK$230,000 should be suffice.

Pre-Trial Loss of Earnings

76.  It was agreed that the pre-incident earnings of the Plaintiff was HK$21,500 per month. The Plaintiff claimed a total of $300,000 reflecting his pre-trial loss of earnings.

77.  The Plaintiff produced sick leave certificates from intermittently, 12 June 2015 up to the date of Trial. Sick leave granted has to be looked at in the light of the views of the various medical experts and the evidence from medical records and treating doctors’ reports. An analysis of the sick leave certificates granted shows that from October 2015, sick leave began to be granted partly for the shoulder and elbow’s condition.

78.  With respect to the orthopaedic sick leave, Dr. Lam commented that at most 6 months would be suffice for the injuries the Plaintiff suffered in the Incident. Dr. Wong on the other had agreed that the sick leave period to be those granted by the Medical Assessment Board, i.e. from 12 June 2015 to 16 November 2017.

79.  I would disregard Dr. Wong’s recommendations because the Court already ruled that the conditions in the Plaintiff’s shoulder and elbow were irrelevant to the Incident. I would adopt 6 months as the basic sick leaves period but gave another 3 months for the Plaintiff to adjust his physical condition and to seek for work.

80.  In respect of the sick leave from the Plaintiff’s psychiatric condition, Dr. Lai said 6 months would be appropriate during the most serious episode, but without defining when the most serious would be. I inclined to view that period would be couple months before the PYNEH referral letter, when his condition was worse enough to warrant the treating doctor’s alert. The sick leave period would therefore run from 13 October 2016 to 12 April 2017. The Court borne in mind only 40% of his psychiatric condition was caused by the Incident, and thus the total sick leave period would be 2.4 months.

81.  Accordingly, the total sick leave period would be 11.4 months, and thus the loss of pre-trial earnings would be:

HK$21,500 x 11.4 = $245,100

Loss of Earning Capacity

82.  The Plaintiff is claiming loss of earning capacity at $1,050,000, which is clearly an excessive figure. The Plaintiff has not returned to any form of employment since the Incident and maintained to Dr. Lai that he was unable to work. From the orthopaedic perspective, while Dr. Lam was of the view that the Plaintiff had no problem in working as a security guard/ bouncer, Dr. Wong considered that the Plaintiff was not fit to return to his pre-accident job as a bouncer but fit to be a general security guard.

83.  Objective medical evidence showed that Plaintiff was mentally and physically fit to return to his pre-occupation, and the only disagreement would be whether he was able to work as a bouncer or a general security guard. No evidence suggested that a bouncer in Hong Kong required higher fitness level than any general security guard, though I accept that the mild stiffness in his little finger coupled with his mild psychiatric condition might impair his working ability when comparing to a perfectly healthy and fit adult, and thus putting him in some kind of disadvantage in the labour market. I must also stress that the level of risk in losing a job as a bouncer would be minimal versus fanciful, and the SPP he holds (in category A&B) would allow him to find another job as a security guard.

84.  There was no evidence showing the salary difference between a general security guard and bouncer. The loss of earning capacity was assessed on the period of time he could require to look for another employment should he lose his job as a bouncer. I consider a total of 5 months’ earnings could cover such risk.

HK$21,500 x5 = $107,500

Special Damages

85.  The Plaintiff claimed $30,000 for special damages, some receipts for travelling were submitted and I noted that some of these receipts went up to 28 March 2018, which would be covering his hospital visits for his right elbow and shoulder’s injuries. There was no receipt for other claimed items such as tonic food but I was satisfied that some of these expenses for tonic food had been reasonably incurred. In general, I consider the claimed amount was on a high side and in view of the Plaintiff’s injuries, I would only allow $8,000 being a reasonable amount.

Employees Compensation Payment

86.  The employees’ compensation was HK$720,001.

Summary

87.  In summary I award the Plaintiff damages as follows:

PSLA	HK$230,000
Pre-trial loss of earnings and MPF	HK$245,100
Loss of Earning Capacity	HK$107,500
Special damages	HK$8,000
Total (before taking into account employees’ compensation)	HK$590,600
Less employees’ compensation awarded to the Plaintiff	HK$720,001
Total	Nil

88.  In conclusion, the Court found that both the 1^st and 2^nd Defendants were liable for the Plaintiff’s injuries suffered from the Incident. The amount awarded as shown above is less than the employees’ compensation payment received by the Plaintiff. In the circumstances the question of interest payable does not arise as no damages are payable to the Plaintiff.

89.  Since the Court found liability against both the 1^st and 2^nd Defendants but the Plaintiff has recovered a sum which is less than the employees’ compensation that he had received, I therefore made an order nisi that the Plaintiff do pay the costs of these proceedings in respect of quantum only from the date he was awarded the employees’ compensation, to be taxed if not agreed. The Plaintiff’s own costs during the period when he was represented will be taxed in accordance with the Legal Aid Regulations.

90.  Having considered that the Plaintiff is unrepresented and may have difficulties in perusing this Judgment written in English, I direct that a Nepali/English interpreter be arranged for verbal translation for the Plaintiff if so requested.

91.  Lastly, it remains for me to thank Mr. Reeves for the assistance rendered to the Court.