LI MING TAK v. HONG KONG AIRPORT SERVICES LTD

CACV 254/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 254 OF 2014

(ON APPEAL FROM HCPI NO 860 OF 2009)

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JUDGMENT
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Hon Poon J (giving the Judgment of the Court) :

A. INTRODUCTION

1.  The defendant provides air-cargo services at the Hong Kong International Airport.

2.  The plaintiff began his employment with the defendant as an Aircraft Loading Agent 7 on 18 August 2003.[1] As an Agent 7, the plaintiff worked on the apron of the Airport and was responsible for loading and unloading flights.  On 2 March 2010, Kwong Wah Hospital (“KWH”) certified him to be permanently unfit to load and unload flights.  On 13 April 2010, he retired from the defendant.  After leaving the defendant’s employment, the plaintiff was unemployed between May and August 2010.  Between September 2010 and 30 April 2011, the plaintiff was employed by a restaurant as a part-time driver for delivery of lunch boxes.  Between May 2011 and January 2012, he was employed by another restaurant.

3.  In the proceedings below,[2] the plaintiff sued the defendant for loss and damage in the sum of HK$2,642,634.00[3] that he allegedly sustained as a result of the personal injuries that he suffered, that is, chondromalacia of the patella (“CP”) in the left knee and superior labral anterior and posterior lesion (“SLAP”) in his right shoulder, during the course of employment.  As succinctly summarized by Zervos J, the trial judge below, the basis of the plaintiff’s claim was that he suffered the injuries because of the work that he did and the strain that he was physically put under as an Agent 7 because the aircraft handling section of the defendant had all along been understaffed, there had been little or any sufficient rotation of the job, there had been a lack of safety training or the training provided was of no practical use.[4]

4.  After a 7-day trial,[5] the entire basis of the plaintiff’s claim was roundly rejected by the learned Judge.[6]  He also found that the plaintiff had in different aspects exaggerated his case and claim, commenting that he was untruthful and guilty of falsification.[7]  He went on to observe that the defendant had presented a compelling case against the plaintiff’s claim.[8]

5.  However, instead of dismissing the plaintiff’s claim, the learned Judge entered judgment for him for :

Pain, suffering & loss of amenities (“PSLA”)	HK$100,000.00
Pre-trial loss of earnings	HK$96,000.00
Post-trial loss of earnings	HK$120,000.00
Medical expenses	HK$5,000.00
Travelling expenses	HK$1,000.00
Tonic food	HK$3,000.00

totaling HK$325,000.00 with interest and costs.

6.  The Judge did so because he found that although the injuries suffered by the plaintiff were not work related but were pre-existing conditions,[9] the injuries were aggravated by the defendant putting the plaintiff on mixed duties, which involved partly light duties and partly his normal duties as an Agent 7, for 33 days between 13 March and 30 May 2009;[10] and that the defendant was liable for such aggravation.[11]  On that basis alone, he entered judgment against the defendant as he did.

7.  From that judgment the defendant now appeals.  The plaintiff supports the judgment by two respondent’s notices in which, among other things, he seeks to attack some of the Judge’s factual findings made against him.

B. PRINCIPAL ISSUE

8.  Because of the very limited basis upon which the Judge entered judgment for the plaintiff, the principal issue raised in this appeal is a very narrow one : was the defendant liable for the aggravation of the plaintiff’s pre-existing conditions caused by the mixed duties during the said 33 days because of breach of statutory duty, contract or negligence?

9.  Unfortunately, the Judge did not explain the legal basis on which he held the defendant liable for the aggravation.  He simply said at [112]:

“The defendant submitted that it should be held liable in respect of the plaintiff’s claim. I agree in relation to the full claim that has been made except for the aggravation I have found. Even though I agree with the defendant that the plaintiff has exaggerated his claim, I find on the evidence that he had a pre‑existing shoulder and knee injury that was aggravated by the placement on the mixed duties with very minimal residual aggravation when on light duties.”

He then went on to deal with quantum, interest and costs.[12]

10.  To determine if the Judge was correct in holding that the defendant was liable for the aggravation, we need to look at the facts and what transpired at the trial below more closely.

C. PROCEEDINGS BELOW

C1. Facts

C1.1 General

11.  Before he joined the defendant, the plaintiff attended a pre‑employment medical examination at Quality HealthCare Medical Centre.  The examination did not reveal any medical condition which rendered him unsuitable for work as a loading agent.  In about 2006 and 2007, the plaintiff began to complain about weakness in his left leg when walking.  On 21 May 2007, a MRI was performed which revealed CP in the plaintiff’s left knee.  In the meantime, he also began to complain about right shoulder pain.  On 12 November 2007, the plaintiff was diagnosed with SLAP in his right shoulder.  Because of his medical conditions, the plaintiff was granted sick leave from time to time and had since 20 August 2007 been performing light duty work only.  The light duty work consisted of sorting and delivering documents and refuelling vehicles.

12.  Since 15 February 2008, he had been given light duties certificates by firstly Caritas Medical Centre and then KWH.

13.  On 26 March 2008, the plaintiff had arthroscopy and labral repair for his right shoulder at KWH.  He received physiotherapy and follow-up treatment for both his right shoulder and left knee at KWH in the following months.  He made steady progress and improvement.  He was subject to a re-assessment at KWH on 24 July 2008.  The re‑assessment showed an overall improvement of 80% in his right shoulder and 70% in his left knee.  There was only little pain with stretching feeling remaining over his right shoulder and the joint motion was full in all directions.  Muscle strength was also improved.  There was no more swelling in his left knee and pain had decreased.  Strength of the knee was also improved. On 21 August 2008, he was discharged from KWH’s vocational rehabilitation programme in view of his static progress.  On 28 August 2008, KWH issued the last light duties certificate to him and recommended light duties for 12 weeks up to 20 November 2008.

14.  On 18 November 2008, the plaintiff had a meeting with the personnel department of the defendant to discuss his medical conditions and assessment.  The plaintiff asked if the defendant would continue to assign light duties to him because he could not perform the normal duties as an Agent 7.  The defendant then arranged for him to be examined by Dr Affandy Hariman, a panel doctor engaged by the defendant.

15.  On 6 January 2009, the plaintiff attended Dr Hariman for an assessment of his right shoulder and left knee.  Dr Hariman encouraged the plaintiff to resume his normal duty in an incremental manner.  Upon Dr Hariman’s suggestion, the defendant, with the plaintiff’s consent, arranged for him to carry out mixed duties between 13 March and 30 May 2009 — during which he worked a total of 33 days.  The mixed duties entailed working as an Agent 7 for one flight in the morning and one flight in the afternoon with light duties for the rest of the time.  On 1 June 2009, the plaintiff went on light duties again.

16.  On 4 June 2009, Dr Hariman advised the defendant that the plaintiff was unfit for further employment.  As said, on 2 March 2010, KWH issued a Certificate of an Employee’s Permanent Unfitness for a Particular Type of Work, certifying that the plaintiff would be permanently unfit to load and unload flights.

17.  Almost immediately after he left the defendant’s employment, the plaintiff ceased to receive treatment for his shoulder and knee.

C1.2 Joint experts’ reports

18.  The plaintiff attended a joint medical examination by the joint experts of the parties, Dr Lam Yan Kit and Dr Chun Siu Yeung, specialists in orthopaedics and traumatology on 5 October 2009.  They then wrote a joint report dated 22 December 2009 (“the 1^st Report”), supplemented by a supplemental report dated 12 December 2011 (“the 2^nd Report”).  The plaintiff attended another joint examination by the two doctors on 26 November 2012.  Afterwards, the doctors prepared a joint report dated 18 January 2013 (“the 3^rd Report”).  For present purposes, it is not necessary to set out all the findings made by the doctors.  The following points will suffice :

19.  First, SLAP:

“involve detachment of the superior labrum and biceps root from the superior glenoid attachment. Overhead athletes are prone to these injuries because of the extremes of motion of the shoulder combined with increased torsional and eccentric loads that occur at the biceps anchor. Three proposed mechanisms for the development of SLAP lesions in the athlete:

(a) increased external rotation of the shoulder in the late cocking phase of throwing increases the torsional force of the biceps root that can result in a dynamic “peel‑back” load to the posterosuperior laburm;

(b) posterior capsular contracture may increase stress to the labrum by increasing posterosuperior migration of the humeral head; and

(c) degenerative fraying may result from repetitive mechanical contact of the posterosuperior labrum with the undersurface of the rotator cuff.

Cadaver studies have shown the greatest stains on the superior labrum with the biceps loaded in the late cocking phase of throwing.”[13]

20.  Second, CP:

“is a diagnosis given to patients complainting of anterior knee pain together with softening and fibrillation of the articular surface of the patella. The basic disorder is probably mechanical overload of the patello-femoral joint. Rarely, a single injury (sudden impact on the front of the knee) may damage the articular surfaces. Much more common is repetitive overload due to either

(1) malcongruence of the patellofemoral surfaces because of some abnormal shape of the patella or inter-condylar groove; or

(2) malalignment of the extensor mechanism, or relative weakness of the vastus medialis (one of the quadriceps thigh muscles), which causes the patella to tilt, or subluxate, or bear more heavily on one facet than the other during flexion and extension, (also called patellar mal-tracking)

‘Overload’ as used here means either direct stress on a load‑bearing facet or sheer stresses in the depths of the articular cartilage at the boundary between high-contact and low-contact areas. …

Patello-femoral overload leads to changes in both the articular cartilage and the subchondral bone, not necessary of parallel degree. Thus, the cartilage may look normal and show only biochemical changes such as overhydration or loss of proteoglycans, while the underlying bone shows reactive vascular congestion (a potent cause of pain). Or there may be obvious cartilage softening and fibrillation, with or without subarticular intraosseous hypertension. This would account for the variable relationship between (1) malalignment syndrome, (2) cartilage softening, (3) subchondral vascular congestion and (4) anterior knee pain.

Cartilage fibrillation usually occurs on the medial patellar facet or the median ridge, remains confined to the superficial zones and generally heals spontaneously. It is not a precursor of progressive ostoarthritis in later life.”[14]

21.  Third, on the nature of his normal duties as an Agent 7, according to the plaintiff, about 70% of the time he worked inside the aircraft cargo compartment.  The height of the compartment was about four feet.  Inside the compartment, he had to work in kneeling, sitting or half squatting positions.  Sometimes he had to push the luggage or goods.  About 30% of the time he stood at the entrance of the compartment, putting goods onto the conveyor belt or standing on the ground, moving goods from the conveyor belt to the transport vehicle.  Significantly, the doctors recorded that according to the plaintiff, no overhead working was required.[15]

22.  Fourth, according to the plaintiff’s description, he was required to push or pull heavy objects many times during work.  Such kind of motion was not in accordance with the mechanism believed to cause SLAP lesions.  The doctors therefore agreed that SLAP was not caused by the repetitive work described by the plaintiff.[16]

23.  Fifth, the doctors agreed that CP is not simple wear and tear type of cartilage degeneration associated with repetitive movement, and that the crucial factors that lead to the biomechanical changes in the cartilage are malcongruence, malalignment and muscle imbalance.  They agreed that the job as described by the plaintiff was, by itself, not the cause of CP.[17]

24.  Sixth, at the second joint examination dated 26 November 2012, the plaintiff complained of right shoulder and trapezius stabbing pain and left knee pain and he walked with limping and keeping left knee straight without much flexion on demonstration of walking.  However after watching video clips taken of the plaintiff between August and November 2011, which showed no abnormality in his movement, the doctors agreed that the plaintiff had exaggerated his disability by limping and keeping his left knee extended during the examination.[18]

25.  Seventh, the plaintiff would have made full recovery and be able to resume normal duties in 9 to 12 months after the operation on the right shoulder in March 2008.[19]  This means that the plaintiff would have been able to resume normal duties by March 2009.

26.  Eighth, Dr Chun opined that as SLAP was cured by the operation and no overhead exertion was required, it was very unlikely that the plaintiff’s normal duties had exacerbated or aggravated the SLAP lesion.  Dr Lam did not seek to dispute Dr Chun’s view on this point.[20]

27.  Ninth, both doctors agreed that light duties would not aggravate or exacerbate CP in his left knee but normal duties would have such impact.[21]  They however differed as to the extent of the exacerbation or aggravation.  While they agreed that kneeling and climbing up and down stairs would exacerbate the symptom, Dr Lam opined that moving luggage and goods up and down the conveying belt might have exacerbated the pain symptom because of muscle weakness but Dr Chun disagreed.[22]

C2. The Judge’s findings

28.  The Judge made the following findings :

“111. I find that the plaintiff exaggerated his claim and that his evidence cannot be relied upon unless it is supported by other independent evidence. I find that the right shoulder injury was probably due to the dislocations of his shoulder which he said occurred on three occasions and which did not occur at his work place or as a result of any incident at work. I find that the left knee injury was a pre-existing condition which was not caused as a result of his work. I find however that his work duties involved short periods of intense physical activity that on occasions required him to bend or squat that put pressure and strain on his knees. More specifically, I make the following findings:

(1) In 2007 the plaintiff was suffering with pain to his left knee but he did not inform the defendant of it until August 2007.

(2) He had been diagnosed of having a meniscus cyst and cartilage injury to his left knee (CP).

(3) The left knee injury was not a result of or caused by any single or specific incident at work.

(4) The defendant upon being informed of the plaintiff’s medical conditions put him on light duties when he returned to work on 20 August 2007.

(5) In late 2007 the plaintiff was suffering with pain to his right shoulder. He had been diagnosed as suffering with SLAP lesion. The right shoulder injury was a result of three previous dislocations of the shoulder which were not work related.

(6) In March 2008 the plaintiff had surgery performed on his right shoulder and he made very good recovery after a lengthy period of sick leave.

(7) The plaintiff received treatment and physiotherapy for his right shoulder and left knee injuries and made very good progress and recovery.

(8) The plaintiff from 20 August 2007 to 13 April 2010 when he left the employ of the defendant was either on sick leave or performing light duties at work except between March and May 2009 when he was put on mixed duties for 33 days.

(9) The light duties work did not aggravate or exacerbate the plaintiff’s injury to any measurable or significant degree and he would have promptly and complete recovered to his original condition from any such aggravation.

(10) The mixed duties work for 33 days aggravated or exacerbated the plaintiff’s injuries to the extent that the recovery back to the plaintiff’s original condition would have been prompt and any aggravation would not be long lasting.

(11) The plaintiff exaggerated and falsified the symptoms of his injuries when he attended the joint medical examinations and when giving evidence in court.

(12) The plaintiff had normal and unrestricted movement of his knee and upper limbs in 2011.

(13) The plaintiff has exaggerated his claim.”

29.  As we have said, he then went on to hold that the defendant was liable for the aggravation without explaining the legal basis.

D. WHY THE JUDGE ERRED

30.  In our respectful view, the Judge erred when he held that the defendant was liable for the aggravation.

D1. Strict liability, if adopted, is wrong

31.  In the absence of any explanation of the legal basis and in light of what he had said in [112] of the Judgment, we are left with the impression that the Judge had simply approached the issue of liability as if it were a claim for employee’s compensation in which strict liability applies.  Our impression is fortified when Mr Bleach SC (appearing together with Ms Vanessa Kwok[23]) took us through the transcripts of the closing submissions when the Judge discussed with Mr Horace Wong SC (who appeared for the plaintiff below) about the legal basis of the defendant’s liability.  With the greatest respect, if that were his approach, it is wrong as a matter of law.  Strict liability simply does not apply in a personal injuries claim.

D2. Award cannot possibly stand in light of findings in any event

32.  More importantly, what the learned Judge said at [112] is inconsistent with his earlier findings in [111] :

“(9) The light duties work did not aggravate or exacerbate the plaintiff’s injury to any measurable or significant degree and he would have promptly and complete recovered to his original condition from any such aggravation.

(10) The mixed duties work for 33 days aggravated or exacerbated the plaintiff’s injuries to the extent that the recovery back to the plaintiff’s original condition would have been prompt and any aggravation would not be long lasting.”

33.  As found by the Judge, light duties did not cause any aggravation.  The only cause of aggravation was the limited normal duties that the plaintiff carried out. As noted, the joint experts disagreed on the extent of aggravation caused by the limited normal duties.  On the evidence before the Judge, especially when he had already found that the plaintiff had exaggerated his case, the Judge was perfectly entitled to make the finding as he did in [111(10)].  But such finding did not support the plaintiff’s claim for loss and damage arising from the aggravation at all, especially the claim for loss of earnings.  The Judge’s award cannot possibly stand on his own findings.

34.  Mr Barretto SC (together with Mr Meyrick Wong[24]) for the plaintiff submitted that the word “otherwise” is missing from [111(10)] so that the what the Judge had said was in fact :

“(10) The mixed duties work for 33 days aggravated or exacerbated the plaintiff’s injuries to the extent that the recovery back to the plaintiff’s original condition would have [otherwise] been prompt and any aggravation would not be long lasting.”

35.  We reject counsel’s submission as an impermissible attempt to add something which is clearly not there in [111(10)].  And such addition, even if allowed, would only create inconsistency because “the plaintiff’s condition would have otherwise been prompt” did not sit well with “any aggravation would not be long lasting”. That does not help the plaintiff at all.

E. WHY THE PLAINTIFF’S SUBMISSIONS ARE REJECTED

36.  We now turn to the plaintiff’s submissions advanced in support of the Judge’s award and explain why, in our view, they have to be rejected.

E1. Basis for liability suggested by Mr Barretto unsustainable

37.  The burden rests squarely on the plaintiff to properly plead the basis of his claim based on aggravation and to prove it with evidence accordingly.  The plaintiff fails to do so on both pleadings and evidence.

38.  On pleadings, as we have pointed out already, the plaintiff was completely silent on why the defendant was liable for the aggravation.  Mr Barretto submitted that the defendant was both directly liable for breach of its own non-delegable duty of care and vicariously liable for Dr Hariman.  With respect, we are unable to accept his submission.  The first hurdle that Mr Barretto could not overcome is of course the absence of a proper plea.  But even if he were allowed to argue the point, it must fail on the evidence.

39.  We first consider non-delegable duty.

40.  The general concept of non-delegable duties is explained in Charlesworth & Percy on Negligence, 13^th Edition thus :

“[3-181] The general rule. As already stated, an employer is not vicariously liable for the negligence of an independent contractor, his workmen or agents in the execution of work contracted for.

‘Unquestionably, no one can be made liable for an act or breach of duty, unless it be traceable to himself or his servant or servants in the course of his or their employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong or negligence, the employer is not answerable.’

An independent contractor is a person who carries on a business independently on his own account and, in contracting for work, can decide for himself how it should be done. Whilst he may be employed to perform certain work, he is not under any contract of service to, or under the control of, the employer and he is free to perform the work on his own way.

…

[3-184] Non delegable duties. Exceptionally, liability for the negligence of an independent contractor to whom a task has been delegated can arise, not by the route of vicarious liability but by way of a non delegable duty upon the person requiring the work, that it be performed so as to comply with common law or statute. In these situations, if the defendant contracts with an independent contractor to do some act, which he, the defendant, is not entitled to do, or to perform some duty which is thrown upon himself to discharge, whether by statute or common law, he will be liable for the negligence of the contractor in the way in which he has performed the act or the duty. As Salmon J. said:

‘There are, of course, cases where, by virtue of a contract or by the operation of law, an obligation may be imposed on a man to do an act or to ensure that it is done carefully. In such cases the defendant cannot shelter behind any independent contractor, whom he may have employed. If he breaches the obligation he is liable, not in negligence, but in contract … or by reason of some breach of duty other than a duty to take care…’

[3-185] In these instances the liability cannot properly be called vicarious. The defendant is liable, not because his contractors negligence is passed on to him, but because he is himself in breach of his own, non-delegable, duty of care. The principle was summarized by Denning L.J. as follows:

‘I take it to be clear law, as well as good sense, that, where a person is himself under a duty to care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services. …’

In Woodland v Essex County Council[25] Lord Sumption said:

‘The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do. … The expression “non-delegable duty” has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others.’[26]

The scenarios in which a non delegable duty may arise can be characterized as: extra hazardous acts; dangers on the highway; special relationships; unlawful acts; duties imposed by statute; and other miscellaneous cases.”

41.  Mr Barretto placed particular reliance on the special relationships category of which Charlesworth & Percy on Negligence states :

“[3-195] In Woodland v Essex County Council[27] the Supreme Court recognized a number of special relationships where a non-delegable duty could arise. In such cases a non-delegable duty arose because of an antecedent relationship between the defendant and the claimant; it was a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury; and it was by virtue of that relationship personal to the defendant. While the work required to perform the duty might well be delegated the duty itself remained the defendant’s. The defendant would normally be taken to contract that the work would be done carefully by whoever he engaged to do it.

Lord Sumption identified five criteria by which the presence of such a duty could be tested:

‘(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.

(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.

(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.’[28]

…”

42.  On the available evidence, we do not think the plaintiff satisfied all the criteria identified by Lord Sumption.  We need not deal with Mr Barretto’s submissions on criteria (1) to (4) in detail although we must say we seriously doubt if he is correct.  For present purposes, we only need to consider criterion (5).  The Judge did not make any finding that Dr Hariman was negligent in advising mixed duties.  Indeed, there is not an iota of evidence to remotely suggest that Dr Hariman was so negligent.  We note that Dr Hariman was not called to give evidence.  It would be most unsatisfactory and indeed most unfair to him if the court were to allow the plaintiff to make such a serious allegation against him on appeal, let alone accede to the plaintiff’s submission in making such a factual finding against him.  Absent any finding that Dr Hariman was negligent in advising mixed duties, the point of non-delegable duty simply does not get off the ground.

43.  Further, the plaintiff failed to prove that the defendant had not acted reasonably in relying on Dr Hariman’s advice of mixed duties.  In our view, as an employer who was aware of the plaintiff’s conditions, the defendant had acted reasonably and responsibly by engaging Dr Hariman to do the necessary assessment before assigning him mixed duties.

44.  Mr Barretto submitted that Dr Hariman was only a general practitioner and not a specialist.  Thus it was not reasonable for the plaintiff to rely on him.  He has however ignored the incontrovertible evidence of the defendant’s personnel manager, Mr Wan King Sang, that :[29]

“(c) The reason that [the defendant] and I engaged [Dr Hariman] to assess [the plaintiff’s] work was because Dr Hariman has been conducting medical check-ups for its employees since the founding of [the defendant] in 1998. And [Dr Hariman] was very familiar with the work types in the various department of [the defendant].

(d) [The defendant] has been in co-operation with [Dr Hariman] for over 10 years. From that past history, [the defendant] believed that should [Dr Hariman] found it necessary to refer the employee to a specialist or to seek other medical opinion, [Dr Hariman] would do so and made the recommendation. For example, in or about February 2011, there was an employee of [the defendant] who felt feeble with his lower limbs and work performance was affected. [The defendant] referred the employee to [Dr Hariman] for consultation and treatment. [Dr Hariman] examined the employee and found he was possibly suffering from cerebral atrophy and he recommended [the defendant] to engage a professor form the Prince of Wales Hospital for treatment. [The defendant] took the advice of [Dr Hariman] and engaged the professor from the Prince of Wales Hospital to give treatment to the relevant employee.

(e) Since both [the defendant] and me (sic) are not doctors, there is no reason why [the defendant] would reject [Dr  Hariman’s] recommendation to engage other medical opinion and/or specialist.”

45.  We next turn to vicarious liability.  In our view, the plaintiff fails for two reasons.

46.  First, as we just said, the plaintiff failed to prove that Dr  Hariman was negligent in advising mixed duties, a prerequisite in fixing the plaintiff with vicarious liability.

47.  Secondly, Dr Hariman was an independent medical practitioner.  He was not employed by the plaintiff.  Nor do we think it could be suggested that he was somehow the plaintiff’s agent.  In those circumstances, we cannot see how the plaintiff could be responsible for his advice or actions.

48.  There can be no basis for fixing the plaintiff with vicarious liability as contended.

49.  We need not dwell on every other point advanced by Mr Barretto on the question of liability.  Suffice it for us to say that we have duly considered all of them and, with respect, can see no substance in any of them.

E2. Mr Barretto’s attacks on the Judge’s findings fail

50.  Mr Barretto attempted to justify the Judge’s award on some bases other than the one identified by him in [112] of the Judgment.  He submitted that the Judge erred in finding that the plaintiff had failed to establish liability on his pleaded case by attacking his findings against the plaintiff, including those to the effect that both SLAP and CP were not job related and that the plaintiff had exaggerated his injury.

51.  We need not dwell on Mr Barretto’s submissions.  Mr Barretto could succeed only if he could demonstrate that those factual findings made by the Judge were plainly wrong.  We do not think the Judge erred as contended.  Quite to the contrary, we think the Judge was entirely correct in making those findings against the plaintiff.

F. DISPOSITIONS

52.  For the above reasons, we allow the appeal.  We set aside the Judge’s judgment.

53.  On costs, we make an order nisi that the defendant shall have the costs below and before us, to be taxed if not agreed; and that the plaintiff’s own costs here and below be taxed in accordance with legal aid regulations.

[1] He first joined as a temporary Agent 7.  He was made a permanent one on 1 January 2005.

[2] Commenced on 31 December 2009 while the plaintiff was still being employed by the defendant.女

[3] See the Summary of the Re-Revised Statement of Damages dated 15 February 2013 for the breakdown.

[4] See the Judgment that Zervos J handed down on 19 November 2014 (“the Judgment”) at [105].

[5] The trial took place on 24-28, 31 March and 11 April 2014.

[6] [106] to [109] of the Judgment.

[7] See, for example, [27], [36], [45], [71], [98], [100] and [111(13)] of the Judgment.

[8] [110] of the Judgment.

[9] [111(3)] and [111(5)] of the Judgment.

[10] [111(10)] and [112] of the Judgment.

[11] [112] of the Judgment.

[12] [113] to [122] of the Judgment.

[13] [1] of the 2^nd Report.

[14] [2] of the 2^nd Report.

[15] [35] of the 1^st Report and [38] of the 3^rd Report.

[16] [1] of the 2^nd Report.

[17] [2] of the 2^nd Report.

[18] [75] and [76] of the 3^rd Report.

[19] See Section K, part (1), of the 3^rd Report.

[20] Ibid, especially, part 1(f)(ii).

[21] See Section K, part 2 of the 3^rd Report.

[22] Ibid, part 2(ii).

[23] Ms Kwon was junior counsel for the defendant at the trial below.

[24] Mr Wong was trial counsel for the plaintiff.

[25] [2013] 3 WLR 1227, SC.

[26] Ibid at [5].

[27] Ibid.

[28] Ibid at [23].

[29] Mr Wan’s 3^rd supplemental witness statement, at [7].