TSE CHI WAI v. CHAN KWAN HO AND OTHERS

DCPI 3774/2023

[2025] HKDC 1105

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3774 OF 2023

-----------------------------------------

BETWEEN

-----------------------------------------

----------------------

JUDGMENT

----------------------

A. INTRODUCTION

1.  The Plaintiff’s claim arises out of an accident which happened on 23 February 2017. At the material time, the Plaintiff was employed as a warehouse supervisor and the 1^st Defendant was employed as a senior supervisor. There is an issue as to whether the 2^nd or 3^rd Defendant was the employer of the Plaintiff and/or the 1^st Defendant.

2.  The 4^th Defendant is the insurer of the 3^rd Defendant.

3.  In the morning of 23 February 2017, the Plaintiff and the 1^st Defendant had a quarrel about work at the loading platform of the warehouse in which they worked at. The quarrel soon turned into a fight. During the fight, the 1^st Defendant assaulted the Plaintiff, who fell off the loading platform and was injured (the “Accident”).

4.  On 28 July 2017, the Plaintiff commenced DCEC 1828/2017 and claimed employee’s compensation against the 2^nd Defendant under the Employees’ Compensation Ordinance (Cap 282) (“ECO”) (the “DCEC Proceedings”) on the basis that his personal injuries caused by the Accident arose out of and in the course of his employment with the 2^nd Defendant.

5.  On 17 May 2018, in respect of the Accident, the 1^st Defendant pleaded guilty to the charge of common assault and inflicting grievous bodily harm in TMCC 672/2018 (the “Criminal Proceedings”).

6.  On 2 August 2018, in respect of the Accident, the Plaintiff was acquitted of assault occasioning actual bodily harm but was convicted of common assault in the Criminal Proceedings.

7.  On 13 January 2020, the Plaintiff commenced this action in the High Court, which was transferred to the District Court pursuant to the order of Master Kot dated 2 November 2023.

8.  By this action, the Plaintiff claims against the 1^st, 2^nd and 3^rd Defendants for damages for the personal injuries he has suffered as a result of the Accident. The claims against the 2^nd and 3^rd Defendant are based on (a) negligence, (b) breach of implied terms of contract of employment, and (c) their vicarious liability for the damages caused by the 1^st Defendant’s assault.

9.  On 24 March 2021, interlocutory judgment was entered against the 1^st Defendant, who had given no notice of intention to defend.

10.  On 23 June 2022, the 4^th Defendant applied to intervene into these proceedings, which application was consented to by the Plaintiff.

11.  By the order of Master Kot dated 7 July 2022, leave was granted to the 4^th Defendant to join in these proceedings. However, in the prayer for relief of the Plaintiff’s Amended Statement of Claim, no relief is sought against the 4^th Defendant.

12.  On 2 August 2022, the 4^th Defendant filed its defence, disputing any employment relationship between the Plaintiff/1^st Defendant and 3^rd Defendant, the 3^rd Defendant’s alleged liability to the Plaintiff, as well as the quantum claimed by the Plaintiff. The 4^th Defendant also claims that the Plaintiff is contributorily negligent for the damages resulted from the Accident.

13.  On 8 August 2022, interlocutory judgment was entered against the 2^nd and 3^rd Defendant, which interlocutory judgment against the respective defendants was set aside by Master Kot on 27 October 2022 and by this court on the first day of trial on 24 June 2025.

14.  The 1^st, 2^nd and 3^rd Defendant did not participate in these proceedings.

B. THE CRIMINAL PROCEEDINGS

15.  According to the Amended Brief Facts for the 1^st Defendant in the Criminal Proceedings, the 1^st Defendant was the supervisor of the Plaintiff and a Mr Tam Wai Hing (“Mr Tam”). On the day of the Accident, the 1^st Defendant had a dispute with the Plaintiff and Mr Tam over their working attitude at the loading platform of the warehouse of the 2^nd Defendant. The 1^st Defendant and Mr Tam pushed each other. Mr Tam struck the 1^st Defendant’s neck, who punched Mr Tam’s right wrist. The Plaintiff and the 1^st Defendant struggled. The Plaintiff struck the 1^st Defendant’s lip, and the 1^st Defendant punched the Plaintiff’s abdomen at the edge of the loading platform, which was about 1.5 metres tall.

16.  Under caution, the 1^st Defendant alleged that he disputed with the Plaintiff and Mr Tam over their working attitude. The latter two came to argue with him. Mr Tam pushed the 1^st Defendant first, who felt offended and punched Mr Tam’s right hand. The three of them struck each other, and the 1^st Defendant punched the Plaintiff, hence the Plaintiff fell from the loading platform.

17.  As mentioned above, the 1^st Defendant was convicted upon a plea of guilty. He was sentenced to 140 hours of community service.

18.  As for the Plaintiff, according to the transcript of the Criminal Proceedings, as the learned magistrate could not be certain whether there was any body contact when the Plaintiff kicked the 1^st Defendant, the learned magistrate acquitted the Plaintiff of assault occasioning actual bodily harm. However, the learned magistrate was certain that the Plaintiff did assault the 1^st Defendant and therefore convicted him of common assault and imposed a fine of $4,000 on him.

19.  Pursuant to section 62(1) of the Evidence Ordinance (Cap 8), the aforesaid convictions are admissible in evidence in these proceedings for the purpose of proving that the Plaintiff and the 1^st Defendant have committed the respective offences.

C. DCEC PROCEEDINGS

20.  As mentioned above, the Plaintiff commenced the DCEC Proceedings against the 2^nd Defendant on the basis that his personal injuries caused by the Accident arose out of and in the course of his employment with the 2^nd Defendant.

21.  On 5 February 2018, the 2^nd Defendant, through Messrs Au-Yeung, Chan & Ho (the “2^nd Defendant’s former solicitors”), filed its Answer in the DCEC Proceedings, admitting that the Plaintiff was an employee employed by it on the date of the Accident. In the Answer, the 2^nd Defendant also pleaded that the 1^st Defendant was its senior warehouse supervisor.

22.  In the Plaintiff’s affirmation dated 17 February 2022 filed in these proceedings in support of its application to join the 3^rd Defendant, the Plaintiff explained that by a letter from the 2^nd Defendant’s former solicitors dated 11 August 2020, the 2^nd Defendant suddenly changed its stance and alleged that the Plaintiff was employed by the 3^rd Defendant but worked under the direction of the 2^nd Defendant, relying on a MPF statement of the 3^rd Defendant dated 2 March 2017.

23.  According to the Plaintiff, prior to receiving the aforesaid letter, he was not aware of the existence of the 3^rd Defendant or the fact that it was contributing to his MPF immediately before the Accident.

24.  In the Plaintiff’s solicitor’s letter to the 2^nd Defendant’s former solicitors dated 17 September 2020, the Plaintiff’s solicitors stated inter alia that on 12 August 2011, the Plaintiff and the 2^nd Defendant entered into a written employment contract, expressly stating that the 2^nd Defendant was the employer. The notice for adjusting his salary, warning letters and letter of termination of his employment were all issued in the 2^nd Defendant’s name. The 3^rd Defendant was only incorporated six months after the said employment contract.

25.  By a letter dated 28 May 2021, the solicitors of the Employees Compensation Assistance Fund Board (the “Board”) informed the Plaintiff’s solicitors that the 3^rd Defendant was contributing to the Plaintiff’s MPF at the time of the Accident and “was, at least, one of” his employers. The Board also noted that according to a MPF statement of the 3^rd Defendant dated 4 February 2017, the 3^rd Defendant was also the employer of three other employees who had given police statement in relation to the Accident, being Mr Tam and prosecution witnesses numbers 1 and 2 in the Criminal Proceedings.

26.  On 5 July 2021, the 2^nd Defendant’s former solicitors ceased acting for the 2^nd Defendant in the DCEC Proceedings.

27.  The DCEC Proceedings have been stayed pursuant to HHJ Levy (as she then was)’s order dated 20 May 2022 pending the resolution of the present action. To date, the 2^nd Defendant’s Answer in the DCEC Proceedings remain unamended, and neither the 3^rd nor 4^th Defendant has been joined as a party thereto.

D. THE ISSUES

28.  The issues in dispute between the parties are:

(1) Was the Plaintiff the employee of the 2^nd or 3^rd Defendant?

(2) Was the 1^st Defendant the employee of any of the 2^nd or 3^rd Defendant?

(3) Should the 2^nd or 3^rd Defendant be held vicariously liable for the 1^st Defendant’s acts in assaulting the Plaintiff in the Accident?

(4) If the 3^rd Defendant is liable, was the Plaintiff contributorily negligent?

29.  The first issue is only relevant to the extent that it is the Plaintiff’s case that the 1^st Defendant was employed by the same employer as him at the time of the Accident because the 1^st Defendant was his supervisor. In the premises, if the court finds that the Plaintiff was the employee of the 2^nd Defendant, then the 1^st Defendant must also be the 2^nd Defendant’s employee. On the other hand, if the court finds that the Plaintiff was the employee of the 3^rd Defendant, then the 1^st Defendant must also be the 3^rd Defendant’s employee. The 4^th Defendant’s counsel, Ms Lui, disagrees that the Plaintiff and the 1^st Defendant must be employed by the same employer simply because the latter was the Plaintiff’s supervisor.

30.  During his opening submissions, the Plaintiff’s counsel, Mr Yip, informed the court that the Plaintiff no longer relied on negligence or breach of implied terms of contract of employment. He also confirmed that (a) the issue of contributory negligence would only arise if the 3^rd Defendant is found liable to the Plaintiff, and (b) it was not his case that both the 2^nd and 3^rd Defendants were employers of the Plaintiff. His primary case, as stated in his opening submissions, is that both the Plaintiff and the 1^st Defendant were employed by the 3^rd Defendant at the time of the Accident, who was vicariously liable for the 1^st Defendant’s acts. His secondary case is that they were both employed by the 2^nd Defendant at the time of the Accident, who was vicariously liable for the 1^st Defendant’s acts.

31.  In relation to quantum, the 4^th Defendant disputes the extent of the injuries that the Plaintiff is said to have been suffering, and thus the quantum of damages claimed. The issues are therefore whether the Plaintiff has proved the various heads of quantum as claimed.

E. WITNESSES

E1. The Plaintiff

32.  The Plaintiff gave evidence himself. Whilst I find him truthful most of the time, there are two areas in his evidence which I find unbelievable.

33.  First, in his Amended Statement of Claim, he pleaded that:

(a) “The 1^st Defendant was employed by the 2^nd or 3^rd Defendant and was senior supervisor. According to the Plaintiff’s knowledge, [the 1^st Defendant] was bankrupt at the material time and requested not to add his name to payroll of the 2^nd/3^rd Defendant”; and

(b) “The 1^st Defendant was known to be an aggressive person…”

34.  In his Answers to the 4^th Defendant’s Requests for Further and Better Particulars of the Amended Statement of Claim in relation to the above pleas, he answered that he was told by other colleagues/co-workers that the 1^st Defendant was:

(a) employed by the 3^rd Defendant;

(b) bankrupt at the material time and had requested not to add his name to the payroll of the 2^nd/3^rd Defendant; and

(c) an aggressive person,

but he could not recall the occasion(s), the date of the occasion(s) and the identity/identities of the person(s) who told him such matters.

35.  During cross-examination, he said he did not know that the 1^st Defendant (a) was employed by the 3^rd Defendant, (b) had requested not to add his name to the payroll of the 2^nd/3^rd Defendant or (c) was bankrupt. He was not told by other colleagues/co-workers of the aforesaid matters, or that the 1^st Defendant was aggressive. He also said that he had never given instructions to his lawyers on the matters stated in his Answers to the 4^th Defendant’s Requests for Further and Better Particulars of the Amended Statement of Claim.

36.  During re-examination, when being asked whether his contention in the Amended Statement of Claim that the 1^st Defendant was bankrupt and had requested not to put his name on the employer’s payroll was correct, he firmly answered that it was incorrect.

37.  This begs the question as to why he signed the statements of truth on the Amended Statement of Claim and the three Answers to Requests for Further and Better Particulars of the Amended Statement of Claim, which were all certified to have been translated to him by his solicitors.

38.  The Plaintiff tried to explain this away by saying that perhaps there were some miscommunications and misunderstanding between him and his lawyers. I find this unbelievable because there were altogether three rounds of Requests and Answers for Further and Better Particulars of the Amended Statement of Claim in relation to the aforesaid pleas in the Amended Statement of Claim. Notwithstanding the above, the Plaintiff never tried to correct his lawyers or the incorrect allegations made in his various Answers to Further and Better Particulars.

39.  Secondly, in relation to the injuries the Plaintiff is said to have been suffering, the Plaintiff claims that he suffered fractures over right distal radius and distal ulna, with displacement and intra-articular involvement, thumb numbness and weakness and sciatica, with back pain which radiated to his left lower limb as a result of the Accident.

40.  However:

(a) When he attended the Department of Accident & Emergency (“A&E”) of Tuen Mun Hospital immediately after the Accident on 23 February 2017, according to the medical report, his chief complaint was right wrist and right lower chest wall pain. He did not complain to the A&E doctor that he had any back or lower limb pain.

(b) Similarly, in the A&E doctor’s note, it is stated that he had right wrist contusion and right lower chest contusion. It also expressly stated that there was “no other body pain. No weakness/numbness…”

(c) The Plaintiff maintained that his back was very painful at that time and that he had told the A&E doctor about his back pain. However, I find it inconceivable for the doctor to omit such symptoms in his notes as well as the medical report if the Plaintiff had complained about them and state instead that the Plaintiff had no other body pain.

(d) According to the medical report issued by Princess Margaret Hospital dated 18 September 2018, the Plaintiff was admitted to their Department of Orthopaedics & Traumatology on 23 March 2017, ie a month after the Accident, for back pain with radiation to left lower limb. This is the first time in which there is any record of his alleged back pain. Further, the medical report states that there was “no history of back injury”. Had the Plaintiff’s back been injured in the Accident, it is inconceivable for him not to inform the doctor about it, especially when the very reason for this medical consultation was his alleged back pain.

(e) According to the memo from the Physiotherapy Department of North Lantau Hospital dated 29 April 2020, the Plaintiff had low back pain on 8 August 2014 and had 15 sessions of physiotherapy treatment in November 2014 to 2 March 2016. The Plaintiff said he had recovered from the same.

(f) In the same memo, it states that the Plaintiff was referred to the aforesaid department for mobilization exercise after his right distal radius fracture on 6 March 2017. There was no mentioning of any back pain at that point of time.

(g) Then, the memo states that the Plaintiff was referred to the aforesaid department for low back pain on 7 April 2017, which was over one month after the Accident. He was given nine sessions of physiotherapy treatment from August 2018 until he was discharged in January 2019.

41.  The Plaintiff’s contention that he suffered back pain and left lower limb pain as a result of the Accident is contradicted by the aforesaid contemporaneous medical records.

42.  Further, in the Certificate of Assessment issued by the Employees’ Compensation (Ordinary Assessment) Board (Form 7) (“Assessment Board”) dated 31 July 2019, the Plaintiff’s injury was stated to be “multiple injuries resulting in right wrist pain and stiffness, right hand numbness”. There was no mentioning of back or lower limb pain. His loss of earning capacity permanently caused by the injury was certified at 3%.

43.  During cross-examination, when being asked why Form 7 did not mention anything about his back and leg pain, the Plaintiff explained that he had told the officer of the Assessment Board about his back pain and leg pain. I find it inexplicable why such alleged injuries were not mentioned in Form 7 if he had told the officer about them.

44.  It is even more inexplicable why the Plaintiff did not mention about his back and leg pain in his objection form to the assessment in Form 7 when he sought to review such assessment on 6 August 2019. If he was unsatisfied the Assessment Board’s failure to take into account his back and leg pain in their assessment, it is inconceivable for him to not point this out expressly in his objection form so that the Assessment Board could review the same.

45.  In the Certificate of Review of Assessment (Form 9) issued by the Assessment Board on 4 December 2019, the injury stated therein as well as the percentage loss of earning capacity permanently caused by the injury are exactly the same as those certified in the previous Form 7. Only the sick leave period was extended.

46.  By reason of the above, I find his evidence that he suffered back pain and left lower limb pain as a result of the Accident unbelievable and incredible, and that he has exaggerated the extent of his injuries resulted from the Accident in this regard.

E2. The 4^th Defendant’s witness

47.  There is no dispute that the 4^th Defendant’s witness, Ms Chow Ching Han, has no personal knowledge of the employment relationship between the parties as well as the Accident. As such, I give no weight to her factual evidence.

F. ANALYSIS

F1. Issue 1: Was the Plaintiff the employee of the 2^nd or 3^rd Defendant?

48.  Although the guidance set out in Poon Chau Nam v Yim Siu Cheung t/a Yat Cheung Airconditioning & Electric Co (2007) 10 HKCFAR 156 was given in the context of deciding whether someone is an employee as opposed to an independent contractor, it is still useful for deciding who the Plaintiff’s employer was.

49.  In that case, Ribeiro PJ held at §18:

“The modern approach to the question whether one person is another’s employee is therefore to examine all the features of their relationship against the background of the indicia developed in the abovementioned case-law with a view to deciding whether, as a matter of overall impression, the relationship is one of employment, bearing in mind the purpose for which the question is asked. It involves a nuanced and not a mechanical approach…”

50.  It is not disputed that the Plaintiff was an employee of either the 2^nd or 3^rd Defendant. Whilst the Plaintiff subjectively believed all along until he received the 2^nd Defendant’s former solicitors’ letter dated 11 August 2020 that he was employed by the 2^nd Defendant, such subjective belief, whilst a relevant consideration[1], has to be considered in light of other indicia of employment and, more importantly, the contemporaneous documents.

51.  For the following reasons, I find that the Plaintiff was an employee of the 2^nd Defendant at the time of the Accident:

(a) The employment contract dated 12 August 2011 was entered into between the Plaintiff and the 2^nd Defendant. Since then, the Plaintiff had been working under the employment of the 2^nd Defendant.

(b) According to the Plaintiff, between August 2011 and 7 January 2015, his monthly salary was paid by the 2^nd Defendant. The customers at work were those of the “company’s”, who he believed to be the 2^nd Defendant. The equipment he used at work was provided by “the company”, who he believed to be the 2^nd Defendant. The manpower and staff at work were arranged by the “company”, who he also believed to be the 2^nd Defendant.

(c) On 2 March 2012, the 3^rd Defendant was incorporated.

(d) On 1 January 2013, the 2^nd Defendant wrote to the Plaintiff, giving him a pay rise and stating that all other terms of the aforesaid employment contract remain unchanged.

(e) On 1 July 2013, the 2^nd Defendant wrote to the Plaintiff, giving him another pay rise and stating that all other terms of the aforesaid employment contract remain unchanged.

(f) In a “Transfer of Accrued Benefits Upon Intra-Group Transfer/Change Of Business Ownership Form” of Manulife, it was stated that the Plaintiff’s employer was changed from the 2^nd Defendant to the 3^rd Defendant on 1 January 2015. In the form, the contact person and contact telephone number of the 2^nd and 3^rd Defendant are the same. However:

(i) There is no evidence as to who prepared this form and the accuracy of the matters stated therein.

(ii) Although the respective annual returns of the 2^nd and 3^rd Defendants indicate that the two companies share the same registered office and company secretary, they have different shareholders and directors.

(iii) There is no other evidence in support of the purported intra-group transfer, change of business ownership or any arrangement or agreement between the two companies. The submission that the two companies are related is unsupported by any other evidence.[2]

(iv) As evidenced by the contemporaneous documents mentioned in (g), (h), (k), (l) and (m) below, even after the purported intra-group transfer in January 2015, the 2^nd Defendant continued acting as the Plaintiff’s employer.

(g) On 7 February 2015, the 2^nd Defendant presented an award to the Plaintiff for being an “outstanding employee” in the year of 2014.

(h) On 14 December 2016, the 2^nd Defendant issued a warning letter to the Plaintiff in respect of a mistake he made at work. It was signed by a Raymond Yu, who is stated to be the warehouse manager of the 2^nd Defendant.

(i) In the MPF statements of the 3^rd Defendant dated respectively 6 February 2017 and 2 March 2017, the Plaintiff was listed as one of the members of the 3^rd Defendant. However:

(i) Despite the requirement under section 7A(2)(a) of the Mandatory Provident Fund Schemes Ordinance (Cap 485) that an employer must make MPF contribution for its employee using its “own funds”, there is no evidence as to the arrangement or agreement between the 2^nd and 3^rd Defendants.

(ii) Further, it appears that the reference to “own funds” in section 7A(2)(a) means funds coming from the employer, as opposed to the employee’s income referred to in section 7A(2)(b).

(iii) In light of all the other contemporaneous documents indicating that the employment relationship is one that is between the Plaintiff and the 2^nd Defendant, the mere fact that the 3^rd Defendant was responsible for contributing to the Plaintiff’s MPF and paying his wages, and reported itself as the employer of the Plaintiff to the Inland Revenue Department, is insufficient to show that the 3^rd Defendant was the Plaintiff’s employer.

(j) The Plaintiff’s bank statements show that between 10 February 2015 and 6 April 2017, the Plaintiff’s monthly salary was paid by the 3^rd Defendant. However, see (i) above.

(k) In the notification of accident dated 16 June 2016 submitted to the Labour Department, the employer of the Plaintiff was stated to be the 2^nd Defendant, and the contact person was stated to be Raymond Yu. It is the Plaintiff’s evidence that the form was not filled in by him, but by “the company”, by which he refers to the 2^nd Defendant.

(l) On 1 March 2017, Raymond Yu on behalf of the 2^nd Defendant issued another warning letter to the Plaintiff in respect of the Accident.

(m) On 7 March 2017, Raymond Yu on behalf of the 2^nd Defendant issued a termination notice to the Plaintiff and terminated his employment with the 2^nd Defendant.

(n) According to two letter from the Inland Revenue Department to the Plaintiff dated 2 May 2017 and 11 August 2021 respectively, the 2^nd Defendant was reported as the Plaintiff’s employer in April 2014 to December 2014, and the 3^rd Defendant was reported as the Plaintiff’s employer in January 2015 to March 2017. However, see (i) above.

(o) In the Answer dated 5 February 2018 which the 2^nd Defendant filed in the DCEC Proceedings when it was still legally represented, it admitted that the Plaintiff was its employee. Although it retracted from such position over two years later in its former solicitors’ letter dated 11 August 2020 mentioned above:

(i) First, such change of stance came very belatedly, ie two years after the Answer was filed and one year after the termination of the Plaintiff’s employment.

(ii) Secondly, in the said letter dated 11 August 2020, the 2^nd Defendant did not explain why it was mistaken as to its employment relationship with the Plaintiff all along.

(iii) Thirdly, the Answer remains unamended. Although Mr Yip relies on the fact the 2^nd Defendant’s former solicitors has ceased to act for the 2^nd Defendant and the DCEC Proceedings have been stayed, the 2^nd Defendant and/or its solicitors took no steps in amending it in the period of over 1.5 years between 11 August 2020 (ie date of the aforesaid letter alleging that it was not the Plaintiff’s employer) and 20 May 2022 when the proceedings were stayed.

(p) On 28 May 2021, the solicitors of the Board informed the Plaintiff’s solicitors that the 3^rd Defendant was contributing to his MPF at the time of the Accident and “was, at least, one of” his employers. The Board also noted that according to a MPF statement of the 3^rd Defendant dated 4 February 2017, the 3^rd Defendant was also the employer of three other employees who had given police statement in relation to the Accident. However, as explained in (i) above, in light of all the other contemporaneous documents, and in the absence of any evidence of the arrangement or agreement between the 2^nd and 3^rd Defendant, the mere fact that the 3^rd Defendant contributed to the Plaintiff’s (and a few of his colleagues’) MPF is insufficient to show that 3^rd Defendant was the Plaintiff’s employer.

(q) The Plaintiff relies on the 2^nd Defendant’s contravention of section 40(2) of ECO and alleges that it is inherently improbable that the persons controlling the 2^nd Defendant would use it as a corporate vehicle to employ workers when the 3^rd Defendant, which had a valid insurance coverage, could be used in compliance with the law. However, this court will not speculate the reason behind the 2^nd Defendant’s failure to have insurance coverage for its employees and the relationship or arrangement between the 2^nd and 3^rd Defendants in the absence of evidence.

52.  In the premises, I find that the Plaintiff was the employee of the 2^nd Defendant, and not the 3^rd Defendant, at the time of the Accident.

F2. Issue 2: Was the 1^st Defendant the employee of any of the 2^nd or 3^rd Defendant?

53.  As mentioned above, it is the Plaintiff’s case that the 1^st Defendant and the Plaintiff were employed by the same employer at the time of the Accident by virtue of the fact that the 1^st Defendant was the Plaintiff’s supervisor.

54.  I agree with Ms Lui that there is a quantum leap between the 2^nd Defendant being found to be the Plaintiff’s employer and the 2^nd Defendant must therefore also be the Plaintiff’s supervisor (ie the 1^st Defendant)’s employer.

55.  That said, I am satisfied on the evidence that the 2^nd Defendant was also the 1^st Defendant’s employer at the time of the Accident for the following reasons:

(a) The fact that the 1^st Defendant was the Plaintiff’s supervisor at work is obviously a relevant factor.

(b) The prosecution witnesses numbers 1 and 2 in the Criminal Proceedings also identified (i) themselves as employees of the 2^nd Defendant and (ii) the 1^st Defendant as their supervisor.

(c) The MPF statements of the 3^rd Defendant dated 6 February 2017 and 2 March 2017 respectively for “all members” of the 3^rd Defendant do not include the 1^st Defendant. For reasons explained in section E1 above, I do not accept the Plaintiff’s pleaded case that the 1^st Defendant was bankrupt and had requested his name not to be added to the payroll of the 2^nd or 3^rd Defendants.

(d) In the Answer filed by the 2^nd Defendant in the DCEC Proceedings, it pleaded that the 1^st Defendant was its senior warehouse supervisor. Despite retracting from the position that it was the Plaintiff’s employer, the 2^nd Defendant never retracted from its pleaded case that it was the 1^st Defendant’s employer, at least until such proceedings were stayed.

(e) During mitigation in Criminal Proceedings, the 1^st Defendant submitted three letters from his colleagues. One such letter was from the 2^nd Defendant’s operating director, who stated that the company had decided to continue to employ the 1^st Defendant. The other letter was from the 2^nd Defendant’s warehouse manager. The fact that the 2^nd Defendant’s management was willing to support the 1^st Defendant and continue to employ him suggests that the 1^st Defendant was its employee.

56.  I am therefore satisfied on the balance of probabilities that the 1^st Defendant was the employee of the 2^nd Defendant at the time of the Accident.

F3. Issue 3: Should the 2^nd or 3^rd Defendant be held vicariously liable for the 1^st Defendant’s acts in assaulting the Plaintiff in the Accident?

57.  Given my finding above that it was the 2^nd Defendant, and not the 3^rd Defendant, who was the 1^st Defendant’s employer at the time of the Accident, the third issue is whether the 2^nd Defendant as the employer should be held vicariously liable for the 1^st Defendant’s acts in the Accident. The 3^rd Defendant, who was not the 1^st Defendant’s employer, would not be so liable.

Applicable legal principles

58.  The applicable legal principles are trite. As held in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15:

“[58] Having examined the main 21^st century decisions on vicarious liability of the highest court, it is now possible to pull together the legal principles applicable to vicarious liability in tort that can be derived from those authorities particularly the most recent cases of Barclays Bank and Morrison.

(i) There are two stages to consider in determining vicarious liability. Stage 1 is concerned with the relationship between the defendant and the tortfeasor. Stage 2 is concerned with the link between the commission of the tort and that relationship. Both stages must be addressed and satisfied if vicarious liability is to be established.

(ii) The test at stage 1 is whether the relationship between the defendant and the tortfeasor was one of employment or akin to employment. In most cases, there will be no difficulty in applying this test because one is dealing with an employer-employee relationship…

(iii) The test at stage 2 (the “close connection” test) is whether the wrongful conduct was so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the tortfeasor’s employment or quasi-employment.… The application of this “close connection” test requires a court to consider carefully on the facts the link between the wrongful conduct and the tortfeasor’s authorised activities. That there is a causal connection (ie that the “but for” causation test is satisfied) is not sufficient in itself to satisfy the test...”

59.  The Court of Final Appeal has provided guidance on the “close connection test” in Ming An Insurance Co (HK) Ltd v Ritz-Carlton Ltd (2002) 5 HKCFAR 569. In that case, Bokhary PJ held at 581J:

“25. … I regard close connection as the basic criterion for vicarious liability in regard to all torts committed by an employee during an unauthorised course of conduct, whether intentional wrongdoing or mere inadventence is involved. This is not to say that this criterion is to be treated like a statutory formula. Its application is always to be undertaken in context. I dare say that the requisite connection will prove in practice to be more readily found in certain types of case than in others. But the basic criterion having been applied, the disposal of each case will always turn ultimately on its own facts and the particular considerations which they raise....”

60.  In the same case, Litton NPJ held at 584B that “the underlying idea is that the injury done by the servant must involve a risk sufficiently inherent in or characteristic of the employer's business that it is just to make the employer bear the loss.”

61.  Litton NPJ continued at 586D:

“42. … Hence, in seeking an answer to the question ‘Is the servant’s wrongful act so closely connected with his employment that it would be fair and just to hold the employer vicariously liable?’ it must be remembered that the issue is not free standing, and matters such as the servant’s duties at the time when the tort occurred, whether he was acting in the interests of the employer or solely for himself, et cetera, are still relevant. And, casting one’s eyes a little wider, the court should also have regard to the business activities of the employer broadly speaking and ask if the risk which gave rise to the damage (here the servant’s reckless driving of someone else’s limousine) was created by those activities: If they were, that was a risk which the employer could have insured against ...”

62.  In Yeung Mei Hoi v Tam Cheuk Shing [2015] 2 HKLRD 483, the Court of Appeal discussed in detail the close connection test, the relevance of risk under such test, and examples of assault by employees in §§3.1- 5.6 of the judgment. In §3.5, Cheung JA (as he then was) cited Lord Phillips in Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 at §35, where his Lordship “identified policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when five criteria are met:

i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;

ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

iii) the employee’s activity is likely to be part of the business activity of the employer;

iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;

v) the employee will, to a greater or lesser degree, have been under the control of the employer.”

63.  See also Ling Man Kuen v Chow Chan Ming & anor (unrep, DCPI 1445/2005, 21 August 2006), where the plaintiff who was an assistant engineer employed by the 2^nd defendant for the maintenance and inspection of the safety of lifts and escalators was assaulted by another employee of the 2^nd defendant. The assault occurred when the 1^st defendant took the plans drawn by the plaintiff to the control room to talk to the plaintiff to inform him that the measurements stated therein were not specific enough. The 1^st defendant lost control and punched the plaintiff and then they pushed each other. The court held that the assault arose out of or was closely connected with the 1^st defendant’s employment with the 2^nd defendant and therefore the latter was held vicariously liable for the plaintiff’s injuries caused by the 1^st defendant’s act.

Discussion

64.  In the present case, there is no dispute that the assault was not premeditated or motivated by any personal malice or grudges between the parties. At the material time, the 1^st Defendant’s employment required him, as the Plaintiff’s supervisor, to prepare for and discuss with the Plaintiff about the upcoming tour by their supervisor. The two of them had a heated argument or dispute over the Plaintiff’s and his subordinates’ working attitude at the loading platform of the warehouse where they worked.[3]

65.  Their colleague Mr Tam ran over. Mr Tam and the 1^st Defendant started pushing each other. Then the Plaintiff joined in the fight, and the Plaintiff suddenly fell off the edge of the loading platform which is about 1.5 metres high and landed on the right side of his body and was injured.

66.  The focus of the close connection test is on the scope of employment of the employee who carried out the unauthorised act, ie the 1^st Defendant. As mentioned above, when the 1^st Defendant assaulted the Plaintiff, he was the Plaintiff’s supervisor and was tasked with supervising the Plaintiff and his work performance. At the material time, he had a heated dispute with the Plaintiff over his working attitude. The 1^st Defendant was acting within the scope of his employment and his duties when he was giving instructions to the Plaintiff about work and passing comments on the Plaintiff’s working attitude with which he was not satisfied.

67.  In the premises, the 1^st Defendant’s activity in supervising the Plaintiff and his subordinates was part of the 2^nd Defendant’s business activity. The 1^st Defendant was acting in the interests of the 2^nd Defendant at the material time, who by employing the 1^st Defendant to carry on the activity had created the risk of the tort committed by him.

68.  For the reasons above, I find that the 1^st Defendant’s tortious act in assaulting the Plaintiff was so closely connected with his employment that it is fair to make the 2^nd Defendant as his employer vicariously liable.

F4. Issue 4: If the 3^rd Defendant is liable, was the Plaintiff contributorily negligent?

69.  As the 3^rd Defendant was not the 1^st Defendant’s employer, it should not be liable for the Plaintiff’s injuries, and this issue does not arise.[4] In case I am wrong on the issue of the 3^rd Defendant’s liability, I set out below my views on contributory negligence.

70.  The 4^th Defendant’s case is that the Plaintiff contributed to the Accident by inter alia failing to keep himself away at a safe distance from the fight between the 1^st Defendant and Mr Tam, aggravating the fight by joining it, failing to keep away from the edge of the loading platform and failing to take any or sufficient care for his own safety.

71.  First, the Plaintiff submits that, as a matter of law, the defence of contributory negligence is not available to a claim against a defendant for damages for intentional torts, such as assault and battery. He relies on Co-Operative Group (CWS) Ltd v Pritchard [2011] EWCA Civ 329, §§61-63.

72.  In that case, the claimant was employed by the defendant company. She was involved in an argument with her manager, who assaulted and bit her. She brought an action against the defendant in which she alleged that the defendant was inter alia vicariously liable for the tort of assault and battery. The trial judge found for the claimant and held inter alia that it was not open to him to make a finding of contributory negligence against the claimant. The defendant appealed on inter alia the ground that the learned judge had erred in not allowing contributory negligence as a defence to a claim for the tort of assault and battery.

73.  The English Court of Appeal dismissed the appeal on the contributory negligence issue (but allowed the appeal on the causation issue) and held that the learned judge was correct in concluding that, as a matter of law, the defendant could not rely on contributory negligence to defeat the claimant’s claim or to reduce the damages otherwise to be awarded to the claimant.

74.  Aikens LJ held, at §§28-63, that at common law contributory negligence was, in general, not a defence in the case of an intentional tort. The Law Reform (Contributory Negligence) Act 1945 would not, in principle, be used to reduce damages in cases where claims were based on assault and battery. Such a conclusion was in keeping with the purpose of the 1945 Act, which was to relieve claimants whose actions would previously have failed, and not to reduce the damages which would previously have been awarded to the claimants. The defendant was only entitled to assert that the claimant had been contributorily negligent so that any damages to which she was entitled had to be reduced if, at common law, there was a defence of contributory negligence to a claim against a defendant for damages for the torts of assault or battery.

75.  Aikens LJ held that there was no case before the 1945 Act which held that there was such a defence in the case of an intentional tort such as assault and battery. Insofar as there were cases since the 1945 Act that suggested that the Act could be used to reduce damages awarded for the torts of assault or battery in a case where it was found that the claimant was contributorily negligent, they were unsatisfactory and could not stand with statements of principle made in two subsequent House of Lords decisions in Reeves v Comr of Police of the Metropolis [2000] 1 AC 360 and Standard Chartered Bank v Pakistan National Shipping Corp (No 2) [2003] 1 AC 959.

76.  Section 21(1) and (2) of the Law Amendment and Reform (Consolidation) Ordinance (Cap 23) is equivalent to section 1(1) and (2) of the 1945 Act. Mr Yip submits that there is no authority in Hong Kong discussing about whether, as a matter of law, contributory negligence can be a defence to a claim for the tort of assault and battery. He invites the court to follow the English Court of Appeal’s holding in Pritchard and hold that, as a matter of law, contributory negligence is not a defence to a claim for the tort of assault.

77.  Having considered the detailed ruling in Pritchard, I am of the view that the intention to injure someone in a case of assault negatives all excuses, and thus the defence of contributory negligence is not available to such a claim, as opposed to such a defence to a claim based on, for example, negligence. I agree with the analogy drawn by Aikens LJ, at §§33 and 35, with the case of tort of deceit or fraudulent misrepresentation, where there is no common law defence of contributory negligence.

78.  Where a person intentionally causes a claimant to apprehend immediate unlawful violence (ie assault) or sustain unlawful personal violence (ie battery), it would seem unfair to say that a claimant whose failure to take care of his own safety was a cause of his injury and that his damages which would otherwise be awarded for the torts of assault or battery should be reduced.

79.  In the event that both parties who are engaged in a fight against each other are both injured, they can claim against each other for damages for their respective personal injuries. But that is different from saying that they are contributorily negligent in respect of their respective injuries.

80.  Mr Yip further submits that Muhammad Riza Khan v Commissioner of Correctional Services [2017] 5 HKLRD 379 relied on by the 4^th Defendant is distinguishable, and the finding of contributory negligence in that case is in any event obiter. I agree. That case concerns the alleged negligence of the prison authority in failing to prevent a fight between two inmates. It is not a claim based on intentional tort. In any event, the court found that the prison authority was not negligent. The finding that the plaintiff was 50% contributory negligent as he was engaged in a fight with the other inmate thereby causing injuries to himself was therefore obiter.

81.  In any event, the question of whether there is contributory negligence is highly fact-sensitive. On the facts of the present case, even if I have to consider such a defence, I would have found that the Plaintiff was not contributorily negligent for the following reasons.

82.  First, it is the Plaintiff’s unchallenged evidence that:

(a) During the Accident, the 1^st Defendant pulled the collar and sleeves of his shirt and pushed him down from the loading platform.

(b) The 1^st Defendant was targeting at him when the 1^st Defendant assaulted him.

(c) It was very chaotic at the material time.

83.  In the premises, it cannot be said that the Plaintiff was at fault or had failed to escape or take care of his own safety when the 1^st Defendant had the intention to harm him and push him down the loading platform. As mentioned above, the 1^st Defendant was convicted of common assault and inflicting grievous bodily harm in the Criminal Proceedings.

84.  Ms Lui argued that the Plaintiff could have walked away or keep a safe distance from the 1^st Defendant. However, it was clearly very chaotic at the scene and the Plaintiff was standing close to the 1^st Defendant and Mr Tam. I am not satisfied that the Plaintiff could simply walk away and hide from the 1^st Defendant safely.

85.  Secondly, although the Plaintiff was convicted of common assault in the Criminal Proceedings, the offence for which he was charged was in relation to his kicking the 1^st Defendant. This happened after he was pushed down from the loading platform by the 1^st Defendant and sustained the injuries which are the subject of these proceedings.

86.  In the premises, I agree with Mr Yip that the Plaintiff’s conviction of common assault is irrelevant to the question of whether he was contributorily negligent in respect of his injuries.

87.  I therefore find that the Plaintiff’s damages should not be reduced even if the 3^rd Defendant was found to be vicariously liable for the 1^st Defendant’s acts.

F5. Issue 5: Quantum of damages

(1) Pain, suffering and loss of amenities (“PSLA”)

88.  There is no dispute that as a result of the Accident, the Plaintiff suffered fracture of his right distal radius and distal ulna, ie his right wrist.

89.  Dr Chan Yu Sing (“Dr Chan”) (who was instructed by the Plaintiff) and Dr Ngai Wai Kee (“Dr Ngai”) (who was instructed by the 4^th Defendant) opined in their joint orthopaedic expert report dated 7 August 2023 (“Joint Medical Report”) that the Plaintiff has satisfactory capacity in performing his activities of daily living. He is independent and can travel in public transport with some persisting symptoms. Dr Ng further opined that the Plaintiff’s functional recovery is satisfactory and his prognosis is good.

90.  At the time of the examination by the two doctors on 9 March 2023, the Plaintiff complained of constant right wrist pain, right hand numbness and weakness, clicking noises with right forearm pronation and supination, intermittent lower back pain and left lower leg numbness, left lower limb weakness and walking with a limp.

91.  Dr Chan opined that the Plaintiff suffered displaced comminated right distal radius fracture with right median and ulnar nerve axonotmesis at the wrist level and exacerbation of lumbar spondylosis.

92.  Dr Ngai opined that the Plaintiff suffered fracture right distal radius with right median and ulna nerve injury at wrist level, minor uncomplicated soft tissue right chest wall contusion. But he was of the view that the lumbar spondylosis was pre-existing and not related to the Accident.

93.  Dr Chan assessed both the total impairment of whole person and the loss of earning capacity at 6%, whereas Dr Ngai assessed both at 3%.

94.  For reasons explained in section E1 above, I find the Plaintiff’s evidence that he suffered back pain and left lower limb pain as a result of the Accident unbelievable and unreliable, and that he has exaggerated the extent of his injuries resulted from the Accident in this regard.

95.  Further, Dr Chan failed to explain in the Joint Report and his supplemental expert report dated 19 October 2023 his opinion that the Accident has led to exacerbation of the Plaintiff’s pre-existing lumbar spondylosis.

96.  In the premises, I prefer Dr Ngai’s opinion that the Plaintiff’s lower back pain was pre-existing and not related to the Accident over Dr Chan’s opinion that the Accident aggravated the Plaintiff’s pre-existing lumbar spondylosis.

97.  The Plaintiff claims $250,000 for PSLA and the 4^th Defendant answered with $350,000. Having considered the cases cited by the parties[5], the injuries sustained by the Plaintiff and his recovery, I accept that a PSLA award in the sum of $250,000 is appropriate.

(2) Pre-trial loss of earnings and MPF

(i) Sick leave period

98.  The Plaintiff was granted intermittent sick leave between 23 February 2017 and 27 December 2022, totaling 2,134 days.

99.  In Form 9 dated 4 December 2019 mentioned above, the Assessment Board assessed the periods of absence from duty necessary as a result of the injury as being 23 February 2017 to 20 November 2019, totaling 1,001 days. Dr Chan agreed with it.

100.  However, Dr Ngai opined that the reasonable sick leave period should not be more than 12 months, ie until 23 February 2018.

101.  I prefer Dr Chan’s opinion on the reasonable sick leave period for the following reasons:

(a) On 15 May 2017, the Plaintiff was referred to the Occupational Therapy Department of North Lantau Hospital by the Orthopaedics & Traumatology Specialist Out-patient Clinic of Tuen Mun Hospital for occupational therapy with the diagnosis of fracture right distal radius. He had two courses of treatment there, from 17 March 2017 to 13 August 2018 and from 31 May 2019 to 4 November 2019.

(b) Ms Lui submits that the Plaintiff had reached maximal medical improvement in around March 2018 as his progress was static by that time, relying on inter alia the progress note of Tuen Mun Hospital dated 17 March 2017 and the consultation note of the Orthopaedic & Traumatology Department of Tuen Mun Hospital. Ms Lui further submits that the Plaintiff has exaggerated his symptoms.

(c) However, the fact that the Plaintiff’s doctor at the material time recommended and referred him for a second course of occupational therapy in 2019 despite his seemingly static progress suggests that there was a medical need for the same.

(d) Had the medical practitioners been of the view that the second course of occupational therapy was useless, they would not have referred the Plaintiff to the occupational therapy department or would have discharged the Plaintiff earlier.

102.  By reason of the above, I find that the sick leave period from 23 February 2017 to 20 November 2019, totaling 1,001 days, as certified by the Assessment Board and agreed to by Dr Chan, is reasonable.

(ii) Whether the Plaintiff can resume his pre-Accident job after the reasonable sick leave period?

103.  Dr Chan opined that the Plaintiff would unlikely be able to return to his pre-Accident job as warehouse supervisor, but should be fit for more sedentary jobs such as security guard, watchman, office cleaner and office assistant.

104.  Dr Ngai opined that the Plaintiff is able to resume to his pre-Accident job, but accepted that his working efficiency would be mildly reduced after the Accident.

105.  I accept the Plaintiff’s unchallenged evidence on his persisting symptoms of weakness and numbness in his right wrist and hand, which is supported by the occupational therapy progress note of North Lantau Hospital dated 4 November 2019. According to him, his previous job as warehouse supervisor requires him to move and lift heavy objects.

106.  I also accept the Plaintiff’s evidence that he had tried looking for jobs in warehouses thrice in July to August 2019. However, he was unable to secure a warehouse job.

107.  In the premises, I prefer Dr Chan’s opinion over Dr Ngai’s and find that the Plaintiff would unlikely be able to return to his pre-Accident job as a warehouse supervisor, but remains fit for more sedentary jobs such as security guard etc..

(iii) The Plaintiff’s pre-trial average monthly income

108.  Ms Lui does not challenge the Plaintiff’s evidence based on his bank account statements that his pre-Accident average monthly salary, before deduction of employee MPF contribution, was $16,888.90.

109.  Following Rai Siva Raj v Norman Liang & ors [2020] HKCFI 237, §§214-217, I take judicial notice of the following:

(a) According to the nominal wage indices for employees up to supervisory level by industry section published by the Census and Statistics Department (“CSD”), the wage index for a worker in the transportation sector was 195.3 in March 2017. By December 2019, the wage index increased to 220, representing an increase of 12.65%.

(b) By December 2024, the wage index increased to 243.2, representing an increase of 10.55% from December 2019.

(c) According to the CSD’s Report on Annual Earnings and Hours Survey, the median wage for a worker in real estate maintenance was $13,000 in December 2019. It was increased to $14,700 in December 2024.

110.  In the premises, I accept the Plaintiff’s calculations of his theoretical salaries at the end of the reasonable sick leave and as of December 2024, and the difference in salary between his pre-Accident job and as a security guard after the sick leave period as follows:

Wage inflation from Accident until 20 November 2019	12.65%
Wage inflation from 20 November 2019 to December 2024	10.55%
Plaintiff’s theoretical salary as of 20 November 2019	$19,024.87
Plaintiff’s theoretical salary as of December 2024	$21,031.13
Salary of a security guard as of December 2019	$13,000.00
Salary of a security guard as of December 2024	$14,700.00
Difference in salary in his pre-Accident job and as a security guard after sick leave period until trial ($19,024 + $21,031)/2 – ($14,700 + $13,000)/2	$6,178.00

111.  The Plaintiff’s pre-trial loss of earning is therefore:

Period	Calculation	Amount
Sick leave (24 Feb 2017 - 20 Nov 2019)	($19,025 + $16,889)/2 x 1.05 x 12 x 1001/365	$620,505.37
Until trial (21 Nov 2019 - 26 Jun 2025)	$6,178 x 12 x 1.05 x 2045/365	$436,132.95
	Total:	1,056,638.32

(3) Post-trial loss of earnings and MPF

112.  The Plaintiff is 58 years old at the time of the trial. Mr Yip proposes to adopt the retirement age of 65, whilst Ms Lui proposes a retirement age of 60. I find a retirement age of 65 more reasonable given the nature of the Plaintiff’s job and his physical condition as stated in the Joint Medical Report. Ms Lui agrees with a multiplier of 6.61 in the event that I adopt a retirement age of 65.

113.  I therefore allow the Plaintiff’s claim under this head, ie ($21,031 - $14,700) x 12 x 6.61 x 1.05 = $527,283.67.

(4) Loss of earning capacity

114.  As the Plaintiff only suffers from some residual symptoms which do not constitute any significant impairment to his working capacity, I do not accept that there is any real and/or substantial risk that at some future date during the Plaintiff’s working life that he will lose his employment and will then suffer financial loss because of any disadvantage in the labour market: see Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306 at 311.

115.  In the premises, I do not allow the Plaintiff’s claim under this head.

(5) Pre-trial expenses

116.  The Plaintiff claims a sum of $26,818 for medical expenses, $1,000 for travelling expenses and $4,000 for tonic food, ie a total of $31,818. I find such expenses reasonable and so award.

(6) Summary on quantum

117.  The total award is $1,865,740, being the sum of the following:

PSLA	$250,000
Pre-trial loss of earning	$1,056,638
Post-trial loss of earning	$527,284
Pre-trial expenses	$31,818
	_________
TOTAL:	$1,865,740
	========

G. CONCLUSION

118.  For the above reasons, I make the following orders:

(a) The 1^st and 2^nd Defendants do pay the Plaintiff’s damages in the sum of $1,865,740. The Plaintiff is entitled to interest at half judgment rate from the date of the Accident to the date of judgment and at 2% pa on the PSLA award from the date of writ, ie 13 January 2020, to date of judgment.

(b) The Plaintiff’s claim against the 3^rd Defendant is dismissed.

119.  I make a costs order nisi that:

(c) The 1^st and 2^nd Defendants do pay the Plaintiff’s costs of the action (including all costs reserved), to be taxed if not agreed, with certificate for counsel;

(d) There be no order as to costs as between the Plaintiff and the 3^rd and 4^th Defendants; and

(e) The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

Any application to vary the costs order nisi should be made within 14 days from the date of judgment.