CHEUNG SHUK WAH JESSICA AND ANOTHER v. WONG KANG HUNG DARWIN formerly t/a NEW VOICE PUB

HCPI 12/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 12 OF 2009

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BETWEEN

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J U D G M E N T

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Introduction

1.  This case concerns a very tragic incident.  In a nutshell, the deceased in this case was murdered shortly after work and in the course of escorting his female colleague away from work.  The 1^st plaintiff, who is the wife of the deceased, now sues the employer of the deceased in negligence and breach of duty as an employer.  It had already been held in DCEC842/2007 that the murder occurred in the course of the deceased’s employment.  However, whatever sympathy anyone has for the deceased and his family, this case has to be decided on its own facts.  No Court should let sympathy take over its objective assessment of the facts and legal analysis of those facts found by the Court.

2.  To fully appreciate the misfortunate life of the deceased, Mr Man Chung Wah (also known as “Ah Man” or “Man Chai”), it is necessary to start from his early life.

The tragic life of Man Chung Wah

3.  Ah Man was according to his wife Jessica, an orphan and was adopted by a family when he was three.  Ah Man never got to know who and where his birthparents were.  Ah Man did not tell Jessica whom his adoptive parents were, but he did tell her that the adoptive parents had a daughter who was elder than him.  His sister appeared to be mentally handicapped and was living in a Sheltered Workshop and Hostel in Tuen Mun (「屯門區庇護工場」).

4.  Ah Man used to live with his adoptive parents in a flat at Sha Kok Estate Sand Martin House (「沙角邨沙燕樓」) in Shatin.  But when Ah Man met Jessica while she was working in Grand Tower Hotel (「雅蘭酒店」) as a clerk in 1997, his adoptive parents had already passed away.  At that time, Ah Man was working as a bartender in a pub near Tai Wai which was called “Ali Baba” (「亞里吧吧」).  They got married in 1998 and thereafter occupied the flat at Sand Martin House as their matrimonial home.

5.  Approximately 1 year after the marriage, Ah Man worked as a Waiter in Double Star Café.  According to Jessica, their relationship had been very smooth and cordial and they seldom had any quarrel.  Jessica found out that she was pregnant in around Summer 2000.

6.  It would appear that things were finally getting better for Ah Man.  No one knew at that time that great misfortune would befall on his family.  One year after Ah Man started working for Double Star Café, he left the Café for a trading company.  His responsibility in that trading company was to bring goods, comprised mainly healthy food, into the Mainland.  According to Jessica, Ah Man’s friend, one Mr Luk was arrested in China on 30 October 2000 while he was carrying some samples of healthy food into the Mainland.  The sample was found to contain stimulants (「興奮劑」).  On 1 December 2000, Ah Man, as a responsible man, went to the Mainland alone in the hope of explaining to the authorities about Mr Luk’s innocence.  However, both Mr Luk and Ah Man were arrested, charged and sentenced to 3 years’ imprisonment together with a fine of RMB10,000.

7.  When Jessica gave birth to their only son on 11 April 2001, her husband was still being incarcerated in the Mainland.  Before giving birth she had already left the Sand Martin House and moved to live with her Aunt and her grandma.  According to her, that was necessary as she needed someone to take care of her before and after her pregnancy.  After the birth of her son, her Aunt’s flat became too crowded.  She then left her son to be taken care of by her aunt (who is a nurse) while she moved to live with her aunt’s 2 daughters (i.e. : her cousins, one of whom is the 2^nd plaintiff herein) in North Point.

8.  During the incarceration of Ah Man, not only were the couple forced to live apart, they were also denied the opportunity of seeing each other.  According to Jessica, Ah Man was not allowed to have any visitor in his first 2 years of incarceration.  However, Jessica could not spare the time to visit him in the third year of incarceration as she was struggling to make ends met during these 3 years.  The couple could only exchange letters across the border.

9.  Ah Man was released by the Chinese authorities on or about 1 December 2003 and he returned to Hong Kong shortly after.  Ah Man wished to reunite the family and live together at Sand Martin House.  However, Jessica said she had to make certain re-adjustments to each other after their separation for 3 years. 

10.  Though the couple was not living together, they maintained regular contacts.  She went to New Voice Pub (“the Pub”), where Ah Man had been working after returning to Hong Kong, to visit her husband.  They also had regular phone calls.  The couple had regularly come out together after Ah Man’s return to Hong Kong, with or without their son.  Ah Man would also take their son out whenever he was not working (more than once a week), and sometimes Jessica would also go together. 

11.  According to Jessica, neither she nor Ah Man was seeing someone else and they were only having an adjustment period.  Both Jessica and her aunt Ms Lam (「林雪芬」) testified that both of them wanted to reunite at some point in the future.

12.  We now know that the “some point in the future” did not come soon enough, for Ah Man was brutally murdered on 10 July 2005.  Whatever plans Ah Man (and Jessica) might have, they had been forcibly and regrettably brought to an end by the callous murder.

The fatal accident

13.  Neither the plaintiffs nor the defendant had the chance to see how the accident occurred.  Therefore this Court only heard the viva voce evidence of one Ms Wong Wai Hung also known as Elle, who was a waitress working together with Ah Man at the New Voice Bar.  She in fact was subpoenaed by the plaintiffs.  But the plaintiffs decided not to call her.  They just relied on her testimony in the District Court Employee’s Compensation Case (DCEC842/2007) and her statements to the police.  The defence then called her as his witness to give evidence as to what happened on the date of 10 July 2005.  She and Ah Man were the only two full-time workers of the Pub.  Ah Man was the most experienced worker in the Pub.  There were some other part-time workers, mostly female who worked for the Pub in those times when there were more customers.  Elle was working with Ah Man on 9 July 2005 till around 4 a.m. the next day. 

The undisputed fact

14.  The undisputed evidence is that at around 9 p.m., 9 July 2005, a group of customers entered the Pub.  The group originally consisted of about 10 members, some of them were friends of a part-time waitress (Ms Chan YinChu, also known as “Ah Sai”).  At around 2 a.m., 10 July 2005, only 5 members (3 males and 2 females) of the group remained.  It was the practice of the Pub to inform the customers that the Pub was about to close and remind them to place their order when the last order was announced.  According to Elle, she had already informed the 5 customers about the deadline for last order some time after 3 a.m.  They then paid for the drinks they ordered sometime after 3 a.m.

15.  However, after the “Last Order” announcement was made and the bill was paid, one man in the group (known as “ Koo Chai”) tried to order another round of beer when it was nearly 4 a.m.  As Elle had already made the “Last Order” announcement and they had already paid their bill, she declined to take order for any beer from Koo Chai and told him that the Pub would be closing very soon.

16.  Koo Chai was dissatisfied with Elle’s response so he started to swear at her.  Elle remained silent at first, but later responded by swearing back at Koo Chai.  When the two were arguing, Ah Man did not intervene at first, but reminded Elle not to quarrel with Koo Chai when Ah Man was on his way to the toilet.  Some moments later, Koo Chai suddenly grabbed an empty bottle and acted as if he was about to attack Elle with the bottle.  Ah Man happened to be back and he therefore immediately stopped him by taking the empty bottle away from Koo Chai.  He asked both sides to calm down.  This incident was conveniently referred to as the “Bottle Incident” during the trial.  Another man of the group, who is not Koo Chai, left the Pub “during the quarrel” (Elle in her statement said :「在本人與該名男子[Koo Chai]爭執期間，該5 名顧客中的另一名男子離開了該酒吧」).

17.  The defendant  Darwin was the sole proprietor of the Pub “New Voice Pub” (「水記吧」).  The defendant had left the Pub at about 3 a.m. to have some food nearby with his friends.  Therefore the defendant was not inside the pub when the quarrel and the Bottle Incident occurred.  However the defendant called the Pub shortly after the quarrel incident and the Bottle Incident occurred.  Elle answered the call and told Darwin to the effect that someone (i.e. customers) were making trouble.  There and then Ah Man took over the phone and said that it was alright now and everything had been settled (「冇事喇，搞掂左喇，平息左喇」)[Trial Recording at 15:13:00 on 22 April 2010].  Elle testified that she could not remember whether she mentioned anything about the Bottle Incident to Darwin.  Darwin testified that he did not hear anything about the Bottle Incident during the telephone conversation with Elle and Ah Man.  He only learnt of it in the criminal proceedings of the two attackers [10:32:06 on 23 April 2010].  Probably the “Bottle Incident” was not mentioned to Darwin over the phone.

18.  Shortly after 4 a.m., 10 July 2005, the 4 remaining customers, together with Ah Man, Elle, and Ah Sai were outside the Pub as the Pub was being shut down.  At that time, Darwin had also returned to the Pub.  He apologised to the 4 remaining customers in the hope of securing their return.  He also reprimanded Elle in the presence of the 4 remaining customers.  Koo Chai apologised to Elle afterwards, and Elle apologised Koo Chai in return. 

19.  Both sides agreed that there were some sort of “apparent calmness” outside the Pub.  Understandably counsel from both sides differed as to the atmosphere at that time, particularly as to whether the apologies by Koo Chai and Elle were genuine.  Elle testified that she was genuinely apologising to Koo Chai but she doubted whether Koo Chai was genuinely apologising to her.

20.  When the 4 remaining customers were leaving, the defendant was about to leave in a taxi.  The issue whether the defendant offered to give Elle a free ride in the taxi was hotly disputed in the trial.  What was sure is that the defendant offered to give a free ride to Ah Man but he declined.  Ah Man then walked with Elle to a net café as she had to meet her boyfriend there.  It is located at about 5 minutes walk away at Mei Lun House, Tai Wai (「沙田大圍道46-48號美綸樓」).

21.  When they had reached the net café, Elle walked up the staircase while Ah Man remained on the street.  As Elle was walking up the stairs, 2 men from the 5 customers appeared and each was holding a long-bladed knife.  They were Koo Chai and the one who had left the group during the quarrel between Elle and Koo Chai.  Ah Man died as a result of the attack by the 2 assailants shortly before 6 a.m. that day. 

22.  The two attackers were subsequently arrested and convicted of murder.  Thereafter they unsuccessfully appealed to the Court of Appeal (CACC205/2006).  For the sake of completeness I will reproduce part of the judgment of Stuart-Moore V-P in the Court of Appeal herein below.  The quotation of the judgment in the criminal proceedings does not mean that I have relied on any part of it.  I have based my judgment solely on the evidence that was put forward by the plaintiffs and the defendant in this case, and I have refrained from referring to the evidence given by the two attackers, the defendant, and Elle in the criminal proceedings.

23.  It should be noted that Koo Chai is Koo Ka Chun, who quarreled with Elle, and he is the 1^st defendant in the criminal proceedings while the man who left the Pub “during the quarrel” was Law Yin Ting (“Ah Ting”), the 2^nd defendant in the criminal proceedings.  The defendant of this case, Darwin Wong is PW1 while Elle is PW2 in the criminal proceedings.

24.  Ah Ting said that during the quarrel, he was asked by Koo Chai to fetch “the stuff”.  Ah Ting understood that “the stuff” means “knives” and he fetched two long-bladed knives from his home and put them in a plastic bag.  Ah Ting returned to the Pub with the knives afterwards.   The judgment of Stuart-Moore V-P below shows what Ah Ting told the police after his arrest :

“… When we w-went out, Ah Koo told me to fetch the stuff.

…

… Then Ah - - er, I said to Ah Koo, ‘(You) don’t mean it, do (You)?’ Ah Koo said, ‘Well, will you do it or not?’ Then, I, I said to him, I said, er, ‘Ai.’ I said ‘Ai, Ai’. … I said ‘Ai’ and then I sneaked out. …

…

I sneaked out and took a taxi to Jat Min (Estate), er, to fetch the stuff.

…

[Police] Well, you said ‘to fetch the stuff’. What stuff were you going to fetch?

[D2] Knives.

…

[Police] Uh-huh. Well, why did he tell you to fetch the stuff? Did he explain it clearly to you?

[D2] No, he said that, er, - - can I say coarse language, Sir?

[Police] Yes.

[D2] That girl, er, said - - er, he said that girl shit. [Police: Yes] He said that girl shit, er, er, and he said she was cocky, so he told me to fetch the stuff.

[Police] Uh-huh. Well, what was the purpose of fetching the stuff, do you know?

[D2] Er, to hack her.

[Police] Do you mean the purpose was to hack that girl?

[D2]  That’s right. That’s right. (Appeal bundle pp. 465-469)”

25.  I would like to emphasis here again that what had happened to Ah Koo and Ah Ting during the time of the quarrel between Elle and Ah Koo, leading up to the attack on Ah Man was purely for interested readers to understand the whole incident.  This should not be taken as anything relevant to the reasonable foreseeability of any risk of attack on the part of Elle, Ah Man, and/or Darwin.  All these were not known and could not have been known to Elle, Ah Man and/or Darwin.

The duty of the deceased, Ah Man, as found by the District Court

26.  In the District Court, the issue was whether Ah Man’s fatal accident happened in the course of his employment for the purpose of the Employees’ Compensation Ordinance (Cap 282).  That issue was resolved in the plaintiffs’ favour and it is not being disputed and cannot be disputed in this Court due to the doctrine of res judicata (see the case of Wong Wang Sum v Lee Kam Engineering Co. (a firm) & anor [1996] 3 HKC 627). 

27.  Mr Kumar Ramanathan, SC, counsel for the defendant, whilst accepting that the issue decided in the District Court is binding on the defendant, rightly submitted that the issue in the District Court is different from that in this Court.  Mr Ashok Shakhrani, counsel for the plaintiff also accepted this submission.  I have proceeded on the basis that the judgment and evidence given in the District Court proceedings are instructive to the understanding of the nature of the deceased’s duty only and they are not conclusive evidence as to whether the defendant owed a duty of care to Ah Man and/or was negligent in the discharge of his duty.

28.  Both Elle and the defendant testified to the effect that Ah Man was overseeing the Pub when the defendant, who was the owner of the Pub, was not there.  Elle testified that Ah Man would escort the female workers of the Pub when they left work as some customers would stay outside the Pub and stalk the female workers.

29.  The defendant denied that he had ever asked Ah Man to escort the female workers, but the defendant signed on Form 2 of the Labour Department, which describes the work Ah Man was performing when the incident occurred.  Part D therein reads :

「請叙述意外如何發生，並說明僱員當時正在進行的工作MAN CHUN WAH於2005年7月10日上午4:00關鋪後 ，負責送同事回家途中，於上午4:05被酒吧的客人襲擊導致死亡。」

Translation :

“Please describe how the accident happened, and state what the employee was doing at that time.

On 10 July 2005 at 4:00 a.m. after closing the Pub, MAN CHUNG WAH, as he was escorting his colleague as part of his responsibility, was killed due to an attack by the customers of the pub at 4:05 a.m.”

30.  In the District Court, the defendant denied that Ah Man was under a duty to escort Elle as she was going home.  He denied that it was the true description Ah Man’s job responsibilities.  He said he did not understand that these few words were so important and that he might have misunderstood the wordings.  He also said that his friend wrote it and that he only signed it. 

31.  However Judge Leung in the District Court did not accept the defendant’s evidence :

“41. The contents of Form 2 are not conclusive. Nothing prevents the court in an appropriate case from finding errors or refusing to place any weight on the contents of the form. But in explaining how he came to have the form prepared and to confirm it by mistake, Wong’s [i.e.: Darwin’s] evidence did not impress me. It was he who provided the information and he confirmed its accuracy. He has personal knowledge about what happened that day as he was present when the pub was closed. He could not have made mistake of the kind alleged. I do not accept his explanation.”

32.  Accordingly, Judge Leung found that Ah Man was in the course of his employment duty when he was escorting Elle to the net café.

The Sole Factual Issue : Offer to ride in a taxi

33.  This is a highly disputed issue during the trial and both sides could not find any common ground in this issue.  In fact, it seems that the defendant himself could not come to a firm version on this matter.  In the examination-in-chief of the Defendant, it was said that he offered a lift to both Ah Man and Elle [10:24:09 on 23 April 2010].  I asked him how he offered a lift to them, and he replied :“Let me give a lift to both of you” (「我兜埋你地走喇好冇喇咁樣」).  He also testified that Ah Man declined the offer because he wanted to escort Elle to the net café where Elle’s boyfriend was.

34.  The defendant then gave a different account in the cross-examination.  When the defendant was referred to the transcript in the District Court, where he said he did not offer to take Elle to wherever she wanted to go, the defendant said he could not remember saying such thing in the District Court.  The following transcript in the District Court proceedings was referred to the defendant at the trial before me :

“Q. And so when there has been an ugly situation as there was that night, where bottles were lifted and there’s a lot of abusive language being used, as a responsible employer, would you have been interested to ensure that Elle was not harmed as she left the pub after its closure?

A. Yes.

Q. Did you offer to take her to wherever she needed to go?

A. I did not offer to go – to take her to wherever she wanted to go.

Q. But the need was obvious, right? The need was obvious.

A.      Yes.”

35.  At trial before me, upon being questioned by Mr Sakhrani, the defendant admitted that what he said in the District Court is true and correct.

36.  The following is a series of questions that was subsequently put to the defendant by Mr Sakhrani in this trial, in Chinese with the English translation made by an interpreter as follows :

“Q: The truth is that you did not offer Elle a ride, do you agree?

Interpreter (‘I’): 個事實就係話呢你並冇向阿Elle提出載佢一程，你並冇向阿Elle提出，同唔同意呢？

Defendant:我係面向佢地一齊講架嘛

(I was facing them as I said that)

Q: Do you know that when Elle testified in this case, she said you did not offer her a ride, but that you were only offering to Ah Man?

I: 你又知唔知道阿Elle在本案作供的時候講你並冇提出載佢一程，你只係阿文仔提出話載佢一程遮？

D: 我唔知
(I do not know.)

Court Q: Now that you have heard what Elle testified, do you agree with her testimony that you did not offer her a ride?

I: 你依家聽到律師點講你同唔同意阿Elle所講你並冇提出話載阿Elle一程，你同唔同意佢咁講？

D: 同意 [11:07:40 on 23 April 2010]
(I agree.)”

37.  In the re-examination, the following questions were asked :

“Q:    Was there any special reasons that caused you to only offer a ride to Elle but not to Ah Man?

Interpreter (‘I’):  當晚既情況你有冇D咩特別原因令你只係提出載文仔一程而唔載阿Elle? [11:21:05]

Defendant:  冇

          (No)

Q:      Regardless of what Elle said, when you were making this offer who were you offering to?

I:       唔好理阿Elle點講，當時你作出依個建議你係向邊一個提出？

D:      我係望住兩個一齊講

          (I was looking at both of them as I spoke.)

Q:      But when you were making this suggestion, in your mind who were you offering to?

I:       但係你提出依個建議的時候你當時腦海係諗住向邊個提出架

D:      向阿文仔囉

          (To Ah Man)

Q:      Only to Ah Man?

I:       淨係文仔遮？

D:      其實我係向住兩個一齊講我冇咩特別意思既

          (I was speaking to both of them I did not have any special meaning.)

Q:      When you were making this suggestion were you only thinking of making this offer to Ah Man?

I:       當時你提出依個建議既時候係咪淨係諗住向文仔提出既遮？

D:      其實我係面向兩個講遮係冇咩特別意思向住獨立一個講囉

          (Actually I was facing both of them as I spoke, in other words, there was no special intention of making this offer to just one of them.)

Q:      Do you mean that your suggestions were thrown at both of them?

I:       意思即係話你的建議係拋出泥俾兩個？

D:      係

          (Yes)”

38.  Elle testified in the District Court that the defendant did not offer her a ride in his taxi.  She was not cross-examined about this point during the trial.

Finding of facts

39.  I find as a fact that Ah Man was expected by his employer to make sure that Elle would leave work safely.  I base my conclusion both on the evidence of Elle and on Form 2.  On this issue Judge Leung did not accept the evidence of the defendant in the District Court. 

40.  For the main factual issue as to whether the defendant had offered a ride also to Elle, I am unable to accept the testimony of the defendant as far as his version that he had made the offer to both of them is concerned.  He had contradicted himself in his testimony.  Most importantly, while he testified in the examination in chief that he was offering to both by referring to them (「你地」, i.e. : both Ah Man and Elle) in his verbal offer, he later accepted that in his mind he was only offering to Ah Man.  The two positions cannot be reconciled.  I prefer the testimony of Elle both in the District Court and in this trial in which she said the defendant had only offered a ride in the taxi to Ah Man but not her.  In fact, the defendant had also agreed both in the District Court and in trial before me that it was in fact the case.  I find as a fact that the defendant had not offered to Elle a ride in his taxi.  He had only offered a ride to Ah Man.  But Ah Man felt that he was duty-bound to escort Elle especially after the quarrel and bottle incident.  He therefore refused the offer.  The defendant also knew (or at least should have known that) it was Ah Man’s duty to escort female co-workers to a safe place after work.

Legal consideration

41.  Through the industry of counsel on both sides, many cases were cited to me.  I shall start with the approach in Morris v West Hartlepool Steam Navigation Co. Ltd [1956] AC 552.  Lord Reid said :

“It is the duty of an employer, in considering whether some precaution should be taken against a foreseeable risk, to weigh, on the one hand, the magnitude of the risk, the likelihood of an accident happening and the possible seriousness of the consequences if an accident does happen, and, on the other hand, the difficult and expense and any other disadvantage of taking the precaution.”

42.  The case Smith & others v Littlewoods Organisation Ltd & Others [1987] 1 AC 41, cited by the defence, is also instructive.  In that case, a fire broke out in the defendant’s premise which spread to the plaintiffs’ premise.  The fire was started in the defendant’s premise by trespassers (one witness recalled that those were three teenagers) for whom the defendant was not responsible.  It was accepted that the defendant did not know of the fact that there were trespassers to its premise and that nothing inflammable was stored in the defendant’s premise.  Lord Goff of Chieveley said, at page 274 :

“But liability should only be imposed under this principle in cases where the defender has negligently caused or permitted the creation of a source of danger on his land, and where it is foreseeable that third parties may trespass on his land and spark it off, thereby damaging the pursuer of his property…

There is another basis upon which a defender may be held liable for damage to neighbouring property caused by a fire started on his (the defender’s) property by the deliberate wrongdoing of a third party.  This arises where he has knowledge or means of knowledge that a third party has created or is creating a risk of fire, or indeed has started a fire, on his premises, and then fails to take such steps as are reasonably open to him…to prevent any such fire from damaging neighbouring property.

… In the second case, Thomas Graham & Co. Ltd v Church of Scotland General Trustees, 1982 S.L.T. (Sh.Ct.) 26 Sheriff Macvicar Q.C. held that the defenders, who were occupiers of a disused church, were liable to the pursuers whose neighbouring property suffered damage by reason of a fire started in the church by unknown vandals.  He relied (inter alia) on the facts that the church was situated in an area of Glasgow which was subject to vandalism on a large scale; that, to the knowledge of the defenders, on a number of previous occasions vandals had entered the church and caused damage there; that the vandals had also lit small fires in the church, and that a responsible inspector had expressed the opinion that the building was a serious fire hazard; that there was no evidence that the defenders, or anyone on their behalf, had applied their minds to the question of fire hazard, and that there was ample evidence to support that the view that, if they had, and had taken advice on the matter, they would have been told that the building was a serious fire risk; and that, for two months before the fire, the building was not lockfast.  I incline to the opinion that this case can best be classified under the second of the two heads of liability to which I have referred on the basis that the defenders had the means of knowledge that a risk of fire had been created or was being created by third parties on their land, and yet they did nothing to prevent such risk of fire from damaging neighbouring property.”

43.  I will return to the Smith case in the latter part of my judgment, but it should be noted that knowledge of the risks seemed to form the basis of Lord Goff’s decision.

1^st Legal Issue : Duty of care

44.  The first step in analysing whether the defendant indeed owed Ah Man a duty of care starts with the consideration of whether it was reasonably foreseeable to the defendantthat Elle, and for the fact that Ah Man would be accompanying Elle and therefore Ah Man himself also, would be attacked.  It matters not that the extent of the damage was not foreseeable if the damage is one of the type that is reasonably foreseeable (The Wagon Mound (No. 2) [1967] 1 AC 617).

45.  Both Elle and the defendant testified that after the quarrel, they foresaw that an attack might follow.  In fact, in the District Court the defendant said that the need to make sure that Elle would leave work safely was ‘obvious’. 

46.  Mr Sakhrani, counsel for the plaintiffs, submitted that the fact that they foresaw the possibility of an attack only adds weight to the argument that it was reasonably foreseeable that an attack might follow.  Mr Ramanathan, submitted that it adds nothing to the issue of whether it was reasonably foreseeable to a reasonable person.

47.  It should be noted that the defendant himself said that he foresaw that an attack might follow.  It is one case that the defendant does not know about the risk, but quite another case when the defendant actually knows the risk.  It is contrary to logic to use the knowledge of the defendant to assess whether a reasonable person, not possessing the same knowledge, would owe a duty of care.  Any meaningful assessment of the duty owed by the defendant towards Ah Man must be assessed in the light of what a reasonable person, who knew of the risk of an attack, would be required by law to do.

48.  In my judgment, the defendant’s knowledge of the risk that an attack might follow constitute what Lord Goff described in Smith v Littlewoods as the “second of the two heads of liability”.  A defendant who knows that a risk might follow is to be placed on a different footing than one who does not know such a risk.  The situation herein is similar to that in the case of Thomas Graham & Co. Ltd v Church of Scotland General Trustees (cited in the Smith case), where the defendant had been aware of the fact that the church on previous occasions, vandals had entered the church and caused fire than that in Smith v Littlewoods,where the defendant did not know of the fact that there were trespassers to its premises and that nothing inflammable was stored in the defendant’s premises. 

49.  In my judgment, the defendant clearly owed a duty to Ah Man in making sure that he would be safe while discharging his duty of protecting Elle as she was leaving with Ah Man.  The defendant knew that an attack might follow after the quarrel between Elle and the group of customers.  He also knew that Ah Man would escort Elle, and, as decided in the District Court, that was in the course of his employment. 

50.  Following Morris v West Hartlepool Steam Navigation Co. Ltd, the ease of taking the precaution against the risk is one of the considerations when assessing whether an employer owes a duty to his employees.  In the instant case, the precaution could be discharged easily by offering to Elle a ride in the taxi, which would be a safer alternative to walking to the net café with just the two of them at 4 a.m.  It would not cost the defendant a huge sum to take Ah Man and Elle to a net café that was situated in 5-minute walking distance.  Even if he did not know how far the café was, he should have at least asked Elle about it in order for him to assess whether the precaution was economically justifiable.

51.  Mr Ramanathan submitted that as the defendant did not learn about the Bottle Incident in the Telephone Conversation and only learnt of it in the criminal proceedings against the attackers, and the fact everything appeared to be calm and settled, it was not reasonably foreseeable to the defendant that an attack would follow.  This argument is flawed for two reasons.  The first reason is that the defendant plainly admitted in his testimony [11:13:10 on 23 Apr 2010] that the need to take Elle into taxi was obvious, so there was no need to establish whether he could have reasonably foreseen the attack, i.e. : he had plainly foreseen such a risk.  The second reason is that, as Mr Sakhrani submitted, the defendant’s lack of knowledge of the extent of the quarrel was caused by the negligence of the defendant himself.  The defendant did not ask Elle or Ah Man about the extent of the quarrel or whether any force had been used.  He had the chance to ask about the quarrel both in the Telephone Conversation and in front of his Pub after the customers had left.  He did not ask them or otherwise, but choose to turn a blind eye to the quarrel.  While failure to inquire does not always give rise to liability, a defendant is not allowed to take advantage of his own ignorance by saying that he did not know of the circumstances which he ought to inquire into.

52.  Elle’s admission that she herself had also foreseen the risk of being attacked does not add any weight to the arguments of either side, but nevertheless it is useful to inquire into the basis of her fear.  She testified that she was afraid after the quarrel because it was not like the dispute she had faced before.  She testified that she had quarrelled with customers before (and the defendant testified that he also knew about that), but those quarrels ended peacefully and quickly.  The quarrel on 10 July 2005 was different in the sense that the customer was all steamed up and was about to turn violent (she said :「面紅耳熱想郁手」).  It was understandable, and reasonable that Elle perceived that an attack might happen, although she testified that she did not foresee that it would be a fatal attack with long-bladed knives.  If the defendant had inquired about the situation he might well share the same fear with Elle and took a different course of action.  The fact that the attackers carried out a wholly disproportionate and indiscriminating attack on the wrong person (Elle admitted that they were really going after her) does not make the attack unforeseeable.  Even an ordinary man who knows little about drunken persons could foresee that when a person is drunk and had a heated debate, he may come back for revenge.  The ordinary man, foreseeing that such an attack is possible, will put in reasonable safeguards with costs that are proportionate to the risk they protected against. 

53.  The defendant was not just an ordinary man.  He owned a pub and had seen many drunken people and their behaviours, which could be anything but ordinary.  Therefore no doubt he knew there was a risk that the customers might return after the quarrel, even though at that moment everything seemed to be calm and settled.  Indeed he had admitted under cross-examination to the same effect that it was likely the customers would come back for revenge, even though things appeared to be calm and settled.  The defendant admitted and therefore actually knew that running a pub is different from other business in that people under the influence of alcohol would not have their usual inhibition and restraint.  The bill paid by this group of customers revealed that they have consumed several dozens of beer. 

2^nd Legal Issue : Breach of duty of care

54.  The defendant has clearly breached his duty of ensuring that Ah Man would be safe in discharging his duty in protecting Elle.  His breach of duty came from his failure to offer both of them a ride in the taxi.  It could not be sensibly said that as the defendant had offered to give Ah Man a ride in the taxi and that was sufficient to discharge the defendant’s duty.  The defendant obviously did not say : “Get in and leave Elle to whatever mayhem that awaits her.”  Ah Man declined to get into the taxi both because he personally wanted to and was expected to make sure that Elle was safe (out of his good characters, which Elle and the defendant spoke very highly of).  The defendant’s offer to Ah Man could not be construed as having an implicit waiver of Ah Man’s duty in protecting Elle.  Such an important duty cannot be destroyed by a casual choice of words and Ah Man had reason to worry that if he had left behind Elle and she was injured by the vengeful customers, he would be blamed by his employer.  In fact he was proven to be right.  This duty remained firmly in the mind of Ah Man and caused him to decline the offer to ride in the taxi.

55.  It should be noted I am not laying down any general principles in this case.  An employer is not always liable for an attack to his employee that arises out of a dispute in the employment.  The Court will look at all the relevant circumstances with the guidance of legal principles as decided in precedents in determining whether an employer was negligent.  No attempt should be made to distil this case into a simple statement of law.  The facts of any case are just as important as the legal principles behind, and this case is no different.

Conclusion on liability

56.  The defendant Darwin was running a pub selling alcohol.  He knew all along people under the influence of alcohol would behave differently.  In particular, they would have less inhibition and be more violent than usual.  He also knew his employee Elle had bad-temper and was at times quarrelsome.  She had quarrelled with customers before.

57.  In that evening and early morning on 10 July 2005, he also knew there were certain disturbances at his pubs just after he had left.  When he phoned back, Elle told him that some customers were stirring some troubles.  Ah Man told him the matter had settled down. 

58.  Strangely enough, he did not enquire what the matter was there and then and also after those 4 customers had left when he was with Elle and Ah Man alone when he had the chance to do so.  Instead, before that, he apologised to those customers, trying to patronise and pacify them hoping they would come back again without knowing whether those were the customers he would like to see again.  When he did not know the true facts of the incident of ordering beer after the “last order call” the heated quarrel in foul language and the “bottle incident”, he just scolded Elle in front of those customers.  Thus he ought to have known about the risk by inquiring about the incident.

59.  Further, he just offered a lift in a taxi to Ah Man but not Elle.  Ah Man had to escort Elle to meet her boyfriend, which was one of the usual employment duties of Ah Man.

60.  Darwin also admitted that when things, on the fact of it, might have been settled, people might still bear grudges.  There might be a risk of an attack afterwards.

61.  He also thought that the need to take also Elle into the taxi was obvious.  Thus, when a defendant knows a risk, he is required to take a different course of action.  The principles in the case of the Church of Scotland, supra, applied.

62.  The refusal or failure to avert the risk with a relatively small amount of money (a little bit of extra taxi fare) was unjustified.

63.  In the end I find the plaintiffs have proven a case of negligence and breach of common law duty of care as an employer.  Those allegations of the plaintiffs under paragraphs (a) to (f), (h), (j), (l) and (m) of the Particulars of Negligence have been proven. 

Quantum of damages

64.  The claim of the plaintiffs and defence thereto are as follows :

Items\Parties’ submission	Plaintiffs[1]	Defendant
(i)    Bereavement	$150,000	$(Agreed)
(ii)   Interest at 2% since accident on item (i)	$14,375	$(Agreed)
(iii)  Special damages	$65,439	$(Agreed)
(iv)  Loss of pre-trial dependency	$(3000 x 12) + (2000 x 12) + (3000 x 47) + (4000 x 47) = $389,000	$116,000+$58,000 =$174,000
(v)   Interest at 4% since accident on items (iii) and (iv)	$85,759	$47,089
(vi)  Loss of post-trial dependency	(3000 x 12 x 11) + (4000 x 12 x 11) + (6000 x 12 x 4) = $1,212,000	$(2,000 x 12 x 10) (for son) + $(1,000 x 12 x 11) = $372,000
(vii)Loss of accumulation of wealth	$300,000	Pre-trial 10% of his accumulated wealth (under a 59 months period) : $12,000 x 10% x 59 = 70,800 Post-trial : $12,000 x 10% x 12 x 10 = $144,000 Total = $214,800
Total	$2,209,573	$1,037,703
Less : ECC	($1,249,094)	($1,249,094)
Judgment award	$960,479	$0[2]

Quantum consideration

65.  The first 3 items (i) to (iii) are agreed by the defence.

66.  The amount of Ah Man’s monthly income before the accident was admitted in the Employees Compensation trial at $12,000 per month.  The defendant cannot re-litigate this issue (see the case of Wong Wang Sum, supra)

67.  The evidence from the 1^st plaintiff Jessica and the aunt Madam Lam both testified that Ah Man used to give Madam Lam $3,000 per month on average for the son and $2,000 per month on average to Jessica for her expenses.  According to them, these amounts were mostly paid in cash.  The defence submitted that the bank accounts of Ah Man cannot support such payments.  However, as payments were mostly made in cash, these accounts are not conclusive.

68.  I also find both Jessica and Madam Lam are honest and truthful witnesses.  They have not exaggerated any issue.  These payments were reasonable sums and they were probably made by Ah Man, who has been described by witnesses as “a caring and responsible father, living a frugal life and did not spend much himself”.

69.  From the evidence, I also accept that Jessica and Ah Man would probably move back to live together at the Sands Martin flat in 12 months time if not because of the accident.  The relationship between Ah Man and Jessica had been working quite well since the end of December 2003 when they were seeing each other again.

70.  Consequently, it would be cheaper to maintain one flat than two.  Ah Man would have paid $2,000 to Jessica, $899 for the rental and $1,000 for the utilities.  This would be around $4,000 for Jessica’s dependency and the same amount of $3,000 for dependency for the son

71.  Thus, the amount of pre-trial loss of dependency from 10/7/05 to 9/6/10 (12+47 months) would be : [$(3,000 x 12) + (2,000 x 12) + (3,000 x 47) + (4,000 x 47)] = $389,000.  Interest at 4% since accident on the Pre-trial loss of dependency and Special damages would be : $(389,000 + $65,439) x 59/12 x 4% = $89,373.

72.  For the post-trial loss of dependency for the son, the defence agreed the multiplier of 11, as he is almost 9 years of age now and he probably will remain dependent for another 12 years.  For the wife, who is presently 33 years of age, the multiplier for the wife’s dependency is 15(see Pun Lai Ling & Anors v Hong Kong Master International Ltd [2006] HKLRD 67).

73.  I also agree with the plaintiffs’ submission that after the son has completed his education, any potential savings on the dependency of the son will be spent on the wife.  The multiplicand will be adjusted to $6,000 from $4,000 for the wife on average.

74.  Thus, the claim for post-trial loss of earning is : $(3,000 x 12 x 11) + (4,000 x 12 x 11) + (6,000 x 12 x 4) = $1,212,000.

Loss of accumulation of wealth

75.  The plaintiffs claimed $300,000.  The defence submitted that the sum is about $213,000, being 10% of the aggregated notional monthly income as savings by applying a multiplier of 10 for Ah Man at the age of 37.

76.  I accept the plaintiffs’ submission that Ah Man had been leading a frugal and responsible life style and he would have earned more in the course of time and/or having regard to his responsible life style and possible career improvement prospects.  The sum of $300,000 as submitted by the plaintiffs, is not excessive bearing in mind that Ah Man would not have been the sole bread winner in the family and Jessica’s earnings would probably have contributed towards both their MPF funds and their savings would have been used during their retirements.  In any event the defendant’s figure is not far off from $300,000.

Conclusion on quantum

Items	Judgment Award
(i)   Bereavement	$150,000
(ii)   Interest at 2% since accident for 59 months	$14,750
(iii)   Special damages	$65,439
(iv)   Loss of pre-trial dependency	$(3,000 x 12) + (2,000 x 12) + (3,000 x 47) + (4,000 x 47) = $389,000
(v)   Interest at 4% since accident for a period of 59 months on items (iii) and (iv)	$89,373
(vi)   Loss of post-trial dependency	$(3,000 x 12 x 11) + (4,000 x 12 x 11) + (6,000 x 12 x 4) = $1,212,000.
(vii)   Loss of accumulation of wealth	$300,000
Total	$2,220,562
Less : ECC	($1,249,094)
Judgment award	$971,468

77.  There shall be judgment for the plaintiffs in the sum of $971,468 against the defendant.

78.  The plaintiffs shall have their costs of the action and their own costs shall be taxed in accordance with the Legal Aid Regulation.