HA KWOK MING v. BOXTON LTD

CACV 106/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 106 OF 2009

(ON APPEAL FROM HCPI NO. 576 OF 2007)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  I agree with the reasons for judgment of Le Pichon JA.

Hon Le Pichon JA:

2.  This was an appeal by the defendant, the employer of the plaintiff, from an order of Suffiad J of 2 April 2009 whereby the defendant was ordered to pay damages for personal injuries sustained by the plaintiff when he was attacked by a co-worker at the place of employment. At the conclusion of the hearing, the appeal was dismissed. My reasons appear below.

Background

3.  The plaintiff was employed as a chef in a Japanese restaurant operated by the defendant. He started working there on 21 March 2005. Altogether, the defendant had four kitchen staff comprising the head chef (“Lee”), the deputy head chef (“Wong”), the plaintiff and Hung Kwok Keung (“Hung”), the kitchen apprentice. It is common ground that Lee and Wong were the plaintiff’s superiors.

4.  Wong and Hung started working for the defendant in November 2004, a few months before the plaintiff. The incident occurred about six weeks after the commencement of the plaintiff’s employment.

5.  In brief, on 3 May 2005, Hung attacked the plaintiff with a kitchen knife. He was charged with unlawful wounding to which he pleaded guilty. The plaintiff suffered a deep skin laceration on his left forearm, lacerations to his scalp and forehead and sustained multiple cuts to his right hand and fingers.

6.  The plaintiff sued the defendant in negligence and/or breach of implied term of the contract of employment and was awarded damages of just under $900,000.

7.  As to the facts, there is a helpful summary of the judge’s findings in paragraph 74 of his judgment:

“  (1)  during the 1½ months after the plaintiff started working for the defendant in the kitchen of the Restaurant and while the plaintiff was still on probation with the defendant, it would happen several times each day that Hung would approach the plaintiff to talk of his personal affairs during their working hours;

(2)  when these approaches of Hung continued without stopping there came a stage when the plaintiff felt that Hung was disturbing him in his work and would either ignore Hung or tell Hung to return to his work;

(3)  at times Hung became offended or angered at the plaintiff ignoring him or failing to respond which caused Hung to provoke or insult the plaintiff by calling the plaintiff nicknames such as “Piggy Ming”.  Furthermore Hung would write out the plaintiff’s nickname on stickers and post them up all over the kitchen to further annoy, provoke and insult the plaintiff;

(4)  at times, Hung would play practical jokes with the plaintiff by slapping the plaintiff on his back or buttocks or play practical jokes with the waitresses by suddenly block their way while they were carrying food or even scare them from behind; and

(5)  most of the practical jokes played by Hung including his provocation and insults to the plaintiff by such nicknames as “Piggy Ming” during work was known to Lee and Wong who were the immediate superior of Hung as well as the plaintiff, however nothing was done by Lee and/or Wong to stop Hung from such conduct or behaviour;”

Pausing here, I query the characterisation of the behaviour or conduct described in (4) and (5) of paragraph 74 of the judgment as “practical jokes” as that term is normally understood.  Rather, Hung appeared to have been a constant source of irritation and annoyance to the plaintiff; in short, a pest.

This appeal

8.  The issue on this appeal falls within a very narrow compass and arises from the following passage in the judgment:

“101.  This kind of conduct really underlines the gradually widening rift between the two of them and should have sounded warning bells loud and clear to Lee and Wong that if such behaviour on the part of Hung in annoying and pestering the plaintiff were not stopped, that widening rift between them would result in a real risk of quarrels and fights developing as it ultimately did.

102.  In that sense, it must have been reasonably foreseeable to both Lee and Wong that if such conduct and behaviour of Hung was allowed to continue during working hours, that there would be a real risk of physical harm or injury resulting from such behaviour.”

9.  Mr Lam, who appeared for the defendant, accepted that he was challenging a finding of primary fact and had a high hurdle to surmount. The defendant’s case was that, even on the plaintiff’s own evidence, the judge’s finding could not be supported. Mr Lam highlighted five matters from the plaintiff’s evidence which, he submitted, when considered in their totality, would demonstrate that the judge’s finding or conclusion lacked an evidential basis.

10.  The five matters were the following:

(1)  in his witness statement, the plaintiff stated that he had maintained “a normal relationship with [Hung]” as his colleague;

(2)  in his statement to the police, the plaintiff stated that he had no grudges against Hung at the time of the incident;

(3)  in his oral evidence, the plaintiff stated that there had not been any argument or quarrel between him and Hung;

(4)  the fact that prior to the incident, the plaintiff had made no complaint to his employer about Hung’s behaviour; and

(5)  in cross-examination, the plaintiff admitted that the attack was a complete surprise and Hung appeared to be a different person altogether.

11.  As regards the last of the matter mentioned, Mr Lam relied on the following passages in the transcript:

“  Q.  Now, at that point of time you didn’t expect that he would start to attack you.  No indication whatsoever, right?

A.  You are right.

Q.  Now, even according to your own case, even assuming that he had disturbed you in the past, he had never sort of tried to hit you because you refused to play with him.  Nothing similar had ever happened.

A.  Right.

Q.  So you must be very surprised when he started to hit you with his hand.

A.  Right.”

(Tr. p. 16P-S)

“  Q.  Mr Ha, before the lunch adjournment I think we’d reached the point when you and Mr Hung were engaged in a fight and Mr Wong tried to separate the two of you.

A.  Yes.

Q.  Now, after you two were separated, at that point of time you thought that should be the end of the matter, right?

A.  Yes, because both of us stopped for a few seconds.

Q.  So it must be an even greater surprise to you that -- not only that Mr Hung did not stop, he picked up a knife and then tried to attack you with the knife.

A.  Yes.

Q.  It was totally unexpected.  You never imagined that he would do something like that to you.

A.  Right.

Q.  It appears that he changed to a different person.

A.  I’m not sure.

Q.  He was not the same Mr Hung that you knew.

A.  Right.”

  (Tr. p. 17P-18B)

12.  Mr Lam submitted that in the light of all those matters, the judge’s finding at paragraph 101 was unsustainable.

13.  I do not agree. I would preface my reasons with the following observations on some of the matters relied on. As regards the passage cited from the transcript, what the plaintiff thought plainly is not determinative since the test is an objective one. As regards the fact that no complaint had been made to the defendant prior to the incident, the judge had that firmly in mind. That is apparent from paragraph 95 of his judgment where he said this:

“…Quite apart from the plaintiff’s explanation for not making any complaint against Hung which I have no hesitation in accepting, I take the view that the conduct of Hung in annoying, pestering, provoking and insulting the plaintiff in the ways found by me, were matters which took place and occurred in the kitchen during working hours when usually both Lee and Wong were present and must have been known to them to have taken place.  They were not matters not known to them without any complaint by the plaintiff.  In that sense, Lee and Wong were in as good a position to have taken whatever necessary action which would have been reasonable in the circumstances to take without there having to be any complaint, bearing in mind that there was always that duty on the employer to stop such conduct of fellow workers which may, if not stopped, give rise to a real risk of harm or injury to other workers.”

14.  Indeed, it could be said from the following passage of the plaintiff’s evidence that he had drawn Hung’s unacceptable behaviour to the defendant’s attention.

“  Q.  You must have thought that as the superiors of both you and Mr Hung they should have taken some step to stop Mr Hung’s misbehaviour.

A.  Yes.

Q.  And you must be very puzzled, you could not understand how come they could just allow Mr Hung to go on with his misconduct.  Right?

A.  I was puzzled.

Q.  Now, if you feel so helpless, if you were puzzled, do you agree that the most natural thing for you to do would be to raise the matter with Mr Wong and Mr Lee and to ask them directly, “Why didn’t you stop Mr Hung?”  Do you agree?

A.  Every time when this happened, that is when I told Mr Hung to go back to work, I usually speak up with an emphasis tone.  And then I gave them a look.  And I found that they just give a look and did not do anything.”

  (Tr. p. 10A-F)”

In a sense, the plaintiff was making a complaint, albeit implicitly.  Lee and Wong were his superiors, and it is accepted that they represented the defendant.

15.  The finding that the defendant sought to impugn was one that was made by the judge after hearing and evaluating all the evidence adduced at trial, which was the correct approach. The evidence of a witness which is rejected may nonetheless throw some light on the ‘atmosphere’ that prevailed in the kitchen during the period of the plaintiff’s employment. The judge could only derive a ‘feel’ for what was really going on in the kitchen at the relevant time from assessing and evaluating the entire body of evidence adduced at trial. In that regard an appellate court is at a disadvantage and is simply not in as good a position as the trial judge to do so.

16.  It is not Mr Lam’s case that the actual mode of inflicting harm or injury has to be foreseen. So long as the risk itself is foreseeable, that would be sufficient. Nevertheless, Mr Lam questioned whether the judge was right in drawing the line that he did as to the foreseeability of the risk of a fight developing, resulting in harm or injury.

17.  As Mr Lam himself observed, it is “hard to draw the line”. But, in order to succeed on this appeal, Mr Lam has to satisfy this court that the judge was plainly wrong in reaching that conclusion by showing, for example, that he had made a quantum leap in his reasoning given the evidence adduced. While it is possible that a different judge might have come to a different conclusion, that is insufficient and does not demonstrate that the judge was plainly wrong.

18.  For my part, I do not consider that a valid basis for overturning the judge’s finding has been made out.

Hon Stone J:

19.  I agree with the reasons for judgment of Le Pichon JA.