KONG HON HUNG v. Yuen Hing (China) Transportation Ltd.

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 150 OF 1998

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J U D G M E N T

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1. This is an application for compensation under the Employees' Compensation Ordinance. The issue that I am required to decide is whether the applicant, who was the victim of a most unpleasant assault, sustained his injuries arising out of and in the course of his employment with the respondents.

2. As the very many decided cases show, the outcome as to whether an accident arose in the course of employment is not an easy one to predict where the facts of the particular case will frequently fall close to the line marking success and failure for the injured workmen. I will state the facts as I find them. Where there is a dispute on the evidence, I will indicate why I have resolved a particular issue in the way that I have.

3. The incident that gives rise to the application occurred at about lunch time on 31 July 1996. The applicant, who was employed by the respondents to drive container lorries, was driving one of the respondent's tractor units back from lunch in order to return to a container depot to pick up a load for delivery to the respondent's order. In the course of the journey, the tractor unit came into contact with a woman pedestrian who appeared to be in the process of crossing the road. As a result of that contact, she fell to the ground. The applicant stopped and he and his passenger, a fellow employee who was also a driver, alighted to see whether the woman was injured. A crowd of men then appeared from the side of the road and they accused the applicant of bad driving and of having caused serious injury to the pedestrian. They then proceeded to assault him with their fists and with wooden poles, causing him a number of injuries including blows to the head, for which he required hospital treatment, to which I must make further reference presently.

4. The applicant says that this driving and the incident itself arose out of his employment for which he must now be compensated.

5. The respondents say that this journey related to the applicant's private lunch arrangements which took him outside the scope of his employment and so he should receive no compensation. The evidence will need closer examination and analysis by me, but for the purpose of identifying the issue, that brief outline will suffice.

6. It is helpful to start by examining the nature and parameters of the applicant's employment by looking at the material terms of his contract with the respondents. The contract which starts at page 61 of the trial bundle is not the most elegantly drafted document, but for the purposes of this matter its terms and effect are sufficiently clear. The material terms appear to be the following:

"Agreement of Sino-Hong Kong Container Transportation Business run by co-operative parties

Contracting No.:	YHT046A
Contracting Date:	May 1996
Contracting Party A:	Yuen Hing (China) Transportation Limited
Business Registration No.:	19856648-000-05-096-0
Address:	Rooms 208 & 209, 2nd Floor, 9 Yip Cheong Street, On Lok Chuen, Fanling, New Territories, Hong Kong
Contracting Party B:	Kong Hong Hung (Kong Hon Hung)
Date of Birth:	8 July 1960
Address:	Flat 510, Wan Hang House, Wan Tau Tong Estate, Tai Po, New Territories, Hong Kong
Contracting Vehicle:	Hong Kong Vehicle No. EY2873
China Vehicle No.:	Guangdong 02-42534
Origin:	Japan
Model:	Mitsubishi
Manufactured:	1988

This agreement is reached under the principle of equality and mutual benefit. Both parties must execute the following conditions in respect of the Container Transportation Business between China and Hong Kong run by the co-operative parties after signing this agreement. Further, both parties clearly understand the inter-relationship is based on the principle of mutual benefit and this agreement is not employment contract.

Clause 1: Party A shall provide the following facilities:

1) one above mentioned vehicle worth HK$

2) one vehicle walkie-talkie worth HK$

Cover No. and model No.: S/No.80556

Clause 2: Party A's Responsibility:

1) to provide the vehicle with necessary communication equipment;

2) to provide the office and staff for carrying out the transportation business;

3) to provide third party insurance of the vehicle in both China and Hong Kong:

4) to provide sources of goods for transportation from Hong Kong to the mainland China;

5) to deal with the immigration and emigration procedures between China and Hong Kong for vehicle and driver;

6) to repair and provide maintenance of the vehicle's normal deterioration;

7) to pay expenses for of the normal usage of the vehicle (subject to the condition No. 16)

8) to collect the operation income and pay party B on pro-rata basis;

9) to pay penalty for unlawful parking in Hong Kong up to a maximum extent of once per month (the penalty ticket should be standardised at HK$320 for each occasion), any additional charge would be borne by Party B. This allowance shall be cleared once per month and shall be accumulated.

Clause 3: Party B's Responsibility

1) to drive the above mentioned vehicle for works as arranged by Party A; to transport legal goods between Hong Kong and China; responsible for any civil and criminal liabilities caused by vehicle or Party B;

2) to keep the vehicle in safe custody and installation of equipment on the vehicle;

3) vehicle parking facilities and all penalty tickets in respect of vehicle for it; Party B shall deliver penalty ticket he received to Party A within the valid payment period for payment of such penalty. If extra loss is caused by delay, Party B shall be responsible for all the liability;

4) to deliver the designated goods to the destination wholly and safely;

5) to sign and deal with the relevant documents of delivery of goods;

6) to pay attention to the records of logbook and the damage of the parts of the vehicle and informing Party A for arrangement of repair if necessary;

7) to supervise the packing of goods. Smearing, breaking, water staining prohibited. Private delivery, overloading of goods and possession of contraband are not allowed;

8) installation of illegal communication facilities and equipment in the vehicle shall not be allowed (e.g. walkie-talkie);

9) contravention of the law of China and Hong Kong are not allowed;

10) Pagers suitable for use in both Hong Kong and China shall be equipped for liaison with Party A;

11) Leave or suspension of work shall not be allowed in the course of delivery, work shall be arranged by Party A.

Clause 4: Parties of the joint venture:

Within the period of co-operation, if the behaviour, job mistake, working attitude of one party whether it is intentional or not, cause the dissatisfaction of another party or client of the other party, in turn giving rise to complaints or loss, the other party shall be entitled to give oral or written warning to that side. In case of repeating the said mistake, the other party shall be entitled to terminate the agreement unilaterally. All relevant documents involved in such operation shall have to be returned to the complainant party within one week for implementation of determination formalities, otherwise the complainant party shall not be held liable for any consequences arising out of any step that are compelled to be taken on operation ground of one party.

Clause 5: Courtesy and politeness shall be adopted when using walkie-talkie.

Clause 6: Punctuality and politeness shall be observed when dealing with such client.

Clause 8: Normal job routes shall be observed, and vehicle shall not be made use as private transport.

Clause 9: If party B requires to take leave, 5 days notice in advance shall be given to the appropriate department. Leave shall only be allowed subject to approval.

Clause 10: Party B shall strictly comply with the job arrangement of Party A. Evasion on any excuse shall not be permitted.

Clause 12: When Party A pages Party B, Party B shall return call within 30 minutes if he is in Hong Kong or Shenzhen. No explanation shall be accepted by Party A.

Clause 14: Party A may immediately terminate the agreement without compensating loss of Party B should any of the following situations occur:

1) Party B deliberately disobey any reasonable order or job arrangement;

2) Behaving dishonestly. Such misconduct which jeopardise the work or diligent performance of his colleagues contrary to the traditional Chinese ethical concepts, or being convicted under the Law of Public Security or the Law of Customs Excise;

3) Cheating or behaving dishonestly;

4) Frequently neglecting his duty.

Clause 17: Vehicular repairs, if not due to normal wear and tear but due to traffic accident resulting in damages to the vehicle itself or to other persons or goods under transportation in respective of whether they are caused by deliberate act or negligence of Party B where such damages or losses are not covered by insurance, the quantum of liabilities shall be apportioned by Party A and Party B at the rate of 30% and 70% respectively.

Clause 18: Party B shall be financially liable for 100% of the actual amount of losses, damages or theft caused to the vehicle itself, or equipments installed in the vehicle or equipment originally affixed in the vehicle and goods being lost, damaged or stolen while being transported arising out of traffic accident on any loss incurred owing to Party B's failure to use the normal route unless he is able to prove with concrete evidence that such loss, damages, theft or failure to use the normal route are beyond his control or unavoidable or in fact necessary, in which case his financial liabilities shall then be diminished to 50%.

Clause 19: In normal circumstances, if the vehicle cannot be used for business for any reason caused by Party B, Party B has to compensate $700 per day to Party A, throughout the period when the vehicle is suspended of service. Further Party A shall be entitled to terminate the agreement forthwith when Party A is of the view that such default is caused by the abnormal and irresponsible behaviour of Party B.

Clause 20: Any act or mistake of either party resulting to non-compliance of the agreement or non-performance of the joint venture, then this agreement shall be regarded as being repudiated unilaterally. The other party may claim damages against the defaulting party."

7. Although the preamble to the contract refers to the agreement being reached on the principle of equality and mutual benefit and clause 4 refers this to being a joint venture, there is no issue, nor in my view any doubt, that the applicant falls within the wide definition of an employee within the meaning of section 2(1) of the Employees' Compensation Ordinance.

8. From the terms of the agreement that I have recited, it is plain that the applicant was required to drive the lorry to the respondent's order and to be readily available to do so, being required to return the respondent's calls within 30 minutes if he was in Hong Kong or Shenzhen. As if to underline the importance of this clause, clause 12, the final sentence of the clause provides; "No explanation shall be accepted by Party A." I understand that to mean that no excuses will be entertained for a failure to return a call within 30 minutes. I shall return to the significance of this presently.

9. Against that contractual background, I now turn to the applicant's evidence in more detail. On the date of the incident, the applicant went to the respondent's office in Fanling where he was assigned to take a load to a destination within Hong Kong and was then directed to go to a container yard located at Sheung Chuk Yuen at Yuen Long which appears on the map exhibited in the trial circled at reference G8. His instructions were to go there and wait for an order to take a container on his next driving job. He happened to be there with another employee of the respondent's, Mr Kwok Chau-hung, who also had his own lorry.

10. After a while, instructions were received to have lunch because no job was anticipated at that time. The same instruction applied to Mr Kwok. The applicant says, and I accept, that he was told by the lady at the respondent's office that he could drive to lunch in his tractor unit rather than take a taxi or other transport. Such permission would be required because clause 8 of the agreement prohibits the use of the vehicle as private transport.

11. There has been much cross-examination of the applicant as to precisely how this came about, who sought permission and by what means that permission was obtained and whether it was the applicant or Mr Kwok who received the call from the office. I would be surprised if the applicant could recollect the precise details of these conversations over four years after the event, nevertheless, I am satisfied that the instruction to go to lunch was given and that permission was also given to take the tractor unit as the means of getting to and from lunch.

12. I also accept the applicant's evidence that this sort of arrangement had been approved by the respondents on previous occasions due to the relative remoteness of this container yard. Whilst none of this evidence has been admitted by the respondents, Miss Pinto who appears for them, has been hampered by not being able to call witnesses of her own, although of course the burden remains with the applicant to prove his case. In cross-examining the applicant, Miss Pinto has been able to raise the prospect that the applicant was wrong in his evidence as to which container park he had gone to. Given the significance of this, I have had to adjourn for part of the second day to enable further investigations to be made. Miss Pinto had been suggesting to the applicant that the yard which he had gone to was at Tai Sang Wai at reference G5 on Exhibit R1. That container park has restaurants within a short walking distance of its entrance. This line of enquiry has produced further plans and photographs as well as planning permission applications.

13. Having seen this further evidence and heard the applicant, I am left in no doubt at all that the container park that he went to is the one which he has spoken of at reference G8. In any event, it is highly probable that the container park that Miss Pinto was suggesting had not come into existence in July 1996, having regard to the fact that the planning permission application for it is dated October 1997. Be that as it may, I am entirely persuaded by the applicant's own evidence as to which park he was at. As a result of the adjournment, the applicant was able to put in photographs, Exhibit A1, showing amongst other things the yard in question.

14. The other issue upon which the applicant has been closely questioned relates to the need to take the tractor unit to get to the restaurant rather than a taxi or public transport. The adjournment offered him an opportunity to, as it were, measure out the journey from the yard to the restaurant. I accept from him that the distance from the yard to the nearest relevant bus stop is a kilometre and the restaurant is 3 kilometres from the yard.

15. Having considered his evidence about the general remoteness of the yard and its distances from the bus stop and the restaurant and the fact that taxis would only be available by chance rather than readily at hand, I am entirely satisfied that taking the tractor unit was a perfectly sensible way of getting to lunch and back and I am sure that the employers thought so too in giving him and his colleague permission to do so on this occasion and on the previous occasions that this has happened.

16. One must also add to this geographical consideration an equally important business reason. The applicant in common with all the respondent's drivers was required to be readily available once an instruction to take a container was issued. By having the tractor unit there, the applicant could return to the yard within six minutes, on his evidence, and be ready to hook on to a container. Given the nature of the applicant's contractual obligations with the respondents to be available for them at short order, the use of taxis and/or buses to get to and from lunch would not be practicable and I am satisfied that this was not lost on the respondents themselves when they gave permission for the tractor unit to be used in this way.

17. Having got to the restaurant and towards the end of their lunch, a call was received to return to the yard because both drivers had deliveries to make. In response to that instruction, the applicant and Mr Kwok set off to return to the yard when the incident which I have already sufficiently recounted occurred.

18. There has been further probing of the applicant's return journey, having regard to the account that he had given to the police with a view to calling into question his general credibility.

19. I should indicate that I have found the applicant to be a perfectly straightforward, if rather slow individual. Many questions needed to be repeated before he could provide an answer and at times those answers were not entirely clear. But none of these perhaps intellectual shortcomings have detracted from the general truthfulness and accuracy of his evidence on the points that have mattered and to which I have drawn attention in reviewing his evidence.

20. From these findings, I now need to determine whether the applicant's driving in these circumstances, the facts of the assault and the way in which it occurred can be said to have been in the course of his employment, and that the injuries caused by the assault arose out of that employment.

21. I have been referred to a number of cases by both counsel. All these demonstrate that ultimately it is the facts of the particular case which will determine the outcome within well-established principles, although difficulty can arise in applying the facts as found by the court to those principles, see the remarks of Lord Wright in Weaver v Tredeger Iron & Coal Company Limited [1940] AC 955 at 975:

"The words of the Act [in the course of his employment] are very general, no doubt designedly so. Experience has shown how infinitely various may be the facts to which the words are to be applied. Lord Buckmaster in Stewart's case [1917] A.C 249 uttered a warning against the mistake involved in attempting to define a fixed boundary between the cases which are within the statute and those which are without. '"This", he said (at page 259), '"it is almost impossible to achieve. No authority can with certainty do more than decide whether a particular case upon particular facts is or is not within the meaning of the phrase."' The realities of each case must be regarded."

22. Of the modern decisions, the most helpful in my view is Smith v Stages [1989] 1 A.C. 929, a decision of the House of Lords where Lord Lowry suggested what he described as some prima facie propositions which could be stated with reasonable confidence in order to determine whether any employee was at the material time going about his employer's business whilst recognising that it was impossible to provide for every eventuality. These appear from 955H to 956F. They are the following:

1) An employee travelling from his ordinary residence to his regular place of work, whatever the means of transport and even if it is provided by the employer, is not on duty and is not acting in the course of his employment, but, if he is obliged by his contract of service to use the employer's transport, he will normally, in the absence of an express condition to the contrary be regarded as acting in the course of his employment whilst doing so.

2) Travelling in the employer's time between workplaces, one of which may be the regular workplace, or in the course of a peripatetic occupation, whether accompanied by goods or tools or simply in order to reach a succession of workplaces, as an inspector of gas meters might do, will be in the course of his employment.

3) Receipt of wages, though not a receipt of a travelling allowance, will indicate that the employee is travelling in the employer's time and for his benefit and is acting in the course of his employment and in such a case the fact that the employee may have discretion as to the mode and time of travelling, will not take the journey out of the course of his employment.

4) An employee travelling in the employer's time from his ordinary residence to a workplace other than his regular workplace will in the course of a peripatetic occupation or to the scene of an emergency, such as a fire, an accident or a mechanical breakdown of plant, will be acting in the course of his employment.

5) A deviation from or interruption of a journey undertaken in the course of employment, unless the deviation or interruption is merely incidental to the journey, will for the time being, which may include an overnight interruption, take the employee out of the course of his employment.

6) Return journeys though are both to be treated on the same footing as outward journeys.

23. Mr Yau for the applicant places particular reliance on the case of Harvey v O'Dell [1958] 2 Q.B. 78, particularly as the case relates to a meal break in the course of the working day. The headnote to the report sufficiently sets out the facts and the basis of McNair J's decision as follows:

"On February 29, 1952, the plaintiff, a workman employed by the defendants, a firm of builders and repairers in London, and G., a fellow employee, were engaged on repair work on the defendant's behalf at Hurley. G., who was employed as a storekeeper, owned a motorcycle combination which he used from time to time for the defendant's business. He paid for his petrol but when out on defendant's business, received a travel allowance based on the cost of public transport. When engaged on outside work, the defendant's workmen were paid for travelling time as working time and, if they were out all day and had to travel some distance to get a meal, were paid for the working time taken in travelling to and from the meal place as working time. When instructed to go to Hurley, G. had been told to take the plaintiff with him as his mate in his sidecar. It would not have been possible for G. and the plaintiff to travel to Hurley and back by public transport and to complete the work there in one day. G. had taken some tools from the defendant's yard with him, but after he and the plaintiff had been working for some hours, they went to Maidenhead, a distance of about five miles, where G. procured further tools and materials and they both had a meal. On the way back to Hurley when the plaintiff was a passenger in the sidecar, the motorcycle combination came into collision with a car and the plaintiff received injuries and G. was killed. The accident was due, in part at least, to the negligence of G. In an action by the plaintiff for damages on the ground that the defendants were vicariously liable for G.'s negligence, the defendants contended that at the time of the accident neither G. nor the plaintiff was acting in the course of his employment.

Held, that G. was acting in the course of his employment in using his motorcycle combination, the authorised and only practical method of conveyance for himself and the plaintiff, for the journey from London to Hurley, and that, in the circumstances, the journey from Hurley to Maidenhead and back, even if no question of tools had arisen and its main purpose had been to get a meal, was fairly incidental to the work which they had been instructed to do, and was within the scope of their employment. Accordingly, the defendants were vicariously liable for G.'s negligent method of performing that journey.

Canadian Pacific Railway Company v Lockhart [1942] A.C. 591 and McKean v Raynor Brothers Limited (Notttingham) [1942] 2 All E.R. 650 applied."

24. Not surprisingly, Miss Pinto for the respondents has drawn attention to cases involving meal breaks where it has been held that an injury arising in the course of such a break was not in the course of employment. She has also referred me to Lord Denning's remarks in Vandyke v Fender [1970] 1 Lloyds Reports 320 at 325 that:

"The cases show to my mind quite conclusively that when a man is going to or from work along a public road as a passenger in a vehicle provided by his employer, he is not then in the course of his employment, unless he is obliged by the terms of his employment to travel in that vehicle. It is not enough that he should have the right to travel in the vehicle or be permitted to travel in it, else he is not in the course of his employment."

25. She submits that the circumstances of the case before me fall within this principle.

26. She has also relied on a case decided in this court by Judge Cheung (as he then was), Po Kwong-mui v Choy Lee Shipyards Limited [1993] HKDCLR 1, where a deceased employee had worked as a crew member on one of the boats of the respondent's boatyard at Lantau Island. That boat transported employees from the boatyard to the mainland. Crew members on night duty would go out to dinner on the mainland. In this case, the deceased who had been out to dinner, was knocked down by a bus in Kowloon. The Judge held that even if the deceased was returning to work after he had had his dinner, it could not be said that he was there on his employer's business or pursuant to a duty owed by him to his employer. Although the learned Judge conducted a review of many of the relevant authorities relating to whether an accident has occurred in circumstances which were incidental to an employee's employment so as to bring him within the course of his employment, his decision turned very much on the particular facts of the case before him. In this case, the deceased employee had clearly, on the Judge's finding, delayed his return well beyond that of a fellow employee who had also gone out to dinner with him and on the Judge's finding, the route taken by the deceased and the location of the fatal accident was equally consistent with his returning to work as it was to being there for some purpose unconnected with his employment. Consequently, the applicant had failed to discharge the burden of proof.

27. The exercise that I must perform was helpfully identified by Sir John Donaldson (as he then was), MR, in Nancollas v Insurance Officer [1985] 1 All ER 833 at 836, where he observed that the authorities;

"Approve an approach which requires the court to have regard to and weigh in the balance every factor which can be said in any way to point towards or away from a finding that the claimant was in the course of his employment. In the context of the present appeals, there are a number of such factors to which we must have regard but none of itself is decisive."

28. The cases which I have referred to provide a sufficient indication of the approach I must take and the principles that I must apply. In applying the facts as found by me to these principles, I start by answering the question posed by Lord Thankerton in Canadian Pacific Railway v Lockhart [1942] A.C. 591 at page 600:-

"In these cases, the first consideration is the ascertainment of what the servant was employed to do."

29. For that, one needs to consider the contract of service, the relevant parts of which I have already set out.

30. Obviously, he was engaged to drive this particular container lorry, but it is highly material in my view that as from the start of the working day he was at the respondent's beck and call. There are no specified meal breaks in the contract. Work comes first and foremost. The more containers are delivered, the more money both parties earn under the agreed financial terms for the applicant's remuneration. Meals are to be taken as and when gaps appear in the working schedule. All calls from the respondents required a 30 minute response time by the applicant. No excuses are to be entertained for not meeting that response time.

31. This is precisely what happened on this occasion. There was a period when no containers needed towing. The applicant could therefore conveniently go to lunch. His location made it mutually convenient for him to go to lunch on the tractor unit, so that he could react to a call back to the yard as soon as possible. Towards the end of lunch, such a call came in from the office. He and his colleague had to get back to take on a container. During the course of the journey back the assault occurred. Given the requirement to be on call, subject to a 30 minute response time, I have no doubt at all that the applicant was acting in the course of his employment when the assault happened. He was on his employer's business, returning to the container yard to pick up a container. Eating lunch at a convenient moment for the respondents, and for him, using the tractor unit to get to and back from lunch because that was the most practicable and effective way of going to and from lunch in order to meet the demands of the job all point inexorably to this applicant conducting himself in a way to suit his employer's purpose. I find therefore for all these reasons that at the moment of the assault he was acting in the course of his employment.

32. Notwithstanding such a finding, Miss Pinto would then invite me to consider section 5(4)(a) of the Employees' Compensation Ordinance which at first sight is against her because it contains a presumption favourable to the employee:

"An accident arising in the course of an employee's employment shall be deemed in the absence of evidence to the contrary also to have arisen out of that employment."

33. The requirement under section 5(1) is, of course, that in order to qualify for compensation, the accident must arise out of and in the course of employment. She has helpfully referred me to the well known Divisional Court case of R v National Insurance Commissioner Ex Parte Richardson [1958] 2 All ER 689. In that case, a bus conductor was assaulted by a gang of youths whilst he was working on his omnibus. The Insurance Commissioner held that the bus conductor had been attacked qua an ordinary member of the public and that he had not been singled out for assault by virtue of his employment as the bus conductor.

34. By analogy, Miss Pinto submits that this applicant was beaten up in his capacity as an alleged bad driver, rather than as an employee of the respondents in the course of his employment, so that these injuries did not arise out of his employment. That is an attractive way of putting the argument. Nevertheless, it should be remembered that Richardson was decided on the narrow point of whether the evidence before the Commissioner was sufficient to disturb the presumption and it was held that it was.

35. Lord Goddard, Lord Chief Justice, at page 690H, pointed out that:

"It is always necessary to bear in mind that when this court is asked to grant certiorari, this court has no power to sit as a court of appeal on the facts."

36. The case is authority on the quality of the evidence required to disturb the presumption, as I have described it. Devlin J (as he then was), characterising the requisite test as evidence "fit to be left to a jury" (see page 691C).

37. Perhaps more in point is Yu Sang v International United Shipping Agency Limited [1992] HKC 542, another decision of Judge Cheung's in this court, where a number of authorities were reviewed by Judge Cheung in the course of his judgment. Again, it is perfectly clear from the cases referred to by the Judge that the facts of the particular case will be paramount.

38. I approach the matter in this way. Is there evidence fit to be left to the jury (per Devlin J) to suggest that these injuries did not arise out of the applicant's employment? I have come to the conclusion that there is none. This gentleman was going about his lawful business driving his tractor unit on and about his employer's business. It hardly needs any presumption or deeming provision to make good the requirement that the incident and injuries arose out of that employment. He was injured whilst in the performance of what he was employed to do - driving the lorry. Accordingly, I hold that there must be judgment on liability to the applicant.

39. I now turn to the question of compensation. The applicant was 36 when he was injured, he having been born on 8 July 1960. He started his employment with the respondents shortly before this incident on 11 May 1996. A number of the aspects of the claim have been agreed, subject to liability. These are as follows:-

- Under section 1 - sick leave 31 July 1996 to 1 April 1997 - 2/3 of the pre-accident wages which have been agreed at 21,732. The calculation therefore is:

$21,732 x 8 months x 2/3 = $115,904

- Under section 10A, medical expenses at $1,132.

- The bulk of the claim which is under section 9 is not agreed.

40. Mr Yau for the applicant opened the case by contending for a sum of $1,036,800, being $18,000 x 96 months x 60%, being Dr Ho's, the applicant's expert's assessment of his loss of earning capacity.

41. The starting point is to determine what is the loss of earning capacity. Both doctors are agreed that given the dizziness and fainting spells caused by the assault and which continue to affect the applicant as a result of the assault, means that the applicant is now not able to return to work as a container lorry driver. He must therefore look for less remunerative employment. He has only fairly basic education and I am bound to say, as I observed earlier, he struck me as a rather slow individual, not the sort of bright job applicant that would immediately impress at an interview. Job opportunities will not come easily for him.

42. Dr Yu, the respondent's medical expert, considers him to be fit to do a job as a cashier, an office assistant, car park attendant and cleaner or some other employments at that level. I agree with this assessment. He has also worked in factories and could do production line work.

43. Both counsel have referred me to the salary and wage statistics for mid-1996 and for the present day. Miss Pinto submits that I should take a lower starting point for the applicant because he had only relatively recently started work as a container driver. She contends for a broader approach which would produce a lower figure to work off.

44. I see no reason to take that course. This applicant had been working his way up the driving ladder over a number of years and was set fair as a container lorry driver, which occupation he can no longer pursue. I am of the opinion that his present earning capacity is to be assessed at the rate suggested by statistics for a building attendant or guard. In my view, these occupations best fit the applicant's overall skills and education level. I cannot see him doing any better than this.

45. In closing his case, Mr Yau faced with these statistics felt constrained to trim his case as to the percentage of loss of earning capacity from 60% to 46.9%. I find this to be the correct percentage to apply. I calculate the section 9 element as follows:

46. In 1996, container drivers' earnings, according to the Government statistics, were $14,898 per month. In 2000, they are $18,720 per month. In 1996, a building attendant or guard earned $7,902 per month. $14,898 less $7,902 is $6,996. The percentage difference is 46.9%. This I take to be the true loss of earning capacity.

47. This results in a figure of $810,432, as contended for by Mr Yau in his revised calculation.

48. Accordingly, compensation is assessed at $115,904 under section 10, plus $1,132 under section 10A, plus $810,432 under section 9, making a total of $927,468. To this must be added interest at half the judgment rate from the date of the application to judgment and thereafter at the judgment rate until payment.

49. There will be costs to the applicant to be taxed if not agreed together with Legal Aid taxation.

50. If there were costs previously reserved, for the avoidance of doubt, I will say that this order for costs will include any costs reserved. Certificate for counsel.