HA KWOK MING v. BOXTON LTD

HCPI 576/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 576 OF 2007

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J U D G M E N T

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1.  On 3^rd May 2005, the plaintiff, while working in the kitchen of a Japanese restaurant called “Sushi Toki” (“the Restaurant”) operated by the defendant and which was located at Shop1014-5, Yiu Sing Mansion, 14 Taikoo Shing Road, Shaukeiwan, Hong Kong, was attacked by a co-worker Hung Kwok Leung (“Hung”) with a kitchen knife (“the attack”) arising from a dispute between them.  As a result of that attack the plaintiff suffered a deep skin laceration on his left forearm, lacerations to his scalp and forehead as well as multiple cuts to his right hand and fingers.

2.  Resulting from the attack on the plaintiff, Hung was subsequently charged with unlawful wounding and was convicted upon his plead of guilty to that charge at the Eastern Magistracy on 16 December 2005.

3.  The plaintiff now claims damages for personal injuries sustained by him from the attack against the defendant being the employer of both the plaintiff and Hung at the time of the attack.

4.  The basis on which the plaintiff brings this claim against the defendant is the negligence and/or breach of implied term of the contract of employment with the plaintiff.  The plaintiff also relies on vicarious liability of the defendant.

BACKGROUND

5.  The defendant operated the Restaurant at the time of the attack.

6.  Apart from waitresses and other staff of the Restaurant, there were four kitchen staff employed by the defendant who worked in the kitchen of the Restaurant.

7.  The four kitchen staff were :

(a)  Lee King Wah (“Lee”) who was the head chef;

(b) Wong Lok Shun (“Wong”) the deputy head chef;

(c) the plaintiff employed as chef; and

(d) Hung employed as the kitchen apprentice.

8.  Wong and Hung started working for the defendant in the kitchen of the Restaurant in November 2004.

9.  It is admitted by the defendant in their pleadings that Hung, who was about 22 years of age at the material time, was working under the training, instructions and supervision of Lee and Wong.

10.  The defendant also admits that the plaintiff started working for it on 21 March 2005, was still on probation at the time of the attack, and was also working under the supervision of Lee and Wong.

PLAINTIFF’S CASE AND EVIDENCE

11.  For the plaintiff, the plaintiff himself was the only factual witness called to give evidence.

12.  The relevant part of the plaintiff’s evidence was that for the 1½ months or so from the time he joined the defendant working in the kitchen of the Restaurant up to the time of the attack, although he tried to maintain a normal working relationship with Hung, Hung on the other hand had caused annoyance, trouble and nuisance to him and other colleagues.

13.  Hung would disturb the plaintiff by talking to the plaintiff about Hung’s personal affairs during working hours.  This would happen about eight to ten times each day at work.  When the plaintiff did not wish to be disturbed from his work and told Hung to return to his work, Hung would become angry and scold the plaintiff or made faces at him.  This was something known to both Lee and Wong but nothing was done by them to stop Hung from disturbing the plaintiff.

14.  On other occasions, Hung would slap the back or buttocks of the plaintiff with moderate force when the plaintiff declined to listen to Hung or did not respond to Hung’s talking.  When the plaintiff told Hung not to slap him, Hung would give the plaintiff a rude stare.  Again this behaviour of Hung was known to both Lee and Wong but nothing was done by them to stop Hung behaving in this way.

15.  There were other times when Hung got angry with the plaintiff not wanting to be disturbed by him, Hung would provoke or insult the plaintiff by calling him nicknames like “Piggy Ming” insinuating that the plaintiff looked like a pig.  At times Hung would write such nickname of “Piggy Ming” on stickers to show to the plaintiff during work or post up those stickers all over the kitchen.  The plaintiff would continue to ignore these antics of Hung.

16.  The plaintiff also gave evidence that at times Hung would disturb or annoy other co-workers in the course of their work such as slapping the shoulders of a waitress suddenly from behind to scare her while she was pouring hot water at the pantry or play joke on other waitresses by blocking their way while they were carrying food or hot soup. 

17.  Again although Lee and Wong were aware of such behaviour of Hung, they did nothing to stop him.

18.  Some time in April 2005, the plaintiff asked Hung about a two-inch scar on Hung’s left wrist.  Hung told him that it was due to Hung cutting himself with a knife in the kitchen of the Restaurant when the defendant refused to allow Hung to go on leave during Christmas in 2004.  When the plaintiff asked Wong whether what Hung said was true, Wong confirmed that was so.

19.  At about 6.15 p.m. on 3 May 2005, the plaintiff was preparing for the dinner time at the Restaurant and busy with his work.  Both Wong and Hung were also working in the kitchen of the Restaurant.  Lee was on duty that day but was not in the kitchen at the time.

20.  Hung then came over to the plaintiff and started to talk about his personal affairs and tried to get the plaintiff’s attention to what he was saying.  The plaintiff, being busy with his work ignored Hung.  Hung became angry at being ignored by the plaintiff.

21.  Shortly after, Hung showed a piece of paper to the plaintiff with the Chinese words “Fuck your mother” written on it and asked the plaintiff to read out the words.  The plaintiff still ignored Hung and continued with his own work.

22.  Hung then started to wave the piece of paper in front of the plaintiff’s face.  The plaintiff then pushed away Hung’s hand holding the paper but not with any great force.  Hung moved away and complained to Wong that the plaintiff did not play with him.

23.  Hung then came back to the plaintiff and scolded the plaintiff for not playing with him.  The plaintiff replied that Hung had already disturbed him from working for half an hour.  Hung then stared at the plaintiff and the plaintiff looked at Hung. 

24.  Up to this point, Wong who was in the kitchen still did nothing to stop Hung but only told Hung to go back to his work.

25.  At this juncture, Hung tried to punch the plaintiff with his fist.  The plaintiff picked up a black plastic tray to block the punch from Hung.  Hung then made more punches with his fists and the plaintiff tried to block the other punches with his hands in self defence.

26.  Wong then came over to separate the two of them.

27.  Hung then moved away, picked up a long knife, about 14 inches long, from a table in the kitchen and dashed towards the plaintiff with the knife.  At that time Wong was still in between Hung and the plaintiff and Wong tried to stop Hung attacking the plaintiff by pushing Hung away and holding Hung’s shoulders with his hands.  But Hung kept wielding the knife with his right hand to chop at the plaintiff.

28.  The plaintiff could only raise his left arm to protect his face from the blows which resulted in his left forearm being chopped by Hung.  When the plaintiff tried to seize the knife from Hung, some of his right fingers were chopped.

29.  Wong then grabbed Hung by the waist to stop the attack on the plaintiff.  At that time the plaintiff turned around to run but was still chased after by Hung who succeeded in chopping the back of the plaintiff’s head.

30.  Only then did Hung stop his attack on the plaintiff.

31.  The plaintiff then sat on the kitchen floor to wait for help with his wounds bleeding profusely. 

32.  Police and ambulance personnel came and took the plaintiff to Pamela Youde Nethersole Eastern Hospital (“PYNEH”) for emergency treatment.

DEFENCE CASE AND EVIDENCE

33.  The defence called two factual witnesses, Wong and Siu Sau Kam, the personnel manager of the defendant.

34.  Wong’s evidence can be summarized as follows.

35.  During the 1½ months that the plaintiff worked at the Restaurant before the attack, he had not seen any quarrel between the plaintiff and Hung.

36.  The plaintiff is a quiet person but did talk with other colleagues.  He had never seen the plaintiff having any quarrel with any colleague.

37.  Hung is a young fellow and is described by Wong to be “relatively open, vivid and active.”  Hung likes to take the initiative to chat with colleagues, at times would be funny, and make jokes with the colleagues with trivial acts.  That conduct of Hung did not affect the running of the kitchen.

38.  Hung was on good terms with other co-workers and no complaint has ever been made against Hung by other workers.

39.  Apart from the day of the attack, he had never seen the plaintiff ignoring Hung when Hung approached the plaintiff for playful chatting.

40.  He had never seen Hung slapping the back or buttocks of the plaintiff.

41.  He was aware that at times Hung would call the plaintiff by the nickname of “Piggy Ming” or stick adhesive labels on which were written such nicknames inside the kitchen.  He considered such conduct of Hung to be mere practical jokes and not intended to insult the plaintiff.  No complaint has ever been made by the plaintiff in respect of this behaviour of Hung.

42.  Hung was not bad tempered and did not resort to violence apart from that one attack on the plaintiff.

43.  Wong denies ever confirming to the plaintiff that Hung had deliberately cut his own wrist with a knife because his request for leave had been turned down.  In fact, it was due to an accident at work that Hung’s wrist got cut.

44.  As for the attack, he had witnessed the entire event himself.  According to Wong, it started when Hung approached the plaintiff at about 6.15 p.m. attempting to initiate with the plaintiff some playful talk.  The plaintiff took no notice of Hung but continued with his work.

45.  Then Hung said to him (Wong) words to the effect that the plaintiff has become deaf and dumb.  Wong also paid no attention to Hung.

46.  After that he saw Hung walk up to the plaintiff.  He (Wong) was busy scaling fish at the time.  As Wong looked up, he saw the plaintiff wave away the hand of Hung.  Hung then got angry and went up to Wong complaining that it was alright for the plaintiff to joke with Hung but not alright for Hung to joke with the plaintiff.

47.  Then Hung stepped closer to the plaintiff and spoke to the plaintiff in an angry tone repeating the same words Hung had said to Wong.  The plaintiff then said in foul language that Hung had troubled him for over half an hour.

48.  Both the plaintiff and Hung then stared at each other.

49.  Wong then saw the plaintiff pick up a plastic tray and hit Hung’s left arm once with it.  Then both of them were fighting each other with fists.

50.  Wong went over to separate them. 

51.  At this point, Hung picked up a knife and rushed over to where Wong and the plaintiff were.  Wong was in between the plaintiff and Hung, facing Hung.

52.  Wong then pushed at Hung’s shoulder but Hung continued to wield the knife with his hand behind the back of Wong where the plaintiff was standing.  Wong did not see how the plaintiff, who was behind him, react.

53.  The incident lasted some 20 to 30 seconds and the noise brought other workers into the kitchen.  When other workers came in, Hung stopped the attack.

54.  Wong then saw the left forearm, the right hand and the head of the plaintiff were bleeding.

55.  Hung just stood aside.

56.  A report was made to the police and ambulance men came and took the plaintiff to hospital.

57.  Hung was taken away by the police.

58.  The other witness called by the defendant, Siu Sau Kam, the personnel manager of the defendant did not witness the attack.

59.  The evidence of Siu was to the effect that from the defendant’s records, there is no record of any complaint against Hung by anyone, whether patron or colleague.

60.  Also from the records of the defendant, the injury to Hung in December 2004 was due to an accident when Hung was peeling pumpkin with a knife and accidentally cut his wrist and the Commissioner of Labour had been duly notified of such accident to an employee.

61.  The rest of Siu’s evidence relates to earnings and other benefits of Lee and Wong who worked in the kitchen.

Assessment of the evidence and Findings of Fact

62.  Having seen and heard the plaintiff give evidence in this case, I found him to be a very serious and solemn person, likely to be intense when working, and not easily given to playfulness or trivialities.  I can therefore well imagine that with such a personality the plaintiff, when he is busy with his work, will all the more desist from all forms of distractions by others.

63.  This is in fact confirmed by the evidence of Wong when he said that the plaintiff was “a quiet person”.

64.  On the other hand, the picture painted of Hung from all the evidence is that he is playful, fun loving and given to trivialities, wholly consistent with that of a practical joker.  Wong described Hung as being “relatively open, vivid and active”

65.  There is not a lot of difference between the evidence of the plaintiff and that of Wong in so far as the character and conduct of Hung is concerned.

66.  The plaintiff’s evidence was that Hung would get angry when the plaintiff ignored his practical joking or when the plaintiff told Hung to stop slapping him and it was due to Hung becoming angry with the plaintiff that Hung would call him nickname and post up stickers with the plaintiff’s nickname written on all over the kitchen.

67.  On the other hand, Wong said he had never seen the plaintiff ignoring Hung before the incident leading up to the attack, had never seen Hung getting angry before the day of the attack and had never seen Hung slapping the plaintiff’s back or buttocks.  However, when cross-examined, Hung could not give any explanation at all as to why Hung would go as far as to write out the plaintiff’s nickname on stickers and post them up in the kitchen.  Wong in fact tried to play down that by saying he considered that to be mere practical jokes.

68.  In assessing the difference in their evidence, there appears to be a lacuna in Wong’s evidence which does not explain the conduct of Hung in writing the nickname of the plaintiff on stickers and posting them up in the kitchen.

69.  However, in the plaintiff’s evidence, that lacuna is adequately filled up by the explanation that because Hung got angry with the plaintiff ignoring him of telling him to go back to work and to stop disturbing the plaintiff, therefore Hung would provoke and insult the plaintiff by going further and posting up stickers in the kitchen with nicknames of the plaintiff.

70.  Moreover, because Wong considered those antics of Hung to be mere practical jokes, very likely Wong did not pay much attention to them, and more importantly to how the plaintiff felt.  Whilst Wong would be alive to the names calling by Hung and would be able to see the stickers posted up by Hung in the kitchen, he may not always be aware of the slappings made by Hung on the plaintiff.  But the plaintiff would himself be only too aware of those.

71.  I also do not find Wong to be a very reliable witness.  In cross-examination, he was unable to say whether Hung had played similar jokes with Wong and Lee as Hung did with the plaintiff.

72.  Furthermore, although in his witness statement, Wong stated quite categorically that Wong did not play jokes on the waitresses, in cross-examination he conceded that Hung did play jokes with the waitresses, albeit while they were taking rest from their work.

73.  Given the above, I am disposed to accept the evidence given by the plaintiff as to the daily conduct and behaviour of Hung in his practical jokes playing while at work in the kitchen of the Restaurant where that evidence differed from that of Wong.

74.  From all the evidence before me I make the following findings of fact relating to the conduct, behaviour as well as the inter relationship between the plaintiff and Hung during the 1½ months or thereabouts before the attack took place :

(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;

75.  In so far as the evidence from the plaintiff and from Wong relating to what happened leading up to the fight and the chopping attack on the plaintiff, the only real major difference in their evidence is that, firstly, there is no mention by Wong of Hung writing on a piece of sticker the words “Fuck your mother” and waving that in front of the plaintiff which was the evidence from the plaintiff; and secondly, whether the plaintiff had picked up the plastic tray to defend a blow by Hung with fist, as was the evidence of the plaintiff, or whether as alleged by Wong, the plaintiff had used the plastic tray to hit Hung’s left arm which then started their fight.

76.  In this respect, I also take note that the relevant part of the Brief Facts of the Case which was admitted by Hung when he pleaded guilty to the unlawful wounding charge, it was stated as follows:

“…deft [i.e. Hung] teased PW1 [i.e. plaintiff], who expressed dissatisfaction with what the deft said and did.  Suddenly, deft started beating PW1.  In response, PW1 picked up Exh.1 [a black plastic tray] and used it to hit deft’s left arm once.  Then deft fought with PW1…”

77.  Also pertinent to this aspect of the evidence would be what was stated by the plaintiff in his witness statement given to the police, the relevant part of which is as follows :

“…I [i.e. the plaintiff] then answered him [i.e. Hung], ‘You’ve fucked up my job more than half an hour.’ We stared at each other.  Well, the AP [i.e. Hung] then hit me with his hand.  I, on the other hand, picked up a plastic tray incidentally to hit the left arm of the AP.  The AP and I then struck each other with fists for a few times, but were separated by Wong Lok-shun…”

78.  It is undeniable from Wong’s evidence that when all this was going on but before the actual fight started between the plaintiff and Hung, Wong was himself busy scaling fish with a knife.  That being the case, very likely Wong was fully concentrating on his work, particularly as he was using a knife for it.  Therefore it is hardly surprising that Wong may not have seen all that did happen, (albeit that he would have heard what went on).  Wong may only have seen some of what happened between the two of them.

79.  I am therefore more disposed to accept the evidence of the plaintiff especially on the two main aspects in which their evidence differed in relation to what happened immediately before the attack by Hung upon the plaintiff with a knife.  The only part of the plaintiff’s evidence given in this case which I do not accept is his saying that he picked up the plastic tray to block the initial punch from Hung.  It is clear from his statement to the police that the plaintiff admitted to have picked up the plastic tray to hit the left arm of Hung, but only after Hung threw the first punch at him.

80.  One final matter which I should deal with in assessing the evidence is the evidence from the plaintiff that he was told by Hung that the wound on Hung’s wrist came about due to Hung deliberately cutting himself when his request for leave during the Christmas period was not granted by the defendant.

81.  Having accepted almost all of the plaintiff’s evidence in this case, there is really no reason why I should not accept this part of his evidence.  But even accepting that was what was said by Hung to the plaintiff, it does not make those words of Hung to be true.  Hung may well be saying that to impress the plaintiff or out of bravado.  The only person who would truly know what happened when Hung’s wrist was cut would be Hung himself.  Even Wong will not be in a position to know or to say one way or the other.

82.  In the absence of Hung being called as a witness, I make no finding of facts on that aspect of the case.  There is no need for me to make any findings on that aspect of the evidence.  It would be sufficient simply for me to accept the plaintiff’s evidence that was what Hung said to him.

THE LAW

83.  In this area of the law, there are two lines of authorities.

84.  The first line is where the act of the fellow employee causing the damage to another employee, the issue for the court’s determination is whether that act causing the damage, even though it was unauthorized or prohibited by the employer, was part and parcel of the employment or so incidental to it that it can be said to be in the course of the employment or whether it was so divergent from his employment as to be wholly distinguishable from it (see Harrison v Michelin Tyre Co. Ltd [1985] I.C.R. 696).

85.  The present case is not based along this first line of authorities.  That is not surprising in light of the fact that the acts causing the injury to the plaintiff came about due to the criminal act of Hung in chopping the plaintiff with a knife.  By any yardstick therefore, such act of Hung cannot be regarded as being part and parcel of his employment with the defendant or incidental to it.

86.  The second line of authorities relate to the duty of the employer to engage competent employees and to supervise them.  In line with that duty, if an employer has reason to anticipate misconduct from an employee which puts other employees at risk, he is under a duty to those others to take reasonable steps to avoid the risk materializing such as by reprimanding the employee from whom the misconduct springs, or even to dismiss him if such reprimand be disregarded.

87.  This therefore is the basis upon which the present case is brought.

88.   There is no dispute between the parties here that the defendant, being the employer, was under a duty to provide safe co-workers to the plaintiff.  That duty would extend to the defendant having the duty to stop or curb any kind of conduct or behaviour which the defendant could reasonably foresee might cause physical harm or injury to another worker during the course of employment.

89.  The real issue here, therefore, is whether the defendant knew or ought to have known that there was a real risk, as opposed to a mere possibility, that the plaintiff would suffer some form of harm or physical injury, given what they know of the playful conduct or behaviour of Hung and/or the failure or reluctance of the plaintiff to respond to such playfulness.

90.  It is also not disputed that the defendant would not have to foresee the exact kind of harm which the plaintiff might suffer.  It would be sufficient if some form of harm of the same type were foreseeable.

91.  The dispute here between the parties is really the application of those legal principles to the facts of this case.  The dispute here turns upon the foreseeability by the defendant of whether there would be a real risk of injury resulting from the conduct and behaviour of Hung.

LIABILITY

92.  There was no dispute between the parties factually that between the time the plaintiff started working in the kitchen of the Restaurant, right up to the time of the attack, neither Lee nor Wong had ever taken any steps to stop Hung from making fun of or insulting the plaintiff by calling him nicknames such as “Piggy Ming” or even posting up the nicknames on stickers all over the kitchen, or from any of his conduct or behaviour as referred to above under the findings of facts.

93.  Secondly, there was also no dispute that the plaintiff had never made any specific complaints to either Lee or Wong of any conduct or behaviour of Hung while working in the kitchen.  The explanation given by the plaintiff for not having made any complaint of same to Lee or Wong was that he was still on probation, impliedly therefore that he did not wish to cause any trouble during the period of his probation which may impact on his job being confirmed or not after his probation period.

94.  The defence had attached a great amount of importance to the fact that the plaintiff had never made any complaints to Lee and Wong about Hung.

95.  However, I take a different view of the matter.  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.

96.  I now turn to the more difficult issue of foreseeability.

97.  From the evidence of Wong, there can be no doubt that at a very early stage, Wong (and possibly also Lee) would have appreciated that the plaintiff was a quiet and serious person and not easily given in to playfulness.  On the other hand, Hung was an active and playful sort of person. 

98.  That difference in character between the two of them is, in my view, of paramount importance on the question of foreseeability.

99.  It must therefore have been quite apparent to both Lee and Wong that because of that difference in character and personality of the two of them, that the plaintiff will not lightly accept the kind of annoyance that was frequently caused to him by Hung during working hours.

100.  At the same time it must also have been apparent to Lee and Wong that Hung would not accept the plaintiff ignoring him or failing to respond to his approaches.  That must have been apparent, since Hung would come back on another occasion and keep on pestering the plaintiff, or would after being told off by the plaintiff, even go as far as to provoke and insult the plaintiff by calling the plaintiff with nicknames to take his own back on the plaintiff, or else would even go further by putting up stickers with the plaintiff’s nickname written on all over the kitchen for everyone else to see.

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.

103.  The defence has also submitted that in the absence of any evidence of actual violence or any propensity for violence on the part of Hung prior to the attack itself, it could not have been reasonably foreseeable to the defendant that violence and therefore injury would result.

104.  I cannot accept that submission.  What the law requires is that it would be reasonably foreseeable that there would be a real risk of harm.  The foreseeability required by the law is not that there would be harm, but that there would be a real risk of harm.

105.  For the reasons given above, I come to the conclusion that in all the circumstances of this case it was reasonably foreseeable to the defendant, by its servant or agent, Lee and/or Wong, that the conduct and/or behaviour of Hung towards the plaintiff while they were working in the kitchen of the Restaurant during the 1½ months before the attack, would give rise to a real risk of harm or physical injury, if such conduct or behaviour of Hung was allowed to continue unchecked.

106.  Nothing was done by either Lee or Wong to curb or to stop such conduct or behaviour of Hung which has ultimately resulted in the attack on and the injury caused thereby to the plaintiff.  The defendant was therefore in breach of the duty it owed to the plaintiff.

107.  I therefore find the defendant liable to the plaintiff for negligence.

QUANTUM

Injuries and treatment

108.  After the attack the plaintiff was taken by ambulance to the Accident and Emergency Department (“A&E Dept”) of PYNEH. 

109.  From the attack, the plaintiff sustained the following injuries:

(a)  cut extensor muscles of left forearm;

(b) cut posterior interosseous nerve (PIN) of left forearm;

(c) cut flexor tendon, digital nerves and arteries of right index finger;

(d) cut flexor tendon of right middle finger and partial cut digital nerve of right middle finger; and

(e)  superficial abrasion of right ring finger, forehead and scalp.

110.  Bleeding was temporarily stopped by dressing in the A&E Dept of PYNEH and the plaintiff was transferred and admitted to the orthopaedic ward.

111.  Emergency exploration and repair to right index finger flexor tendons, index and middle finger digital nerves, index finger digital arteries, scalp and left forearm wound.

112.  Re-vascularisation of right index finger was performed the following day.

113.  The plaintiff was discharged from PYNEH on 11 May 2005, after hospitalization for some nine days.

114.  The plaintiff was re-admitted to PYNEH on 26 September 2005 for tendon transfer of left hand due to PIN palsy which was performed the following day and the plaintiff was discharged from PYNEH on 29 September 2005.

115.  Since his first admission to PYNEH, the plaintiff had been referred to occupational therapy as well as physiotherapy which continued on follow up as an out-patient until 25 November 2005.  After 25 November 2005, the plaintiff was told to carry on with exercise at home as both his hands had reached a static level of improvement.

116.  Two orthopaedic experts had given their respective opinion on the condition of the plaintiff’s injuries sustained in the attack.  Dr Danny Tsoi, the expert instructed on behalf of the plaintiff, and Dr David Cheng, the expert instructed by the defendant.

117.  Both experts had also prepared a joint medical report dated 11 January 2008.

118.  All the reports of both experts including their joint report were adduced into evidence without the need for the experts to give oral evidence at trial.

119.  Both experts agreed in the joint report that the condition of the plaintiff’s upper limbs were in stable condition with the following observations:

(a)  slight reduction in left wrist flexion, especially when the fingers were in full flexion, explicable by shortening or scaring of the transferred forearm extensor tendons;

(b) mildly weakened left handgrip;

(c) impaired sensation over middle finger by 30% and right index finger pulp by 50%;

(d) mild stiffness of dorsal interphalangeal joint of right index finger; and

(e)  atrophic change of pulp of right index finger.

120.  It was also noted by both experts that the condition of the plaintiff were solely caused by the attack and his complaints were genuine.

121.  Both experts were agreed that the upper limbs of the plaintiff had reached a stage of maximal medical improvement and the plaintiff would not benefit from further treatment.  The prognosis was good but he would have to live with mild impairment of both his hands in future.  Deterioration was not expected.

122.  The effect of the injuries were categorized as mild to moderate.

123.  As for the plaintiff’s ability to resume work and return to the pre-accident job, there appears to be some slight difference between the experts.

124.  In his first report, Dr Danny Tsoi opined that the plaintiff will have difficulty and inconvenience in resuming his job but that jobs with less upper limb manual demand and those without the requirement of handling fine objects are more suitable such as security guard, messenger, office assistant, salesman, light goods vehicle driver, light objects delivery worker.

125.  In his first report, Dr David Cheng stated that the plaintiff should be capable to resume his work, perhaps with a slight reduction of working efficiency for a few months, due to the need for adaptation.

126.  In their joint report, that aspect was stated as being agreed between the experts that the plaintiff can resume his pre-injury job but probably with some reduction in working efficiency.  He may have difficulties in preparing raw food material and casual clearing job.  If it needs some subtle and fine handwork, he would probably need adaptation and there may be reduction of efficiency.

Pain suffering and loss of amenities

127.  The plaintiff was 24 years of age at the time of the attack and 27 years at time of trial.  The plaintiff is right-handed.

128.  While there has been good improvement and recovery as per the medical opinion expressed by the experts in relation to the injuries suffered by the plaintiff, it is also apparent that the plaintiff still suffers from some restriction as to fine hand movements, especially the fingers of the right hand.

129.  Considering that the plaintiff has always worked as a chef in Japanese restaurants ever since he started work, his loss of fine finger movements must be one aspect of loss of amenities which will materially affect the plaintiff in his working life and which must be taken into account in assessing damages under this head of claim.  That disability to the fine finger movement of his right hand, the plaintiff being right-handed, is a disability which will affect the plaintiff for the rest of his life.

130.  Therefore giving full effect to such loss of amenities and also to the more general aspect of pain and suffering as can be seen from the medical evidence above, I will assess the loss under this head to be $380,000 being the amount claimed by the plaintiff under this head.

Pre-trial loss of earnings

131.  There is no dispute that the basic salary of the plaintiff in his pre-accident job was $8,800 per month and that he was given free meals at work, the value for which comes to a further $600 per month.

132.  There is however no agreement as to the amount of tips which the plaintiff would be able to receive.

133.  From the evidence of Wong, it is said that tips would be shared between the staff of the Restaurant, and while the amount of the tips is not fixed, each will, on average, receive a few hundred dollars in tips every month.

134.  Giving effect to that evidence of Wong, it will not be unreasonable to use $9,800 as being the full monthly entitlement of the plaintiff in his pre-accident job.

135.  The plaintiff was given sick leave up to 30 March 2006 resulting from the injuries from the attack.  That would be just short of 11 months from the day of the attack.

136.  The defendant has submitted that those 11 months of sick leave would be the time for which pre-trial loss of earnings should be awarded, but no more.

137.  That suggestion however ignores the medical opinion expressed by the experts jointly in their joint report in January 2008, that the plaintiff still suffered from fine finger movements being a residual disability from his injuries, which will result in reduced efficiency and for which the plaintiff will have to adapt.

138.  While the expiry of the sick leave certificates at the end of March 2006 may attest to the fact that the plaintiff was fit to resume work generally, it cannot be conclusive that he was in a condition to resume his pre-accident work with total efficiency.

139.  There is also evidence before me that the plaintiff had attempted to seek out other forms of work, mainly as a commercial driver cum delivery man but on each of those occasions, he found out, after trying the work, that he could not cope due to the fact that he was required to carry heavy loads by way of delivery.  Those failed attempts at alternative employment took place between the summer of 2007 and 2008.  There were altogether some five attempts by the plaintiff at such alternative employment.  Totally the plaintiff received $3,835 as wages in respect of those failed attempts at other employment.  The evidence showed that in these failed attempts at other employments, such work would have paid the plaintiff on average about $6,000 per month.

140.  Given all the circumstances in this case and the evidence, it would not be unreasonable to conclude that the condition of the plaintiff due to the disabilities he received from the injuries were such that it would have caused his earning ability to be reduced by something like $4,000 per month even after the sick leave period had expired.  Likely the whole pre-trial period would have been so affected.

141.  I therefore assess full loss of earnings for the 11 months’ sick leave and thereafter for the remainder of the entire pre-trial period partial loss of earnings of $4,000 per month.  This will work out as follows :

(a)  sick leave period of 11 months — $9,800 x 11 = $107,800; and

(b) remaining 36 months — $4,000 x 36 = $144,000.

Totally they come to $251,800 and reducing that by the $3,835 actually earned by the plaintiff during the pre-trial period will give $247,965.

142.  Adding a further 5% to take account of loss of MPF will give $260,363.

143.  In so assessing the loss of pre-trial loss of earnings, I have not given effect to the plaintiff’s contention that at some stage during the pre-trial period the plaintiff might have or would have risen higher than the post of assistant chef before the attack.

144.  The reason for not doing so was that there was evidence before me that the Restaurant did in fact close down in June 2007.  In those circumstances, even if the attack had not happened, the plaintiff would likely still have had to find another job with some other restaurant after June 2007 and which would have delayed whatever promotion the plaintiff would have hoped for had he continued with the defendant at the Restaurant.

Other special damages

145.  This has been agreed between the parties at $11,425 and that amount will be awarded.

Loss of future earnings

146.  The plaintiff’s claim for loss of future earnings using a suggested multiplier of 15 is predicated on the basis that due to the disabilities from the injuries sustained by him, the plaintiff will not be able to return to working as a Japanese chef again up to the retirement age of 65.

147.  I cannot accept that as a realistic premise.

148.  While it is true that the plaintiff has not had much education and has started his working life as a Japanese chef, he was only 24 at the time of the attack and 27 at trial.  He therefore has still a large part of his working life ahead of him.

149.  He obviously like his pre-accident work as a Japanese chef and is minded to make that a life long career.

150.  Although the medical evidence shows that he has some residual disability with fine finger movement, nevertheless it is the considered opinion of both experts that in time the plaintiff should be able to adapt and to overcome the inconveniences which he will have to face at the moment if he were to return to his work as a chef.

151.  There is nothing in the medical evidence to suggest that he will never be able to return to work as a chef.

152.  The difficulty in assessment is that the medical opinion of the experts do not give any indication what time frame would be needed by the plaintiff to adapt and to overcome the temporary inconvenience for him to be able to return to working as a chef.  That can only be a gradual process.

153.  That difficulty is compounded by the fact that at the time of trial, the plaintiff has not or has not been able to find any work in the line of a chef or cook.  That makes it all the more difficult to assess damages under this head.

154.  I am however quite confident that if the plaintiff is minded to and has sufficient conviction to steer him, he will be able to in due course resume work as a chef, perhaps with differing degree of efficiency at first.

155.  Given that the joint report was prepared in January 2008, it would not be unreasonable to expect the plaintiff to be able to fully adapt to working as a chef within another 3 years, at the end of which he should be able to regain most of his efficiency in his work.

156.  While a multiplicand of $4,000 was used for assessing pre-trial loss of earnings, I am of the view that the special circumstances of this case would merit a slightly increased multiplicand under this head, if only to acknowledge the loss of the chance to the plaintiff to advance himself as a chef during the time between the attack and three years hence from now. 

157.  I shall therefore use a multiplicand of $5,000 and a multiplier of 3 years.

158.  This will give $180,000 under this head of claim.  Adding on a further 5% for MPF will give $189,000 which is what I assess under this head.

Loss of earnings capacity

159.  The plaintiff’s primary case under this head of damage is an amount of $90,000 being for loss of one year of the plaintiff’s residual earning capacity.

160.  The alternative case of the plaintiff is that if the plaintiff was found to be able to resume his pre-injury work with reduction in working efficiency, the award under this head should be the loss of one year’s earnings as a kitchen chef in the amount of $118,200.

161.  The defendant does not dispute the alternative claim of the plaintiff under this head of damage on the basis that there should be no loss of future earnings awarded.

162.  Although there has been assessed some award under Future Loss of Earnings, but not to the extent claimed by the plaintiff, I am of the view that the alternative claim by the plaintiff under this head is still reasonable in all the circumstances of this case and should be awarded.

163.  Loss of earnings capacity is therefore assessed at $118,200.

DEDUCTIONS

164.  The plaintiff has already received $110,681 being advance periodic payments as well as the ECC award resulting from this attack while he was at work.

165.  The plaintiff is prepared to give credit for this amount that he had already received.

INTEREST

166.  Interest on general damages for PSLA will be awarded at 2% p.a. from the date of the Writ.

167.  Interest on all special damages will be awarded at half judgment rate from the date of the accident on the full amount up to the date on which the ECC compensation order was made (24 November 2006), and thereafter at the same rate but on an amount reduced by the amount of the deduction referred to above.

SUMMARY OF CLAIM

168. 

PSLA	$380,000
Pre-trial loss of earnings and MPF	260,363
Other special damages (agreed)	11,425
Future loss of earnings and MPF	189,000
Loss of earnings capacity	118,200
Interest on PSLA	13,300
Interest on specials	31,940
Sub-total	$1,004,228

From the above amount of $1,004,228 will need to be deducted the amount of $110,681 which will give the final figure of $893,547.

CONCLUSION

169.  There will be judgment for the plaintiff in the sum of $893,547.

COSTS

170.  There will be a costs order nisi that the defendant do pay the plaintiff his costs of this action to be taxed on the High Court scale if not agreed.  Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.