CHONG PUI KIN v. LEUNG KA FAI TONY

HCPI 991/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 991 OF 2005

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J U D G M E N T

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Background

1. Chong Pui Kin (“the plaintiff”) was born on 20 January 1959.  On 9 November 2002, he was employed by Citybus Limited as a bus driver and had been with that company since May 1997.  His salary was $18,300 per month.  Shortly after midnight on 9 November 2002, there was a minor traffic accident involving a bus driven by the plaintiff and two other motor vehicles at the Kowloon entrance to the Cross Harbour Tunnel (“the tunnel”).  One of the vehicles involved in the collision was driven by Leung Ka Fai Tony (“the defendant”).  To avoid congestion in the entrance to the tunnel where the accident had occurred, tunnel staff instructed all of the drivers involved in the accident to complete their journey through the tunnel and to exit on the Hong Kong side where they could safely park.  This they proceeded to do.  In the meantime, the plaintiff, contacted his employer who in turn instructed a supervisor to attend.  That supervisor was Mr Kwong Kwok Chun (“Mr Kwong”).

2. Subsequent to arriving at the Hong Kong exit of the tunnel, each of the drivers involved in the accident alighted from their respective vehicles as, did Mr Kwong.  In the course of recriminations as to who was responsible for the accident, the plaintiff was struck by the defendant (“the assault”). 

3. One of the matters that require resolution in these proceedings is the nature and extent of that assault.  To this I will return in due course. 

4. The defendant is an actor and apparently well known.  He was obviously recognized by the plaintiff at the time of the collision and assault.  It suffices to say that the defendant had consumed a quantity of alcohol prior to the accident and was subsequently charged with the offence of driving with a blood alcohol content in excess of prescribed limits.  In addition, he was also charged with common assault arising out of his striking the plaintiff.  To both offences, he pleaded guilty.

5. The plaintiff alleges that as a consequence of the assault he was injured to the extent that he can no longer be employed as a bus driver.  The combined heads of damages claimed are in excess of HK$3,000,000.  The defendant on the other hand says that any injuries suffered by the plaintiff arising out of the assault were minimal.  The plaintiff, it is said, suffered at most a minor back sprain from which he had fully recovered when he returned to work with Citybus Limited on 3 December 2002.

6. It is the defendant’s case that the uncontradicted evidence of the medical experts is that the plaintiff is fully able to return to his former employment as a bus driver but has chosen not to and has instead brought these proceedings against the defendant.

The assault

7. Apart from the plaintiff and the defendant, the one person who witnessed the assault was Mr Kwong.  It was the plaintiff’s evidence that in the course of discussing the circumstances of the accident, suddenly and without apparent motive, the defendant struck him with his fist on the forehead.  The plaintiff adopted as his evidence-in-chief a statement he made on 5 September 2003 in a document entitled “Crime and Law Enforcement Injuries Compensation Scheme Case Report” in this he said :

“… I saw the driver of the BMW on the opposite side was the movie star Leung Ka Fai.  At that time, I saw Kwong, Leung Ka Fai, another female driver and a few tunnel staff were talking and used their hands pointing to their own vehicles and the bus driven by me.  On this side, there were only one tunnel staff and myself to make arrangement for the transfer of passengers to another bus.  During such time, Leung Ka Fai shouted at me loudly when he was on the opposite side of the road upon seeing the tunnel staff and I were talking near the rear of the bus : ‘You come over here, come over here at once.’  I spoke to Leung Ka Fai : ‘There are passengers on the bus, I can’t go over to your place, I have to wait for another bus.’  I then continued to talk with the tunnel staff about the occurrence of this traffic accident.  The arrangement was finished after 15 minutes, I saw Kwong and Leung Ka Fai on the opposite side of the road were talking together, Kwong beckoned to me to go over to him, but the vehicles at the exit were travelling very fast at that time, (I) could not cross the road after waiting for a while, Kwong requested the tunnel staff to make arrangement for me to cross the road.  When I crossed the road and walked up to Kwong, Kwong said to me : ‘You and Mr Leung Ka Fai talk about the liability of this traffic accident’.  Therefore, I walked near Leung Ka Fai (about two steps).  At that time I did not say anything, Leung Ka Fai pointed at the BMW private car driven by him and said to me : ‘You are the bus driver, can you see you have crashed my car like this, don’t be so cocky, I will punch you, believe or not!’  Suddenly, Leung Ka Fai hit my left forehead with his fist twice, when Kwong saw Leung Ka Fai hit me, (he) immediately came forward to stop Leung Ka Fai he told me to leave quickly, and not to fight back.  Because it was a road behind me, therefore I proceeded in the direction of the private car Toyota, in the meantime, Leung Ka Fai hit me once each on my neck and my back.  When I reached the front part of the private car Toyota and stopped there, (I) already saw Kwong stop Leung Ka Fai from beating me, (he) also said to Leung Ka Fai : ‘No big deal, why hit somebody!’  I stopped at the front part of the Toyota private car and said to Leung Ka Fai : ‘Now it is your car that hit mine but not my vehicle hit yours, why you hit me, you are a star, you are a public figure, why you hit someone!’  Leung Ka Fai responded and said : ‘I like to hit you then I hit you.’  Leung Ka Fai intended to hit me again, but was stopped by Kwong, therefore I took out my mobile phone to make a report to the Police.  When Leung Ka Fai saw me make a report to the Police, he became very emotional and (he) pointed at me and said : ‘Dare you make a report to the Police.’  I paid no attention to what Leung Ka Fai said, moving away from the front part of the Toyota private car and called the Police.  After putting through 999, saying a few words, suddenly (I) felt severe pain on the back.  Leung Ka Fai hit me from the back, also using his hand to grab my neck, while I talked to the 999 police operator over the phone, Leung Ka Fai continued to hit me on my back, for 10 odd times with his fist.  I said to 999, Leung Ka Fai hit somebody in a traffic accident.  The police operator asked who was the Leung Ka Fai.  I said the best leading actor to motion picture Leung Ka Fai, requesting them to send someone to save me, (as) he almost hit me to death.  I could not talk further over the phone because I was so painful and tried to get rid of Leung Ka Fai as quickly as possible.  After I got rid of Leung Ka Fai, he still chased after me, around the Citybus goods vehicles for three circles.  Kwong moved forward to stop Leung Ka Fai when he saw Leung Ka Fai chased after me and asked the tunnel staff to stop the vehicles of the tunnel and let me cross the road, and return to the bus.  Upon returning to the bus, I reported to 999 again, stated clearly the place the case took place and ambulance to hospital was arranged.”

8. The defendant for his part accepted that he had struck the plaintiff, however in evidence he insisted that he had struck him only once.  He said that he had attempted to grab hold of the plaintiff but, that he had managed to free himself and that he had not otherwise struck him. 

9. Following upon the accident and the arrival of the police at the scene, the plaintiff attended the Accident & Emergency Department (“A&E Dept”) of Ruttonjee & Tang Siu Kin Hospital (“R&TSK”) where he was treated for minor abrasions and discharged.  The medical officer at the A&E Dept of R&TSK found the following :

(i)	5 cm scratch marks over left forearm;
(ii)	tenderness of forehead near left eye;
(iii)	tenderness over upper parts of back.

That report indicates that he was discharged and granted one day sick leave for 9 November 2002.  

10. The following morning, the plaintiff attended at the A&E Dept of the Prince of Wales Hospital (“PWH”) where he complained of musculoskeletal pain.  He requested and was given sick leave until 12 November 2002.  He ultimately returned to work on 3 December 2002.

The nature and extent of the assault

11. As stated above there is no dispute that there was an assault.  The critical issue however is the nature and extent of the assault.  The plaintiff’s evidence was that in addition to attempting to strangle him the defendant beat him savagely around the area of his back.  He says that he was struck no less than 10 and probably more times.  The defendant for his part denies this but did admit to having struck a blow to the back of the plaintiff when he pleaded guilty to the assault charge in the magistrates’ court.  On that occasion he accepted that he had struck the plaintiff three times.  In evidence before me, he resiled from that admission but acknowledged that he had struck the plaintiff at least once to the head. 

12. There were inconsistencies in both accounts of the assault.  When first interviewed by the police, the plaintiff said this (some four hours after the assault) :

“… Leung Ka Fai hit my left face twice with his hand.  Inspector Kwong Chun asked me to leave and do not fight back.  Therefore I turned round and left.  At the same time Leung Ka Fai wanted to grab my left hand, and hit my back near the neck once.  Then, I ran towards the vicinity of the female driver’s car, and Leung Ka Fai kept chasing me and also wanted to beat me, but inspector Kwong Chun also chased Leung Ka Fai hoping to stop him from beating me.  I reported to the Police during that time.  And Leung Ka Fai was still chasing me, therefore the three of us kept running among the cars.  I reported to the Police again during that time.  Afterwards, police arrived at the scene, then I told the police how the incident occurred, and pointed out that Leung Ka Fai was the one who beat me.  I then took ambulance to see doctor.”

13. Mr Kwong in his statement to the police said :

“Leung Ka Fai hit the left side of the face of Chung Pui Kin once with his right hand.  Therefore I separated them and told Chung Pui Kin to walk over and call the police.  He then ran in the direction of the front of the car, and arrived at the front of Miss Kwong’s car to call the police.  While Leung Ka Fai pushed me away and went to Chong Pui Kin, hit the back of the head of Chong Pui Kin once with his right hand.  Further then I stopped him again from further hitting and told Chong Pui Kin to run further away.  But Leung Ka Fai escaped from me and began rushed forward and hit Chong Pui Kin once more so I told Chong Pui Kin to return to the bus as soon as possible and I persuaded Leung Ka Fai not to do that.  After a while, the police arrived.”

14. Mr Kwong was not called to give evidence albeit that in the course of giving evidence the plaintiff intimated that he was in a position to call him to do so if this became necessary.

15. As can be seen from the above, the statements of the plaintiff and the only other witness to the assault were initially entirely consistent.  They both alleged that the defendant had struck the plaintiff on three occasions.  They are also consistent with the findings of the medical officer at R&TSK who recorded that the plaintiff claimed to have tenderness over the upper part of his back.  These two statements and the medical findings are in marked contrast to the statement given by the plaintiff on 5 September 2003 (para. 7 above).  The preamble to the statement on that occasion reads as follows : “I completely disagree with the contents of the related report submitted by the Hong Kong Police Department and the contents of statement given by me to the police on 9 November 2002.”

16. The significance of the above preamble is this.  On 12 March 2003 as consequence of a complaint made by the plaintiff to the Complaints Against Police Officers division (“CAPO”), a further statement was taken from him.  The essence of his complaint to CAPO was that those investigating the assault upon him on 9 November 2002 had failed to record properly, or at all, a number of his complaints.  In particular, he said that the statement taken in the early morning immediately after the assault, omitted the fact that he alleged that the defendant when assaulting him had grabbed him from behind and hit him on the back several times.  In the statement made to CAPO on 12 March 2003 he said that when he attempted to tell the officer taking the original statement on 9 November 2002 of the extent of the assault upon him, the officer made up excuses to leave the room and answer telephone calls and consequently failed to record this complaint.  Likewise, he said of himself, that as he was tired at the time, he was therefore not aware this detail had been omitted. 

17. However, further into that statement, he said :

“… a further supplement, on that day after the police constable has finished taking statement from me, I have also mentioned to him that he has not written down some main points in the statement, but that police constable then replied and said ‘there was nothing for you to worry about, this statement has already proved that he has beaten you up, if there is any problem would call you back to make a statement again.’”

18. The two versions are irreconcilable.  On the one hand the plaintiff alleges that the police officer was aware of his concerns but was obstructive and on the other he alleges that the police officer was distracted and as a consequence omitted these details.

19. Mr Chan Bing Tung (“Mr Chan”) was the police officer who took the plaintiff’s statement on 9 November 2002.  He gave evidence in the defence case before me.  His evidence was in direct conflict with that of the plaintiff.  He said that the statement taken on 9 November 2002 was prepared on the basis of the plaintiff’s descriptions to him of the events earlier that morning.  The plaintiff had been given the opportunity to add to it or amend it and declined to do so. 

20. For the first time in evidence before me the plaintiff alleged that Mr Chan, in response to the plaintiff’s complaint that the statement omitted significant details, said words to the effect “being hit one time is an assault being hit 10 times is also just an assault” and “I’m the one in uniform why don’t you believe me just sign the statement”.  Mr Chan denied that this exchange had occurred.

21. On 17 March 2003, the plaintiff made yet another statement to CAPO.  In this statement the plaintiff in particular wished to emphasize to that he suffered great back pain at the time of the assault. 

22. The significance of the inconsistencies between the statement given by the plaintiff immediately after the assault and those made subsequently are readily apparent.  It is clear to me that the plaintiff was at pains to emphasize that he had been struck blows to the back by the defendant and had suffered great pain as a consequence.  It is equally apparent that he was aware that he had not made these complaints in the first statement.  In this regard, the fact that the record of his injuries when he first attended the A&E Dept of R&TSK, makes no reference to any acute back pain in the lower back is likewise immediately apparent. 

23. In the period following upon the assault, the plaintiff was interviewed by a number of Chinese language newspapers and, in particular, on 10 November 2002 photographs appeared showing him indicating to reporters where on his back it was that he had been struck by the defendant.  That position was not in fact the position recorded by the medical officer at R&TSK in the early hours of the morning of the assault.

24. The determination of the nature and extent of the assault on the evening in question is an important issue in this case and has some bearing upon the medical evidence.  From all of the evidence I am satisfied that the defendant did strike the plaintiff and he did so probably on three occasions and that at least one of those blows was to the back.  I do not accept the evidence of the defendant that he only struck the plaintiff once.  I am however equally satisfied that he did not attempt to strangle the plaintiff as alleged and that he did not strike the plaintiff’s back 10 times or more.  I believe that the plaintiff has grossly exaggerated the nature and extent of the assault and he has done so with the possibility of compensation in mind.  It is not without significance that representations had been made to the plaintiff on behalf of the defendant offering compensation to him immediately after the accident and prior to the plaintiff amending his original witness statement to include allegations of multiple assaults to the back.  I am satisfied that the plaintiff set about rewriting his description of the events of that evening so that they dovetailed with his complaints of back injury.  I do not believe the plaintiff’s account of his reasons for doing this.  I accept the evidence of the police officer Mr Chan.

25. Notwithstanding my findings that the plaintiff has intentionally exaggerated the nature and extent of the assault upon him, the fact remains that he was assaulted and apparently injured.  The plaintiff’s claims for damages are not barred because he has exaggerated.  However my conclusions as to his veracity vis-à-vis the nature and extent of the assault may have some bearing on the extent of the injury and his present disability (if any).

Sick leave

26. The plaintiff was granted sick leave by the PWH at his request from 9 November 2002 until 20 November 2002.  Again upon his request from the Kwong Wah Hospital for the period 21 November to 23 November 2002, from the Northern District Hospital (“NDH”) from 24 November to 25 November 2002, from the Shek Wu Hui JCC from 26 November to 29 November and from the PWH from 30 November to 2 December.  He returned to work on 3 December 2002.

27. On 3 January 2003, the plaintiff was injured whilst cleaning and washing buses in the course of his employment.  That injury was to his back.  He attended the A&E Dept of the NDH on 3 and 5 January 2003 as a result.  It is of significance that on the latter occasion he indicated that his earlier back sprain suffered in November 2002 had improved.  He was granted sick leave between the period 3 January 2003 and 9 January 2003.  

28. On 17 January 2003 he was yet again injured in the course of his employment.  His account of this incident was that whilst driving a bus through a round about he had to brake hard and in so doing felt a sharp pain to his lower back.  On this occasion, the plaintiff said the pain was so severe that he was required to be taken to hospital in an ambulance. 

29. The A&E Dept of the PWH notes for the plaintiff’s attendance on 17 January indicate that he was complaining of “sprain back whilst sudden stop of bus” “incident on duty” “he complained of lower back pain”.  On 19 January, again at the NDH A&E Dept, he attended and complained that he had sprained his back on 17 January.  The notes report “sprain back accidentally two days ago increase back pain today”.  There is thereafter a catalogue of attendances by the plaintiff on various A&E Dept and private doctors requesting sick leave.  It suffices to say that the plaintiff returned to work on one day only in April 2005 and, in evidence before me has confirmed that he has not worked since. 

30. It is the plaintiff’s case that the injuries suffered by him as a consequence of the assault by the defendant have caused him to be permanently disabled and incapable of returning in his employment as a bus driver and that he is now only able to perform clerical duties at a much lower income.  If this be so he is entitled to a significant amount of damages for loss of pre and post-trial earnings.

31. In the period 9 November 2002 until 25 December 2005 the plaintiff was granted 782 days sick leave (a number of the reports wherein such sick leave was granted bear the indication by the medical officer concerned “request for sick leave”.)  The plaintiff has been paid the sum of $577,496.96 in consequence of an employees’ compensation case (DCEC1262/2004).  Documents relevant to that award dated 7 November 2005 confirm that the plaintiff had been assessed by a Medical Assessment Board to have a 7% permanently disability because of “Multiple injuries resulting in back pain and left radicular pain”. 

32. The plaintiff’s case is that he has a very significant disability, which he did not have before the assault.  The plaintiff complains that he currently suffers from :

(1)	persistent pain from the back and the waist down to the buttocks;
(2)	left leg numbness and weakness;
(2)	left toe numbness and weakness;

The plaintiff accepts that he has degeneration of the lumbar spine.  On 12 July 2003, an MRI scan of the plaintiff’s lumbar spine revealed :

(i)	mild spondylosis;
(ii)	degeneration of the L5/S1 disc with a moderate size left paracentral disc protrusion into the spinal canal;
(iii)	mild compression of the anterior aspect of the thecal sac; and
(iv)	severe compression of the origin of the left S1 nerve root.

It is clear from the evidence that this degeneration was not caused by the assault.  It is the plaintiff’s case that subsequent to the assault that pre-existing condition was aggravated to the extent that thereafter he suffers from persistent and debilitating back pain.  In the alternative, it is the plaintiff’s case that even if there were, as alleged by the defendant, two separate and discrete incidents/injuries involving the plaintiff’s back after the assault and subsequent to his returning to work nevertheless, the defendant is liable given that the original degeneration had been asymptomatic and had become overt as a consequence of the assault.  The subsequent incidents it is said merely compounded the injury inflicted by the defendant.

33. The defendant for his part says that the nature and extent of the assault upon the plaintiff was trivial and that any injury suffered by the plaintiff as a consequence was resolved by the time he returned to work on 3 December 2003.  The defendant says that the complaints of back pain and consequent debilitation are fabricated or grossly exaggerated and if there be any residual disability (which is denied) it is directly attributable to the two incidents after the plaintiff returned to work.  It is the defendant’s case, that the plaintiff is and has been capable of resuming his employment as a bus driver as and from the expiration of his grant of sick leave up to 2 December 2002.

The medical evidence

34. The plaintiff relies in part on a Certificate of Permanent Unfitness issued pursuant to the Employment Ordinance, Cap. 57 (“the certificate”) granted on 20 December 2005 wherein it was said that the plaintiff was permanently unfit for employment as a bus driver because of “chronic low back pain with sciatica, limited sitting, standing tolerance”.  The author of that document was not called to give evidence nor did he/she furnish a report or opinion beyond or in support of that conclusion. 

35. On 11 November 2005 a joint medical report was prepared by :

(i)	Dr Au Ka Kau,
(ii)	Dr Lee Po Chin, and
(iii)	Dr Lam Kwong Chin.

All three are accepted to be experts in the field of orthopaedics.  (The medical experts)

36. Whilst the three medical experts disagree in part as to the cause of the plaintiff’s complaints they are as one in their conclusion that he is fit to resume his occupation as a bus driver and has been for some time.

37. Two of the medical experts concluded that the plaintiff was fit to resume his employment as a bus driver as at 3 December 2002 (there is an apparent typographical error in the report where the date of the expiration of sick leave is stated to be 3 January 2003) and in the case of the third, no later than 28 June 2004.

38. I am instructed by counsel that Dr Au had been engaged on behalf of the plaintiff, Dr Lee, on behalf of the defendant and Dr Lam, on behalf of the plaintiff’s employer, Citybus Limited.  They have been provided for the purposes of the preparation of their report and in contemplation of their joint examination of the plaintiff with a significant number of documents.  Those documents included the medical reports by a number of doctors who treated the plaintiff at various A&E Depts of public hospitals throughout Hong Kong.  They included the MRI scan report dated 12 July 2003 together with an X-ray examination of the plaintiff’s lumbo-sacral spine which had been prepared for the purposes of their joint examination. 

39. I am in no doubt that the opinions of the three medical experts, who prepared the joint report, are to be preferred to that of the author of the certificate.  They were fully conscious of the extent of the plaintiff’s alleged discomfort, the significance of his pre-existing degenerative condition and the history of treatment and attendances upon medical practitioners.

40. Likewise I am in no doubt that all three experts were mindful of the fact that the plaintiff asserted that the nature and extent of his back pain was such as to preclude his returning to work as a bus driver.

41. An examination of the conclusions in their report is revealing.  I note that they were not apparently alerted to the incident on 3 January 2003 when the plaintiff claimed that he had suffered pain after cleaning buses.  There is a reference to the fact that he had been given further sick leave from 3 to 8 January but not the fact (which is not in dispute) that the plaintiff when requesting the sick leave had said that his original back sprain was improving but that he had further injured his back whilst cleaning buses that day.  They were however alive to the fact that there was an incident on 17 January 2003.  

42. The state of degeneration of the plaintiff’s lumbar-spine, they considered to be pre-existing and not caused by the assault.  They observed that the prolapsed intervertebral disc revealed in the MRI scan (and the severe compression of the S1 nerve root) was gradual in its onset and developmental in origin.  They noted that there was no clinical evidence of left S1 nerve root radiculopathy which is to be expected if the nerve root compression is the source of the back pain.

43. Of the three experts only one Dr Au considered that the then complaints of the plaintiff were attributable to the assault.  The other two were of the opinion that :

(1)	The symptoms of back pain had subsided significantly until the incident of 17 January 2003 aggravated his pre-existing degenerative back condition (Dr Lee).
(2)	The incident of 17 January 2003 was a spontaneous aggravation of back pain which was itself a product of the gradual deterioration due to the prolapsed disc (Dr Lam).

44. I am in no doubt that had they been alerted to the injury on 3 January 2003 that their opinions would have been the same.

45. Dr Au likewise accepted that the incident of 17 January 2003 could not be ruled out as having aggravated the plaintiff’s pre-existing degenerative back condition.   Dr Lee considered that the plaintiff may have suffered a sprain to his lower back in the course of the struggle on 9 November 2002.

46. Drs Lee and Lam considered that the injury to the plaintiff’s back caused by the assault on 9 November 2002 taken together with the incident on 17 January 2003 was in effect minimal.  They both concluded that the plaintiff was fit to resume work as a bus driver and the expiration of the original periods of sick leave i.e. 3 December 2002.

47. Dr Au considered that the period of sick leave should have been extended until late June 2004 (when the employees’ compensation proceedings were concluded), but did not say why or how he came to that conclusion.  In this regard, I prefer the opinions of Drs Lee and Lam.  Dr Au’s conclusion assumes that there was ongoing pain.  That is to my mind an assumption dependent upon the veracity of the plaintiff.  I have found the plaintiff not to be a witness of truth and to have exaggerated the nature and extent of the assault upon him.  I am in no doubt that his complaints of ongoing pain and discomfort are equally exaggerated.  Given the conclusions of Drs Lee and Lam, it is reasonable to assume that they had a similar conclusion.

48. A matter of critical importance is the fact that in the original and in a supplementary report prepared by Drs Au and Lee all three Doctors looked for but did not find objective evidence which would support the subjective complaints made by the plaintiff.  In particular, they endeavoured without success to substantiate the plaintiff’s assertion that he had numbness and weakness in his left leg which as they observed could be caused by nerve compression in the spine.  There was no objective support for the plaintiff’s assertion. 

49. In the supplementary report, Drs Au and Lee noted that on 7 November 2005, the plaintiff was assessed as having a “7% permanent disability because of multiple injuries resulting in back pain and left radicular pain.”  They looked for and found no support for the alleged “radicular pain”.

50. In the final analysis, I am satisfied that the plaintiff suffered a minor injury which caused some limited back pain.  That injury had almost resolved when as a consequence of two further injuries he subsequently suffered further back pain as a consequence of aggravating his pre-existing degenerative spinal condition.

51. I am satisfied that irrespective of the injury suffered as a consequence of the assault by the defendant, the complaints now made are exaggerated and if there is any residual pain (which I very much doubt) it is as a consequence of the exacerbation of his pre-existing back condition in the two subsequent incidents whilst employed by Citybus Limited and not by reason of the assault.

52. The fact that he has been paid the sum of money he has been paid by reasons of the Employees’ Compensation claim has not assisted me.

53. I am also of the opinion that the plaintiff has been exaggerating the nature and extent of his disability and has done so almost from the outset.

54. The plaintiff in my opinion decided that the defendant could be the source of compensation and set upon an orchestrated course to that end.

Damages

55. The plaintiff is entitled to damages as a consequence of the assault.  Whilst the assault reflects poorly upon the defendant, I am satisfied that is resulted in superficial injuries and a minor back sprain. I assess these at $25,000.   He is entitled to pretrial loss of earnings from the date of the assault until he resumed work on 3 December 2002 a total of 24 days.  This is assessed at $18,300/30 x 24 = $14,880.

56. Post-trial loss of earnings no award.  The plaintiff has chosen not to return to work.  There is as I have found to medical basis for this which is attributable to the defendant beyond 3 December 2002.

57. Special damages an award of $100 (being expenses incurred up to 2/12/2003).

58. Loss of earnings capacity no award.  The plaintiff has fully recovered from the injuries suffered in the assault.

59. Given the payment made in the workers compensation case (see paragraph 28 above) and the fact that the plaintiff in his revised statement of damages dated 29 November 2006 “gives credit for this award”.  I will invite counsels submissions on the appropriate orders to be made including as to costs.

60. There will be liberty to apply.