CHENG LOON YIN v. SECRETARY FOR JUSTICE

HCPI 118/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 118 OF 2003

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J U D G M E N T

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Introduction

1.  This is a claim for damages for personal injury by the Plaintiff who, whilst in the course of his duties as a Senior Hawker Control Officer, was punched in the face by the 2^nd Defendant who was working at a greengrocers shop owned by the 2^nd Defendant’s wife.  The claim against the 2^nd Defendant is based on the assault.  The 1^st Defendant, the Secretary for Justice, represents the Plaintiff’s departmental employer the Food and Environmental Hygiene Department which is sued in negligence and/or breach of statutory duty for failing to take proper measures to sufficiently protect the Plaintiff from the foreseeable risk of an assault of this type.

The Incident

2.  This occurred at just before 11 o’ clock in the morning on the 31^st May 2000 outside the Sun Wan Loi greengrocers’ at 29A Shek Yam Road, Kwai Chung.  The Plaintiff and his colleague Mr Pang Lun To, who was junior to him, were on routine patrol to ensure that market traders (hawkers) and shopkeepers were not trading illegally or obstructing the footpath or carriageway.  The undisputed evidence is that Mr Pang, who was walking ahead of the Plaintiff, approached the 2^nd Defendant who was outside the Sun Wan Loi shop which had just received a consignment of durian and lychees.  Due to a shortage of space, some of this fruit was on the pavement outside the shop and Mr Pang asked the 2^nd Defendant to remove it as it was causing an obstruction.  Mr Pang had been on the Plaintiff’s list of witnesses but due to administrative difficulties, the Plaintiff has decided not to call him.  As a result, I do not have his account of what occurred outside the shop particularly as to what was said to the 2^nd Defendant and more importantly, as will become apparent presently, what the Plaintiff said to the 2^nd Defendant.  In this regard, I only have the 2^nd Defendant’s account of what Mr Pang said to him, the Plaintiff not having heard what had initially passed between them as he was some paces behind Mr Pang.  Neither therefore, do I have Mr Pang’s account of what the Plaintiff said to the 2^nd Defendant.  The 2^nd Defendant has said that Mr Pang’s tone and the manner were perfectly civil and that for his part he was entirely cooperative but that the mood changed with the Plaintiff’s arrival.

3.  According to the 2^nd Defendant Mr Pang told him to move the fruit into the shop and also asked him for his identity card which he did not have with him.  It was in the shop.  He therefore went into the shop to get it and as he emerged back onto the pavement the Plaintiff appeared and started to shout and abuse him.  The substance of it was that he asked the 2^nd Defendant whether he was “fucking almighty” and that he should immediately remove his goods from the pavement and that if he did not he would “fucking do him”.  The 2^nd Defendant’s case is that he became so incensed at being addressed in such an offensive and vulgar manner in public that he lost his composure and being so provoked by the Plaintiff’s language he punched him on the right cheek.  He says that the Plaintiff managed to stay on his feet and that they were separated by those around them and that the police were then called and he was taken away and charged with assault and causing an obstruction.

4.  The Plaintiff’s case is that he and Mr Pang having seen that the 2^nd Defendant had two baskets of lychee (durian) at the edge of the pavement which took up about one square metre and that he was offering these for sale from there decided to arrest him.  Pang went first and the Plaintiff asked for assistance by means of walkie-talkie radio from other members of their team and for their vehicle to carry away the offending fruit.  As he approached he also saw that the 2^nd Defendant had other goods in the side alley next to the shop.  He ordered the 2^nd Defendant to remove them from there into the shop.  At this point, he says that without warning the 2^nd Defendant rushed at him, swore at him and punched him in the mouth and nose and then again on the right cheek.  He says that the force of the blows knocked him senseless onto the ground.  He did not recover consciousness until he was in the ambulance that was taking him to Princess Margaret Hospital.  He remained in hospital for 10 days being treated for his facial injuries and for what the medical experts have described as a hyper-extention injury to his neck which I will need to make further reference to when I consider the quantum of damages.

5.  In respect of the assault the 2^nd Defendant was brought before the Tsuen Wan Magistrates Court on 14 June 2000 and charged with an offence of assault occasioning actual bodily harm and obstruction of a public place by virtue of placing 120 kgs of lychee, two bamboo baskets, plastic bags and price labels on the pavement outside his shop.  He was represented by Counsel instructed by the Duty Lawyer Scheme and pleaded guilty to both charges.  The mitigation on his behalf was that he had been selling fruit which had been delivered to the door of the shop.  Its value was $10,000.  It was said that the Hawker Officers had quarrelled with him and accused him of obstruction.  One of the officers told him that they were going to confiscate his fruit and that on impulse he hit one of the officers with his fist once.  The Magistrate fined him $3,000 for the assault, $1,000 for the obstruction and also confiscated the fruit.

6.  This mitigation does not sit four square with his evidence before me which is that he was provoked by the Plaintiff’s abusive language and high handed manner.  Although the mitigation did refer to a quarrel with the officers the essence of the mitigation would appear to be that he became upset on being told that a valuable consignment of 120 kgs of lychee was to be confiscated and it was this that caused him to lose control and punch the Plaintiff.

7.  There is no question that the 2^nd Defendant assaulted the Plaintiff on the occasion complained of in the Statement of Claim and that he must therefore be liable to pay damages to the Plaintiff for this deliberate assault.  An issue has arisen as to whether he did so after he had been provoked by the Plaintiff who he says used abusive and insulting language.  I am required to make a finding about this because if this is shown to be the case that may go to reduce the Plaintiff’s damages.  Because the 2^nd Defendant is unrepresented I have not had the advantage of having argument on his behalf on this issue.  Nevertheless both Mr Kwok Siu Hay for the Plaintiff and Mr Edward Shum for the 1^st Defendant have addressed me on this matter and I have been shown a number of authorities which bear on it.  Without at this stage going into the matter in any detail it would appear that the provocation will go to reduce an award of exemplary damages but will not affect the amount of compensatory damages.  That having been said there are cases which suggest that conduct of this type by a Plaintiff will affect both exemplary and compensatory damages.  I propose to leave this there for the moment.

Was the Plaintiff insulting and abusive to the 2^nd Defendant?

8.  It is convenient to decide this issue now.  The burden lies on the Plaintiff.  Once the 2^nd Defendant has raised the matter the Plaintiff is required to negative it on the balance of probabilities.  The Plaintiff has an exemplary record of service in his department.  He has been promoted to his present rank and has acted above it for considerable periods.  This is due to the high quality of his performance.  His reports speak of him in the highest possible terms.  I will need to make more detailed reference to the quality of his work in relation to damages because of a plea on his behalf that but for these injuries he would have acted and perhaps been promoted but in addition to this the quality of his work as a Hawker Control Officer also goes to the inherent unlikelihood of his having abused the 2^nd Defendant given the nature of his training and the requirement that he should conduct himself with courtesy.  This will also be a matter which goes to his credit as a witness of truth.

9.  In this regard the 2^nd Defendant was, up till then, a man of previous good character and in his past dealings with Hawker Control Officers he had dealt with them in a reasonable manner.  This must therefore be something to have regard to in his favour both has to propensity and credibility.

10.  Having regard to all the evidence called on this issue I am satisfied that the punches thrown by the Defendant (there were two of them and not one – the two areas of facial injury amply confirm that) were the result of him having become angered and frustrated by the fact that he was going to lose 120 kgs of lychee – there is a reference to their value being $10,000 – and not due to any abusive language by the Plaintiff.  The 2^nd Defendant having allowed himself to become angry on being told this lost his composure and punched the Plaintiff.  I find as a fact that the Plaintiff had at all times conducted himself properly and professionally towards the 2^nd Defendant.  Accordingly, provocation by abusive language by the Plaintiff goes from the case.

11.  This therefore resolves the issue of liability against the 2^nd Defendant in favour of the Plaintiff.  There is no factual or legal basis for reducing quantum by virtue of anything that the Plaintiff said or did in relation to the 2^nd Defendant.

Liability against the 1^st Defendant

12.  Having discharged the relatively straightforward task of demonstrating the 2^nd Defendant’s liability the Plaintiff has also taken on the more onerous burden of showing that his employer, as represented by the 1^st Defendant, was guilty of negligence and/or breach of statutory duty by failing to protect him from an assault of this sort.

13.  It is helpful to recite the nature of the pleaded case against the 1^st Defendant.  This appears from paragraph 12 of the Statement of Claim (starting at page 12 of bundle 1) and from the further and better particulars thereto (starting at page 53 of the same bundle).

14.  The first allegation is a failure to provide proper and/or adequate training to the Plaintiff to defend himself when confronted by persons who behave violently.  Secondly, failing to take all reasonable and/or practicable precautions for the Plaintiff’s safety when engaged in outdoor work.  The further particulars to this are that the 1^st Defendant should have made available sufficient manpower, equipment and vehicles for the Plaintiff’s use.  It is said that he should not have been left to patrol on foot with only one colleague to assist him.  There is a further general allegation of a failure to provide or maintain a safe system of work.  The further particulars to this relates to an alleged failure to arrange, secure or make available the necessary support and reinforcements.  That there was no police escort or protection and that radio communications were unduly restricted due to limited radio frequencies and no mobile telephones were provided.  There is also a plea that the 1^st Defendant had not given the Plaintiff proper and/or adequate instructions on safe methods and/or procedures to carry out his duties and lastly, to provide suitable equipment.  This equipment has been particularised as a baton, an alarm and a mobile telephone.

15.  It seems to me that these complaints need to be tested and assessed against the background of what it is that the Plaintiff and his colleagues are employed to do.  Whilst the duties of a Hawker Control Officer require him to perform what are on occasions difficult tasks which call for a cool head and a degree of firmness and courage when faced with unco-operative and sometimes hostile traders and hawkers, he is not required to enter what are dangerous areas or situations such as the police are required to when facing armed and dangerous criminals.  In fact, where there is a potentially dangerous duty to be performed this will be discussed beforehand and if necessary the assistance of the police will be enlisted.

16.  I have been told of the training that a Hawker Control Officer is required to undertake.  The initial period is for 7 weeks.  There are also Junior Command Courses, for more experienced officers, which last for 8 days.  I do not propose to rehearse here the curriculum which comprises the basic 7 week course or the shorter Junior Command Course.  It is sufficient to relate that the basis of the training is to teach the officers to avoid conflict wherever possible and to peacefully resolve situations of conflict whenever they may arise.  The tactic employed is referred to as “disperse or we arrest”, which as the words suggest, entails the officers directing the hawkers to move away and cease their unlawful activities and then give them a sufficient opportunity to do so or else face arrest and prosecution.  In approaching their duties in this way they minimise the risk of conflict and rely on the hawkers complying with the request.  The training also teaches conflict resolution through role-play.  Examples of unco-operative or violent conduct are demonstrated by the trainers and the means of resolving such incidents are shown to the trainees.  Officers under training are then given an opportunity to act out such situations themselves.  If violence is threatened or offered the officers are trained to withdraw and summon the police who will be able to detain the suspects.  They are instructed not to involve themselves in violence and to conduct themselves with courtesy whilst maintaining their authority.

17.  It is also necessary to refer to the organisation of a routine patrol of the type that the Plaintiff was involved in when he was assaulted.  Typically, the day’s operation is discussed beforehand with the Senior Officer.  The likely problems are identified so that the members of a hawker team will know what to expect.  If the number of hawkers is likely to be great or potentially hostile, team numbers are adjusted so that the sufficient officers are available and the police are also informed and consulted.

18.  On this particular occasion the nature of the area was not considered as difficult or in anyway hazardous.  There was a total of eight officers and a vehicle.  Lower grade labourers were available to assist in the removal of any seized articles.

19.  I have been shown a table of the number of hawker officers who have been injured in the course of their duties by hawkers over the past few years.  In 2000, the Plaintiff was one of 71 officers injured in this way.  In 2001, the figure was 84 and in 2002 it was 86.  In 2003, it fell to 72 and up to September this year the figure was 61, which extrapolated for an annual figure would give 81.  Whilst these figures are not so high as to cause alarm they serve to emphasize the risks that go with this occupation.

20.  So far as personal equipment, in May 2000 the Plaintiff and his colleagues were provided with walkie-talkie radios with which to communicate with each other.  The radio frequencies that were available to them were limited and so radio discipline was required.  Officers were therefore encouraged only to resort to their radios when the need arose and to avoid unnecessary communication which might jam the system.

21.  Dealing with two matters in particular – it has been suggested by Mr Kwok that the Plaintiff and his colleagues should have been provided with an alarm which might have had the effect of deterring any would-be attacker.  The knowledge that the officer could set it off would cause a potential assailant to think twice.  The short answer to this is that whilst it would undoubtedly make a loud noise if set off it is difficult to see how it would really add to the walkie-talkie as a means of summoning assistance.  Any would-be assailant would know that the officer equipped with a radio could easily summon help in that way.  In my judgment the alarm, a small black box-like device, would have added nothing to the overall safety of this officer.

22.  The next item of equipment said to have been lacking, was a baton which would have served as an article of deterrence as well as for the purpose of self defence.  This had been taken up with the police who had advised against its issue to Hawker Control Officers.  In this regard, quite apart from the undesirability of proliferating potentially dangerous items of equipment, in my judgment the issue of a baton would have had the effect of changing the image of the officers and undermined their “softly approach with hawkers.  To arm them in this way could well have had the effect of engendering more hostility towards them as well as being unnecessary when dealing with more difficult situations where the officers concerned know that they are able to summon police assistance in such cases.

23.  Another complaint relates to the failure to issue mobile telephones to replace or supplement walkie-talkie radios, particularly when since this incident, mobile telephones have now been issued.  Whilst no doubt this has been seen as an improved measure, any organisation that is well run will always carry out reviews of its methods and procedures.  Such improvements as are implemented are not to be seen as an indication that what was previously in place or was available is evidence of any previous negligence or breach of duty.  In this case I have no doubt that a mobile telephone is a welcome addition but the walkie-talkie system then in place was perfectly suitable and adequate in the circumstances.  It is after all a well tried and tested means of communication with very wide application and in a number of situations and occupations.

24.  There is also a criticism of the system of patrol in that it is said that these officers should have patrolled in a vehicle, alighting as and when required.  It is difficult to imagine a more impractical means of doing this job, which apart from questions of accessibility in narrow busy market streets requires a face-to-face approach with the officer needing to go over and speak to hawkers to enforce the “disperse or we arrest” procedures.

Conclusion

25.  In my judgment the Plaintiff has come nowhere near to demonstrating a breach of duty or negligence on the part of the 1^st Defendant.  This occupation does carry inherent risks of physical assault where officers are bound to come across, and perhaps frequently, obstreperous and unwilling hawkers who may well display hostility.  In such circumstances the 1^st Defendant was and is bound to devise a system of work and a training regime and equipment which will, in the words of Lord Fraser in Robertson v Bell 1969 SLT 119, “…. not expose [the Hawker Control Officers] to unnecessary danger ….”.  In doing so the department is bound to exercise reasonable care to ensure that this duty is complied with.  Nevertheless, it cannot be expected to act as an insurer – it can never eliminate such risks in an occupation that carries some inherent risk of an officer being assaulted.  Equally, the employer cannot afford to be oblivious of such risks.  In my judgment the right balance has been struck having regard to the nature of the tasks to be performed and the level of reasonably expected hostility or violence.  The central theme of avoiding conflict and training to resolve conflict is the right one.  The training was entirely suitable for the duties that were to be performed and the means by which those duties were to be carried out.

26.  When one attends to what happened on this occasion it is difficult to see just how such an unexpected assault could have been catered for by any sensible training regime.  The 2^nd Defendant’s assault was wholly unexpected.  It was not preceded, on my finding of the facts, by any provocation on the part of the Plaintiff nor by Mr Pang.  The whole tenor of the event was perfectly routine with none of the danger signals such as heated exchanges or any menacing behaviour on the part of this single individual.  The only way that this might have been prevented was if the Plaintiff was expert in unarmed combat which would have been wholly disproportionate to the ordinary demands of the job.  It is asking too much to expect the training program to include unarmed combat or self-defence skills at that level.

27.  In the event this was one of those unfortunate and unexpected incidents which a job such as this carries and which no reasonable and adequate training programme can completely guard against.  It can also be observed, and this reinforces the point, that the Plaintiff, to whom no possible blame can attach, is and was a highly competent and experienced officer who also had many years in the auxiliary police force whose training would have prepared him for much more physically dangerous work.  Even that additional training could not help him on this occasion.

28.  I am entirely satisfied that none of the allegations of negligence or other breaches of duty has been made out against the 1^st Defendant.  The training methods, the equipment and the system of work employed by the department at the time of this incident were entirely proper and adequate to meet the usual demands of the job.  To cast any higher duty to meet an unexpected assault of this type would demand far more of the 1^st Defendant than should reasonably be expected.  Accordingly, the action against the 1^st Defendant must fail and for whom there must therefore be judgment.

Damages

29.  This therefore leaves over the assessment of damages against the 2^nd Defendant.  This assessment would also have been made against the 1^st Defendant had the department been liable.  I say that in the event of an appeal against my dismissal of the action against the 1^st Defendant so that the Court of Appeal will know what I would have awarded if that had proved to be necessary.

30.  I propose to follow the heads of damage claimed in the Plaintiff’s revised statement of damages.

Pain, suffering and loss of amenity

31.  The medical evidence is agreed.  Any differences between Dr Choa for the Plaintiff and Dr Woo for the 1^st Defendant are so minimal that it has not been necessary to have them cross-examined on their reports.  A useful summary is also provided in the report of Dr K L Leung of the Princess Margaret Hospital (page 166 bundle 1).  The Plaintiff was initially admitted to the neurological department for his head injury and loss of consciousness complaining of neck and upper limb pain with paraesthesia (tingling and numbness).  On examination of the cervical spine no tenderness was found nor was there muscle spasm.  Active range of movement of the cervical spine was full.  There was hyperaesthesia (abnormal sensitivity) of both upper limbs.  The cervical spine x-ray only showed degenerative changes.  Treatment was by soft neck collar and physiotherapy.  He was discharged from hospital on 10 June 2000 some 11 days after his admission.  Dr Choa saw him in May 2002.  The material findings were neck and shoulder pain, especially with changes in the weather and head movement.  This pain can radiate down the outside of his arms.  Prolonged sitting can cause this to be exacerbated which will radiate lower down his back.  As a result, he has given up mahjong.  As to his upper limbs there is no problem with power and dexterity.  He has allodynia to the lateral sides of his arms which is worst over the base of the thumb and lateral surface of his index figure.  Cold water splashed over this part is particularly unpleasant.  As to his lower limbs he complained of his legs going numb after prolonged sitting and that any impact will bring on pain to neck and upper back.  He has had to give up hobbies such as hiking and outward bound activities.  He has also lost interest in sex due to pain to his upper limbs brought on by the vigour of sexual intercourse.  Dr Choa says that although the problems with hyper-sensitivity have improved over the two years since the accident and that medication and anti-depressants should result in further improvement, this pain will be a permanent feature.

32.  Dr Woo saw him about 14 months after Dr Choa during which time there had been further improvement in his symptoms.  Nevertheless, he accepts that further improvement in his neurological symptoms, referred to in his and Dr Choa’s report, caused by this hyper-extention injury is not likely although it could be alleviated with medication.

33.  It is significant that he will have to cope with permanent painful episodes and paraesthesia to the outer extremities of his arms.  Nevertheless, he has been fortunate to be able to return to work and as will become apparent presently he is able to perform his duties to the same admirable pre-assault standard.  His hobbies such as being a scout-leader and outward bound trainer have been curtailed.  These activities gave him much pleasure and it is to be hoped that after the close of this litigation he will try to return to them as best as he can.

34.  I have been shown ‘comparable’ awards by both counsel.  None is really in point although they show a range from $200,000.00 to $400,000.00, with Mr Kwok contending for the higher level.  In my judgment the aggravating feature is the fact that the condition will be permanent thereby affecting the quality of life in a material way although not to the extent that this affects his ability to conduct a normal life in terms of his work.  The fact that it also curtails his outside interests in scouting and outward bound is also significant where these activities meant so much to him.  Nevertheless, I believe he may be able to steel himself to return to them.  In my judgment the appropriate award under his head is $300,000.00.  The level of pain and its frequency is not such as would justify an award at the higher figures suggested by Mr Kwok.

Expenses and losses incurred to the date of the Statement of Claim

Medical Expenses

35.  These relate to treatment at a hospital on the mainland, just over the border, for acupuncture and for massage which are in addition to free treatment at the Princess Margaret Hospital which included physiotherapy sessions lasting 15 minutes on each occasion.  It is right to allow for some element of such complementary treatment provided that it is shown to be reasonably incurred and subject to evidential proof of these expenses.

(a)       Acupuncture at Shen Tin Hospital since October 2000

36.  The claim is for 100 treatments at the perfectly reasonable sum of $100.00 each time.  It is suggested that this expenditure is continuing.  There are no fee notes for these consultations although there is clear evidence, which I accept, that the Plaintiff did attend this hospital.  As to frequency of treatment the Plaintiff has put in his travel record to China which is very much second best to production of a fee note.  I am only prepared to make a broad appraisal of this and allow for 50 such treatments at $100.00 which amounts to $5,000.00.  Given the static nature of his condition I very much doubt that treatment beyond the 50 occasions that I have allowed for would be particularly efficacious and it is noteworthy that his medical expert has not commented on the need or benefit of this type of treatment.

(b)       Massage at Tin Sing Club

July to October 2000

$120.00 x 30 visits

37.  This is a leisure and health club rather than a medical facility.  It involved the Plaintiff using stretching machines and weights.  Some of this should be allowed under a general heading of physiotherapy.  I will allow half of what has been claimed which amounts to $1,800.00.

(c)       Neck support $150.00

38.  This amount will be allowed.

Travelling expenses

(a)	Whilst the Plaintiff was hospitalized for 11 days $906.40
	This will be allowed.  It is entirely reasonable.
(b)	As are visits for out-patient treatment and medical boards $1,176.00.
(c)	This is a claim for the Plaintiff family’s travelling expenses in order to accompany him to Princess Margaret Hospital and to medical boards.  These are for 35 trips at $33.60 per journey.
	I consider it reasonable for a member of the family to have gone for the first 5 occasions to support him but thereafter the Plaintiff could have managed well enough on his own.  The award will be 33.60 x 5 = $168.00.
(d)	Travel to Shen Tin Hospital for acupuncture
	I have allowed for 50 treatments and so I will allow for 50 journeys at $121.60 per journey = $6,080.00.
(e)	This is the travel claim for stretching and weight at the Tin Sing Club.
	I have allowed half the claim and so the amount allowed is 15 x $121.60 = $1,824.00

Tonic food

39.  A reasonable amount is provided.  The amount claimed is $10,000.00 which is reasonable $10,000.00.

Pre-trial loss of earnings

(a)       The claim is for loss acting pay of $8,000.00

40.  As can sometimes happen, this dispute has taken a disproportionate amount of time in terms of the evidence called.  The post of Chief Hawker Control Officer in an acting capacity became available.  The Plaintiff was the most senior officer of the suitably qualified candidates.  In his absence due to his being on sick leave a Mr Law who was marginally more junior was given the acting position.  The 1st Defendant’s case on this was that even if the Plaintiff has been available Mr Law would have got the nod over him because he was better regarded, which is not to say that the Plaintiff was not also very highly thought of.  I have seen the Plaintiff’s reports and they really are quite outstanding but now that the 1st Defendant has been put to it to say so its case is that of the two men Law was more highly thought of.  In respect of this particular period I have seen the nomination for the relevant acting period and I am bound to say that it can be read as indicating by virtue of his seniority the Plaintiff would have got the acting appointment.  Nevertheless, Mr Leung, the officer responsible for these matters, is adamant that Mr Law would have got this particular stint even if the Plaintiff had been fit.  It is very difficult to second guess the bureaucracy that lies behind these civil service internal decisions on a matter such as acting.  In circumstances where the Plaintiff carries the burden of showing that he would have got the acting I cannot say on all the evidence that he has carried that burden.  This part of the claim must therefore fail.

(b) Wasted rest days and statutory holiday pay.

This is for $35,997.53

41.  This relates to time worked by officers during rest days and public holidays as Hawker Control Officer are frequently required to do.  The argument is that as the Plaintiff was on sick leave he could hardly take advantage of this compensatory system.  You need to be available to work in order to get this.  I accept that submission and so this part of the claim must also fail.

Post trial loss of earnings

Loss of promotion opportunities

42.  This again relates to the appearance of Mr Law Chung Kam who is said to have stolen a march on the Plaintiff since the Plaintiff became indisposed and was passed over.  I have seen the reports and heard the departmental witnesses.  It is quite clear that the Plaintiff is and was an excellent man but so are many others at his grade.  Opportunities are few and far between.  It is quite impossible to substitute my own views on the promotion system as to acting and substantive promotion for those of the department.  The department says that for all his undoubted qualities there were better candidates than the Plaintiff.  I have seen a résumé of their relative strengths.  I am unable to say that the department is wrong in its assessment as to the respective merits of Mr Law and the Plaintiff.  I am afraid that the Plaintiff has fallen short of showing, on the balance of probabilities, that he would have been promoted or got acting pay as Acting Chief Hawker Control Officer.  The 1st Defendant has put forward a most convincing case on this to show that whatever the state of the Plaintiff’s health it would have been Mr Law who would have got the acting and not the Plaintiff.  That being the state of evidence this part of the claim must therefore also fail.

Loss of future employment

43.  As to this the Plaintiff has made clear in his evidence that after his retirement he has no plans to enter into further employment which of course is sufficient to dispose this part of the case.  In any event I am certain that where he has been able to return to work he would also be able to do any other work that he may wish to involve himself in after he retires at the age of 60 in 5 years’ time.

Loss of earning capacity

44.  This must fail.  He is back and up to speed.  There is no prospect of him losing his employment.  His earning capacity is undimished and I say that notwithstanding the percentages I have seen in the medical assessments.

Future medical and medically related travel expenses

45.  There is no need for further treatment and so this must also fail.

Aggravated damages

46.  This was a deliberate attack on a public official in public which was seen by members of the public.  It was humiliating for the Plaintiff to have undergone such an experience, quite apart from the other matters which have entitled him to compensatory damages.  I will therefore award $30,000.00 as an additional amount for aggravated damages.

Summary

Pain, suffering and loss of amenity	$300,000.00
Expenses up to the date of the statement of claim	$27,104.40
Post-trial loss of earnings	NIL
	$30,000.00
Aggravated damages	$357,104.40

Interest

(i)         On general damages for pain and suffering and aggravated damages I award 2% from the date of the writ until judgment thereafter at the judgment rate until payment.

(ii)        On the other damages interest will be at half of the judgment rate from the date of the assault until judgment and thereafter at the judgment rate.

Costs

47.  The 2nd Defendant will pay the Plaintiff’s costs on the District Court scale having regard to the size of the award and the Plaintiff will pay the 1st Defendant costs on the High Court scale.  These will be orders nisi.